CASE OF YATSENKO v. UKRAINE
Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment;Effective investigation) (Procedural aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
André Potocki;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger
5. The applicant was born on 8 November 1975. 6. On 28 April 1997 the police searched the applicant’s apartment. 7. On 14 May 1997 the applicant was interrogated and charged with aggravated extortion. 8. On 11 September 1997 the applicant was arrested and later placed in detention on remand. 9. On 24 May 2000 the Chervonozavodsky District Court of Kharkiv sentenced the applicant to nine years’ imprisonment following his conviction for aggravated extortion. During the trial, the court accepted the testimony of the witness L.D.M. during the pre-trial investigation. L.D.M.’s evidence concerned one of nine episodes of extortion imputed to the applicant and his accomplices. It did not contain any information about the applicant or his accomplices’ activity and was ancillary to the main evidence (the testimonies of the victim and other witnesses, and police materials). 10. On 19 December 2000 the Kharkiv Regional Court upheld the judgment of 24 May 2000. The court did not rely on L.D.M.’s evidence and approved the trial court’s findings and assessment of facts. This court further rejected the applicant’s complaint about the first instance court’s decision to admit as evidence testimony given by L.D.M., even though he was absent at the trial. It further noted that the evidence was of an ancillary character and fully corresponded to the other evidence examined. 11. On 5 May 2001 the Deputy President of the Kharkiv Regional Court rejected the applicant’s request to initiate a supervisory review, as unsubstantiated. 12. On 19 April 1997 the applicant was placed in detention at the Merefa Police Station by police officer R.A.A., who imposed an administrative arrest on the applicant for appearing drunk and swearing in a public place. Later on the same date a judge of the Kharkiv District Court of Kharkiv authorised the applicant’s administrative arrest for ten days for committing the aforementioned administrative offence. 13. On 27 May 2005 the President of the Kharkiv Regional Court of Appeal quashed the resolution of the Kharkivsky District Court of Kharkiv of 19 April 1997 (see paragraph 12 above), finding that the applicant’s tenday administrative arrest had been imposed without lawful grounds and that the court’s resolution was not substantiated. 14. On 18 April 1997 police officers from the Kharkiv Regional Department for Combating Organised Crime (“the Department for Combating Organised Crime”) arrested the applicant on suspicion of his involvement in extortion. At 10.45 a.m. on the same day the officers took him to the premises of the Department, where he was questioned by the officers about extortion from a Mr M. 15. According to the investigation reports the applicant left the premises of the Department for Combating Organised Crime at 2 p.m. on 18 April 1997. According to some other reports he remained in the hands of police officers until later. According to the police records and R.A.A. police officer’s witness statements, on 19 April 1997 at 2.30 a.m. the applicant was brought to the Merefa Police Station, where he was apprehended for minor hooliganism. He was brought to that station by N.A.V., one of the policemen who questioned him before. The applicant was placed in detention at the Merefa Police Station by police officer R.A.A., who completed a verbatim record on the applicant’s administrative arrest for appearing drunk and swearing in a public place (according to that record he had appeared drunk in a public place at 7 p.m. on 18 April 1997). That officer requested the Kharkiv District Court of Kharkiv to authorise the applicant’s administrative arrest for ten days. On 19 April 1997 a judge of that court approved this request (see paragraph 12 above). 16. On 23 and 25 April 1997 the Merefa Police Station called an ambulance to the applicant as he was complaining of kidney pains. From 26 April to 13 May 1997 the applicant underwent treatment at the Kharkiv Regional Hospital for a ruptured kidney and craniocerebral trauma. He was again treated for the same injuries and at the same hospital from 20 May to 4 June 1997 and later at the Kharkiv City Hospital from 9 June to 8 July 1997. From 14 July to 5 August 1997 the applicant underwent in-patient treatment at the Lyubotyn Hospital, where it was established that he was suffering from post-traumatic nearsightedness, his sight having deteriorated since April 1997. 17. On 5 May 1997 the applicant lodged a complaint of ill-treatment by police officers with the Kharkiv Regional Prosecutor’s Office (“the Regional Prosecutor’s Office”). On 3 June 1997 the applicant sent a detailed statement to the Kharkiv Regional Prosecutor complaining that he had been beaten by police officers S.O.G., B.I.V., B.S.V., N.A.V. and L.D.V. from the Department for Combating Organised Crime, who had arrested and questioned him on 18 April 1997. In a written complaint he stated that these officers had punched and kicked him in the face, chin, nape of the neck, ears, chest, back and other parts of the body. They had also threatened him with rape, ordered him to strip naked and twisted his testicles. He had eventually agreed to cooperate with these police officers. He further mentioned that after his questioning he had been taken by N.A.V. to the Merefa Police Station where he had been kept under administrative arrest for hooliganism. 18. As a result of these complaints, on 4 June 1997 the supervisory prosecutor of the Regional Prosecutor’s Office instituted criminal proceedings into the allegations of injuries and abuse of power by the police officers (paragraph 2 of Article 166 of the Criminal Code). The matter was referred to the Kyivsky District Prosecutor’s Office (“the District Prosecutor’s Office”) for investigation. The investigator questioned the police officers concerned, together with witnesses and the applicant himself, and ordered the seizure of the medical evidence. On 13 August 1997 the investigator ordered a forensic medical examination of the applicant in order to establish whether any injuries had been inflicted on him and the cause of any such injuries. This examination resulted in a report dated 12 September 1997 which established that the applicant had concussion and a bruised kidney which could have occurred, as alleged, on 18 April 1998. The report did not establish the cause of these injuries or any causal link between the injuries and the applicant’s allegations of ill-treatment. The investigation undertaken by the District Prosecutor’s Office lasted from 10 July 1997 to 30 January 1998, when the criminal proceedings were discontinued on account of the absence of corpus delicti in the actions of the police officers. 19. On 2 September 1997 the Head of the Kharkiv Regional Police Department ordered that a disciplinary sanction be imposed on R.A.A. (see paragraph 15 above), finding, inter alia, that the applicant’s arrest on 18 April 997 had been illegal. In particular, the internal police investigation established that N.A.V. acted upon request of R.A.A. to complete a verbatim record of the applicant’s arrest for drunkenness and swearing in a public place (see paragraph 12 above). The order also stated that R.A.A. had disregarded the injuries that the applicant had at the time of being taken into detention. 20. The applicant complained of discontinuance of the investigation (see paragraph 18 above) and on 3 May 1999 that resolution was quashed by the Kharkiv City Prosecutor’s Office, which found that the circumstances of the criminal case had been insufficiently investigated. The case was sent for additional investigation to the District Prosecutor’s Office, which undertook several investigative measures between 4 May and 29 October 1999. In particular, it ordered an additional forensic medical examination of the medical evidence gathered in the case. On 14 September 1999 the forensic medical examination established that after the events of 18 April 1997 the applicant had suffered from concussion and a bruised kidney. On 20 September 1999 the District Prosecutor’s Office informed the applicant that the claims for damages he had lodged against the police officers could not be admitted to the case file as the applicant had no victim status in the criminal investigation. On 29 October 1999 the proceedings instituted following the applicant’s complaints of ill-treatment were suspended because the investigation had failed to determine the suspects. 21. On 26 November 1999 the Kharkiv City Prosecutor’s Office quashed that resolution as the investigation was incomplete. It recommended that it should be established whether the police officers indicated by the applicant were guilty of abuse of power and of inflicting bodily injuries on him. On 20 January 2000 the District Prosecutor’s Office terminated the proceedings on the grounds of a lack of corpus delicti in the actions of the police officers involved in the applicant’s questioning on 18 April 1997. 22. On 6 April 2000 the Kyivsky District Court of Kharkiv (“the District Court”) quashed the resolution of 20 January 2000 as the investigation was incomplete. In particular, it found that the investigation’s findings contradicted the expert forensic examinations that had established that the applicant had injuries following events of 18 April 1997. The court ruled that the applicant should be granted the status of a victim. It also ordered a further investigation into the circumstances which had led to the applicant’s injuries. 23. On 12 May 2000 the investigator of the District Prosecutor’s Office initiated an additional investigation into the applicant’s allegations of illtreatment. On 30 May 2000, after several investigative acts and refusals to initiate criminal proceedings against police officer R.A.A. and to grant the applicant the status of victim, the proceedings were discontinued for the same reasons as on 20 January 2000. 24. On 10 July 2000 the Regional Prosecutor’s Office quashed the resolution of 20 January 2000, finding that the instructions of the judge given on 6 April 2000 had not been complied with and that the investigation had been perfunctory and incomplete. 25. A new investigation was conducted from 14 July to 14 December 2000. On 2 October 2000 the investigation against the suspected police officers was terminated due to the absence of corpus delicti in their actions. The case was remitted to the District Police Department for further investigation into the charges of “minor bodily injuries” (Article 106 of the Criminal Code). The investigation again rejected the applicant’s request for victim status. On 14 December 2000 the District Police Department terminated the proceedings as it found there was no evidence of a crime. 26. On 2 April 2001 the Regional Prosecutor’s Office quashed the resolutions of 14 September, 2 October and 14 December 2000 and remitted the case to the District Prosecutor’s Office for further investigation. In particular, it ruled that the above-mentioned investigative resolutions were unlawful and the investigation into the allegations of abuse of power and infliction of bodily injuries on the applicant was incomplete and inadequate. 27. The investigation was renewed on 7 April 2001 and lasted until August 2001. In the course of the investigation the applicant was granted the status of victim, but the proceedings against the police officers were again discontinued on account of a lack of corpus delicti and the grounds for initiating criminal proceedings were reclassified. The case was again remitted to the District Police Department where, on 12 September 2001, another investigation into the infliction of bodily injuries was terminated as there was no evidence of a crime. On 14 and 19 January 2002 all the resolutions adopted in the course of the investigation were quashed by the Regional Prosecutor’s Office as the investigation was incomplete and its conclusions were premature. The case was again remitted for re-investigation to the District Prosecutor’s Office. 28. The proceedings after this remittal lasted from 1 to 27 February 2002, when the District Prosecutor’s Office again discontinued proceedings against the police officers as it found no evidence of abuse of power or illegal infliction of injuries on the applicant. It also decided to institute a criminal investigation into the infliction of bodily injuries on the applicant and to remit the case for further investigation to the District Police Department. 29. Following the remittal of the case for further investigation, on 6 March 2002 the investigator at the District Police Department instituted a criminal investigation into the infliction of light bodily injuries on the applicant. On 23 August 2002 the investigation found no evidence of a crime ensuing from the injuries inflicted on the applicant. It discontinued proceedings for lack of evidence of a crime. 30. On 5 November 2002 the Regional Prosecutor’s Office quashed the resolution of 23 August 2002 as the investigation was inadequate and incomplete. The proceedings were again re-initiated by the District Police Department on 28 November 2002. 31. On 9 December 2002 the investigator of the District Police Department lodged an application with the District Court seeking to discontinue the proceedings on the charges of bodily injuries, on account of the expiration of the statutory limitation period. On 19 December 2002 the court decided to terminate the proceedings on that ground. 32. On 29 January 2003 the District Court allowed the applicant’s father’s request for the extension of the time-limit for lodging an appeal since neither he nor the applicant had ever been informed about the judicial examination of the case. The applicant lodged an appeal seeking to quash the resolution of 19 December 2002. 33. On 22 April 2003 the Kharkiv Regional Court of Appeal quashed the contested resolution of 19 December 2002. In particular, it stated that the Police Department and the court had failed to ensure that the applicant had an opportunity to familiarise himself with the case-file before it was referred to the court. It remitted the case for rehearing to the District Court, which on 30 May 2003, ordered an additional investigation into the infliction of bodily injuries on the applicant. 34. The new additional investigation lasted from 27 June to 10 October 2003, when the investigator of the District Police Department discontinued proceedings in the case due to lack of corpus delicti. 35. On 1 December 2003 the Regional Prosecutor’s Office quashed the resolution of 10 October 2003 as unlawful. It remitted the case for a new pre-trial investigation to the District Prosecutor’s Office, which on 13 January 2004 declared that the applicant was the victim of bodily injuries inflicted on him by unknown persons on 18 April 1997. The investigator questioned the applicant and ordered an additional forensic medical examination into the circumstances surrounding his injuries. It remained unclear from the last letter of the applicant dated 3 November 2009 whether these proceedings were still pending.