CASE OF KOVALCHUK v. UKRAINE
Preliminary objection joined to merits and dismissed (exhaustion of domestic remedies);Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Remainder inadmissible;Non-pecuniary damage - award
Ganna Yudkivska;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva
6. The applicant was born in 1974 and lived in Zhytomyr. 7. At about 11 p.m. on 6 September 2002 two police officers, responding to a call from the applicant's girlfriend's sister, brought the applicant to the Zhytomyr Detoxification Centre for treatment of severe alcohol intoxication. A medical employee who examined him recorded that the applicant had several abrasions on his buttocks. 8. At 7.58 a.m. on 7 September 2002 the applicant was released. 9. Later that day he was arrested and detained by the police on a charge of disobeying a police officer. Two records of his arrest were drawn up by two different police officers, both indicating the time of the arrest as 6 p.m. At an unspecified time on the same date a doctor certified that the applicant had no bodily injuries. 10. On the same date an ambulance was called to the police station in connection with the deterioration of the applicant's health and apparent loss of consciousness. The ambulance records note that the call was registered at 4.05 p.m. Upon arriving at the police station, the ambulance team found the applicant conscious but in a very agitated state and trembling. In addition, he had haematomas on his buttocks. He was diagnosed as suffering from alcohol withdrawal, given medication and left in the police station. 11. On 9 September 2002 the Korolyovsky District Court of Zhytomyr convicted the applicant of disobeying a police officer and ordered his detention for ten days. At an unspecified time during his detention the applicant was questioned as a witness concerning the murder of a Mr K., whose body had been found on 7 September 2002 in the vicinity of the applicant's house. On 9 September 2002 he confessed to the murder. 12. On 10 September 2002 the applicant, who had still not been officially charged, participated as a witness in a reconstruction of the crime scene. In the course of the reconstruction he showed in detail how he had killed Mr K. 13. On the same date an ambulance was called again and the applicant was transferred to the detoxification centre, where he was diagnosed as suffering from “psychotic and behavioural disorders, [a] state of delirious withdrawal from alcohol, [and] hallucinations”. In addition, he was found to have sustained haemorrhages on his shoulders, legs and buttocks. On 13 September 2002 the applicant was returned to the police station. 14. By 20 September 2002 the applicant had obtained a lawyer in connection with possible murder charges against him, had retracted his confession – alleging that it had been given under duress – and had denied any involvement in the killing of Mr K. 15. At 6 p.m. on 20 September 2002 the applicant was released following the expiration of the term of his detention. 16. At 8.10 p.m. on the same day the applicant was arrested again on a charge of having committed a breach of the peace (in particular, for urinating in public and swearing) and, pursuant to a court order issued on 23 September 2002, was again remanded in custody for eight days starting from the date of his arrest. 17. On 28 September 2002 he was released. 18. On 1 October 2002 the applicant underwent a medical assessment in the course of which he was found to be suffering from two surface wounds (on the left shoulder and the left buttock) which qualified as minor bodily injuries. 19. On 2 October 2002, following complaints by his girlfriend about his aggressive behaviour, the applicant was arrested for the third time on a charge of disobeying a police officer and remanded in custody for ten days by a court order issued on 3 October 2002. On 12 October 2002 the applicant was released. 20. On 15 October 2002 the applicant was admitted to hospital on account of his complaints of general weakness, vertigo, pain in the legs and chest, unpleasant sensations inside his anus, constipation and coughing. Based on his complaints, he was diagnosed as suffering from a combination of haemorrhoids, ulcers, several other digestive disorders, pyelonephritis, asthenia and the after-effects of bodily contusions. The applicant remained in hospital until 23 October 2002. 21. In December 2002 the criminal proceedings against the applicant were discontinued for want of evidence of his involvement in the murder of Mr K. 22. In November 2003 the applicant underwent a fresh medical assessment in respect of his injuries sustained in September 2002. Following an assessment of the medical documents and the applicant's state of health at the material time, the panel of experts conducting the assessment concluded that it was not improbable that on or around 8 September 2002 he had sustained minor bodily injuries (bruises and abrasions on his buttocks, shoulders and legs). However, noting the lack of detail in the relevant records, the experts were unable to assess the means by which the injuries had been inflicted. They further found no objective evidence of any mechanical intrusion into the applicant's anus, no causal connection between the above injuries and other health disorders (including the applicant's haemorrhoids, digestive and kidney problems, which had been found to have probably developed prior to his detention) and noted that the diagnosis of 15 October 2002 concerning the after-effects of bodily contusions had been subjective and unsupported by any evidence. 23. In January 2004 the applicant was examined by specialists from the State Institute for Rehabilitation of the Disabled, who refused to grant him invalid status. However, the panel of specialists diagnosed him as suffering from a number of chronic physical conditions (including haemorrhoids, ulcers, hepatitis and myocardiopathy) as well as from the “after-effects of a head injury sustained in 2002 in the form of arachnoiditis” (inflammation of a membrane surrounding and protecting the nerves of the central nervous system). 24. The applicant was subsequently awarded invalidity status on account of the above illnesses. 25. On 27 October 2007 the applicant died of acute heart and pulmonary failure aggravated by bronchopneumonia. 26. On 24 September and 9 October 2002 Mrs Kovalchuk complained to the Zhytomyr Regional Prosecutor's Office that between 7 and 9 September 2002 her son had been ill-treated by police officers in order to extract a confession of Mr K.'s murder from him. In particular, they had beaten him, hung him from a pipe while handcuffed and inserted a truncheon into his anus. 27. On 15 October 2002 the acting chief of the Zhytomyr Department of Interior rejected her complaints as unsubstantiated. He noted, in particular, that the applicant had given a vague and inconsistent account of the purported ill-treatment and was unable to identify the police officers involved or the location in which he had supposedly been ill-treated. 28. On 25 November 2002 the chief of the Zhytomyr Department of the Interior, having conducted a further investigation following Mrs Kovalchuk's subsequent complaints, discovered that the applicant's and the police officers' respective accounts of events could not be reconciled. In particular, according to the applicant, four unidentified police officers had severely beaten him and stuck objects into his anus, demanding that he confess to the killing. The investigator in Mr K.'s case admitted having questioned the applicant about the killing, but denied that any pressure had been applied to him. The Department transferred the investigation materials to the prosecutor's office for further enquiries. 29. On several occasions (25 December 2002, 31 March 2003 and 2 September 2003) the Korolyovsky District Prosecutor's Office refused to institute criminal proceedings in respect of the applicant's complaints of illtreatment, having found no evidence of any wrongdoing by the police. 30. These decisions were subsequently annulled by the supervising prosecutorial authorities (on 14 March, 14 May and 3 September 2003), finding that: the enquiries had been insufficient; various important witnesses had not been questioned; inconsistencies between various testimonies had not been reconciled; medical evidence had not been duly collected and examined; and no plausible explanation for the applicant's injuries had been proposed. 31. On 11 September 2003 the Korolyovsky District Prosecutor's Office again refused to institute criminal proceedings. The applicant was not informed about this decision. 32. On 14 October 2004, following enquiries made by Mrs Kovalchuk, she obtained a full copy of the decision of 11 September 2003 and subsequently appealed against it on the applicant's behalf to the Bogunsky District Court of Zhytomyr. 33. On 9 November 2005 the Bogunsky District Court allowed the applicant's claims and set aside the decision of 11 September 2003. It found, in particular, that the investigation had failed to analyse the conclusions of the medical assessment completed in November 2003 and to question several important witnesses (specifically, the applicant's fellow inmates). 34. On 27 December 2005 the Korolyovsky District Prosecutor's Office took a fresh decision not to institute criminal proceedings. 35. On 16 November 2006 the Bogunsky District Court set aside the above decision, having found that its previous instructions had not been properly followed. 36. On 23 June 2008, having questioned several additional witnesses, the Korolyovsky District Prosecutor's Office decided that the applicant's injuries had been caused by a fall related to an epileptic seizure resulting from the excessive consumption of alcohol. 37. On 12 August 2008 the Bogunsky District Court set aside this decision, having found that several important witnesses (specifically, the applicant's fellow inmates) had still not been questioned. 38. On 18 September and 30 November 2008 the prosecutor's office took fresh decisions not to institute criminal proceedings into the applicant's alleged ill-treatment which were set aside by the supervising prosecutors on 30 September and 8 December 2008 respectively, each decision making reference to there having been insufficient investigation of the matter. 39. On 26 January 2009 a fresh decision not to institute criminal proceedings was taken, relying, in particular, on the impossibility of collecting further evidence because of the death or relocation of numerous witnesses, the inability of the remaining witnesses to recall details and the destruction of relevant documentary records. 40. On 30 March 2009 the Bogunsky District Court set aside this decision following an appeal by Mrs Kovalchuk. The court noted, in particular, that the case file contained two reports concerning the applicant's arrest on 7 September 2002 which had been made by two different police officers and instructed the investigator to clarify the situation. 41. On 1 October 2009 the Bogunsky District Court annulled a further decision of the prosecutor's office not to institute criminal proceedings, dated 28 May 2009, having found that the situation relating to the arrest reports had not been clarified and that no determination of why the applicant had been questioned about Mr K.'s murder during his detention and the circumstances in which he had suffered bodily injuries had taken place. 42. On 26 November 2009 a fresh decision was taken not to institute criminal proceedings. The investigating authorities noted, inter alia, that the applicant's accounts of the relevant events had been inconsistent and that on several occasions he had changed his story. In particular, he had initially alleged that he had been beaten by a rubber truncheon but subsequently insisted that the officers had punched and kicked him. In addition, on 17 March 2003 he had asserted that he had no claims against the police at all and did not share his mother's view about the necessity of an investigation. 43. On 12 March 2010 the Bogunsky District Court upheld the above decision. 44. Mrs Kovalchuk appealed, noting, in particular, that in addition to its failure to establish those responsible for her son's injuries, the investigation had failed to reconcile a number of factual inconsistencies. For instance, according to the relevant records, an ambulance was first called to the police station to assist the applicant at 4.05 p.m. on 7 September 2002, whereas according to both the reports concerning the applicant's arrest and the court decision of 9 September 2002, the applicant had not been arrested until 6 p.m. Furthermore, according to statements by Mrs T.I., the applicant's acquaintance, she had already seen the applicant in the police station at noon on 7 September 2002 and had also witnessed an ambulance arriving to help him twice on that day. 45. On 31 March 2010 the Zhytomyr Regional Court of Appeal quashed the Bogunsky District Court's ruling, set aside the decision of 26 November 2009 and remitted the complaint of ill-treatment for further investigation. The court noted that previous instructions of judicial authorities had not been followed and ordered that the investigation determine, in particular: (i) where, in what circumstances, and by whom bodily injuries had been inflicted on the applicant “having regard to the fact that on 7 September 2002 he had been examined by a doctor who had not recorded any injuries”; (ii) why there were two different reports on the applicant's arrest; (iii) why the applicant had been questioned as a witness about Mr K.'s murder while detained in custody for an unrelated administrative offence; and (iv) why he had confessed to a killing of which he had been innocent. The Court of Appeal also ordered that the statements of Mrs T.I. concerning the circumstances in which she had seen the applicant on 7 September 2002 be re-examined. 46. According to the case file, the investigation of the applicant's complaint of ill-treatment is currently pending. 47. The relevant domestic law can be found in the judgment in the case of Kozinets v. Ukraine (no. 75520/01, §§ 39-42, 6 December 2007).