CASE OF VERGELSKYY v. UKRAINE
Remainder inadmissible;Violation of Art. 3 (procedural aspect);Violation of Art. 3 (substantive aspect);Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - award
Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Stanislav Shevchuk;Zdravka Kalaydjieva
5. The applicant was born in 1936 and lives in Romny. 6. After last being seen in the applicant’s house on 7 June 2003, Mr O.S., the applicant’s acquaintance, disappeared. On several occasions between June 2003 and March 2004 the applicant explained to the police that he was unaware of Mr O.S.’s whereabouts following his departure from the house. 7. On 11 June 2003 the police seized from the applicant’s house a knife and several objects spotted with a brown substance. According to an expert assessment obtained in March 2004, these spots were human blood that probably belonged to Mr O.S. 8. On 27 March 2004 the applicant confessed that he had accidentally killed Mr O.S during a drinking party. He had then dismembered the body, packed it in sacks and disposed of it in the Romenka River. On the same date criminal proceedings were instituted against him on suspicion of murder. The applicant was taken to the river bank to point out the place where he had dumped the sacks. However, no body parts were found. 9. On 30 March 2004 the applicant was detained as a criminal suspect. 10. On 6 April 2004 the investigator brought formal charges against the applicant for murder. 11. On 9 April 2004 the applicant was released after giving an undertaking not to abscond. 12. On 16 April 2004 the applicant informed the Town and the Regional Prosecutor that he had confessed to having killed Mr O.S. under torture. He further submitted that in reality Mr O.S. had apparently been killed by two masked robbers, who had broken into his house during the drinking party on 7 June 2003 and knocked the applicant unconscious. He had kept this story secret fearing reprisals by the robbers. 13. Between April and December 2004, on some four occasions, criminal proceedings against the applicant were suspended for periods ranging from several days to some three months on account of his ill-health or for unexplained reasons. At the same time, certain investigative actions, such as the examination of witnesses, were carried out during the periods when the investigation was officially suspended. 14. On 21 January 2005 the applicant was committed for trial. 15. Between February and July 2005 the prosecution withdrew the case file from the court on four occasions for the rectification of procedural omissions. On 1 August 2005 the applicant was committed for trial for the fifth time. 16. On 8 August 2005 human bones were retrieved from the Romenka River. On the same day the prosecution withdrew the case file from the court in order to verify whether these bones belonged to Mr O.S. 17. On 12 August 2005 the Town Court authorised the applicant to be remanded in custody for ten days. 18. On 19 August 2005 the Town Court, following a hearing held in the presence of the applicant and his lawyer, authorised that pending the outcome of pre-trial investigation the applicant be detained for a maximum period of two months, on the grounds that there was a serious suspicion that he had committed the offence with which he had been charged and that during the pre-trial proceedings he had changed his place of residence and attempted to influence a witness. 19. On 2 September 2005 the Town Prosecutor refused an application for bail lodged by the applicant. On the same date the Town Court informed the applicant that it was not competent to deal with bail applications while the case was at the investigation stage. 20. On 23 September 2005 the case file and a new bill of indictment were sent to the Town Court. 21. On 3 October 2005 the prosecutor withdrew the case for the rectification of omissions. The case was referred back to the Town Court on 4 October 2005. 22. On 13 October 2005 the Town Court scheduled the case for trial proceedings, reviewed the decision to hold the applicant in custody and found no reason to release him. In November 2005 the Town Court held five hearings. 23. On 24 November 2005 the Town Court decided that further investigations were called for and remitted the case to the prosecution. On the same date the court rejected an application by the applicant for his release on bail and authorised his detention pending the above-mentioned investigations. 24. The applicant appealed against the decision to extend his detention. On 7 December 2005 the Sumy Regional Court of Appeal (Апеляційний суд Сумської області, hereafter “the Court of Appeal”) found that it was not competent under the law to deal with this appeal. 25. On 18 January 2006 the case was referred back to the Town Court for trial. 26. Between March and June 2006 the Town Court scheduled ten hearings. Three of them were adjourned on account of the prosecutor’s failure to appear. One was adjourned on account of the failure to appear by the prosecutor and the applicant’s lawyer. 27. On 17 May 2006 the Town Court ordered the applicant’s release on bail. 28. On 5 June 2006 the Town Court ordered an additional assessment to be carried out by a genetics expert. 29. On 31 October 2006 the Town Court requested the expert to expedite the assessment. 30. On 16 November 2006 the expert assessment was carried out and on 12 December 2006 the report was delivered to the Town Court. 31. On 29 December 2006 the hearing was adjourned until 25 January 2006 to summon experts. The experts failed to appear on this date. 32. On 26 January 2007 the Town Court reminded the experts of their obligation to appear at hearings. 33. On 19 February 2007 the Town Court examined two experts and a witness and ordered a further assessment by a commission of experts. 34. On 22 February 2007 the Town Court addressed the prosecutor by letter demanding the submission of material evidence for expert assessment. On 5 March 2007 the Town Court sent a reminder. 35. On 17 April 2007 the Town Court made enquires of the expert as to the status of the assessment. 36. On 5 May 2007 the assessment was carried out. 37. Between June and October 2007 the Town Court scheduled six hearings. Two of them were adjourned on account of the prosecutor’s failure to appear. By letters of 28 August and 4 October 2007 the Town Court reminded the prosecutor of his duty to appear for hearings. 38. On 12 October 2007 the Town Court remitted the case for additional investigation. The Town Court referred, in particular, to the failure of the prosecution to carry out a comprehensive inquiry into the applicant’s allegation that he had confessed to the killing of Mr O.S. under duress. 39. On 20 December 2007 the Court of Appeal quashed this decision, having found that the shortcomings of the investigation of the murder were such that they could be addressed at the trial stage by examination of witnesses and other evidence in court. 40. On 10 June 2008 the Town Court remitted the case for additional investigation, referring to numerous procedural shortcomings in the carrying out of the investigation, the handling of evidence and the drafting of procedural documents. The court noted, in particular, that the investigation had been suspended on several occasions for no reason or in connection with the applicant’s ill-health, despite the fact that there was no relevant medical documentation attached. Furthermore, during these periods the authorities continued with their investigations. 41. According to the case file materials, the proceedings are currently pending. 42. According to the applicant, on 19 March 2004 he visited public baths with Messrs V.B. and V.S., his relatives. 43. Shortly after 10 a.m., immediately after he had returned home, the applicant was seized by two police officers and taken to the Romny Police Department (Роменський міськрайонний відділ УМВС України в Сумський області, hereafter “the Police Department”). There the police officers beat him with their fists and truncheons and stamped on his feet, demanding that he confess to the killing of Mr O.S. At about 3 a.m. on 20 March 2004 the applicant, completely exhausted, fell unconscious and was placed in a police cell for temporary detainees. 44. Shortly after 3 a.m. an ambulance arrived. The applicant complained about pain in the heart and a headache and was administered treatment for low blood pressure. The applicant was further detained. 45. On 22 March 2004 investigator I.S. proposed that the applicant sign an acknowledgement that he had been properly arrested on 20 March 2004 for swearing in public and that he had no claims against the police. The applicant agreed, allegedly hoping that his suffering would end. 46. On 22 March 2004 the applicant was brought before the Town Court, which sentenced him to seven days’ administrative arrest (адміністративний арешт) in the Centre for Temporary Detention (Ізолятор тимчасового тримання, hereafter “the ITT”) for petty hooliganism on 20 March 2004. 47. According to the applicant, each day he was taken to the Police Department, beaten, threatened and urged to confess to the killing. On 24 March 2004 the applicant told the police that Mr O.S. had apparently been killed by two masked robbers. However, the officers continued to demand that the applicant confess that Mr O.S. had been killed by him. As the last day of the applicant’s detention approached, the pressure was intensified. On 27 March 2004 the applicant pleaded guilty to the murder of Mr O.S. 48. On the evening of 27 March 2004 the applicant was formally released. However, the police in fact continued to keep him in some vacant offices in the Police Department, until on 30 March 2004 he was officially detained as a criminal suspect. 49. On 6 April 2004 the applicant underwent an assessment by a medical expert of the Romny Bureau of Forensic Medical Examinations (Роменське бюро судово-медичних експертиз). The examination revealed some eight large bruises (about 15x10 cm each) in the applicant’s groin area, on his thighs and shoulders. The expert concluded that these bruises could have resulted from a beating as well as from a fall. He further found it impossible to determine the probable date on which the bruises had been sustained, as they could remain on the body for up to one and a half months. 50. On 9 April 2004 the applicant was admitted to hospital on account of stress-associated asthenia (a personality disorder, characterised, in particular, by insomnia, anxiety, headache and bodily weakness). On 19 April 2004 the applicant returned home. 51. On 31 January 2008 a commission of experts analysed the medical documents relating to the applicant’s injuries. It confirmed the earlier findings by the single expert and noted that, regard being had to the number of bruises and their diverse localisation; they were unlikely to result from a single fall. 52. On 16 April 2004 the applicant lodged a criminal complaint against police officers for ill-treatment. The complaint was addressed to the Romny Town and Sumy Regional Prosecutors. 53. On 13 July 2004, on the basis of the statements of four police officers denying subjecting the applicant to any ill-treatment and the fact that during his questioning as a suspect on 1 April 2004 the applicant had not complained of any police violence, no prima facie case of ill-treatment was found and the inquiry into the applicant’s complaint was discontinued. 54. On 14 December 2004 the applicant was given access to the above decision. On 20 December 2004 he challenged it before the Town Court. 55. On 24 January 2005 the Town Court quashed the decision of 13 July 2004, finding that further inquiries were called for. It noted, in particular, that the police officers had been questioned before the formal commencement of the inquiry. Moreover, the investigator had failed to question persons listed in the applicant’s complaint who could allegedly confirm the applicant’s ill-treatment; to examine the circumstances of the applicant’s stay at the Police Department before his official arrest; or to determine how the applicant had sustained his injuries. 56. On 14 February 2005 the investigator decided that there was no prima facie case of ill-treatment. 57. On 26 April 2005 the Town Court quashed this decision on the ground that the investigating authorities had failed to follow the instructions set out in its decision of 24 January 2005. 58. In the course of the additional inquiry, the Prosecutors’ Office questioned the officers who had called the ambulance for the applicant on 20 March 2004, who could not recall any details; the members of the voluntary citizens’ guard, who confirmed having arrested the applicant at 4 p.m.; the ambulance doctor, who stated that she had not examined the applicant’s body on account of injuries; and the medical expert, who confirmed the findings of his assessment of 6 April 2004. On 15 May 2005 on the basis of this evidence and on the grounds set out in the decision of 13 July 2004, a fresh decision was taken not to initiate any criminal proceedings. 59. On 8 August 2005 this decision was quashed by the Town Court. The court found that the inquiries had been conducted in a perfunctory manner. It instructed the investigating authorities, in particular, to question the persons who had seen the applicant on 19 March 2004 at the public baths; the persons who had shared the cell with the applicant in ITT; and the applicant’s neighbours. 60. On 9 September 2005 it was decided not to institute criminal proceedings with reference to essentially the same grounds as before. 61. On 28 October 2005 the Town Court found that the prosecution had failed to comply with its earlier instructions. Referring to the case of Kmetty v. Hungary (no. 57967/00, 16 December 2003), the court noted that the prosecution had a duty to determine whether the applicant had sustained injuries resulting from his treatment by the police. 62. The Town Prosecutor’s Office appealed against the court’s decision. 63. On 27 December 2005 the Court of Appeal rejected the prosecution’s appeal and upheld the decision of 28 October 2005. 64. On 16 January, 12 March, 15 May, 13 August and 19 December 2006 the Prosecutors’ Office again refused to institute criminal proceedings. 65. On 24 February, 20 April, 31 July, 24 November 2006 and 16 January 2007 respectively the Town Court quashed these decisions referring to the cursory analysis of various sources of evidence and the failure of the investigation to establish a probable cause of the applicant’s injuries. 66. On 7 March 2007 a new decision not to institute criminal proceedings was taken. It was based on essentially the same evidence as before. Additionally, the investigator also explained why, in his opinion, further measures demanded by the court were either unavailable or irrelevant. For instance, it was no longer possible to find the objects with which the applicant could have purportedly been beaten. 67. On 12 April 2007 the Town Court quashed this decision. 68. By its subsequent decisions dated 10 May 2007 and 23 August 2007 the Prosecutors’ Office further refused to institute criminal proceedings. 69. These decisions were annulled by the Town Court on 21 June 2007 (upheld on appeal on 31 July 2007) and 25 September 2007 (upheld on 16 October 2007), respectively. 70. On 18 February 2008 the Prosecutors’ Office yet again refused to institute criminal proceedings. In addition to the reasons recited earlier, this decision referred, in particular, to the testimonies of Messrs V.B. and V.S. who stated that they had seen no injuries on the applicant’s body in the public baths. The prosecution found this evidence unreliable, since the witnesses were related to the applicant. Moreover, according to the attendant at the baths, she did not remember ever having seen the applicant in the public baths. As regards the testimonies by the applicant’s neighbours, they clearly recalled seeing him back at home on 19 April 2004. Their recollections concerning his presence at home between 19 March and 19 April 2004 were blurred. 71. The Prosecutors’ Office further stated that according to the Police Department visits journal, the applicant had entered the Police Department at 10:35 a.m. on 19 March 2004. The journal contained no record of his subsequent departure, apparently as a result of the fact that the door guard forgot to make the relevant entry. On that date the applicant was questioned by investigator I.S. about Mr O.S.’s disappearance. After the questioning, the applicant felt ill and was offered to stay in a police cell to recuperate. On 20 March 2004 at 3 a.m. an ambulance arrived to treat the applicant for blood-pressure complaints. Subsequently he felt better and left the cell by 8 a.m. on 20 March 2004. At about 4 p.m. on 20 March 2004 members of the voluntary citizens’ guard (ГФ «Громадський правопорядок») spotted the applicant who, apparently under the influence of alcohol, was swearing in a public street. As the applicant refused to cease his disorderly conduct in response to their demands, the guards took him to the Police Department. A report of an administrative offence was drafted and the applicant was detained in the ITT. According to applicable regulations, the staff of the ITT should have organised a medical examination of the applicant to detect any injuries or sickness before placing him in the ITT. No injuries were recorded on his body. However, since the applicant lodged no health-related complaints, the examination could have been cursory. In this connection it was not possible to rule out that the applicant’s bruises could have been sustained by a fall on 20 March 2004, shortly before he had been taken to the police, as at the time he was apparently under the influence of alcohol. At the same time, the applicant’s alcohol level was not checked, as he was not charged with being drunk in a public place. Between 22 and 27 March 2004 the applicant was daily checked out from his cell by officer I.S. for several hours at a time. These check-outs were for the purposes of the applicant’s engagement in community service or for discussions on public morale. On 27 March 2004 the applicant voluntarily confessed to having killed Mr O.S. The same day at 7 p.m. the applicant was released. 72. On 13 June 2008 the Town Court quashed this decision, referring to the fact that the investigation had still failed to comply with all its instructions and in order to determine whether the State was responsible for the applicant’s injuries. 73. On three occasions in the course of the investigation (in October 2005, April 2006 and April 2007 the Town Court also separately addressed the Prosecutors’ Office instructing it to take measures in respect of the continued non-execution of the court’s instructions by the investigating authorities. Referring to the cases of Kmetty v. Hungary (cited above) and Afanasyev v. Ukraine, (no. 38722/02, 5 April 2005) the court found that the criminal inquiry conducted had not been sufficiently thorough. 74. On 3 July 2008 the Sumy Regional Court of Appeal quashed the decision of 13 June 2008 and remitted the case for fresh consideration in first instance. According to the case-file materials, the proceedings are currently pending. 75. From 19 August 2005 to 17 May 2006 the applicant was remanded in custody. During certain periods the applicant was held in the Sumy Regional Pre-Trial Detention Centre (Сумський слідчий ізолятор, hereafter “the Sumy SIZO”). These periods were as follows: 26 September to 3 October 2005; 17 to 24 October 2005; 7 to 21 November 2005, 6 December 2005 to 5 January 2006; 14 to 20 February 2006; 6 to 13 March 2006; 15 March to 3 April 2006 and 25 April to 15 May 2006. The remainder of the time the applicant was held in the Romny ITT. 76. In August 2005 the authorities were informed that he suffered from several chronic conditions, in particular, osteochondrosis, secondary radicular syndrome, myopia, cerebral atherosclerosis, hypertension and adenoma of the prostate. 77. According to the applicant, being in detention had negative effects on his health. In particular, he began suffering from an asthmatic complaint as a consequence of being exposed to passive smoking in the cell. Furthermore, good quality medical assistance was not always readily available to him, even though he was suffering from numerous chronic conditions. Finally, medications were frequently supplied to the applicant by his sister, as the detention facility lacked them. Sometimes his sister was not informed in good time that further medications were needed. 78. In November 2005 the applicant consulted a doctor and was treated for allergic dermatitis. 79. In March 2005 the applicant consulted a doctor and was treated for cystitis. 80. On seven occasions throughout the period of his detention the applicant was tested for tuberculosis and other infections. 81. After his release and until the end of 2006 the applicant was treated in hospital twice: between 26 June and 7 July for dermophitia and between 10 and 21 October 2006 for adenoma. 82. Relevant provisions of the Constitution and the Code of Criminal Procedure can be found in the judgment in the case of Kozinets v. Ukraine (no. 75520/01, §§ 39-42, 6 December 2007).