CASE OF SERIKOV v. UKRAINE
Violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Mark Villiger
5. The applicant was born in 1991 and lives in Kharkiv. 6. On 16 May 2008 the applicant was arrested by police officers G. and B. of the drug crimes unit and taken to the Kharkiv City Police Department (“the police station”). 7. Officer G. drew up a report following the search of his personal effects, according to which a package containing a substance, later determined to be marijuana, was found on the applicant. The report, indicating that it was drawn up at 6.25 p.m. on 16 May 2008, was signed by the applicant and attesting witnesses L. and T. 8. According to the Government, when officers G. and B. began drawing up the above-mentioned report at the scene of the applicant’s arrest, the applicant attempted to escape. The officers then handcuffed him. The applicant was then taken to the police station where he and the attesting witnesses were questioned. At 10.05 p.m. the applicant was released having signed a note affirming that he had no complaints against the police. 9. According to the applicant, at the police station he was ill-treated to make him confess. In particular, he alleged that he was threatened with rape, kicked and hit on the head and torso, and threatened with weapons. He was subjected to a “Palestinian hanging”; with his hands cuffed behind his back he was raised to the height of one or one and a half metres and then dropped face down on the floor. He lost consciousness several times. When she arrived at the police station, the applicant’s mother found him with bruises on his face, a swollen chin and marks of handcuffs on his wrists. 10. At the police station the applicant wrote two notes addressed to the police dated 16 May 2008. In an “explanatory note” the applicant stated that he had acquired some marijuana for personal use and had had it when the police had stopped him. The applicant further stated that he had not been physically or psychologically pressured. In a separate note he stated that he had no complaints against the police and undertook to appear when summoned. 11. At 11.10 p.m. on 16 May 2008 an ambulance arrived at the police station and the applicant was examined by a paramedic, F. The paramedic noted in her report that the examination was completed at 11.40 p.m. According to the report, the applicant had no complaints and nothing abnormal was detected. According to the applicant, the head of the drug crimes unit, officer O.D., was present during this examination and spoke with the paramedic afterwards. 12. Following the applicant’s examination at the police station he and his mother went to the Kharkiv Regional Directorate of the Ministry of the Interior (“the Regional Directorate”), where they arrived at about 11.45 p.m. on 16 May 2008, and where the applicant lodged a complaint accusing police officers of ill-treatment. 13. Officer O.D. followed the applicant to the Regional Directorate and arranged for him to be examined by the medical expert on duty there. 14. At 00.47 a.m. on 17 May 2008 forensic medical expert A.P. examined the applicant at the Regional Directorate. According to his report, finalised on 29 May 2008, the expert had been called upon to determine the presence and seriousness of any bodily injuries. The applicant said to the expert that the police had grabbed him by the neck and arms at the time of the arrest and had handcuffed him. He complained of a headache and pain in his shoulders. The report recorded a haematoma of 1.5 cm in width on the applicant’s neck, a haematoma of 2 x 1.5 cm on the inner side of his left shoulder, and two strip-like bruises on his left wrist. The expert took the view that the injuries could have been inflicted on the date and under the circumstances described by the applicant, and that the bruises on his wrist could have been caused by handcuffs. 15. At 3.46 p.m. on 17 May 2008 the applicant sought medical aid at the Kharkiv City Hospital (“the hospital”) where he was diagnosed with concussion and contusion of the soft tissues of the head and the rib cage. Hospitalisation was recommended but the applicant refused. 16. On 19 May 2008 the applicant was examined by Dr M. at the Neurology, Psychiatry and Drug Addiction Institute of the Academy of Medical Sciences of Ukraine. He was diagnosed with a brain concussion of medium seriousness and numerous bruises on his arms, shoulder blades and spine. 17. On 17 May 2008 the applicant’s mother lodged a criminal complaint with the Kharkiv Regional Prosecutor’s Office (“the KRPO”) against the police officers. She alleged that excessive force had been used to arrest her son and that he had then been tortured, humiliated and threatened with rape at the police station. 18. On 21 May 2008 the KRPO requested an examination of the applicant and his medical documentation by forensic medical experts. On 29 May 2008 medical experts I.D. and I.P. examined the applicant and his medical documentation. 19. In the course of pre-investigation enquiries in respect of the allegations of ill-treatment, the KRPO obtained statements (written explanations) from a number of individuals. In particular, in his written explanation, Mr S.D., who had witnessed the applicant’s arrest, stated that at about 6.15 p.m. on 16 May 2008 a stranger, without introducing himself, had grabbed the applicant by the scruff of his neck or by the shirt collar and, threatening him with a gun, pulled him to a car. He and another stranger had then grabbed the applicant by the arms, searched him and put him into their car. Officers G. and B. stated that at the time of arrest the applicant had attempted to flee and had been handcuffed. They and officer O.D. insisted that the applicant had not been ill-treated in any way. Attesting witnesses L. and T. confirmed the statements by the police and stated that the applicant had attempted to flee while the search report was being drawn up. He had then been caught and handcuffed. 20. In his written explanation given to the KRPO on 28 May 2008 the applicant stated, in particular, that immediately after having stopped him a police officer had hit him on the head, stomach and ribs with the handle and muzzle of his gun. He had then been pulled by the arms to a police car. At the police station the police officers had pulled down his trousers and threatened him with rape, had subjected him to a “Palestinian hanging”, and dropped him to the floor, causing him to lose consciousness. When his mother had arrived at the police station entrance hall she had seen him with a bruised and swollen chin, haematomas and bruises on his head, arms and body. 21. On 6 June 2008 the KRPO, referring to the above-mentioned evidence, refused to institute criminal proceedings against the police officers for lack of a corpus delicti in their actions. The KRPO found that the applicant’s handcuffing was the only instance of the use of force in respect of the applicant and that it had been lawful under the Police Act of 20 December 1990 (“the Police Act”). The applicant’s injuries recorded at 00.47 a.m. on 17 May 2008 were consistent with the police officers’ statements concerning the applicant’s arrest and handcuffing. The KRPO also stated that the applicant’s and his mother’s allegations were not supported by any objective data other than their own statements. The applicant’s mother appealed. 22. On 24 June 2008 the applicant, in a written explanation to the Kharkiv Moskovskyy District Prosecutor’s Office (“the MDPO”), largely confirmed his earlier statements and added that in the police car on the way to the police station the police officers had repeatedly hit him on the head and torso. 23. On 4 July 2008 forensic medical experts completed their report requested by the KRPO on 21 May 2008 and based on their examination of the applicant on 29 May 2008. They noted that the applicant had complained to them that he had been hit with a gun on the head and torso during his arrest and then ill-treated at the police station. The experts recapitulated that at the time of previous medical examinations the applicant had had a brain concussion, haematomas on his neck and left shoulder, and bruises on his left wrist. They were of the opinion that the injuries were consistent with the applicant’s statements as to their origin. 24. On 12 August 2008 the Kharkiv Chervonozavodskyy District Court set aside the KRPO’s decision of 6 June 2008 and remitted the materials for additional inquiry. The court held, in particular, that the KRPO’s enquiries had failed to explain the applicant’s injuries recorded at 00.47 a.m. on 17 May 2008. 25. On 19 January 2009 the Kharkiv Moskovskyy District Court (“the District Court”), in the course of examination of a criminal case against the applicant for possession of drugs, ordered the MDPO to conduct, by 19 February 2009, an investigation into the applicant’s allegations of ill-treatment. 26. On 16 February 2009 (apparently due to a clerical error the text of the decision indicates 16 February 2008 as its date) the MDPO refused to institute criminal proceedings against the police officers on grounds similar to the KRPO’s decision. The applicant’s mother appealed. 27. On 30 March 2009 the District Court set aside the decision of 16 February 2009 and remitted the materials for additional inquiry. The court found, in particular, that the MDPO’s decision had fully replicated the KRPO’s decision of 6 June 2008, had not explained the reasons for which the MDPO had accepted the police officers’ version of events and had failed to explain how the applicant’s handcuffing could explain all his recorded injuries. 28. On 22 October 2009 the MDPO refused to institute criminal proceedings on grounds similar to the earlier decisions. It informed the District Court that by this decision it complied with the court’s ruling of 19 January 2009. The applicant’s mother appealed. 29. On 27 November 2009 the District Court set aside the decision of 22 October 2009 and remitted the materials for additional inquiry. The court held, in particular, that the pre-investigation enquiries had collected sufficient information that a crime had been committed. Further investigation into the origin of the applicant’s injuries required such investigative steps as a confrontation between the applicant and the police officers and a reconstruction of events, which could not be conducted within the framework of pre-investigation enquiries without the institution of criminal proceedings. 30. In the course of the subsequent round of pre-investigation enquiries the MDPO again obtained written explanations from the police officers and the attesting witnesses, who largely repeated their previous statements. 31. On 12 May 2010 the MDPO, referring to the evidence gathered, refused to institute criminal proceedings on grounds similar to the earlier decisions. The applicant’s mother appealed. 32. On 14 June 2010 the District Court set aside the decision of 12 May 2010 and remitted the materials for additional inquiry, holding that the MDPO had failed to comply with the court’s previous instructions. 33. In the course of the subsequent round of pre-investigation enquiries the MDPO obtained written explanations from several individuals. Dr M. stated, in particular, that the applicant’s injuries she had recorded on 19 May 2008 could have been sustained from 16 to 18 May 2008. The applicant’s mother largely repeated her allegations and stated that she and the applicant had travelled from the police station to the Regional Directorate in a neighbour’s car which had been followed by officer O.D.’s car. 34. On 25 June 2010 the MDPO refused to institute criminal proceedings against the police officers on grounds similar to the earlier decisions, referring in addition to the explanations collected in the course of the latest round of pre-investigative enquiries. The MDPO stated that the District Court’s rulings of 27 November 2009 and 14 June 2010 had been impossible to comply with since investigative actions indicated by the court could only be conducted once criminal proceedings had been initiated and not at the stage of pre-investigation enquiries. The applicant’s mother appealed. 35. On 27 August 2010 the District Court set aside the decision of 25 June 2010 and remitted the materials for additional inquiry. The court held in particular that the MDPO had failed to resolve the contradictions in the medical evidence. The MDPO had also failed to resolve the contradictions between the applicant’s, witness S.D.’s, and the police officers’ accounts of the circumstances of the use of force during the applicant’s arrest, which, in the court’s opinion, could explain the documented injuries. 36. In the course of the subsequent round of pre-investigation enquiries the MDPO obtained written explanations from paramedic F. She stated that she had not seen any signs of injury on the applicant on 16 May 2008. She had not been pressured by the police. The applicant himself had not voiced any complaints, but his mother had said that her son had been beaten up. She also stated that she was not a specialist in forensic medicine and could not speculate as to the origin of injuries which had been documented later. 37. On 18 October 2010 the MDPO requested an opinion of a forensic medical specialist on a number of questions concerning the applicant’s injuries, in particular whether his injuries, as recorded in the available medical documentation, could have been inflicted between 11.50 p.m. on 16 May 2008 and 00.47 a.m. on 17 May 2008. 38. On 25 October 2010 the MDPO refused to institute criminal proceedings. The MDPO noted, in particular, that the District Court, in the rulings of 27 November 2009, 14 June and 27 August 2010, had indicated the need to conduct certain investigative actions, namely confrontation between the applicant and the police officers and reconstruction of events with the participation of the applicant and forensic experts. The MDPO stated that these instructions had been impossible to comply with since such actions could only be conducted once criminal proceedings had been initiated and not at the stage of pre-investigation enquiries. The MDPO also stated that the applicant’s injuries recorded at 00.47 a.m. on 17 May 2008 were consistent with the police officers’ statements concerning the applicant’s arrest and handcuffing. 39. On 15 February 2011 the KRPO informed the MDPO that its decision of 25 October 2010 had been a “mere copy” of the decision of 25 June 2010 and had failed to comply with the District Court’s ruling of 27 August 2010. The KRPO directed the MDPO to fully comply with the District Court’s instructions. According to the Government, the MDPO had then conducted a new round of pre-investigation enquiries and as a result the decision of 25 October 2010 was allowed to stand. 40. On 28 February 2011 a forensic medical expert produced a report in response to the MDPO’s request of 18 October 2010 and based on the medical evidence available in the case file. The expert stated, in particular, that it could not be ruled out that the applicant’s documented injuries could have been inflicted between 11.50 p.m. on 16 May 2008 and 00.47 a.m. on 17 May 2008. The expert also took the opinion that the diagnoses of contusion of the soft tissues of the head and of the rib cage, numerous bruises of arms, shoulder blades and spine which had been noted by the hospital staff on 17 May 2008 and by Dr M. on 19 May 2008 had not been confirmed by objective forensic medical information or the results of any tests, and for these reasons could not be taken into account in the forensic medical analysis. 41. According to the applicant, he had first learned about the MDPO’s decision of 25 October 2010 from the Government’s observations in the present case. 42. On 23 July 2012 the applicant’s mother challenged the decision of 25 October 2010 before the District Court. 43. At the time of the most recent communication from the applicant the proceedings before the District Court were pending.