CASE OF PELESHOK v. UKRAINE
Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)
André Potocki;Ganna Yudkivska;Síofra O’Leary
5. The applicant was born in 1935 and lives in the city of Ternopil, Ukraine. 6. The applicant stated that in 1999 she had lent 21,500 United States dollars (USD) to Mrs Sh. She also stated that the loan had been repaid in part, and as of June 2002, a debt of USD 13,400 remained outstanding. 7. According to the applicant, on the morning of 30 July 2002 Mrs Sh. and Mrs Sh.’s husband beat her in the front yard of their house after the applicant had asked them to repay the outstanding debt. She also alleged that the incident had occurred in public “in front of passers-by who eyewitnessed it”. 8. In the testimonies she gave to the police after the criminal investigation had been opened (see paragraph 15 below), the applicant specified that in the course of the conflict Mrs Sh. had struck her on the head with a wet towel, then punched her on the head and on her breast, and Mr Sh. had also punched her on the head. 9. According to the statements of Mr and Mrs Sh. and several other witnesses who were interrogated by the police (see paragraphs 16 and 23 below), the applicant and Mrs Sh. had a confrontation on 29 July 2002. No injuries were inflicted on the applicant in the course of that dispute. 10. On 30 July 2002 the applicant was taken by ambulance to the emergency unit of the Ternopil Town municipal hospital, being admitted there at 5.30 p.m. According to the medical records, at the time of the applicant’s admission she was diagnosed with a brain concussion but no other traumatic injuries. On 31 July 2002 the doctors diagnosed bruising to the applicant’s breast. 11. The applicant remained in hospital from 30 July to 23 August 2002. 12. On 30 July 2002 the applicant’s husband lodged a complaint with the Ternopil Town police department. He claimed that Mrs Sh. and her husband had punched the applicant in the head and breast in the yard of their house. 13. On 9 August 2002 the police refused a request to institute criminal proceedings against Mr and Mrs Sh. for lack of corpus delicti. 14. On 4 September 2002 the Ternopil Regional Bureau of Forensic Medical Examinations (Обласне бюро судово-медичної експертизи) carried out a forensic medical examination. The forensic experts recorded that on 30 July 2002 the applicant had been admitted to hospital. Upon hospitalisation the applicant stated that at 11.00 a.m. that morning she had been beaten by “an acquaintance”. The forensic experts also found that the applicant had sustained a brain concussion and had a bruise on the right side of her chest. As she had suffered from the brain concussion for more than three weeks, this injury was qualified as a bodily injury of medium severity. The bruise was qualified as a light bodily injury. 15. On 29 October 2002 the Ternopil deputy prosecutor quashed the decision of 9 August 2002 and instituted criminal proceedings against Mr and Mrs Sh. 16. On 30 October 2002 the police questioned Mrs Sh. The Government provided copies of her testimony, which are, however, incomplete. It would appear that Mrs Sh. stated that she had borrowed USD 8,100 from the applicant without signing any formal documents, and had subsequently repaid this sum. She also testified that on 29 July 2002 the applicant and the applicant’s husband had come to her house and demanded the interest on the above amount. Mrs Sh. refused to pay the interest and there had been a dispute with the applicant, following which the applicant left. 17. On 19 November 2002 the police questioned the applicant’s husband as a witness. 18. On 2 and 4 January 2003 the police questioned three individuals, Mrs P., Mr Pukh. and Mr Pa., who were eye-witnesses to the incident. 19. On 3 January 2003 the deputy head of the investigation office of the Ternopil Town police department (заступник начальника СВ ТМВ УВСУ в Тернопільській області) ordered an additional forensic medical examination. 20. On 13 January 2003 the expert commission of the Ternopil Regional Bureau of Forensic Medical Examinations confirmed the findings of the expert examination of 4 September 2002. In addition, the experts noted that the applicant’s brain concussion and the bruise had been inflicted by a blunt object and could not have been sustained by falling. The experts also stated that the dynamics of the applicant’s clinical picture corresponded to her allegation that the injuries had been inflicted on her on 30 July 2002. They finally concluded that the brain concussion had been caused by a series of blows to the head. 21. On 14 January 2003 the police questioned Mr Sh. as a suspect. He gave the same testimony as his wife (see paragraph 16 above). 22. Between 15 January and 27 January 2003 multiple face-to-face confrontations were carried out between the applicant, the suspects and various witnesses who had been questioned earlier, including Mr T., Mr Pa., Mrs P. and Mr Pukh. 23. On 25 February 2003 the deputy head of the investigation office of the Ternopil Town police department terminated the criminal proceedings against Mr and Mrs Sh. for lack of evidence that a crime had been committed. Two accounts of events were noted in that decision, one suggested by the applicant and another one put forward on the basis of the statements of Mr and Mrs Sh. and two witnesses, T. and B. According to this second account of events, there had been a verbal confrontation between the applicant and Mrs Sh. on 29 July 2002 in the yard of the latter’s house, during which no injuries had been inflicted on the applicant. It was noted in the decision that numerous witnesses had been questioned, facetoface interrogations had been held and forensic medical examinations had been carried out. It was concluded that, in view of the conflicting witness statements, it was impossible to establish whether the incident had occurred on 29 or 30 July 2002 and the police did not have sufficient evidence to prosecute Mr and Mrs Sh. 24. On 4 March 2003 the Ternopil Town Prosecutor quashed the above decision and ordered an additional investigation. 25. On 4 April 2003 the police again terminated the criminal proceedings against Mr and Mrs Sh. They noted that Mr and Mrs Sh. testified that they had borrowed USD 8,100 from the applicant and had subsequently repaid this sum. Mr and Mrs Sh. maintained that on 29 July 2002 the applicant had come to their house together with her husband and had demanded the interest on the above amount. According to them, the applicant had with her a small pot containing an unknown liquid, which she said was acid. She had threatened to pour the acid into the eyes of the Sh.’s child. Mr Sh. called the police, but the applicant and her husband had left before they arrived. The police concluded that the evidence obtained as a result of the investigative measures was insufficient to prosecute Mr and Mrs Sh. and the identity of the applicant’s assailant had not been established. 26. Between March 2003 and September 2006 the criminal proceedings in the applicant’s case were terminated on eight occasions (on 4 April 2003, 5 June 2003, 5 August 2003, 14 September 2003, 28 December 2003, 17 May 2004, 27 August 2004 and 16 February 2005). All of these decisions were quashed by a senior prosecutor who ordered an additional inquiry, finding repeatedly that the investigation of the case had been “incomplete”. 27. In particular, in the decision of 5 May 2003 the deputy head of the investigation office of the Ternopil Town police department ordered that a reconstruction of the incident be staged with a view to establishing the facts of the case and in order to support or rebut the conflicting statements of the witnesses. He ordered specifically that it be established in the course of the reconstruction whether the witnesses (including T. and B.) could in fact have been able to observe the incident from the street outside the yard, as claimed by them. In a later decision, of 8 December 2004, a senior prosecutor from the Ternopil Regional Prosecutor’s Office noted, inter alia, the need to also question the ambulance personnel who had conveyed the applicant to the emergency unit on 30 July 2002. 28. On 6 May 2003 the police questioned Mr K., a taxi driver. He testified that on 30 July 2002 he had been driving his taxi and had picked up the applicant and her husband on the street where the house of Mr and Mrs Sh. is located. He added that the applicant had been in distress and held her hands to her head. 29. On 17 January 2004 the first deputy Ternopil City Prosecutor (перший заступник прокурора міста Тернополя) noted that the investigating officer had failed to follow instructions and take the investigative measures required by the decision of 5 May 2003 (see paragraph 27 above). 30. In 2004 disciplinary proceedings were instituted against investigating officer Z. for certain procedural violations, as a result of which the investigation became protracted. The outcome of these proceedings is unknown. 31. On 23 September 2006 the police took two procedural decisions in the case. By the first decision the police terminated the criminal proceedings against Mr and Mrs Sh., reiterating the reasons given in the decision of 4 April 2003. By the second decision the criminal investigation of the case was stayed until the identity of the person who inflicted the injuries on the applicant could be established.