CASE OF DANILOV 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;Vincent A. De Gaetano
6. The applicant was born in 1967 in the Russian Federation and is currently serving a prison sentence in Ukraine. 7. In December 2002 a group of officers from the State Security Service of Ukraine (“SSU”) and the “Berkut” special armed unit received a mission order to arrest several individuals, including the applicant, implicated in a number of crimes committed as members of a criminal association affiliated with the Odessa Komsomol (Young Communist League), including illegal arms handling, terrorism, assault and robbery with a view to preparing a communist revolution. 8. At about 5 p.m. on 13 December 2002 six armed officers of the SSU and two officers of the “Berkut” unit arrived at a flat in Mykolayiv occupied at the material time by the applicant and three of his acquaintances, and ordered them to lie on the floor. Two of the applicant’s acquaintances complied with the order, while the applicant and another associate started shooting at the officers with firearms. As a result of the shooting, several officers sustained bodily injuries and damage to their protective gear. Having exhausted his cartridges, the applicant attempted to detonate an explosive. At this moment, the officers knocked him onto the floor, immobilised and handcuffed him. 9. At about 11 p.m. on the same date an investigator with the Mykolayiv Regional Prosecutor’s Office drafted an arrest report, indicating that the applicant was suspected, in particular, of attempting to murder law-enforcement officers, that he had been notified of his procedural rights, including the rights to remain silent and to obtain legal assistance, and that he had expressed the wish to have a lawyer. 10. At an unspecified time on the same date the applicant was referred to a forensic medical expert to determine the gravity of his bodily injuries. According to the applicant, the expert assessment was carried out on 13 December 2002. According to the Government, it was carried out the following day (14 December 2002). The assessment revealed that the applicant was suffering from a number of bruises and abrasions to his face, limbs, chest and knees, had swollen lips and a wound on his forehead. The expert qualified the injuries as “minor” and recorded that the applicant had complained of headaches and pain in his limbs and ribs and had explained that he had sustained his injuries when resisting arrest. In particular, he had fallen, had been beaten by the “Berkut” officers and had been subjected to martial arts. 11. At an unspecified time on 13 December 2002 the applicant and his co-detainees were placed in police custody in the Leninskyy District of Mykolayiv. 12. According to the applicant, in the evening of 13 December and the morning of 14 December 2002 he was beaten by police officers, possibly in retaliation for having wounded two officers from their unit earlier that year (on 22 November 2002). Subsequently, the officers questioned him concerning the offences of which he was suspected and solicited incriminating statements concerning a number of other individuals implicated in the revolutionary communist activity. As the applicant refused to cooperate, the officers resorted to various torture techniques. In particular, they suspended him head down from a crowbar by his hands, which were handcuffed behind his knees; beat him with rubber truncheons; stuck needles under his nails; put a gas mask on his face and interrupted his air flow; banged his head against the wall; and jumped on his chest. 13. According to the Government, the applicant’s first questioning did not take place until the afternoon of 14 December 2002. It was conducted in the presence of Ch., who was admitted to the proceedings as the applicant’s legal-aid lawyer. They presented a copy of the police report made on that date. According to that report, which was co-signed by the applicant and Ch., in the course of questioning the applicant informed the investigative authorities that he had arrived in Ukraine in autumn 2002 to advance the revolutionary struggle of the working people against their capitalist exploitation, in particular, by distributing a newspaper and organising trade unions and strike committees. The applicant further acknowledged that he possessed various arms without a licence and had wounded two police officers of the Leninskyy police on 22 November 2002, when they had stopped him in the street and ordered him to empty his pockets. When asked about the origin of the injuries on his face, the applicant said that they had been caused during his arrest operation. 14. On 20 December 2002 Ch. complained to the SSU investigator that the applicant’s health was deteriorating and demanded a medical assessment. 15. On the same date the applicant was referred to a doctor and a neurologist of the SSU polyclinics. They noted, in particular, that the applicant’s ribs hurt when touched and that his wrists were swollen. The applicant was diagnosed with chest, face and knee contusions and was prescribed an x-ray. It was also recommended that the use of handcuffs should be limited and various medications were prescribed. 16. On 26 December 2002 the applicant was again examined by a neurologist from the SSU polyclinics, who confirmed the above findings and prescribed further medication. 17. On 29 December 2002 S., who replaced Ch. as the applicant’s lawyer, lodged a complaint with the prosecutor’s office alleging that the applicant had been beaten and tortured by Leninskyy police officers and demanding a criminal investigation of his bodily injuries. 18. In January 2003 the Leninskyy police collected reports from eight police officers who had been on duty on 13 December 2002 by way of an internal investigation of the applicant’s ill-treatment allegations. Referring to those reports, in which the officers denied having witnessed or taken part in any ill-treatment, it was concluded that no ill-treatment had taken place. According to the applicant, neither he nor his lawyer had been informed of that investigation and its findings. 19. On 3 January 2003 the applicant was examined by medical staff of the Mykolayiv pre-trial detention centre (SIZO) and in-patient treatment for pulmonary pneumonia was prescribed. 20. On 13 January 2003 the prosecutor’s office refused to institute criminal proceedings in respect of the applicant’s alleged ill-treatment. It noted that the applicant had actively resisted his arrest, including by using a firearm, attempting to detonate an explosive and wounding some of the police officers. As the officers had had to break his violent resistance, there were no grounds for suspecting that the minor bodily injuries recorded by the forensic experts had resulted from the application of disproportionate force or from police ill-treatment. According to the applicant, neither he nor his lawyer had been apprised of that decision. 21. On 14 January 2003 the applicant underwent a further forensic assessment to determine whether he was still suffering from bodily injuries and, if so, their origin and timing. The expert concluded that the applicant was suffering from several wounds and a number of abrasions on various parts of his body, which had resulted from impacts with blunt objects. However, she could not say precisely when the injuries had been sustained. 22. On 15 January 2003 the applicant was examined by a doctor, who diagnosed him with suspected accumulation of blood in the pleural cavity (hemothorax), dystrophy and post-traumatic neuropathy of the wrists, and prescribed treatment. 23. On 24 January 2003 the hemothorax diagnosis was confirmed by an X-ray and the applicant underwent a biopsy, after which his state of health slowly started to improve. Subsequently, on numerous occasions in January and February 2003 the applicant was examined by doctors, who prescribed treatment for his wrist, dystrophy and pulmonary problems. 24. In February 2003 the applicant was transferred to the Odessa pre-trial detention centre (SIZO) no. 21 and subsequently placed in its medical unit for in-patient treatment of pneumonia. According to the applicant, his treatment was inadequate. In particular, the unit did not have the necessary antibiotics in stock and refused him an operation to remove a fractured rib fragment, which had allegedly pierced his lung. 25. In April 2003 the applicant was released from the medical unit as his health had improved and placed in a regular SIZO cell. According to him, the SIZO was generally overcrowded and the sanitary conditions were poor. 26. In April 2003 the applicant’s lawyer, S., was replaced by T., who lodged a fresh complaint with the prosecutor’s office demanding an investigation of the applicant’s purported ill-treatment in December 2002. He alleged that the applicant had not sustained any serious injuries in the course of his arrest, as once he had exhausted his cartridges, the trained officers, who had significantly outnumbered the two resisting suspects, had quickly immobilised him. On the other hand, once in custody, the applicant had been severely beaten up and tortured by the police officers. As a result, he had sustained serious injuries, including long-term impairment of the wrist nerve function and seven fractured ribs. 27. On 24 April 2003 the applicant underwent a further forensic medical assessment, in which a board of experts was asked to determine whether the applicant was suffering from any illnesses at the material time and whether he was fit for detention. The board of experts concluded that the applicant had consolidated fractures of seven ribs and residual traces of pulmonary pneumonia. They further concluded that the applicant’s state of health in general was stable and that he did not need any medical intervention at the material time. 28. On 7 May 2003 the prosecutor’s office again refused to institute criminal proceedings in respect of the applicant’s ill-treatment allegations, having found that there was no basis to conclude that his injuries had been indicative of ill-treatment or the application of disproportionate force by the arresting officers. The decision referred to the results of the internal investigation by the Leninskyy police in January 2003, to the findings of the medical experts who had qualified the applicant’s injuries as minor, and to the accounts of the arresting officers concerning the violent nature of the applicant’s resistance during his arrest. It was also noted that the applicant had not complained of purported ill-treatment until two weeks after the relevant events. 29. On 27 May 2003 the applicant, along with ten other individuals implicated in criminal activity as members of the Komsomol group, was committed to stand trial before the Odessa Regional Court of Appeal (“the Regional Court”) acting as a first-instance tribunal. 30. According to the applicant, on the trial days he was often summoned to an overcrowded transit area early in the morning and would sometimes have to wait for several hours before being transported to the court premises. Likewise, there would be a delay in transferring him from the transit box back to his regular cell upon his return. Catering arrangements were rarely made for the detainees on the days they were scheduled for court hearings. As a result, the applicant was always exhausted on the hearing days, which impeded his ability to concentrate during his trial. 31. According to the Government, pursuant to the applicable regulations, the detainees scheduled for court hearings were always supplied with either a packed lunch or a hot lunch at the court building. There were no transportation delays or other inconveniences affecting the applicant’s concentration in a way which was incompatible with his effective participation in the trial. 32. During the trial, the applicant acknowledged that he held revolutionary communist views and had taken part in some actions mistakenly qualified as robberies, as in fact they had been “expropriations” of property obtained by the capitalists by way of exploiting the working class, to be used for revolutionary purposes. He also acknowledged that he had handled firearms and explosives without a licence, had inflicted gunshot wounds on two police officers on 22 November 2002 and had violently resisted arrest. The applicant chose to remain silent concerning the details of robberies and other crimes with which he was charged, as they had been committed in association with other co-defendants. He also stated that he had been beaten and tortured by the police in December 2002, but that the ill-treatment had not influenced his testimonies or defence strategy. 33. In November 2003 B., one of the applicant’s co-defendants, died in detention. Following his death, some of the defendants complained that B. had been tortured to death and demanded an investigation into his and the others’ alleged ill-treatment by the investigative authorities. 34. The court ordered the prosecutor’s office to investigate those allegations. Following the investigation, the prosecutor’s office reported that there was no case to answer. In particular, B. had died of cancer and the applicant had been injured as a result of the application of reasonable force during his arrest. 35. On 19 July 2004 the Regional Court convicted the applicant of distribution of materials propagating violent revolt against the constitutional order; membership of a criminal association; several armed robberies; attempted murder of police officers; smuggling; and illegal handling of firearms and explosives. The applicant was sentenced to fourteen years’ imprisonment. The court dismissed his allegations of ill-treatment as unsubstantiated, having accepted the findings of the prosecutor’s office that his injuries had been caused during his arrest. 36. The applicant, represented by T., lodged a cassation appeal. According to an uncertified and unsigned copy of that appeal presented by the applicant to the Court, in his submissions before the Supreme Court he argued that he had been arbitrarily convicted of the robberies based on the inconsistent testimonies of his co-defendants. He further alleged that he had had no intent to kill the law-enforcement officers he had wounded, and that the motives for his participation in the revolutionary communist movement were benevolent and aimed at liberating the people from an oppressive political regime. He further reiterated his complaints of ill-treatment by the police and demanded a criminal investigation. 37. On 29 September 2004 the applicant signed an affidavit that he had no claims against the Odessa SIZO administration or any inmates. 38. On 26 July 2005 the Supreme Court upheld the applicant’s conviction and sentence in principle, having made some amendments to the text. It noted, in particular, that the applicant’s conviction was based on sufficient evidence, including testimonies by some of his co-defendants and victims of his crimes and that there was no case of ill-treatment to answer. The applicant’s conviction for distribution of propaganda was neither challenged nor reviewed. 39. In November 2005 the applicant was transferred from the Odessa SIZO to the Perekhrestivka no. 56 correctional colony in the Sumy Region to serve his sentence. 40. In October 2006 the applicant was again transferred to the Kryvyy Rig no. 80 correctional colony in the Dnipropetrovsk Region, at which a less strict regime was in place. 41. On 30 October 2006 the administration of the Dnipropetrovsk SIZO, where the applicant had arrived by way of transit, registered the applicant’s intention to go on hunger strike. 42. Following a medical report by the Dnipropetrovsk SIZO medical commission, which concluded that the applicant’s health was degenerating, he was force-fed on 8, 11, 12 and 14 November 2006. 43. On 16 November 2006 the applicant arrived at the Kryvyy Rig Colony. 44. On 17 November 2006 the applicant underwent a medical examination and was found to be suffering from dystrophy. He was also diagnosed with pancreatitis and heart and liver failure, and was prescribed in-patient treatment. On the same date the applicant stopped his hunger strike and continued to receive in-patient treatment for pancreatitis for most of December 2006. 45. In December 2006 and January 2007 the Ukrainian authorities received several applications from Russian-based public interest groups concerning the applicant’s alleged ill-treatment by the prison authorities during his transit and on the day of his arrival at the Kryvyy Rig Colony. They noted, in particular, that according to their information, the prison authorities had arbitrarily refused to dispatch the applicant’s correspondence while he had been in transit. They continued that, in protest at this refusal, on 24 October 2006 the applicant had started a hunger strike, which had been neither registered nor medically monitored until 30 October 2006, thus leading to the deterioration of his health. Subsequently the applicant had been force-fed, which procedure had been degrading. Furthermore, following his arrival at the Kryvyy Rig Colony, the wardens had ordered him to mop the floors as a sign of his inferiority and subservience, notwithstanding his critical state of exhaustion. As the applicant had refused to comply with this order, the wardens had beaten him up and he had received no proper medical assistance. 46. On 20 February and 6 April 2007 the applicant, questioned by an officer from the prosecutor’s office in connection with the above-mentioned applications, indicated in writing that he had no complaints against the prison authorities and that he had been satisfied with the quality of medical supervision and assistance provided to him. 47. On 18 April 2007 the prosecutor’s office informed the Consulate of the Russian Federation that the applicant had no complaints concerning the conditions of his detention or the medical assistance available to him. In particular, he had undergone treatment for various diseases, including dystrophy, and his weight had increased from 44 to 53kg. 48. In August 2007 several Russian-based public interest groups complained to the Ukrainian authorities that the prison administration had subjected the applicant to unfair treatment. In particular, his correspondence stored in his dresser had been arbitrarily seized. 49. On 8 November 2007 the prosecutor’s office denied that there had been any breaches of the applicant’s rights by the prison administration. It acknowledged that the allegations that some letters from the applicant’s file had been missing were true. However, rather than having been seized by the administration, they had been mistakenly recycled by another prisoner, who had been cleaning the cell. The applicant himself had refused to pursue any claims against the administration. 50. Between October 2007 and September 2008 the applicant received treatment for tuberculosis, which was subsequently considered cured. 51. On 22 September 2008 the Dnipropetrovsk department for the enforcement of sentences informed the applicant’s lawyer that the applicant had received all the necessary medical treatment and at the material time his health was satisfactory. 52. On 13 May 2009 the Regional Court refused to send the applicant’s lawyer in Russia copies of various documents from his case file, referring to the lack of necessary resources for copying and posting. It further notified the lawyer that he could study the case file in court and take any extracts he considered necessary, if he so wished. 53. In August 2010 the applicant was transferred to the Petrivska no. 24 colony.