FIFTH SECTION      CASE OF BILYY v. UKRAINE (Application no. 14475/03)       JUDGMENT  STRASBOURG 21 October 2010 FINAL 21/01/2011 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.In the case of Bilyy v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Peer Lorenzen, President, Renate Jaeger, Rait Maruste, Isabelle Berro-Lefèvre, Mirjana Lazarova Trajkovska, Zdravka Kalaydjieva, Ganna Yudkivska, judges,and Claudia Westerdiek, Section Registrar,Having deliberated in private on 28 September 2010,Delivers the following judgment, which was adopted on that date:PROCEDURE1. The case originated in an application (no. 14475/03) 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 Valentyn Valentynovych Bilyy (“the applicant”), on 29 August 2001.2. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev, of the Ministry of Justice of Ukraine.3. On 22 May 2007 the Court declared the application partly inadmissible and decided to communicate the complaints about the applicant's alleged ill-treatment by the police and the lack of an effective remedy in this respect (Articles 3 and 13 of the Convention), the conditions of his detention in the Mykolaiv Temporary Detention Centre (hereinafter “the SIZO”) (Article 3 of the Convention), the alleged unlawfulness of his detention on remand from 25 June to 26 December 2000 and from 22 June to 28 December 2001 (Article 5 § 1 (c) of the Convention), the allegedly unreasonable length of his detention on remand (Article 5 § 3 of the Convention) and the allegedly unreasonable length of the criminal proceedings against him (Article 6 § 1 of the Convention) to the Government. It also decided to examine the merits of the application at the same time as its admissibility (Article 29).THE FACTSI. THE CIRCUMSTANCES OF THE CASE4. The applicant was born in 1977.A. Ill-treatment of the applicant and criminal proceedings brought against him5. The applicant is a former police officer, who resigned from the police force in May 2000. As he maintained good relations with his former colleagues, on 21 June  2000 he participated in a party at the police station. A couple of hours later he was again passing by the police station when he saw S., who was on the night shift, and suggested that they share a bottle of cognac. S. agreed. Soon, alone at the station, the applicant and S. began to practise disarming techniques with S.'s service pistol. A fatal shot was fired accidentally in the process. The applicant had believed that the pistol was empty; however, one cartridge had been left inside by S. According to the forensic autopsy report, at that time S. had been heavily drunk (blood alcohol content of 4.59 ‰). Anticipating accusations of murder, the applicant decided to fake an attack on the police station. To that end he broke a door leading to the office of the commander of the police station and took away S.'s pistol, wallet and bag. The bag contained, inter alia, the official stamp of the police station and the deceased's police ID. He hid the pistol at his father's country residence and destroyed the stamp and ID.6. On the next morning the applicant was arrested. Upon arrival at the police station the applicant was beaten up allegedly in order to force him to confess to the murder of S. At one point one of the police officers kicked the applicant so hard his head hit the window and broke the window pane.7. A legal-aid lawyer invited by the police to advise the applicant during his first interrogation saw him being beaten up and informed his father about his arrest and ill-treatment.8. In the morning of 23 June 2000 the applicant was taken to the Mykolaiv Temporary Detention Facility (Ізолятор тимчасового тримання, hereafter “the ITT”). According to a letter of the Mykolayiv City Police Department, dated 26 January 2001, because of the absence of a paramedic on admission to the ITT the applicant was examined by the officers on duty. The letter stated that the officers were now unable to confirm whether the applicant had had any bodily injuries at that time.9. Later on 23 June 2000, at the request of the commander of the police station, the applicant was examined by an expert from the Mykolaiv Regional Bureau of Forensic Medical Examinations. The expert established that the applicant had a 1 cm long wound surrounded by fresh blood on his forehead, a rounded abrasion (0.5 cm. diameter) on his palm, and two bruises of 2x1.5 cm and 0.7x0.5 cm on his left forearm. These injuries had, according to the expert, been inflicted on 21-22 June 2000. In particular, the head injury had been inflicted not earlier than the afternoon of 22 June 2000.10. On 25 June 2000 the Prosecutor of the Leninsky District of Mykolaiv ordered the applicant's detention on remand.11. On 26 June 2000 the police officers allegedly again subjected the applicant to ill-treatment by beating him and painfully tightening his handcuffs. Following the applicant's complaint, the investigator from the Leninsky District Prosecutor's Office, assigned to deal with his case, ordered that further medical evidence be obtained. On 28 June 2000 an expert from the Mykolaiv Regional Bureau of Forensic Medical Examinations drew up a report, stating that the applicant had an abrasion on his temple of 1.5x1 cm in size, two 0.2 cm-wide abrasions around his wrists, an abrasion of 1.5x1 cm near his right armpit and a wound of 5x3.5 cm on his left thigh. According to the expert, these injuries had been inflicted 2 – 2.5 days before the examination and some not earlier than 2 days.12. On 30 June 2000 a prosecutor and several police officers, in the presence of the applicant and two witnesses, conducted a search of the country estate of the applicant's father, where they found the gun with which the police officer had been killed. The applicant had initially said that he had thrown the gun into a river, but after a team of divers found nothing in the river he had said that the gun was hidden at his father's estate. According to the applicant, the search was marred by numerous procedural irregularities. In particular, the officers involved were not officially assigned to his case, the search was carried out in the absence of the applicant's father, the alleged owner of the house, and the discovery of the gun in the backyard was not witnessed by either the applicant or the witnesses.13. On 1 July 2000 a lawyer, hired by the applicant's family to represent him, was allowed to visit him for the first time. He reported to his father having seen signs of ill-treatment on the applicant's face and body.14. On 4 July 2000 the applicant was transferred from the ITT to the SIZO.15. On 5 July 2000 the applicant was officially charged with murder, theft, illegal possession and theft of firearms and theft of documents and an official stamp. The prosecution's case was that on 21 June 2000 the applicant, a former police officer, with a view to obtaining a gun for criminal purposes, had visited officer S., his acquaintance, at the police station. There, after having consumed alcoholic beverages, the applicant had allegedly attacked S., seized his service pistol and murdered him to conceal the crime. Then, according to the prosecution, the applicant had stolen the victim's documents and personal belongings, some of which he destroyed before his arrest.16. The applicant pleaded not guilty to the murder charges. He stated, and this remained his main line of defence throughout the proceedings, that on 21 June 2000 the fatal shot had been fired accidently and that, anticipating accusations of murder, he had decided to fake an attack on the police station.17. On 27 July and 2 August 2000 the investigator conducted a crime-scene reconstruction. During these proceedings the applicant, in the presence of his lawyer, attempted to go through the sequence of events that, according to him, had taken place at the police station on the night of 21 June 2000. The proceedings were video recorded.18. On 8 August 2000 the applicant was examined by a prison doctor, who diagnosed him as suffering from post‑concussion symptoms (such as severe headaches) as a result of a head injury.19. The term of the applicant's detention on remand was successively extended on 15 August, 20 September and 25 October 2000.20. On 16 October 2000 the Leninsky District Court of Mykolaiv rejected the applicant's request for release.21. On 6 November 2000 the investigator announced the completion of the pre-trial investigations. From that date until 15 December 2000 the applicant had access to the case-file.22. On 26 December 2000 the prosecutor referred the indictment together with the case-file to the Mykolaiv Regional Court for trial.23. On 11 January 2001 a judge of the Mykolaiv Regional Court held a preparatory hearing at which the applicant's detention was extended pending trial.24. In its judgment of 1 March 2001 the Mykolaiv Regional Court found that the prosecution's charge of murder was based on assumptions and, accordingly, could not sustain a finding of guilt. Based on the applicant's statements and the evidence before it the court found that the applicant was guilty of unintentional homicide, theft of S.'s personal belongings, illegal possession of firearms, theft of firearms and theft of an official stamp and personal documents. The applicant was sentenced to a total of five years' imprisonment starting on 22 June 2000. The Mykolaiv Regional Court also decided that the applicant was to remain in detention pending the judgment's entry into force.25. The court also found that the applicant's complaints of ill-treatment had been checked by the prosecutor's office and found to be unsubstantiated. In particular, on 14 February 2001 the deputy prosecutor of the Mykolayiv Region had refused to institute criminal proceedings following the applicant's complaints.26. The applicant and the prosecution appealed in cassation. On 17 May 2001 the Supreme Court found that the Mykolaiv Regional Court had failed to consider contradictory evidence both for and against the applicant. The Supreme Court further held that the prosecution's charges were based on the evidence collected at the initial stages of the investigation when the applicant had been denied any rights of defence and had been ill-treated by the police. In particular, the court stated that the applicant had been subjected to psychological pressure and had been beaten “so severely that a window pane had been broken”. The court sentenced the applicant to one and a half years' imprisonment for the theft of the official stamp and personal documents (Article 193 §§ 1 and 3 of the Criminal Code of 1961) and remitted the remainder of the case for a fresh investigation.27. On 9 July 2001 the applicant's case file arrived at the Mykolaiv Regional Prosecutor's Office from the Supreme Court.28. On 8 August 2001 the additional investigations were completed and the applicant was given access to the case file.29. On 12 September 2001 the Supreme Court, acting on a complaint by the applicant, reviewed his sentence and admitted that it had erred in application of the criminal law. Namely, Article 42 of the Criminal Code 1961 provided that where a person was found guilty of several offences his or her combined sentence could not exceed the maximum penalty provided for the gravest of the offences concerned. As both paragraphs one and three of Article 193 of the Criminal Code of 1961 carried a maximum penalty of one year, the applicant's sentence could not exceed this term. The Supreme Court held that the applicant should be regarded as sentenced to a total of one year's imprisonment for the theft of the official stamp and personal documents. Although the applicant's sentence expired on 22 June 2001, the question of the applicant's detention was not addressed in this ruling.30. In a letter dated 25 October 2001, issued in response to a complaint by the applicant, the Mykolaiv Regional Prosecutor's Office stated that his continued detention was based on an (unidentified) court ruling extending his detention pending additional investigations.31. On 31 October 2001 the President of the Court of Appeal asked the Governor of the SIZO to specify the legal grounds for the applicant's detention. The President stated that according to the Supreme Court's ruling of 12 September 2001 the applicant's sentence should have expired on 22 June 2001 and his detention subsequent to that date had no legal basis. The outcome of this request is unknown.32. On 2 November 2001 the Mykolaiv Regional Prosecutor's Office, again in response to a complaint filed by the applicant, issued a letter in which it stated that:“Bilyy V.V. is being held in the Investigative Isolation Unit on the grounds that Article 156 § 6 of the Code of Criminal Procedure of Ukraine, in the event of remittal of the case by the court for fresh investigation, provides for a two-month extension of the accused's detention on remand.”33. On 30 November 2001 the Prosecutor of the Mykolaiv Region indicted the applicant for murder, theft and theft and illegal possession of firearms and sent the case to the Court of Appeal.34. On 28 December 2001 a preparatory hearing was held before a judge of the Court of Appeal. The judge considered that the case was ready for trial and decided that the applicant was to remain in detention on remand.35. On 1 March 2002 the Court of Appeal, following adversarial hearings, found the applicant guilty as charged and sentenced him to fourteen years' imprisonment. The applicant's conviction was based on a wide range of witness and expert evidence, including the report of the medico-ballistic expert examination which stated that the gunshot wound sustained by officer S. could not have been inflicted in the circumstances described by the applicant and that, in all likelihood, the victim had been sitting when the fatal shot was fired. The court also referred to the video recording of the crime-scene reconstruction carried out on 27 July and 2 August 2000, in which the applicant had unsuccessfully attempted to show the disarming technique which he and the victim had allegedly been practising when the shot was fired. The Court of Appeal further relied on the results of the search of the estate of the applicant's father. Any statements the applicant may have made to the police on 22-25 June 2000 were not mentioned in the judgment.36. The applicant appealed in cassation. On 4 July 2002 the Supreme Court of Ukraine held a hearing in the presence of the applicant's representative. The applicant's appeal was dismissed.37. On 15 October 2002 the Governor of the SIZO informed the applicant's lawyer that the applicant had tuberculosis.38. On 25 June 2004 the Supreme Court of Ukraine quashed the previous decisions and remitted the case for a fresh consideration. No copy of this decision was made available.39. On 10 December 2004 the Mykolayiv Regional Court of Appeal sentenced the applicant to ten years' imprisonment.40. On 14 April 2005 the Supreme Court of Ukraine quashed this decision and remitted the case for a fresh investigation.41. On 23 November 2005 the Mykolayiv Regional Court of Appeal sentenced the applicant to five years' imprisonment for unintentional homicide, theft and unlawful possession of firearms. Since the applicant had already served his sentence the court ordered his release and the applicant was released42. On 6 February 2006 the Supreme Court of Ukraine quashed that decision and remitted the case for a fresh consideration.43. On 11 July 2006 the case was remitted by the court for a fresh investigation.44. On 5 November 2006 the Supreme Court of Ukraine quashed this decision and remitted the case for a fresh consideration to the court.45. On 19 June 2007 the Kherson Regional Court of Appeal sentenced the applicant to five years' imprisonment for unintentional homicide, theft and unlawful possession of firearms. The court also mentioned that the applicant's allegations of ill-treatment had been checked by the prosecutor and found to be untrue.46. On 2 October 2007 the Supreme Court of Ukraine changed the judgment of 19 June 2007, found the applicant guilty of theft of firearms and sentenced him to four and a half years' imprisonment, holding that he had already served this sentence. The court discharged the applicant from liability for the remaining crimes because of the expiry of the statute of limitations.B. Proceedings into the applicant's alleged ill-treatment1. Criminal inquiries47. On 31 August 2000 the applicant's requests to institute criminal proceedings following his ill-treatment were rejected.48. On 18 October 2000 the Deputy Mykolayiv Regional Prosecutor, following the questioning of the applicant and the police officers involved, again decided not to institute criminal proceedings.49. On 31 January 2001 the Mykolaiv Regional Court quashed the ruling of 18 October 2000, holding that the investigating authorities had failed to question the legal aid lawyer and the prosecutor, who had allegedly seen the applicant being beaten up, and had failed to establish the circumstances in which the applicant had sustained his injuries.50. On 14 February 2001 the Deputy Regional Prosecutor, having questioned the legal aid lawyer, again refused to institute criminal proceedings into the alleged ill-treatment. No copy of this decision was made available.51. On 4 May 2001 the Mykolaiv Regional Court, on an appeal by the applicant, reviewed this decision and upheld it. The court found that the argument advanced by the applicant that his ill‑treatment was proved by two medical reports “was baseless, as it contradicted the real circumstances”. The court noted that police officers, prosecutors and the applicant's lawyers had been questioned and the origin of his injuries had been established. The court did not provide any further details in support of its findings.2. Administrative proceedings52. On 8 September 2000 the applicant's lawyer asked the Head of the Mykolaiv City Police Department whether the applicant had had any injuries when he was admitted to the ITT. By letter dated 19 September 2000 the Deputy Head of the Mykolaiv City Police Department informed the lawyer that during the applicant's stay in the ITT no injuries to his body had been noted.53. On 15 November 2000 the applicant and his father challenged this letter via the administrative complaint procedure provided by Chapter 31-A of the Code of Civil Procedure. They stated that the letter contained incorrect and misleading information.54. On 19 December 2000 the Tsentralnyy District Court of Mykolaiv (hereafter “the Tsentralnyy Court”) found for the applicant and ordered that a new letter be issued. In particular, the court referred to the findings of the forensic experts that at the time of the applicant's staying in the ITT he had had bodily injuries (see paragraph 11). The outcome of these proceedings has not been specified.C. Proceedings concerning the applicant's allegedly unlawful detention55. On an unknown date in October 2001 the applicant filed an administrative complaint against the allegedly unlawful inactivity of the Governor of the SIZO. The applicant stated that his detention after 22 June 2001 had been unlawful and that the Governor was obliged to release him.56. On 17 October 2001 the Tsentralnyy Court refused to entertain this complaint, holding that the applicant had failed to specify which law had been violated and under which procedure the complaint should be examined: as an administrative complaint or as a complaint about a violation of his constitutional rights. The Tsentralnyy Court also held that Article 415 of the Code of Criminal Procedure made it the task of the relevant Prosecutor's Office to exercise supervision over the activities of penitentiary establishments such as the SIZO. The applicant was given nine days to rectify those shortcomings.57. On 29 October 2001 the Tsentralnyy Court found that the applicant had failed to rectify the procedural shortcomings identified in the ruling of 17 October 2001 and declared his complaint inadmissible.58. On 1 November 2001 the applicant lodged this administrative complaint anew. On 25 April  2002 the Tsentralnyy Court, ruling on the merits, rejected the applicant's complaint. The court held, inter alia, that by 22 June 2001 the applicant has served his sentence and the Supreme Court, when remitting the case for additional investigations, had simultaneously ordered his detention on remand for a period of two months. This period had started to run on 9 July 2001 when the applicant's case-file was received by the Mykolaiv Regional Prosecutor's Office from the Supreme Court. As the time when the applicant had had access to the case file (from 8 August to 29 November 2001) was not taken into account in calculating the total period of detention on remand, the two‑month extension ordered by the Supreme Court had been due to expire on 2 January 2002. However, on 28 December 2001 this period had been interrupted by the trial judge's decision to detain the applicant pending court hearings.59. The applicant challenged this judgment. On 16 October 2002 the Court of Appeal upheld it. The applicant's appeal in cassation was pending before the Higher Administrative Court but no further information in this respect was provided by the parties.II. RELEVANT DOMESTIC LAWCode of Criminal Procedure60. The provisions of the Code which concern detention on remand are summarised in the judgments of Nevmerzhitsky v. Ukraine (no. 54825/00, § 54, ECHR 2005‑II (extracts)), and Solovey and Zozulya v. Ukraine (nos. 40774/02 and 4048/03, § 43, 27 November 2008)).THE LAWI. ALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE CONVENTION61. The applicant complained that he had been ill-treated during his detention in the police station and the ITT and that the State authorities had failed to undertake a thorough and effective investigation into his complaints. He also complained of the inadequate sanitary conditions of detention in the SIZO. The applicant invoked Articles 3 and 13 of the Convention, which read as follows:Article 3“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”Article 13“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”62. The parties did not submit any observations on the admissibility and merits.A. Alleged ill-treatment by the police and inadequacy of investigation1. Admissibility63. The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.2. Merits(a)  Concerning the alleged ill-treatment64. The Court reiterates the general principles determined in its case-law as regards Article 3 of the Convention in respect of ill-treatment (see, for example, Kobets v. Ukraine, no. 16437/04, §§ 40-43, 14 February 2008, with further references).65. The Court also reiterates that “where an individual is taken into police custody in good health but is found to be injured at the time of release, it is incumbent on the State to provide a plausible explanation as to the cause of the injury, failing which a clear issue arises under Article 3 of the Convention” (see Ribitsch v. Austria, judgment of 4 December 1995, Series A no. 336, § 34; Aksoy v. Turkey, judgment of 18 December 1996, Reports 1996–VI, § 61; and Bekos and Koutropoulos v. Greece, no. 15250/02, § 47, ECHR 2005).66. In the present case, the forensic expert twice established that the applicant had bodily injuries which had been inflicted on the dates when he had been detained by the police. It was further confirmed by the Tsentralnyy Court (see paragraph 54) and by the Supreme Court in its decision of 17May 2001, which found that on one occasion the applicant was beaten so severely that he had hit and broken the window pane.67. In the absence of the Government's observations, the available materials did not contain any other explanation as to the possible origin of the applicant's injuries apart from ill-treatment by the police officers. Although it was indicated in the court's decision of 4 May 2001 that the applicant's version of events “contradicted the real circumstances”, no further clarification was provided.68.

Article of the Convention at issue: Article 5
Outcome: violation