CASE OF SPINOV v. UKRAINE
No violation of Art. 3 (material aspect);Violation of Art. 3 (procedural aspect);Remainder inadmissible;Non-pecuniary damage - award;Pecuniary damage - claim dismissed
Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Rait Maruste;Renate Jaeger;Volodymyr Butkevych
5. The applicant was born in 1983 and lives in Donetsk. 6. According to the police report, at about 7.30 p.m. on 29 November 2001 the applicant, who was drunk, grabbed a bag out of Ms C.’s hands and attempted to run away. Two uniformed police officers, Mr M. and Mr K., who were patrolling the area, heard Ms C.’s cry for help and saw the applicant running with the bag in his hands. They chased the applicant, caught him in the street, restrained him and took him to the nearby police station. 7. The applicant alleged that when passing Ms C. in the street he had slipped on the ground and grabbed her bag unintentionally. After that he stood up and moved away. Shortly afterwards he had been knocked down by a heavy blow to the head, lost consciousness and regained it only at the police station. 8. According to the applicant, some six police officers at the police station handcuffed him to the window frame and demanded that he confess. When he refused to do so he was beaten. The applicant states that he was allowed to phone his sister only after he had signed a confession. He also alleges that his sister and mother had to bribe a police officer to ensure that he was not detained pending trial. 9. On 30 November 2001 the applicant was released from the police station. 10. On 10 February 2003 the Kalininsky District Court of Donetsk convicted the applicant of an attempted robbery on 29 November 2001 and fined him 850 Ukrainian hryvnas (UAH). The applicant did not appeal against that judgment. 11. On 4 December 2001 a forensic medicine expert examined the applicant, on whom he found bruises on the body, abrasion of the left wrist joint and established that the applicant was suffering from concussion. The expert further concluded that these injuries, taken together, were minor. 12. According to a certificate issued on 5 December 2001 by a doctor at the local hospital, the applicant was suffering kidney pain as a post-traumatic effect of blows to his back. 13. Between 10 December 2001 and 2 January 2002 the applicant underwent medical treatment at the local hospital for the effects of concussion. According to his medical records, he was suffering from headache, general weakness and nausea. On admission to the hospital he alleged that he had been beaten by unknown persons. 14. On 14 January 2002 the applicant complained to the Prosecutor’s Office of Kalininsky District of Donetsk (“the District Prosecutor’s Office”) about the ill-treatment allegedly suffered by him. 15. On 24 January 2002 the District Prosecutor’s Office refused to institute criminal proceedings against police officers for the lack of any corpus delicti in their acts. 16. On 12 February 2002 the Donetsk City Prosecutor’s Office quashed the decision of 24 January 2002 as unfounded and remitted the materials for further inquiry. 17. On 25 February 2002 the District Prosecutor’s Office refused to open criminal proceedings against the police officers, finding that there was nothing to suggest that they had committed any crime. 18. On 18 March 2002 the Donetsk Region Prosecutor’s Office overruled the decision of 25 February 2002, stating that the inquiry had been conducted unsatisfactorily and remitted the case for further examination. 19. On 21 March 2002 the forensic medical expert issued an additional report in which he repeated his previous conclusion that the applicant had received bruises to the body, abrasion of the left wrist joint and had suffered concussion, which amounted to minor bodily injuries, and assumed that they could have probably been caused as alleged by the applicant. 20. On 15 April 2002 the Donetsk City Prosecutor’s Office refused to institute criminal proceedings against police officers due to the lack of any corpus delicti. This finding was based on the discrepancies in the applicant’s testimonies as to the number of police officers involved and the exact place where the beating had allegedly taken place. The fact that the applicant on admission to the local hospital had not indicated the police officers as the source of his injuries had also been mentioned. 21. On 13 June 2002 the Voroshylovsky District Court of Donetsk found that the inquiry was flawed, quashed the decision of 15 April 2002 and ordered a further inquiry. The court indicated, inter alia, that the investigative authorities had failed to establish or question persons who had seen the applicant before and after his detention in the police station and to scrutinise the circumstances surrounding the infliction of bodily injuries on the applicant. 22. On 8 August 2002 the Donetsk City Prosecutor’s Office decided not to institute criminal proceedings against the police officers, stating, inter alia, that the applicant’s allegations were inconsistent and unfounded. 23. On 10 October 2002 the Voroshylovsky District Court of Donetsk quashed the decision of 8 August 2002 and ordered further inquiry. The court specified, inter alia, that the authorities had failed to make a proper assessment of the testimonies of Ms C., who had seen the applicant on his arrival at the police station on 29 November 2001, bearing no noticeable signs of beating, and to the usher of the police station and Mr L., who had talked with the applicant next day when he was released. 24. On 13 December 2002 the Donetsk City Prosecutor’s Office refused to open criminal proceedings against the police officers, finding that the applicant’s allegations about ill-treatment at the police station had been inconsistent and that the injuries complained of could have been sustained at the scene of crime. 25. On 31 January 2003 the Donetsk Regional Prosecutor’s Office quashed the decision of 13 December 2002 and remitted the case for further inquiry into the circumstances in which the applicant received his injuries. 26. On 22 February 2003 the Donetsk City Prosecutor’s Office further questioned Mr K. and Mr M., who explained in detail, as far as they could remember, how they had arrested the applicant on 29 November 2001 and the injuries they might have inflicted on him. They admitted that when catching the applicant they had knocked him to the ground, inflicted several blows to restrain him and then handcuffed him. 27. On 3 March 2003 the forensic medical expert issued a supplementary report, in which he concluded on the basis of the additional material that the bodily injuries referred to could have been inflicted on the applicant by Mr K. and Mr M. on 29 November 2001 in the course of his detention at the scene of crime. He stated, in particular, that the bruises on the body as well as the concussion could have been received by the applicant when he was knocked to the ground and restrained by the officers; the abrasion of the wrist joint could have been caused by his being handcuffed. 28. On 25 March 2003 the Donetsk City Prosecutor’s Office refused to institute criminal proceedings against the police officers, stating in particular that the bodily injuries could have been caused to the applicant by Mr K. and Mr M. when catching him at the scene of crime but not at the police station. 29. On 30 June 2005 the prosecutor of the Donetsk Region Prosecutor’s Office quashed the decision of 25 March 2003, finding that the inquiry had been flawed, and remitted the case for further examination. He stated, inter alia, that the investigatory authorities had failed to question all the witnesses who saw the applicant on 29-30 November 2001. He further ordered that the relevant room of the police station be inspected with the participation of the applicant and a medical expert be appointed, who would be able to carry out an additional medical examination and clarify thereby the way the applicant received his bodily injuries. 30. On 20 July 2005 the General Prosecutor’s Office instituted criminal proceedings against the police officers for exceeding their powers combined with the ill-treatment of the applicant. It admitted that the inquiry into the applicant’s complaints about ill-treatment had not been conducted thoroughly, and that the instructions given by the courts and the higher prosecutors had not been followed. 31. By a letter of 30 July 2007 the District Prosecutor’s Office informed the applicant that on 29 March 2007 the criminal proceedings against the police officers had been closed for lack of corpus delicti in their acts. 32. The relevant provision of the Constitution reads as follows: “Everyone has the right to respect for his or her dignity. No one shall be subjected to torture, cruel, inhuman or degrading treatment or punishment that violates his or her dignity. ...” 33. The relevant provisions of the Code of Criminal Procedure read as follows: “The court, prosecutor or investigator must, to the extent that it is within their power to do so, institute criminal proceedings in every case where evidence of a crime has been discovered, take all necessary measures provided by law to establish whether a crime has been committed and the identity of the perpetrators and punish them.” “Criminal proceedings shall be instituted on the following grounds: (1) applications or communications from ... individuals; ... (5) direct detection of signs of a crime by a body of inquiry or investigation, a prosecutor or a court. A case may be instituted only when there is sufficient evidence that a crime has been committed.”