CASE OF A.N. v. UKRAINE
Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect)
Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Mark Villiger;Vincent A. De Gaetano
5. The applicant was born in 1980 and is currently serving his sentence in prison. 6. On 15 November 2004 a man was murdered at a bus stop in the town of Dymytriv, Donetsk Region. A criminal investigation was opened. 7. According to the applicant, on 12 December 2004 he was taken by police officers to some premises where they interrogated and tortured him with the aim of extracting a confession to the murder. The torture allegedly included the administration of electric shocks and the infliction of physical injuries. 8. On 14 December 2004 the applicant wrote a confession admitting that he had committed the murder. 9. On the same day the applicant was provided with a lawyer and questioned as a suspect. During the questioning, in the presence of the lawyer, the applicant submitted that on the evening of 15 November 2004 he had met the victim at the bus stop and asked if he had a cigarette; the victim responded aggressively and an argument arose between them, which developed into a fight; when the victim attacked him with a knife, the applicant grabbed the arm that was holding the knife and, at a certain moment during the struggle between them, the knife ‒ still in the victim’s hand ‒ caused a lethal wound to the victim’s neck. The investigator also asked the applicant to explain why he had a swelling on the left forearm in the wrist area. The applicant disputed that it could be described as a swelling and added that it might have been caused by the handcuffs. 10. In the evening of 14 December 2004 the police drew up a report on the applicant’s arrest. 11. On 15 December 2004 the applicant was examined by a forensic medical expert who reported that the applicant had no injuries. According to the applicant, the expert had examined him superficially and he had not been required to undress. 12. On 16 December 2004 the applicant participated in a reconstruction of the incident and, in the presence of his lawyer, explained and demonstrated how the conflict between him and the victim had developed and how the fatal wound had been caused. 13. On 17 December 2004 the Dmytriv Town Court extended the applicant’s preliminary detention to 24 December 2004. On 24 December 2004 the Dmytriv Town Court ordered the applicant’s detention in custody. During these hearings the applicant ‒ in the presence of his lawyer ‒ described the circumstances of the incident in the same way as he had done earlier. He also stated that he had not been subjected to pressure on the part of the police officers. The applicant then admitted that he regularly took Tramadol (an opioid analgesic) and specified that before the incident of 15 November 2004 he took five pills of Tramadol. 14. On 24 December 2004 the applicant was charged with the murder. He was again questioned in the presence of his lawyer. The applicant repeated the details of the struggle between him and the victim and the circumstances of the victim’s death. 15. On 28 December 2004 the applicant was placed in Pre-Trial Detention Centre No. 6 (“the SIZO”). Upon admission he was given a medical examination, during which no injuries were found. 16. On 8 and 14 January 2005 the applicant’s mother lodged a complaint with the prosecutor’s office, alleging that the police officers had tortured the applicant and made him confess to a crime which he had not committed. 17. On 24 February 2005 the forensic medical expert issued a report in which ‒ referring to the results of the applicant’s medical assessment on 15 December 2004 ‒ he stated that at the time of the medical assessment the applicant had not been suffering from any injuries. 18. On the same date the Dymytriv prosecutor’s office refused to open an investigation in connection with the allegations of torture, noting that there were no indications that the police officers had committed any offence. 19. On 11 March 2005 the applicant was questioned once again. During the questioning, he denied the charges of murder and retracted his earlier statements, claiming that he had incriminated himself because he had been afraid of the police officers. 20. On 15 March 2005 the case was referred to the Dmytriv Town Court for trial. 21. On 15 April 2005 the applicant submitted a written request for a medical examination to the Dmytriv Town Court. The applicant gave the names of the three police officers who had allegedly tortured him on 12 December 2004 and specified the place where that had happened. The applicant claimed that he had been hung upside down over a horizontal crowbar whilst handcuffed; a gas mask had been placed over his head; electric shocks had been applied to different areas of his body including his genitals. He claimed that after the continued ill-treatment he had given up and accepted the fictional story made up by the police officers; he had then been taken to the crime scene and was told the details that he was supposed to repeat later during the investigation. 22. On 21 April 2005 the Dmytriv Town Court ordered the prosecutor’s office to investigate the applicant’s allegations; it also ordered a forensic medical examination of the applicant to be carried out. 23. On 29 April 2005 the forensic medical expert drafted a report in which ‒ relying on the results of the applicant’s assessment of 15 December 2004 and the report of 24 February 2005 ‒ he noted that at the time of the medical assessment the applicant had not been suffering from any injuries. 24. On 4 May 2005, acting on the results of the pre-investigation enquiries, the Dmytriv prosecutor’s office refused to initiate criminal proceedings against the police officers, holding that no elements of offence had been established. 25. On 6 July 2005 the applicant was assessed by a medical expert who reported that the applicant had scars on his wrist joints, and on the left side and front of his chest. The expert noted that the scars had resulted from injuries caused by blunt objects and could have been sustained between six and eighteen months prior to the examination. The expert further reported a scar on the right forearm and noted that it had resulted from an injury caused by a blunt object; in his view the injury could have been sustained more than three years before the examination. The expert classified all the injuries as minor. 26. On 8 July 2005 the Donetsk Regional Prosecutor’s Office quashed as unsubstantiated the decisions of 24 February and 4 May 2005 adopted by the Dymytriv prosecutor’s office and ordered further pre-investigation enquiries. 27. On 11 October 2005, following additional enquiries, the Dymytriv prosecutor’s office issued a further decision refusing to open an investigation in connection with the alleged ill-treatment. The prosecutor noted that the applicant had not complained of the ill-treatment earlier, that the police officers had denied his allegations, that the medical report of 15 December 2004 had documented no injuries to the applicant and that the report of 7 July 2005 stated that the applicant had some old scars which did not bear out his allegations. 28. On 7 September 2005, further to a request from the court, the applicant was examined by a panel of forensic medical experts. In their report of 7 November 2005, the panel stated that the applicant had scars on both ears, on the left side of his chest, on his forearms, wrists, right shin and ankle, and the pigmented area on the right side of his chest. The experts noted that the scars had resulted from injuries which could have been sustained six months or more before the date of the examination; some of the injuries could have been caused by shackles. The panel classified the injuries as minor. 29. On 15 February 2006, following a request from the court, the panel of experts also reported that it was impossible to determine on the basis of the available medical information whether the injuries found on the applicant had been sustained before or after 15 December 2004. 30. On 17 April 2006 the Dmytriv Town Court remitted the case for additional investigation, noting that the investigator had failed to establish a number of important facts, including the time of the victim’s death and any motive on the part of the applicant for committing the crime. The prosecutor appealed against that decision. 31. On 15 September 2006 the Donetsk Region Court of Appeal quashed the decision of 17 April 2006 as unfounded and remitted the case to the first-instance court for trial. 32. On 29 December 2006 a forensic psychiatric expert drafted a report stating that the applicant had recovered from a temporary mental disorder. 33. During the trial the applicant denied the charges and maintained that he had been ill-treated by the police officers, who had made him incriminate himself. The court questioned the expert who had carried out the assessments of 15 December 2004 and 6 July 2005 about the discrepancies in those assessments. The expert explained that his first assessment had been concerned with the documentation of visible injuries and he had not been asked a specific question about scars. He also noted that during that assessment he had asked the applicant to undress. The applicant maintained, however, that the expert had not asked him to undress. 34. On 8 October 2007 the Dymytriv Town Court found the applicant guilty of murder and sentenced him to twelve years’ imprisonment. The court established the applicant’s guilt relying on the self-incriminating statements made by the applicant in the presence of his lawyer between 14 and 24 December 2004, including the statements of the applicant which he made before the court when the issue of a preventive measure was being decided. The court also referred to the other oral, documentary, material and expert evidence. 35. The court rejected the applicant’s allegations of ill-treatment as unsubstantiated. In that regard it referred to the results of the medical assessments of 15 and 28 December 2004 which found no injuries on the applicant. It also noted that there had been no suggestion by the experts as to how the injuries discovered on the applicant later could have been sustained. As to the injuries on the wrists, the court noted that they might have been caused by the handcuffs and added that between December 2004 and March 2005 the applicant had regularly been handcuffed when escorted to and from the court. 36. The applicant appealed against that judgment claiming, inter alia, that his conviction had been unlawful and based on evidence obtained through ill-treatment. 37. On 6 June 2008 the Donetsk Region Court of Appeal dismissed the applicant’s appeal and upheld the judgment of the first-instance court. It noted that the applicant’s allegations of ill-treatment had been far-fetched and, in any event, they had been properly examined by the prosecutor’s office and the trial court. It pointed out that the applicant had made the self-incriminating statements between 14 and 24 December 2004 in the presence of his lawyer, and that on 15 and 28 December 2004 no injuries had been documented following the medical examination of the applicant. 38. The applicant lodged an appeal on points of law with the Supreme Court, claiming in particular that his conviction had been based on evidence obtained through ill-treatment. 39. On 15 August 2008 the Supreme Court rejected the applicant’s appeal on points of law as unfounded. 40. Following his conviction, the applicant lodged an appeal against the decision of 11 October 2005, in which the prosecutor had refused to open an investigation in respect of the alleged ill-treatment. 41. On 9 February 2010 the Dymytriv Town Court quashed the impugned decision, considering that the matter had not been examined thoroughly. 42. The prosecutor appealed against that decision. 43. On 10 March 2010 the Donetsk Region Court of Appeal quashed the decision of 9 February 2010 and remitted the case to the first-instance court for fresh consideration. 44. On 9 September 2010 the Dymytriv Town Court dismissed as time-barred the applicant’s complaint concerning the decision of 11 October 2005. 45. The Donetsk Region Court of Appeal and the Higher Specialised Civil and Criminal Court of Ukraine upheld the decision of 9 September 2010 on 7 October 2010 and 8 April 2011 respectively. 46. Between December 2004 and June 2005 the applicant underwent X-ray examinations which showed no lung pathology. 47. On 25 June 2005 he applied to the medical unit of the SIZO complaining of coughing up phlegm, weakness and fever. The applicant was examined by the general practitioner and diagnosed with chronic bronchitis in its acute phase. He was hospitalised in the medical unit of the SIZO and provided with in-patient treatment. 48. On 4 July 2005 the applicant was discharged from the medical unit in satisfactory condition. He was advised to avoid getting too cold. 49. Between July 2005 and October 2006 the applicant underwent X-ray examinations which showed no signs of pathology. He made no complaints concerning his health. 50. On 13 November 2006 the applicant was treated in the local hospital on account of cuts to both forearms, and scratches on his neck and the front of his abdomen. He was diagnosed as having attempted suicide. 51. On the next day he was examined by a psychiatrist who diagnosed mental and behavioural disorder caused by taking opioids, generating a psychopathy-like syndrome. The applicant received further outpatient psychiatric treatment. 52. Between December 2006 and February 2008 the applicant underwent X-ray examinations which showed no signs of pathology. He made no complaints concerning his health. 53. On 19 July 2008 the applicant was transferred from the SIZO to a prison. Upon admission, the applicant was medically examined and diagnosed with chronic bronchitis. 54. On 23 July 2008 the applicant underwent X-ray examination which showed no signs of pathology. 55. In May 2009 the applicant underwent treatment for an acute form of bronchitis. 56. In January 2010 the applicant was diagnosed with tuberculosis of the right lung. The applicant was offered hospitalisation in the tuberculosis clinic of Zhdaniv prison no. 3 for further examination and treatment. The applicant refused to be hospitalised. 57. Between 22 and 27 February 2010 the applicant underwent examination in the tuberculosis clinic of Zhdaniv prison no. 3. 58. On 26 February 2010 the applicant was diagnosed with post-tuberculosis residual changes and residual changes after pleurisy. He was advised to undergo sessions of anti-tuberculosis treatment for a period of three years. The applicant refused to undergo the proposed sessions of treatment. 59. On 5 December 2012 the applicant was diagnosed with chronic bronchitis in remission and chronic maxillary sinusitis in remission. The applicant received further outpatient treatment by the general practitioner at the medical unit of the prison.