CASE OF OSAKOVSKIY v. UKRAINE
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time)
Aleš Pejchal;André Potocki;Angelika Nußberger;Mark Villiger;Myroslava Antonovych;Vincent A. De Gaetano
5. The applicant was born in 1979 and lives in Kharkiv. 6. In August 2003 F., a cashier in a game-machines arcade, was found at his workplace unconscious with head injuries. He died in hospital shortly afterwards. 7. On 8 June 2004 the applicant was arrested by the Leninskiy District police of Kharkiv (“the district police”) and confessed to having inflicted injuries on F. and robbed the arcade. According to the applicant, that confession was false and had been given by him as a result of ill-treatment. In particular, police officers had applied electric current to his body, suffocated him in a gas mask and applied various other unspecified torture techniques. 8. At an unspecified time on the date of the applicant’s arrest he was assigned a legal-aid lawyer, S. 9. Also on the same date the applicant had a confrontation with two witnesses, who claimed that they had seen him running near the arcade, with his bare chest covered in mud and blood, on the day when F. had been found injured. 10. On 9 June 2004 the applicant participated in a reconstruction of the crime scene and confirmed his confessional statements in presence of S. 11. On 10 June 2004 the applicant was indicted on charges of causing fatal injuries to F. and robbing the arcade. During questioning on that date he confirmed his previous statements. On the same date the Leninskiy District Court of Kharkiv (“the District Court”) remanded the applicant in custody, having found that there was a substantial risk that he might abscond or commit other crimes, as the charges against him were serious and he had no steady employment. 12. On 11 June 2004 the applicant was placed in the Kharkiv pre-trial detention facility (“the Kharkiv SIZO”), examined by the SIZO medical staff and certified as having no bodily injuries. 13. In July 2004 the Kharkiv Psychiatric Hospital, having conducted an in-patient psychiatric assessment of the applicant, issued an opinion that he was suffering from a mixed personality disorder, which did not prevent him from understanding the meaning of his actions or controlling them. 14. In July 2004 B., a privately hired lawyer, was admitted in the proceedings as a replacement for the legal-aid lawyer, S. 15. On 31 July 2004 the applicant, questioned in B.’s presence, retracted his previous confessions, claiming that they had been given under duress from the police, and pleaded innocent. Copies of his relevant statements and ill-treatment complaints have not been submitted to the Court. 16. On 4 August 2004 in a confrontation with the applicant, police officer B. denied having ill-treated him. On the same date the Leninskiy District Prosecutor’s Office (“the District Prosecutor’s Office”) refused to set up a criminal inquiry into the applicant’s allegations of ill-treatment for want of objective evidence. There is nothing to show that the applicant appealed against that decision. 17. On 18 August 2004 the applicant was committed to stand trial before the District Court. 18. On 13 September 2004 the District Court extended the applicant’s detention, having found no reasons to release him. 19. On 14 December 2004 the applicant complained in court that he had been ill-treated by the authorities with a view to extract self-incriminating statements and requested to be released against an obligation not to abscond. On the same date the District Court ordered the applicant’s release against an undertaking not to abscond. It noted that, notwithstanding the gravity of the charges against the applicant, there was no evidence that he might abscond or commit other crimes if at liberty. 20. On 16 March 2005 the District Court remitted the applicant’s case for further investigation, having found that the applicant should have been charged with murder, rather than with injuring F. The court also ordered that the applicant’s ill-treatment allegations be verified. By the same decision, the court remanded the applicant in custody again. The relevant part of the decision read as follows: “The court also considers that the preventive measure in respect of [the applicant] should be replaced by a custodial one, since, if he remains at liberty, he may hide from the investigative authorities, which would interfere with the establishment of the true facts of the case”. 21. The applicant, represented by B., appealed, seeking, in particular, to be released from custody. 22. The prosecution also appealed, arguing, in particular, that the case had been ready for trial and that the legal classification of the applicant’s crime could have been decided in the course of the trial proceedings. 23. On 7 July 2005 the Kharkiv Regional Court of Appeal (“the Regional Court”) allowed the prosecution’s appeal and remitted the case for trial. It also rejected the applicant’s request for release from custody, noting that the District Court had properly assessed the facts and adduced sufficient reasons for remanding him in custody. 24. In August 2005 the District Court ordered the prosecutor’s office to inquire into the applicant’s ill-treatment complaints. 25. On 2 September 2005 the District Court adjourned the proceedings to enable the prosecutor’s office to carry out its inquiry into the applicant’s ill-treatment allegations. 26. On 12 September 2005 the applicant underwent a forensic medical examination, which found, in particular, that he had an old scar and an area with a modified skin on his body. However, it was not possible to establish whether he had sustained any injuries in June 2004. On the same date the district prosecutor’s office refused to institute criminal proceedings against the police officers implicated by the applicant in his ill-treatment, for want of evidence of such ill-treatment. 27. On 14 September and 3 November 2005 the applicant requested that he be released against an undertaking not to abscond. His requests were rejected by the District Court with reference to the gravity of the charges and the absence of grounds for release. 28. On 19 December 2005 the District Court remitted the criminal case against the applicant for further investigation, having found that insufficient evidence had been collected for his conviction and that procedures had been breached in collecting the evidence. The court also ordered a further inquiry into the applicant’s ill-treatment allegations. In the same decision the District Court refused the applicant’s request for release from custody, stating that the custodial preventive measure had been “properly applied”. 29. On 18 January 2006 the Kharkiv Regional Prosecutor’s Office revoked the decision of 12 September 2005 not to institute criminal proceedings in respect of the applicant’s allegations of ill-treatment and ordered further inquiries. 30. On 4 February 2006 the district prosecutor’s office again refused to institute criminal proceedings in respect of the applicant’s ill-treatment complaints. They noted, in particular, that according to the applicant’s submissions, on 8 June 2004 two police officers, B. and M., had arrested him and taken him to a wooded area, where they had beaten and threatened him, demanding self-incriminating statements. Upon his arrival at the police station, they took him to the basement and continued beating him. They also made him smoke a cigarette while wearing a gas mask and applied electric current to his naked body. The district prosecutor’s office further noted that the applicant’s version of events was full of inconsistencies and wholly improbable. For instance, contrary to his allegations, it was physically impossible to smoke a cigarette in a gas mask without burning one’s face, which had not happened. In addition, the police officers could not possibly have tortured him in the basement, since the building at issue had no basement. They further noted that the applicant’s inconsistent conduct after arrest and his further submissions concerning ill-treatment might have been affected by his psychiatric diagnosis. 31. According to the applicant, he complained about that decision on various dates to different authorities, including the General Prosecutor’s Office, but to no avail. He did not submit copies of his relevant complaints to the Court. 32. On 1 March 2006 the applicant’s case was remitted to the District Court for trial. 33. On 14 April and 14 June 2006 the applicant requested that he be released against an undertaking not to abscond. On the same dates, the District Court refused his requests, finding no reasons for releasing him. 34. On 18 August 2006 the District Court acquitted the applicant of the charges and released him from custody. It noted, in particular, that the reconstruction of the crime scene of 9 June 2004 had been carried out in breach of various procedural requirements, which the applicant’s legal-aid lawyer S. had never complained about. In those circumstances, there were grounds to doubt that the applicant had been adequately represented at the beginning of the investigation and the court could therefore not conclude that his initial confessions had been genuine. The court held that in those circumstances, any doubts as to the applicant’s guilt should be interpreted in his favour and he should be acquitted. 35. On 30 October 2007 the Regional Court quashed the above judgment and ordered a further investigation of the charges against the applicant. 36. On 15 January 2008 the applicant was placed in hospital with acute sinusitis. On the same date the investigation was suspended. 37. On 31 January 2008 the applicant was discharged from hospital. 38. On 27 July 2012 the decision to suspend the proceedings was set aside and the investigation was resumed. 39. As of the last correspondence by the parties dated June 2013, the proceedings were pending. 40. On 7 May 2004 D.’s body was found in a river. She appeared to have been strangled. On the same date the Chuguiv police instituted criminal proceedings into the circumstances of her death. 41. In August 2004 the Chuguiv Prosecutor’s Office identified the applicant as an acquaintance of D.’s and a potential suspect. They notified the administration of the Kharkiv SIZO, where the applicant was being detained at the material time. 42. At about 11.50 p.m. on 25 August 2004 the applicant’s cellmates in the SIZO called the authorities, alleging that he had engaged in self-injury. On the same date the applicant was examined by a SIZO medical professional, who recorded that he had cut his left arm several times. According to the applicant’s explanations addressed to the SIZO governor following the accident, he had cut himself with a razor blade intended for shaving because of his sudden anguish on learning that his wife had filed for divorce and that he was potentially facing a long-term prison sentence. The applicant’s cellmates gave similar explanations. 43. Following the incident, the SIZO governor sent the applicant’s medical records to the Kharkiv forensic experts facility, asking it to assess the gravity of the applicant’s injuries. He informed the experts that according to his information, the applicant had inflicted the injuries on himself at about 11.50 p.m. on 25 August 2004. 44. On 1 and 15 September 2004 the forensic experts informed the SIZO governor, after examining the records, that the injuries at issue could be classified as minor and that they could have been inflicted at the time and in the manner described in the governor’s letter. 45. On 2 September 2004 representatives of the Chuguiv police visited the applicant in the SIZO and took his fingerprints and samples of his blood and saliva in connection with the investigation of D.’s death. 46. On 3 and 20 September 2004 the SIZO governor concluded that there was no need to conduct further investigations into the applicant’s injuries of 25 August 2004. Referring, primarily, to the experts’ findings, the applicant’s own explanations and those of his cellmates and the SIZO staff questioned, he found that there was sufficient evidence that the applicant had spontaneously inflicted those injuries on himself when suffering an anxiety attack. 47. On 21 September 2004 the SIZO authorities took a statement from the applicant, in which he confessed to having killed D. 48. On 9 October 2004 the applicant was indicted on charges of killing D. and pleaded guilty during questioning by the Chuguiv police investigator. 49. On the same date the Chuguiv prosecutor dropped the charges against the applicant, having found that his statements were inconsistent with the objective evidence on the file. 50. On 11 November 2004 the criminal proceedings against the applicant were discontinued for lack of evidence of his involvement in D.’s murder. Subsequently the Regional Court convicted two other individuals of the crime at issue. 51. On 14 December 2004, during a court hearing in the first set of criminal proceedings against the applicant, he complained that he had been subjected to unlawful pressure and ill-treatment in the SIZO. He claimed, in particular, that in August and September 2004 he had been questioned off the record by the SIZO authorities and various other officers, who had coerced him to give self-incriminating statements concerning D.’s murder. In addition, the authorities had engaged his cellmates in threatening and harassing him with a view to obtaining such confessions. The applicant also said that, although the charges concerning D.’s murder had been dropped, he was afraid of similar pressure in connection with the criminal proceedings in F.’s case. 52. On various occasions between 2004 and 2006 the applicant complained to the prosecutor’s office and other authorities that he had been ill-treated in the SIZO with a view to making him confess to D.’s murder. No copies of the relevant complaints have been submitted to the Court. It appears from the summaries of the applicant’s complaints drafted by the prosecutor’s office that he maintained that he had been psychologically pressured on numerous unspecified occasions in August and September 2004. On 25 August 2004, in particular, warden K. and detainee L. had beaten him in K.’s office. When the applicant returned to his cell, detainees L. and P. continued to beat him, while other cellmates held him down. According to some of the summaries, the applicant maintained that his arm had been cut by his inmates, while according to others he had cut it himself in the hopes that the wardens would be called and he could get out of the cell. 53. On 27 April 2006 the prosecutor’s office refused to institute criminal proceedings in respect of the applicant’s ill-treatment allegations, having found that the SIZO governor’s conclusions of 20 September 2004 had been well-founded. 54. On 23 August 2006 the deputy regional prosecutor revoked the decisions of 20 September 2004 and 27 April 2006 and ordered a further inquiry into the circumstances in which the applicant had sustained his injuries and had falsely confessed to D.’s murder. 55. On 25 September 2006 the prosecutor’s office took a fresh decision not to institute criminal proceedings, having found that there was no ill-treatment case to answer. They referred, primarily, to the explanations provided by the applicant’s inmates in 2004 and to the questioning of the SIZO wardens. They noted, in particular, that according to M., the deputy SIZO governor, on 20 August 2004 the SIZO had received information from the Chuguiv police concerning the applicant’s possible involvement in D.’s murder. Following this information, the SIZO officers had questioned the applicant about the matter and he had volunteered his confession without any pressure having been applied to him. 56. The parties did not inform the Court whether that decision was further appealed against.