CASE OF SERGEY SAVENKO v. UKRAINE
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)
Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Mark Villiger;Paul Lemmens
5. The applicant was born in 1975. When lodging his application, the applicant was serving a prison sentence in Temnivka no. 100 Prison, in the Kharkiv Region. 6. On 10 July 2008 the applicant was placed in a disciplinary cell as punishment for a disciplinary offence committed in the prison. Another prisoner was also placed in the same cell for a disciplinary offence. 7. According to the applicant, on 11 July 2008 the first deputy governor of the prison took the applicant to a storage room and asked him for certain information about alleged unlawful activities on the part of other prisoners. When the applicant refused to give any information, the deputy governor cuffed the applicant’s hands behind his back, pushed him onto a mattress and put a plastic bag over his head. When the applicant chewed a hole in the bag, the deputy governor threw several mattresses on top of him and, presumably, jumped on them. The applicant lost consciousness. When he regained consciousness, he noticed injuries on his forearms caused by the handcuffs. 8. On 14 July 2008, during a meeting with his lawyer, the applicant wrote a complaint of ill-treatment on 11 July 2008 and described the circumstances as noted above. 9. On 15 July 2008 the applicant’s lawyer submitted the complaint to the Prosecutor of Kharkiv Region. On the same date the applicant was examined by a doctor, who noted that the applicant had suffered injuries on his forearms. The applicant explained to the doctor that the injuries had been caused to him by the handcuffs used on him on 11 July 2008. 10. On 18 July 2008 the applicant was examined by a medical expert, who had about one year of experience. During the medical examination, the applicant explained that he had caused the injuries himself using coarse yarn. The expert reported abrasions to both forearms and opined that the injuries could have been sustained at the time indicated by the applicant, namely on 11 July 2008, and could have been caused by either metal handcuffs or coarse yarn. The expert classified the injuries as light. 11. On 19 July 2008 the applicant wrote a statement that he had inflicted the injuries himself with the use of coarse yarn which he had detached from a floor cloth. His cellmate stated that the applicant had inflicted the injuries himself using a rope he made out of a floor cloth. His cellmate also stated that the applicant had rubbed salt into the skin of his forearms to deepen the injuries. The first deputy governor of the prison asserted that no physical or psychological pressure had been applied to the applicant. 12. On 21 July 2008 the applicant wrote a statement that the events he had described in his complaint of 14 July 2008 were fictitious and that he himself had inflicted the injuries on his forearms with the purpose of framing the prison administration. 13. On 25 July 2008, following pre-investigation enquiries, the prosecutor’s office responsible for supervising the lawfulness of the enforcement of sentences adopted a decision refusing to open an investigation into the applicant’s allegations of ill-treatment, finding that there had been no corpus delicti. The prosecutor noted that the applicant had withdrawn his initial allegations of ill-treatment and had submitted that the injuries had been self-inflicted, and the applicant’s cellmate had confirmed that the applicant had inflicted the injuries himself using yarn detached from a floor cloth; the medical report had suggested that the injuries might have been inflicted by either metal handcuffs or coarse yarn, as was maintained by the applicant. The allegations of ill-treatment were therefore unsubstantiated. 14. On 28 July 2008 the applicant explained in writing to his lawyer that the prison staff had exerted psychological pressure on him, as a result of which he had stated that his injuries had been self-inflicted. 15. The applicant’s lawyer challenged the decision of 25 July 2008 before the Kharkiv Regional Prosecutor’s Office, arguing that the applicant had retracted his compliant involuntarily and that the evidence supporting the decision was unreliable. 16. By letter of 15 January 2009 the Kharkiv Regional Prosecutor’s Office informed the applicant’s lawyer that his complaint against the decision of 25 July 2008 was rejected as unfounded. 17. On 26 January 2009 the applicant’s lawyer challenged the decision of 25 July 2008 before the Kyivskyy District Court of Kharkiv. The lawyer claimed that the prosecutor’s office had failed to examine the reasons for the applicant’s change in his statements and had not scrutinised whether that change had been voluntary. He noted in that regard that the applicant was under the control of the individual against whom he had made his initial complaint. The lawyer stated that following the impugned decision the applicant had confirmed his initial allegation of ill-treatment and referred in this regard to the applicant’s statement of 28 July 2008. Furthermore, the applicant’s cellmate had not been questioned in detail about the incident and the medical examination had not been comprehensive. 18. On 23 March 2009, in response to a request made by the applicant’s lawyer, a medical expert, whose experience exceeded thirty-seven years, examined the medical documentation in respect of the applicant’s injuries. The expert issued a report in which he concluded that the applicant’s injuries could not have been inflicted by yarn or rope; there was no indication that salt had been applied to the affected areas of skin; and the applicant’s initial statements that the injuries had been caused by metal handcuffs corresponded to the objective medical information. 19. On 12 May 2009 the court upheld the decision of 25 July 2008 as lawful and substantiated. It noted that: in the course of pre-investigation enquiries the applicant had denied his initial allegation of ill-treatment; his statement that his injuries had been self-inflicted was consistent with the other evidence in the file which could not be disproved by the medical report of 23 March 2009; and the applicant’s explanation that he had had the aim of framing the prison administration by injuring himself refuted the arguments advanced by the lawyer. The claim that the applicant had been vulnerable during the pre-investigation enquiries was considered groundless, unsubstantiated and farfetched. The applicant’s lawyer appealed. 20. On 4 June 2009 the Kharkiv Regional Court of Appeal rejected the appeal as unfounded. It noted that the allegation of ill-treatment had been subsequently withdrawn by the applicant and had been refuted by the other evidence in the file. It concluded that the prosecutor’s office had correctly refused to open an investigation and the first-instance court had taken a lawful and substantiated decision. 21. On 14 December 2009 the Supreme Court rejected the applicant’s lawyer’s cassation appeal as unfounded. 22. The relevant provisions of the Code of Criminal Procedure of 1960 can be found in the judgment in the case of Davydov and Others v. Ukraine (nos. 17674/02 and 39081/02, § 112, 1 July 2010).