CASE OF KULYK v. UKRAINE
No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);No violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition)
Angelika Nußberger;Erik Møse;Ganna Yudkivska;Mārtiņš Mits;Sergiy Goncharenko;Síofra O’Leary;Yonko Grozev
5. The applicant was born in 1963 and lives in the town of Shargorod, Ukraine. 6. According to the applicant, at around 1.30 p.m. on 30 December 2002, while working in the backyard of his home, he saw three young men on the premises of the nearby Shargorodskiy Food Products Factory (“the factory”). Since there had previously been thefts at the factory premises, during which scrap metal had been thrown over the fence into the applicant’s yard, the latter decided to enter the factory yard to chase after the young men. However, having climbed over the fence and realising the young men were no longer there, the applicant went to look inside the building, entering “through an opening in the wall”. The factory premises were empty but the applicant claimed to have heard adult voices. He did not want to meet anybody and so he crawled out through the same opening and quickly returned home. 7. Five to ten minutes later a police officer, L., arrived at the applicant’s house. According to the applicant, he had a gun in his hand, swore at the applicant, grabbed him by his collar and hit him on the head with the gun handle. The applicant fell to the ground and the police officer started kicking him. The applicant’s mother-in-law appeared and asked the police officer not to beat the applicant, whereupon he grabbed the applicant by the sleeve and took him to the police station. The applicant was accused of stealing aluminium sheets from the factory. 8. The applicant also submitted that, at the police station, L., in the presence of two other police officers, had kicked him in the kidneys, at which point the applicant fell to the ground. After he got up, one of the police officers gave him some water. L. then took the applicant into one of the offices, where he and another police officer, P., beat the applicant about the head and kicked him on various parts of his body for 15-20 minutes. Another police officer, G., arrived and L. and P. continued to beat the applicant, wanting him to confess to theft. After a while the applicant was placed in a cell. 9. That night the applicant complained of a headache and general sickness. He was told by the duty police officer that a doctor would come. After some time a man wearing a white coat arrived, emptied two ampules labelled “Analgin” and “Dimedrol” (diphenylhydamine) into a plastic water bottle and gave it to the applicant. 10. On the morning of 31 December 2002 the applicant was taken to court, where he was fined in administrative proceedings for disobeying a police officer’s order to stop. According to the applicant, he had wanted to show the judge his injuries but the latter refused, advising the applicant to go to a hospital and file a complaint. 11. The applicant was brought back to the police station, where he signed a paper stating that nobody had ill-treated him and that his personal belongings had been returned to him. The material in the case-file includes a note, allegedly signed by the applicant and dated 31 December 2002, stating that he had no complaints about the police officers and that no physical force had been used against him. 12. On the same day a decision not to institute criminal proceedings against the applicant for stealing aluminium was adopted. It was noted that the applicant had not had any intention of stealing the aluminium sheets and that he had entered the factory premises out of curiosity. 13. The applicant came home and told his family what had happened. The applicant’s sister-in-law, who is a nurse, gave him an injection but the applicant did not feel any better. He was suffering from headache, nausea and fever which he claimed continued for eight months. 14. The Government did not provide a detailed description of the events of 30-31 December 2002 but it appears from their observations that they agreed with the findings of the national investigation authorities (see paragraphs 48-50 below). 15. On 2 January 2003 the applicant was examined at a hospital and was hospitalised the next day. The applicant stayed in hospital until 11 February 2003. According to the applicant’s medical records, upon arrival at the hospital, his condition was of “medium seriousness”. He had bruises mostly on the left side of his body and some scratches on his back. On his left thigh there was a large bruise measuring 12 by 6 centimetres. The applicant was suffering from headache and nausea. He told the doctors that he had been beaten by police officer L. 16. In a medical certificate dated 11 February 2003, issued by the hospital, the applicant was diagnosed with multitrauma, closed brain injury, brain contusion of medium severity causing numerous neurological problems, two broken ribs, post-traumatic pneumonia and injuries to his kidneys, face and body. 17. On 10 February 2003 the applicant requested the Vinnytsya Regional Prosecutor that criminal proceedings be instituted against the police officers. In support of his complaint the applicant outlined his version of the events which took place on 30-31 December 2002 (see paragraphs 613 above). 18. On 18 February and 3 March 2003 several factory employees (F., S., Lo. – the wife of police officer L. –, V. and A.) testified before the investigation authorities that a noise had been heard in one of the factory buildings. V. had asked a police officer, L., to check the origin of this noise. All of the above persons had approached the building and had seen footprints in the snow leading to a conveyor belt opening in the wall. Two of them had stayed outside while the others, accompanied by L., had entered the building and had seen aluminium sheets from the ceiling piled on the floor and a man trying to escape through the conveyor belt opening. V., who had stayed outside, had tried to catch the man, but the latter had broken free. When jumping from the conveyor belt, the man had slipped and fallen onto the asphalt and had then run away. The police officer had chased after the man. The latter had climbed over the 2.5 metre high fence but had lost his balance and fallen onto the other side. The witnesses had heard a thud and a shriek. 19. L. gave similar testimony. He added that the applicant had also fallen when jumping over the fence of his house. L. had found the applicant in a coal bunker in the backyard of the applicant’s house and said that he had taken him to a police station. 20. On 3 March 2003 the applicant’s mother-in-law, M., testified that L. had arrived at her house and had said that he was looking for a criminal. Later she had heard a noise behind the barn and had seen L. aiming a blow with the handle of his gun at the applicant, who was lying on the ground. M. had begged L. not to beat the applicant. After that L. had taken the applicant to a police station. 21. On the same day the Vinnytsya Regional Police Department (Управління МВС України у Вінницькій області) approved the results of an internal investigation in response to the applicant’s complaint. The investigation found that on 30 December 2002 around 2 p.m. the factory employees had asked L. to check the origin of a suspicious noise that had been coming out of one of the factory’s abandoned halls. L., accompanied by five factory employees, checked the hall and found aluminium sheets, which had been torn from the ceiling and piled up on the floor. He also saw the applicant, who tried to escape. While running away, the applicant fell twice – once when climbing through a conveyor belt opening in the wall and a second time when climbing over the fence. He fell for a third time when jumping over the fence of his house. In the yard of his house the applicant hid in a coal bunker, where he was found and taken to a police station. The police officers testified that they had not ill-treated the applicant. The applicant’s mother-in-law testified that a police officer L. had aimed a blow at the applicant as he was lying on the ground but she had not seen the applicant being beaten. Although summoned by a prosecutor, the applicant did not appear for questioning and neighbours ‒ who did not want their names to be cited ‒ described him as an alcoholic inclined to involvement in scandalous conduct, theft and fraud. The internal police investigation concluded that since the submissions of the applicant, the police officers and the witnesses were contradictory, the case-file of material should be sent to a prosecutor’s office. 22. On 7 March 2003 the deputy prosecutor of the Shargorodskiy District (заступник прокурора Шаргородського району) refused to institute criminal proceedings following the applicant’s complaint. The deputy prosecutor noted that the applicant had stated that he had not intended to steal aluminium but had entered the factory premises out of curiosity and had run away out of fear of being accused of theft, that L. and P. had denied using physical force on the applicant and that the factory employees said that they had not seen L. beat the applicant. It was also noted that the applicant had not appeared for the forensic medical examination. The deputy prosecutor concluded that the applicant had sustained his injuries when trying to run away from L. 23. On 10 April 2003 this decision was quashed by a higher prosecutor since it had not been established how the applicant’s injuries had been inflicted. 24. According to a forensic medical conclusion of 12 May 2003, the applicant had sustained the following injuries: closed concussion, two broken ribs on the left and one on the right, post-traumatic pneumonia and a kidney injury. He had numerous bruises: on the chest (20x15 cm), left shoulder (3x3 cm and 4x3 cm), left hip (12x6 cm), under the right knee (2x2 cm), left shoulder blade (5x4 cm) and scratches on the back. Those injuries were of medium severity and had been inflicted by a blunt, hard object possibly on 30 December 2002. 25. Between 15 June 2003 and 27 October 2004 the Shargorodskyy District Prosecutor’s Office (прокуратура Шаргородського району) twice refused to institute criminal proceedings in response to the complaint from the applicant. Those decisions were quashed by higher prosecutors for reasons similar to those mentioned in the decision of 10 April 2003 and the case was referred for additional investigation. 26. Between 15 June 2003 and 27 October 2004 the following investigative steps were taken: on 30 August 2004 the applicant’s mother-in-law testified that she had seen L. kicking the applicant whilst he was lying on the ground; on 30 August-1 September 2004 the applicant, his wife and the factory employees were questioned; on 30 August 2004 a forensic expert concluded that the applicant had sustained bodily injuries of medium seriousness and that those injuries could have been inflicted by blunt objects or by several falls from different heights; on 6-8 September 2004 police officers P. and L. were questioned; on 27 September 2004 the factory premises were examined; according to a forensic medical report dated 6 October 2004, the applicant could have sustained his injuries between 30 December 2002 and 2 January 2003 by being beaten or by falling from a height. 27. On 27 October 2004 the Vinnytsya Regional Prosecutor’s Office (прокуратура Вінницької області) instituted criminal proceedings on suspicion of abuse of power. 28. On 30 November 2004 the applicant was questioned and he reiterated his version of events (see paragraphs 6-10 above), submitting, in particular, that in the police station ‒ in the presence of two police officers ‒ L. had struck him on the chest; P. had hit him several times on the head; P. and L. had kicked him on various parts of his body and P. had struck him on the chest and on the abdomen and had then beaten him in the presence of a police officer. 29. On 10 January 2005 the forensic medical commission confirmed the previous expert conclusions and added that the applicant had been able to move after the injuries had been inflicted. 30. Between February and June 2005 the applicant, his family members, factory employees and police officers were again questioned and a reconstruction of events was staged in the police station. The applicant’s mother-in-law testified that she had seen L. kicking the applicant as he lay on the ground. She also stated that L. had hit the applicant on the head with his gun handle. The factory employees F. and A. testified that they had seen the applicant running away and falling over on his way to the fence and again when climbing over the fence. Face-to-face confrontations between the applicant and police officers P., L. and G., and between the applicant and the factory employees were conducted. 31. On 19 April 2005 the police officers P. and L. were charged with abuse of power accompanied by violence. 32. By a letter of 5 May 2005 the Vinnytsya Regional Prosecutor’s Office informed the applicant that investigating officers K. and T. had been disciplined for delaying the investigation. 33. On 18 May 2005 P. and L. were questioned as witnesses. 34. On 26 May 2005 the Vinnytsya Regional Prosecutor’s Office asked the Head of the Internal Security Department of the Vinnytsya Region, which is part of the Ministry of the Internal Affairs of Ukraine (начальник УВБ у Вінницькій області ДВБ ГУБОЗ МВС України), to identify and question witnesses who had seen or talked to the applicant at the time of the events in question. On an unspecified date the police stated that it had not been possible to find any witnesses. Similar requests were also submitted on 16 May 2006 and 11 January 2007. The answers to those requests were also negative. 35. On 2 June 2005 the Shargorod Territorial Medical Unit (Шаргородське територіальне медичне об’єднання), in reply to a request from Vinnytsya Regional Prosecutor’s Office, submitted that on 30 and 31 December 2002 the applicant had not received any medical assistance from an ambulance team. 36. On the same day, judge Tr. was questioned. He submitted that when he had seen the applicant in court on 31 December 2002 the applicant had had no injuries to his head or hands, nor had he complained about any health problems. The applicant also did not complain that he had been beaten. 37. On 10 June 2005 the investigating officer from the Vinnytsya Regional Prosecutor’s Office terminated the proceedings against the police officers for absence of corpus delicti. On 16 August 2005 this decision was upheld by the Leninskyy District Court of Vinnytsya. On 22 September 2005 the Vinnytsya Regional Court of Appeal quashed these decisions and remitted the case for a fresh investigation. The court found that the investigating officer had failed to check whether an ambulance had been called for the applicant when he had been at the police station, and had failed to question the witnesses to the applicant’s arrest. It was also unclear whether the applicant’s injuries could have occurred as a result of his falls. 38. On 28 October 2005 the Shargorod Territorial Medical Unit again submitted that on 30 and 31 December 2002 the applicant had not received any medical assistance from an ambulance team while at the police station. 39. In November 2005 L., A. and S. were again questioned. 40. On 22 December 2005 the forensic experts concluded that the applicant’s injuries could have occurred as a result of several falls. 41. On 28 December 2005 the investigating officer of the Vinnytsya Regional Prosecutor’s Office again terminated the proceedings for absence of corpus delicti. 42. On 20 February 2006 the Leninskyy District Court of Vinnytsya quashed that decision because witnesses to the applicant’s arrest had not been sought and the hospital doctors had not been questioned. The applicant’s family members and some factory employees were to be additionally questioned and the evidential material from the administrative case-file against the applicant was to be included in the file. The case was remitted for further investigation. 43. On 13 April 2006 the Vinnytsya Regional Court of Appeal rejected the prosecutor’s appeal against the decision of 20 February 2006. 44. Between 13 April 2006 and 19 October 2008 the proceedings were terminated three times for absence of corpus delicti and re-opened, in particular, in the light of the failure to obtain the applicant’s medical file from the hospital or to conduct a reconstruction of events with the participation of L., witnesses and a forensic medical expert in order to establish where the applicant had fallen and the circumstances in which the applicant had suffered his injuries. 45. By letters of 7 July 2006 and 7 February 2007 the Shargorodskyy District Prosecutor’s Office informed the Vinnytsya Regional Prosecutor’s Office, inter alia, that the applicant’s mother-in-law, wife and sister-in-law had refused to testify, that a factory guard who had been on duty on 30 December 2002 had moved to Russia, and that “it had been impossible to question doctors at Shargorod Hospital since there was no information about any medical assistance that might have been provided to the applicant”. 46. On 14 October 2008 a reconstruction of events at the factory had been conducted with the participation of L. and a forensic medical expert. The expert had also been asked additional questions on the same day. 47. On 19 October 2008 an investigating officer of the Tomashpilskyy District Prosecutor’s Office terminated the criminal proceedings against the police officers for absence of evidence of a crime. 48. It was found that on 30 December 2002 at around 1 p.m. employees of the Shargorodskiy Food Products Factory had asked a police officer L., who had been present at that time on the factory premises, to check the origin of noises coming from inside one of the locked factory buildings. L. together with V., F., A., Lo. and S. went to the premises in question. Inside the building, L. and the factory employees found aluminium sheets torn from the ceiling and piled up against a wall. They also saw the applicant, who ran away after tripping up several times. The applicant was later apprehended at his home and taken to a police station. 49. After being questioned on 30 August and 30 November 2004 (see paragraphs 26 and 28 above), the applicant admitted that whilst running away he had heard people shouting behind him but had not paid any attention to them. The applicant also submitted that he had climbed over the fence having stepped on a manure pile on another side. However, the applicant’s neighbours testified that the manure pile was located 1.5 metres away from the wall. The prosecutor also referred to the testimonies given by the police officer L., factory workers, other police officers and a judge Tr. during the investigation. Numerous forensic medical experts concluded that the applicant’s injuries could have been caused by having fallen onto hard objects several times. The forensic medical expert who participated in the reconstruction of events testified that the applicant’s injuries had most probably been caused as a result of his having fallen down several times, bearing in mind the frozen ground, the height of the conveyor belt and the fence, and the body’s acceleration when running. 50. In view of the above the Tomashpilskyy District Prosecutor’s Office concluded that there was no evidence of any crime and, since the events in question had taken place six years earlier, that there was no possibility of finding such evidence. 51. On 22 September 2010 the Leninskyy District Court authorised a search of premises at K. Street 54/1. This search was the result of criminal proceedings instituted the previous day following the placement of pornographic material on an Internet page which allegedly belonged to the applicant’s representative. 52. On 15 October 2010 Ya., who was using the premises at K. Street 54/3, allowed the police to inspect those premises after receiving authorisation from the owner. She confirmed that the items of property in the room at that address belonged to the applicant’s representative. 53. On the same day the police officers inspected the premises at K. Street 54/3 and seized, inter alia, three computers. According to the applicant’s representative, the office of a human rights organisation was located at that address, which was where he worked. 54. The applicant’s representative complained about the seizure to a prosecutor indicating that one of the seized computers contained part of confidential correspondence with the Court in the present case. 55. On 5 November 2010, in response to complaints by the applicant’s representative about alleged breaches of the law in the course of the search and seizure, the Vinnytsya City Prosecutor’s Office issued a decision refusing to institute criminal proceedings. According to the applicant’s representative, he appealed against that decision but to no avail. 56. According to reports in the media, in August 2013 the applicant’s representative was acquitted.