FIFTH SECTION      CASE OF GERASHCHENKO v. UKRAINE (Application no. 20602/05)     JUDGMENT     STRASBOURG   7 November 2013  FINAL 07/02/2014 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.In the case of Gerashchenko v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Mark Villiger, President, Ann Power-Forde, André Potocki, Paul Lemmens, Helena Jäderblom, Aleš Pejchal, judges, Stanislav Shevchuk, ad hoc judge,and Claudia Westerdiek, Section Registrar,Having deliberated in private on 15 October 2013,Delivers the following judgment, which was adopted on that date:PROCEDURE1. The case originated in an application (no. 20602/05) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Anatoliy Sergeyevich Gerashchenko (“the applicant”), on 19 July 2006 (see paragraphs 71-74 below).2. The Ukrainian Government (“the Government”) were represented by their Agent, most recently, Mr Nazar Kulchytskyy.3. The applicant alleged, in particular, that he had been ill-treated by the police, that a search of his home had been unlawful and arbitrary, that his pre-trial detention had been unlawful and unreasonably long and that it had lacked the requisite judicial review. He also complained that he had incriminated himself under duress and without legal assistance.4. On 16 December 2009 the complaints regarding the applicant’s pre-trial detention and the police search at his home were communicated to the Government. The Court also raised ex officio and communicated the issue of Ukraine’s compliance with Articles 8 and 34 of the Convention on account of possible monitoring of the applicant’s correspondence with the Court.5. On 15 March 2012 the President of the Section decided, under Rule 54 § 2 (c) of the Rules of Court, that the parties should be invited to submit further written observations on the admissibility and merits of the applicant’s complaints about his ill-treatment by the police and the violations of his right to legal assistance and the privilege against self-incrimination.6. Mrs G. Yudkivska, the judge elected in respect of Ukraine, was unable to sit in the case (Rule 28 of the Rules of Court). The President of the Chamber decided to appoint Mr S. Shevchuk to sit as an ad hoc judge (Rule 29 § 1(b)).THE FACTSI. THE CIRCUMSTANCES OF THE CASE7. The applicant was born in 1958 and is currently serving a prison sentence in Odessa following his conviction in criminal proceedings subsequent and unrelated to those examined in the present case.A. Background to the case8. On 4 December 2003 the applicant was convicted of possession of illegal drugs and sentenced to three years’ imprisonment. However, the sentence was suspended and he was put on probation. It was his third conviction for a drug-related offence.9. On 12 May 2004 the Khadzhybeyivskyy Police Department instituted criminal proceedings against an individual, Mr B., on suspicion of possession of illegal drugs. In the course of the investigation Mr B. stated that he had bought the drugs from the applicant.10. On 18 May 2004 the investigator applied to the Odessa Suvorivskyy District Court (hereafter – “the Suvorivskyy Court”), seeking authorisation of a search of the applicant’s home with a view to verifying Mr B.’s statement.11. On 19 May 2004 the Suvorivskyy Court authorised the police search, having agreed that it was required for the criminal investigation to progress.B. Events of 2 July 200412. According to the authorities, on 2 July 2004 an undercover police agent bought 1.9 millilitres of liquid opium from the applicant, having paid him 30 Ukrainian hryvnias (UAH) in banknotes previously marked with a luminous substance. The undercover operation was followed by a search, in the course of which the police seized the aforementioned banknotes from the applicant and equipment used for drug production that was found in his house. They also discovered a condom filled with liquid opium in his pocket.13. According to the applicant, on 2 July 2004 while he was repairing his car in the yard, a group of policemen in plain clothes broke into his property without identifying themselves or giving reasons for their intrusion and started beating him. One of the officers grabbed the applicant’s hair and pulled him into the house, where the beating continued. The applicant was then handcuffed, after which the police planted the liquid opium and the pre-marked banknotes on him. The applicant further alleged that the house search had been conducted in a chaotic and violent manner. While it was going on, he had been lying on the floor, handcuffed, in one of the rooms. From time to time, a number of officers had approached him, sworn at him and beaten him.14. The applicant’s parents and wife, as well as his acquaintance Mr Zh., who happened to be in the house at the time, witnessed the search.15. The applicant gave a written explanation to the police in which he stated that he was a drug addict and produced liquid opium for his own use. While admitting that the police had found some liquid opium and poppy straw, as well as some money in his trousers, the applicant denied selling drugs.16. According to the search report, signed by the police officers involved, two attesting witnesses and the applicant, the search lasted from 4 to 7.30 p.m.17. The undercover agent reported in writing to his superior on the same date that he had received the pre-marked banknotes at 5 p.m. and that he had bought the liquid opium from the applicant at about 6 p.m.18. After the search was completed, the police arrested the applicant and took him to Khadzhybeyivskyy Police Station “for further inquiries”.C. Pre-trial investigation and related facts19. On 3 July 2004 the applicant was examined by a neurosurgeon in the city hospital (see also paragraph 30 below). The medical certificate issued by the doctor read as follows:“No fainting, nausea or vomiting reported. No symptoms of neurological injury. The skull and the cervical vertebrae are without injury. No acute neurosurgical injuries have been discovered. There is no need for neurosurgical treatment at the time of examination.”20. There is no further information in the case file as to the circumstances of this examination of the applicant.21. On 5 July 2004 a criminal case was initiated against the applicant on suspicion of the production and distribution of illegal drugs, and he was arrested as a criminal suspect.22. On 7 July 2004 another criminal case was launched against him on suspicion of possession of drugs for his own consumption.23. On the same date the above criminal cases were joined.24. According to the Government, the applicant was informed of his right to have a lawyer on several occasions, but waived that right. The case file does not contain copies of those waivers.25. As it transpires from the applicant’s medical file, a copy of which was provided to the Court by the Government, on 7 July 2004 an ambulance was called for the applicant following his complaints of pain in the lower right side of the back. The applicant explained that he had been beaten up during his arrest on 2 July 2004. He was taken to the Odessa Regional Hospital, where he was examined by an urologist and X-rayed. The diagnosis was a contusion of the right kidney, with no impairment of the kidney’s functions. It was also recommended that the applicant undergo an ultrasound examination.26. On the same date the doctor in charge passed this information to the Khadzhybeyivskyy Police Department, where the officer on duty registered it in the logbook.27. On 8 July 2004 the investigator applied to the Suvorivskyy Court for the applicant’s remand in custody as a preventive measure pending trial.28. On the same date the Suvorivskyy Court ruled that further information about the applicant was required in order for it to decide on whether to order the preventive measure. As a result, it extended his arrest to ten days (calculated from 5 July 2004). As transpires from the court’s ruling, the applicant was legally represented at that stage.29. On 14 July 2004 formal charges of possession, production and distribution of illegal drugs were brought against the applicant.30. On the same date the applicant was questioned as an accused. The investigator referred to the applicant’s allegation of having been beaten up by the police and asked whether he had sought medical assistance. As per the minutes of the questioning session, the applicant replied as follows:“Yes. After I had been taken to Khadzhybeyivskyy Police Station, they wanted to send me to a detention facility. As I had visible bodily injuries, I was taken to the [city hospital]. A neurosurgeon examined me and my head was X-rayed. While in the hospital, I was confused and I forgot to tell the doctor that I also had pain in the lower part of [my] back. On the following day I was taken to the detention facility. At the request of the convoy officers, I did not say anything about my injuries upon my arrival there. Today I still have blood in [my] urine and my kidneys hurt.”31. On 15 July 2004 a lawyer (apparently hired by the applicant’s relatives) was admitted to represent the applicant in the proceedings.32. On the same date the Suvorivskyy Court remanded the applicant in custody as a preventive measure pending trial, for an initial period of two months (until 5 September 2004). The court noted the seriousness of the charges against the applicant and his extensive criminal record. It considered that he might flee and/or reoffend if at liberty.33. On 3 September 2004 the Suvorivskyy Court extended the term of the applicant’s pre-trial detention to three months (until 5 October 2004) upon the investigator’s application. It explained this decision by the necessity to conduct the following measures: the applicant’s examination with a view to establishing whether he was a drug addict; completion of the investigation; providing the applicant with the opportunity to study the case file; and approval of the indictment.34. On 9 September 2004 the applicant was examined by an addiction psychiatrist, who concluded that he was an opium addict in partial recovery.35. On 21 September 2004 the applicant asked the investigator to allow him to undergo a forensic medical examination, referring to the contusion of his right kidney which he claimed to have sustained as a result of his beating by the police on 2 July 2004. He noted that he had repeatedly asked to be examined.36. On 30 September 2004 the investigator rejected the above request referring to findings made by the Suvorivskyy District Prosecutor’s Office on an unspecified date, according to which the applicant had been slandering the police officers with a view to evading criminal liability.37. On 5 October 2004 the applicant was indicted. As noted in the indictment, the investigator had conducted confrontations between the applicant and the police officers involved in his arrest, during which no claims of ill-treatment had been made. The indictment also referred to statements made by the applicant’s acquaintance, Mr Zh., who had been at the applicant’s home at the time of the search (see paragraph 14 above). According to Mr Zh., the police officers’ behaviour on 2 July 2004 had been proper and he had not witnessed any violence towards the applicant or any of his family members.D. Trial38. On 28 October 2004 the Suvorivskyy Court held a preparatory hearing, during which it decided to extend the applicant’s detention as a preventive measure pending the pronouncement of the verdict.39. By a judgment of 14 March 2005, the Suvorivskyy Court found the applicant guilty of the illegal possession, production and distribution of drugs and sentenced him to five years and two months’ imprisonment (which included the unserved part of the sentence imposed pursuant to his conviction on 4 December 2003 – see paragraph 8 above). It also ordered the confiscation of all his personal property. The court based its findings mainly on the evidence obtained through the undercover operation and the searches of the applicant’s house and person carried out on 2 July 2004. It heard the police officers involved, the attesting witnesses, and three of the applicant’s neighbours. During the trial, Mr Zh. withdrew his statements given in the course of the pre-trial investigation (see paragraphs 14 and 37 above), claiming that they had been extracted from him under duress and submitting that he was not aware of any drug production or distribution by the applicant. He also maintained that he had witnessed the applicant being beaten by the police on 2 July 2004. The court dismissed this submission as untrue. It also considered the statement of the applicant’s father that he had seen a police officer planting drugs on the applicant to be untrue.40. On the same date the Suvorivskyy Court issued a separate ruling by which it held that the monitoring of the applicant’s conduct by the local police department during his probation had been inadequate.41. On 20 December 2005 the Odessa Regional Court of Appeal (“the Court of Appeal”) quashed the aforementioned judgment on the applicant’s appeal and remitted the case back to the first-instance court for fresh examination. It referred, in particular, to a number of factual discrepancies which had to be reconciled. Thus, according to the search report, the search of the applicant’s house had lasted from 4 p.m. till 7.30 p.m. on 2 July 2004. At the same time, it was indicated in the report of the undercover agent that he had received the pre-marked banknotes for the operation at about 5 p.m. and had bought liquid opium from the applicant at about 6 p.m. In other words, it appeared that the search had started about two hours before the undercover drug purchase took place. There were also discrepancies in the statements of the attesting witnesses, one of whom had submitted that the applicant had been searched in the house, while the other had noted that his body search had taken place outside, near the police car. The appellate court also noted that the applicant’s allegations of the fabrication of evidence and his beating had not been thoroughly investigated.42. Furthermore, the Court of Appeal criticised the trial court for its failure to “assess the fact that the search had been conducted on the basis of a search warrant of 19 May 2004, which had been issued at the investigator’s request concerning a different criminal case initiated a long time before the criminal investigation [against the applicant] was launched”.43. On 3 April 2006 the applicant applied to the Suvorivskyy Court for his release subject to an undertaking not to abscond.44. On 19 April 2006 the court rejected this application, having noted that the applicant was suspected of a crime punishable with more than three years’ imprisonment and that he already had three drug-related convictions to his name.45. On 6 November 2006 the applicant again applied to be released.46. On 15 November 2006 the Suvorivskyy Court replied to him by letter, stating as follows:“Your request for a change of the preventive measure of 6 November 2006 has been examined. Please be informed that you previously submitted a similar request, which was rejected by a ruling of [this court] on 19 April 2006.Given the fact that similar requests on your part have been responded to, the present request ... will be archived (“списати в наряд суду”)”.47. On 6 June 2007 the Suvorivskyy Court issued a new judgment in which it made the same findings as before. As noted therein, the two witnesses had testified that the applicant had been subjected to a body search outside the house. As to the report of the undercover agent, it was not a valid procedural document and therefore could not be relied on. The judgment was silent as to why the search of the applicant’s house had been conducted on the basis of a search warrant issued two months earlier and relating to a different criminal case.48. The Suvorivskyy Court also held as follows in the operative part of its judgment:“To maintain [the applicant’s] detention as a preventive measure pending the entry into force of the verdict.To calculate the sentence from 2 July 2004, that is from the date of [the applicant’s] actual arrest.”49. The applicant and the lawyer acting on his behalf appealed against the judgment of 6 June 2007. The lawyer submitted, in particular, that the applicant’s allegation of his beating by the police on 2 July 2004 had not been duly addressed.50. On 4 December 2007 the Court of Appeal upheld the applicant’s conviction. It noted that the applicant had chosen “the tactics of denial of the events and manipulating the established facts” by challenging the lawfulness of the police officers’ actions during his arrest. Similarly to the first-instance court, the appellate court did not address the issue of the time and context of the search warrant, on the basis of which the applicant’s house had been searched on 2 July 2004.51. On 22 March, 28 May, 11 June and 9 July 2008 the applicant lodged cassation appeals with the Supreme Court. All of them were returned to him for his failure to comply with procedural formalities, such as putting a date under his cassation appeal, signing it, or attaching a duly certified copy of the judicial decisions challenged. On three occasions the applicant was invited to rectify the indicated shortcomings. As he failed to comply, on 7 August 2008 the Supreme Court dismissed his cassation appeal without examination on the merits.E. The applicant’s correspondence with the Court52. On 13 May 2005 the applicant wrote his first letter to the Court, in which he enquired about the procedure of introduction of an application before the Court.53. On 15 July 2005 he further wrote to the Court that he considered his case yet premature, but that he planned to introduce in the future complaints under Article 5 § 3 and Article 6 § 3 (c) and (d) of the Convention.54. On 3 August 2005 the Registry of the Court warned the applicant that his file would be destroyed if he did not submit an application form within a year.55. On 19 July 2006 the applicant submitted a completed application form, which he subsequently supplemented on a number of occasions.56. The applicant’s letters to the Court sent from the pre-trial detention centre (SIZO) on 13 May and 15 July 2005, 19 July 2006, and 7 May, 18 July and 30 November 2007, bore the SIZO stamp on their first page with a handwritten date. The first page of his letters sent to the Court from prison on 4 June 2008 and 20 January 2009 bore the stamp of the prison.57. On 22 January, 27 July and 12 September 2007 the Registry of the Court asked the applicant to submit copies of a number of documents.58. In his subsequent correspondence the applicant confirmed receipt of the Registry’s letters of 22 January and 27 July, but never referred to that of 12 September 2007 and did not comply with the request contained therein.59. According to the information provided by the Government, there was no incoming correspondence for the applicant registered in the SIZO between 10 August and 10 November 2007.60. On 20 January 2009 the applicant informed the Registry that he had sent a letter to the Court on 21 October 2008, indicating the number it had been assigned by the prison administration. He also noted that the administration charged money for sending correspondence to the Court, which he could not afford. The applicant therefore stated that he had had to send his letter of 20 January 2009 through his mother. However, that letter arrived at the Court directly from the prison, accompanied by its cover letter and with the prison stamp on the first page.61. The Court did not receive the applicant’s letter of 21 October 2008. According to the Government, it was dispatched by the prison administration on the same day as it was submitted by the applicant for postage.F. Other relevant facts62. On 4 August 2009 the applicant was released on parole.63. On an unspecified date (apparently after the case had been communicated to the Government and the Government had tried to collect the relevant information), the SIZO issued an information note stating that the logbook of detainees’ complaints for 2004 and 2005 had been destroyed on 29 January 2009.64. On 14 November 2011 the Suvorivskyy District Prosecutor’s Office issued an information note stating that the materials of the investigation into the applicant’s allegation of ill-treatment (2005) had been destroyed on 20 January 2010 after the expiry of the five-year storage period envisaged by the recordkeeping guidelines approved by the General Prosecutor’s Office on 28 December 2002.II. RELEVANT DOMESTIC LAW AND PRACTICEA. Search of home and other property65. Article 30 of the Constitution (1996) guarantees the inviolability of everyone’s home. It prohibits entry into the home or other property of a person, and the examination or search thereof, other than pursuant to a reasoned court decision.66. Article 311 of the Civil Code (2003) reiterates the above constitutional principles.67. Article 177 of the Code of Criminal Procedure (1960) requires that for a search of a house or other property to be conducted, there must be sufficient grounds to believe that the items to be searched for might be found there and a reasoned court decision authorising the search. Such a decision by a court cannot be appealed against. Article 183 of the Code requires the investigating officer in charge of the search to serve the search warrant on the person(s) occupying the relevant premises. If the items searched for are not given to the investigating officer voluntarily, the latter must conduct the search forcibly.68. The relevant provisions of the Law “On Search and Seizure Activities” (1992) are summarised in the Volokhy v. Ukraine judgment (no. 23543/02, § 27, 2 November 2006).B. Pre-trial detention69. Article 29 of the Constitution is cited in the judgment on the case of Svershov v. Ukraine (no. 35231/02, § 39, 27 November 2008).70. The relevant provisions of the Code of Criminal Procedure (CCP) are to be found in the judgments in the following cases: Nevmerzhitsky v. Ukraine, no. 54825/00, §§ 53-54, ECHR 2005‑II (extracts); Kucheruk v. Ukraine, no. 2570/04, §§ 67-69, 6 September 2007; and Sergey Volosyuk v. Ukraine, no. 1291/03, §§ 24-25, 12 March 2009.THE LAWI. DATE OF INTRODUCTION OF THE APPLICATION71. The Court notes that, in accordance with its established practice and Rule 47 § 5 of the Rules of Court, it normally considers the date of the introduction of an application to be the date of the first communication indicating an intention to lodge an application and giving some indication of the nature of the application (see Kemevuako v. the Netherlands (dec.), no. 65938/09, §§ 17 and 19, 1 June 2010).72. The Court notes that in the present case the applicant’s first communication with the Court on 13 May 2005 was confined to his enquiry about the procedure of introduction of an application before the Court. As to his subsequent letter to the Court of 15 July 2005, the applicant merely referred to his plans to submit some complaints in the future considering his case to be premature at the time (see paragraphs 52-53 above).73. The Court observes that only on 19 July 2006 the applicant submitted a completed application form (see paragraph 55 above).74. It therefore considers this to be the date of introduction of the present application.II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION75. The applicant alleged that he had been beaten up by the police on 2 July 2004. He relied on Article 3 of the Convention, which reads as follows:“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”A. Admissibility76. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.B. Merits77. The applicant complained that on 2 July 2004 he had been beaten up by the police and that, as a result, he had sustained a contusion of the right kidney. In substantiation, he referred to the medical certificate of 7 July 2004 (see paragraph 25 above).78. The Government denied this allegation. They noted that on 3 and 7 July 2004 the applicant had undergone medical examinations in civilian hospitals, with no injuries having been discovered. They further pointed out that, even though the applicant had mentioned to the doctor on 7 July 2004 that he had been ill-treated by the police on 2 July 2004, he had not specified “the circumstances of that ill-treatment”. Lastly, the Government noted that the investigation file had been destroyed following the expiry of the storage time-limits (see paragraph 60 above). In sum, they contended that the applicant’s complaint should be dismissed as unsubstantiated.79. The Court reiterates that allegations of ill-treatment must be supported by appropriate evidence. In assessing evidence, the Court has generally applied the standard of proof “beyond reasonable doubt”. However, such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Ireland v. the United Kingdom, 18 January 1978, § 161, Series A no. 25). Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons under their control in custody, strong presumptions of fact will arise in respect of injuries occurring during such detention. Indeed, the burden of proof may be regarded as lying with the authorities to provide a satisfactory and convincing explanation (see Ribitsch v. Austria, 4 December 1995, § 34, Series A no. 336, and Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000‑VII).80. Turning to the present case, the Court observes that it communicated the case to the respondent Government on 16 December 2009 albeit without including the applicant’s complaint under Article 3 of the Convention, this complaint being communicated later (see paragraphs 4 and 5 above). It notes that on 20 January 2010 the domestic authorities had destroyed the file on the investigation of the applicant’s allegation of ill-treatment by the police (see paragraph 64 above). The Court considers it unacceptable that the authorities would destroy any documents relevant to what transpired during an applicant’s detention at a time after a complaint concerning that detention had been communicated to the respondent Government and before any part of an applicant’s case had been declared inadmissible.81. The Court also emphasises that the obligation on the part of the domestic authorities to investigate a credible allegation of ill-treatment by police does not derive from the purported victim’s attitude, but is to be undertaken by virtue of Article 3 of the Convention (see Arat v. Turkey, no. 10309/03, § 43, 10 November 2009, and Teslenko v. Ukraine, no. 55528/08, § 117, 20 December 2011). In circumstances where it is clear that the file investigating the applicant’s complaints of ill-treatment has been destroyed, the Court is precluded from considering the extent to which, if at all, the authorities complied with their procedural obligations under Article 3. That said, there is nothing to indicate that they did so.82. In the present case, because of the destruction of the investigation file, the Court is also precluded from using materials that were on that file in assessing the applicant’s substantive complaints of ill-treatment. It remains to be seen to what extent this will hamper the examination of the applicant’s substantive complaint.83.

Article of the Convention at issue: Article 34
Outcome: no_violation