CASE OF TESLENKO v. UKRAINE
Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Remainder inadmissible;Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Non-pecuniary damage - award
Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger
5. The applicant was born in 1974. His present place of residence is unknown. 6. On 4 August and 5 November 2003 Ms Z. and Ms G. were robbed in their flats. The first robbery took place in the building where the applicant’s acquaintance Ms M. lived, while the second victim was her distant relative. 7. On 5 November 2003 the police questioned Ms M., who was suspected by one of the victims. She stated that both robberies had been committed by the applicant and his friends. 8. On 8 November 2003 Ms M. was hospitalised with a head injury and concussion. On 10 November 2003 she complained to the Ministry of the Interior that she had been coerced by the police into testifying against the applicant. After this Ms M. went into hiding from the authorities. Her complaint was later examined as part of the applicant’s trial (see paragraph 14 below). 9. Late in the evening of 5 November or during the early hours of 6 November 2003 the applicant was apprehended by the police on suspicion of the robberies of Ms Z. and Ms G. His arrest was documented on 6 November 2003. 10. On 2 June 2004 the Solomyanskyy District Court of Kyiv (“the Solomyanskyy Court”) severed the charge concerning the robbery of Ms Z. and remitted the case in that part for additional investigation. Its outcome is unknown. 11. While it is not known when the applicant began to be legally represented, it transpires from the aforementioned ruling of 2 June 2004, as well as from the subsequent judicial decisions, that from that point onwards one or sometimes two lawyers represented him in the course of the trial. 12. Although the applicant consistently denied guilt, both during the pre-trial investigations and the trial, on 11 November 2004 the Solomyanskyy Court found him guilty of the violent robbery of Ms G. and sentenced him to seven years and six months’ imprisonment with confiscation of all his personal property. The court relied on the statements of the victim, who recognised the applicant as one of the perpetrators, as well as the statements of a witness who had seen him close to the crime scene around the time of the robbery. The court further relied on the statements given by Ms M. during the pre-trial investigation. It also heard statements from two defence witnesses, according to which the applicant had spent the whole day with them on 5 November 2003, but did not trust the statements, deeming them too general and contradictory. 13. On 24 May 2005 the Kyiv City Court of Appeal (“the Court of Appeal”) quashed the judgment and remitted the case for additional investigation, having pointed out a number of procedural shortcomings. 14. On 22 May 2007 the Solomyanskyy Court delivered a new judgment, the operative part of which was identical to the previous one. The court additionally heard a number of defence witnesses who stated that they had either spent the whole day on 5 November 2003 in the applicant’s company or had seen him at various times on that date. The court decided, however, that those statements were either untruthful, because the witnesses were the applicant’s friends and wanted to help him avoid criminal liability, or unrelated to the precise time when the robbery had been committed. Ms M. was questioned during the trial and retracted her earlier statements incriminating the applicant as given under duress. However, the court chose to rely on those earlier statements as more plausible and concordant with the other facts. It noted, in particular, that she had not requested a medical examination until two days after her questioning by the police and that there was no evidence that the injuries discovered had been inflicted on her in police custody. While Ms M. contended that she had been hiding in fear that the police might seek revenge, the court considered it more probable that she had in fact been afraid that the applicant’s accomplices who had not been detained might seek revenge. 15. On 5 February and 9 June 2008 the Court of Appeal and the Supreme Court respectively upheld the aforementioned judgment. 16. On 12 August 2009 the applicant was released on parole. 17. According to the applicant, the Chief and Deputy Chief of the Criminal Investigation Unit of the Solomyanskyy District Police Department (начальник та заступник начальника відділу кримінального розшуку Солом’янського РУ ГУ МВС України в м. Києві), officers T. and Z., tortured him in the police station at Povitroflotskyy Avenue during the night of 5-6 November 2003. They allegedly sought, but failed to obtain, a confession from him to several counts of robbery. 18. As submitted by the applicant, T. and Z. punched and kicked him, forced him to stand for a long time with his legs wide apart, attempted to insert a truncheon into his anus, and put a plastic bag over his head, stopping him from breathing. In the early hours of 6 November 2003 they allegedly took him to the police station garage, where they forced him to undress, handcuffed him to a radiator and poured cold water on him from a car-wash hose until he lost consciousness. After the applicant regained consciousness, he found himself inside the police station and was given a mug of hot water to drink and some drops. 19. On 6 November 2003 the applicant wrote an “explanatory note”, stating that he had accidentally fallen in the street the night before and had received some injuries as a result. He noted that he had no complaints against the police. 20. In the afternoon of 6 November 2003 the applicant was taken to another police station in Shutov Street, Solomyanskyy District, TUM-4 (Територіальне управління міліції № 4, ТУМ-4). 21. On 11 November 2003 the applicant’s mother complained to the Ombudsman that he had been ill-treated in police custody. 22. On 12 November 2003 representatives of the Ombudsman visited the applicant in TUM-4 and took photographs of his injuries. The applicant provided the Court with seven colour photographs, which, according to him, are those taken by the Ombudsman’s representatives. From these photographs, the following injuries can be seen on his body: a large bruise on the inner part of his left thigh, a considerable number of bruises on the upper parts of both buttocks, several sores and bruises on the front of both ankles, and sores on the bridge of his nose. The date printed on the photographs is 12 November 2003. 23. On the same date the applicant gave an account of the 5-6 November events to the Ombudsman’s representatives in writing. He submitted that on 6 November 2003 he had been forced to write that he had no complaints against the police. 24. On 13 November 2003 the Ombudsman wrote to the Ministry of the Interior that the applicant’s situation called for investigation. 25. On the same date a doctor examined the applicant and discovered sixteen bruises on his face, arms, buttocks and legs (with the largest one measuring 21 x 20 centimetres), as well as sores on his wrists and feet. He concluded that the injuries were not serious, and that they had been inflicted by blunt objects, possibly on 5 or 6 November 2003. 26. On 17 November 2003 an investigator of TUM-4 and the Chief Inspector of Staff of the Kyiv Police Department (начальник Інспекції по особовому складу РУ МВС України) questioned the applicant about his alleged ill-treatment. 27. On 21 November 2003 another investigator of TUM-4 ordered another forensic medical examination aimed at answering the following questions: whether the applicant had any injuries on his body and, if so, how they had been inflicted; whether those injuries could have been inflicted on 5 or 6 November 2003; and how serious they were. 28. On 25 December 2003 the Solomyanskyy District Prosecutor’s Office (“the SDPO”) instituted a criminal investigation, without naming any specific individuals, into the allegation that Solomyanskyy District police officers had exceeded their powers by engaging in violent and degrading treatment of the applicant. The investigation was entrusted to SDPO investigator N. 29. On 26 January 2004 a new forensic medical report confirmed the results of the applicant’s medical examination of 13 November 2003. 30. On 9 February 2004 the investigator ordered another medical examination to clarify: whether the applicant could have inflicted the injuries on himself; whether he could have sustained those injuries by falling; what his body position had been during the infliction of the injuries; and whether he could have sustained them in self-defence. 31. On 12 February 2004 an expert report answered those questions as follows: the injuries were to parts of the applicant’s body on which self-infliction would be possible; the possibility that they had been the result of a fall was excluded; and the remaining two questions could not be answered. 32. In the meantime, on 11 February 2004, the applicant was assigned victim status. 33. On 6 April 2004 the investigator questioned the forensic medical expert, who confirmed that the applicant could have sustained his injuries at the time and under the circumstances described by him. 34. On 20 April 2004 the SDPO opened a criminal case against police officers T. and Z. on suspicion of abuse of power associated with violence and degrading treatment (Article 365 § 2 of the Criminal Code), given that the applicant had recognised them as those who had allegedly tortured him. 35. On the same date those officers were suspended from duty. 36. On 30 April 2004 they were indicted, and the case was sent to the Golosiyivskyy District Court of Kyiv (“the Golosiyivskyy Court”). 37. On 9 August 2004 the Golosiyivskyy Court directed the SDPO to find out with whom the applicant had shared cells from 6 to 12 November 2003 and to question these persons. 38. On 20 October 2004 the court referred the case back to the SDPO for additional investigation, which was to clarify the origin of the applicant’s injuries given that, on the one hand, they were to parts of his body on which self-infliction would be possible and, on the other hand, his cell-mates at the time had not been identified or questioned. 39. On 22 January 2005 the forensic medical expert, repeatedly questioned by the investigator, confirmed again her earlier findings that the applicant’s injuries could have been inflicted as he had described. 40. On 8 February 2005 formal charges were brought against T. and Z. under Article 365 § 2 of the Criminal Code. 41. On 18 February 2005 the SDPO invited the Kyiv Chief of Police to consider suspending T., who had resumed his work as a police officer at some point in the meantime, from his duties. 42. On 25 March 2005 the SDPO approved a bill of indictment against T. and Z. and sent the case to the Golosiyivskyy Court for examination. 43. On 26 April 2005 the trial began. 44. On 16 May 2005 the applicant lodged a civil claim seeking compensation for non-pecuniary damage in the amount of 200,000 Ukrainian hryvnias (UAH). 45. On 16 August 2005 the Golosiyivskyy Court found T. and Z. guilty and sentenced them to four years’ imprisonment with a prohibition on working in law-enforcement bodies for two years. The prison sentence was suspended for two years on probation. The court also awarded the applicant UAH 20,000 in compensation for non-pecuniary damage, to be paid by the defendants. 46. While both defendants admitted that they had questioned the applicant on the night of 5-6 November 2003 in the police station at Povitroflotskyy Avenue, they denied any coercion. However, the court found that there was sufficient evidence to establish their guilt. It took into account statements by several witnesses, who had seen the applicant during the day before his arrest without any visible injuries. Furthermore, the court relied on the statements of the applicant’s cell-mates in TUM-4 at Shutov Street (where he had been placed in the afternoon of 6 November 2003), who, on the one hand, had seen numerous bruises and sores on his body, but, on the other, denied any ill-treatment in TUM-4. Also, the police officers who had escorted the applicant from the police station at Povitroflotskyy Avenue to TUM-4 on 6 November 2006 stated that at that time his face was already bruised and swollen. The court also examined the photographs of the applicant taken by the Ombudsman’s representatives on 12 November 2003 and relied on the findings of the medical reports of 26 January and 12 February 2004. It noted that the applicant’s description of the police station garage where he had allegedly been ill-treated, was very detailed and subsequently confirmed as accurate, which showed that he had indeed been there. 47. On 13 February 2006 the Court of Appeal quashed the judgment and remitted the case for additional investigation. It concluded that the investigation had been incomplete, mainly because it had failed to establish how exactly the injuries had been inflicted on the applicant. 48. On 22 March 2006 investigator S. of the SDPO took the case over. 49. On 21 April 2006 he ordered another forensic medical examination with a view to clarifying the number, nature, location, origin and date of each of the applicant’s injuries. 50. On 15 May 2006 an expert report was produced, which confirmed the findings of the earlier reports. It further specified that the abrasions on the applicant’s wrists could have been caused by handcuffs, while the bruises could have been caused by being punched, kicked or hit with a truncheon. 51. On 24 July 2006 the investigator instructed the Kyiv Chief of Police to find the truncheon with which the applicant could have been beaten. The reply given on 27 July 2006 stated that it could not be found. 52. On 25 July 2006 T. was again suspended from duty (it is not known when he resumed his duties following the earlier removal). 53. On 22 August 2006 investigator S. decided to withdraw from the case. He considered that the evidential basis was limited to the applicant’s allegations and not corroborated by any other valid evidence. The investigator grounded his withdrawal by that view and further referred to the principle of the impartiality of the investigation. 54. On the same date the SDPO reversed that withdrawal as lacking legal basis. 55. On 27 March 2007 the investigator applied to the Deputy General Prosecutor for an extension of the term of the pre-trial investigation to eight months (the six-month term was to expire on 7 April 2007) given that the accused had not yet studied the case file. In the application the investigator however indicated that T. and Z. had been protracting the investigation by taking an unjustifiably long time to familiarise themselves with the file and by unmeritorious requests for unnecessary investigation measures. 56. On 16 June 2007 the SDPO indicted T. and Z. again. 57. On 30 July 2007 the Golosiyivskyy Court started the examination of the case. 58. On 17 September 2007 the applicant brought a new civil claim against T. and Z. within the criminal proceedings. 59. During the period between September 2007 and March 2008 the court adjourned hearings eight times for a total of over three months because of the absence of a number of witnesses. 60. On 7 March 2008 the Golosiyivskyy Court again remitted the case for additional investigation on the following grounds: the defendants’ lawyer had been deprived of his licence at some point during the pre-trial investigation, but had nonetheless continued to represent them. As a result, the court considered that the defence rights of T. and Z. had been violated. 61. On 29 May 2008 the Court of Appeal quashed that decision and referred the case back to the first-instance court, allowing the public prosecutor’s appeal. 62. On 10 July 2009 the Golosiyivskyy Court issued a special ruling (окрему ухвалу) bringing to the attention of the Kyiv Chief of Police the latter’s failure to comply with the court orders of 14 April, 20 May and 19 June 2009, that the obligatory attendance of numerous witnesses should be ensured. The orders were that the police were to take appropriate measures and report to the court. 63. On 21 July 2009 the applicant wrote the following statement addressed to the President of the Golosiyivskyy Court: “I, Teslenko Anatoliy Grigoryevich, would like to make the following statement. The Golosiyivskyy District Court of Kyiv is currently examining a case against the Chief of the Criminal Investigation Department [T.] and [Z.], in which I am a victim. I retract the statements which I gave in the prosecutor’s office under pressure from the investigator and in court, namely that it was precisely [T. and Z.] who had beaten and humiliated me. The investigator [N.] demanded that I identify [T. and Z.]. In exchange, he promised I would be acquitted and that criminal department officials would be held liable. I remembered [T.] because he had been the Chief, and [Z.] because he had been wearing glasses. I could recognise only those two, as I could not, and do not now, remember any other officers. I was beaten up at Shutov Street, no. 3, as they really needed my confession to the robbery. But I did not remember any officers from Shutov [street], and I was advised to incriminate those I remembered. When the investigator [N.] came to see me, I was at a loss and did not know what to tell him. But he reassured me and told me that I did not have to worry and that I was to testify against those I remembered. As to what exactly I had to tell and to show, he told that he would help me. At the same time, he promised that if I followed his advice I would be at liberty shortly. It is very difficult for me now to testify before the court, for I have got confused in my statements because it was the investigator [N.] who gave them to me. I therefore request you not to disturb me any longer regarding the case of [T. and Z.] and not to bring me to the court”. 64. On 18 September 2009 the Golosiyivskyy Court directed the SDPO investigator to establish the actual places of residence of twenty-two witnesses whose obligatory presence had been ordered, but who had failed to attend and whom the police had failed to bring to the courtroom. Ten of the witnesses in question were police officers, nine were detained (at the time) in the police stations where the applicant had been placed on 6 November 2003, two were acquaintances of the applicant, and one was the forensic expert. 65. On 6 October 2009 the Golosiyivskyy Court also ordered obligatory attendance by the applicant, who had been released from prison in the meantime in July 2009 and had not been appearing for hearings. 66. On 19 October 2009 the police informed the court that the applicant’s actual place of residence could not be established. 67. On 24 March and 18 May 2010 the court ordered mandatory attendance by the applicant, to be ensured by the police. 68. On 24 June 2010 the Golosiyivskyy Court referred the case for additional investigation, given the need to question the applicant regarding his statement of 21 July 2009. 69. On 20 September 2010 the Kyiv Court of Appeal quashed the aforementioned decision and remitted the case to the first-instance court for examination. The parties did not provide the Court with a copy of this ruling. 70. According to the most recent information submitted by the Government in February 2011, the case remains pending before the Golosiyivskyy Court. 71. Article 365 § 2, as worded in November 2003, provided for three to eight years’ imprisonment with a prohibition on holding certain offices or carrying out certain activities for a period of up to three years as punishment for exceeding one’s power by engaging in the violent or degrading treatment of a victim. 72. The relevant extracts from Chapter 3.3 provide as follows: “... On 11 November 2003 the mother of detained A. Teslenko complained [to the Ombudsman] that her son had been tortured in the Solomyanskyy Police Department (у Солом’янському РУ ГУ МВС України в м. Києві). Staff members of the Ombudsman’s Secretariat verified this allegation on site and found numerous traces of beatings on the body of A. Teslenko (photos were taken). A. Teslenko gave the following explanations to the staff of the Ombudsman’s Secretariat: “I was tortured for thirteen hours in the district police station. Trying to extract a confession to a crime from me, they beat me, forced me to stand with my legs wide apart (садили на «шпагат»), prevented me from breathing by putting a plastic bag over my head, hanged me naked from handcuffs and poured cold water on me for forty minutes, threatening to make a General Karbyshev out of me. To conceal the torture, they forced me to write a statement that I had injured myself by an accidental fall on my way home the previous evening and that I had no complaints against the police.” By the way, this is a typical example: police officers often force the victims of torture to write a no-complaint statement under threats that the torture will continue or in exchange for release. Later on [such statement] is used by the police as a key proof of their innocence as regards any injuries sustained by the person. After its own investigation and the Ombudsman’s application to the General Prosecutor’s Office concerning the verification of A.Teslenko’s allegations, the Solomyanskyy District Prosecutor’s Office opened a criminal case concerning the police officers, which is now being examined by the Golosiyivskyy District Court of Kyiv. ...”