CASE OF DZHULAY v. UKRAINE
Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
Aleš Pejchal;Angelika Nußberger;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger
5. The applicant was born in 1979 and resides in Kyiv. 6. At 4.00 a.m. on 3 March 2003 M.’s house in the town of Pyryatyn (in the Poltava region) was burgled by several persons. M., his mother (M.S.), his wife (M.L.) and M.G. (M.L.’s niece) were in the house at the time. M. and M.S. sustained bodily injuries. Various items of property, including jewellery, were stolen. Criminal proceedings were instituted by the police on the same day. 7. On 24 April 2003 the applicant was arrested in Kyiv. According to the applicant, he was arrested while at home. According to official records, the applicant was arrested at 6.20 p.m. for swearing in public and behaving “with insolence” (викликаюче). 8. On 25 April 2003 the Kyiv Golosiyivskyy District Court imposed on the applicant fifteen days’ administrative arrest for disorderly conduct. 9. On 7 May 2003 the applicant was transported from Kyiv to the town of Pyryatyn (about 150 kilometres). On 8 May 2003 he confessed to the above-mentioned burglary. 10. On 9 May 2003 the applicant was formally arrested on suspicion of having committed a crime. 11. On 11 May 2003 a lawyer, Ma., allegedly hired by the applicant’s family, submitted a request to the investigation officer for permission to represent the applicant in the criminal case against him. The lawyer also noted that since investigative actions planned for that day had not taken place he had returned to Kyiv. On the same day, Ma. was given leave to represent the applicant. 12. On 12 May 2003 an identification parade took place in the presence of two attesting witnesses. The victims, M., M.L. and M.G., identified the applicant as the person who had been in their house on the night of 3 March 2003. Two more persons participated in the identification parade. Their description, according to the official records, was as follows: person no. 1: 1.81 metres tall, dark hair, brown eyes, wearing dark blue jeans, a grey T-shirt and trainers; person no. 2: 1.76 metres tall, dark blond hair, green eyes, wearing grey trousers, a grey T-shirt and trainers; person no. 3 (the applicant): 1.89 metres tall, dark blond hair, grey eyes, wearing dark blue sport pants, a T-shirt and trainers. 13. M.G. stated that she had recognised the applicant by his voice, height and body type. M. stated that he had recognised the applicant by his voice, and M.L. that she had recognised the applicant by his voice and body type. 14. The identification parade was carried out in the absence of the applicant’s lawyer. The police officer who conducted the parade informed his supervisor that the applicant’s lawyer was not able to attend as he was busy in another criminal case. The applicant was offered another lawyer but refused. The record of the identification parade was signed by all those present and it was noted that the parade’s participants had “no complaints”. 15. On 14 May 2003 a lawyer, S., was given leave to represent the applicant. She represented him until at least 18 August 2005. 16. On 9 November 2004 the Pyryatynskyy District Court sentenced the applicant to nine years’ imprisonment with confiscation of his property, and two of his accomplices (D. and Zh.) to terms of imprisonment and confiscation of their property for the burglary of M.’s house and the infliction of minor bodily injuries on M. and M.S. Two other persons involved in the crime (P. and L.) had not been found. The court also granted the victims’ civil claims. 17. In the course of the trial proceedings, the applicant pleaded innocent. His testimonies at the trial could be summarised as following. In March 2003 he had been asked to drive D. in exchange for payment. Zh. and My. had been with them. They had stopped near a building. Everybody except the applicant had left the car. The applicant stated that he had slept in the car for a night and a day. Then D., Zh. and two unknown persons had driven “to the garages”. Everybody had left and he had stayed in the car. The applicant did not know where they had gone i.e. he did not know about the burglary. The applicant further stated that he had pleaded guilty because the police officers had beaten him. 18. At his court hearing Zh. pleaded partially guilty and testified that the applicant had remained in the car while M.’s house was being burgled. D. pleaded partially guilty but did not say anything regarding the applicant’s involvement in the crime. 19. M. and M.L. testified that they had seen four or five persons break into the house that night. They had tied M.L. up and had taken money. M. had been severely beaten by D. The former recognised the applicant since the applicant had been very frightened and he remembered his eyes. It was noted in the court hearing record that M. said: “I saw [the applicant], he was trembling all over, he was so stressed, I saw his eyes. I cannot be mistaken”. The aggressors had worn masks but later removed them. All of them had been shorter than D. and the applicant, who were the tallest. M.L. testified that she had seen four persons and that M.S. had seen a fifth one, who had been in the corridor. 20. M.G. testified that the applicant had been very frightened and had been trembling all over. He had been similarly frightened during the identification parade. She also recognised him because of his height and voice. She remembered that he had asked her age and whether she was married. During the identification parade all three persons had said the same sentence and she had recognised the applicant. 21. The court found that on 3 March 2003 the applicant, D., Zh., P. and L. upon prior planning had broken into the house of M., had inflicted bodily injuries to M. and M.S., and robbed the M.’s family. In this finding, the court referred to various pieces of evidence, including the record of the reconstruction of events where Zh. explained how he, D., P., L. and the applicant had committed a robbery; the record of the identification parades in which M., M.G. and M.L. had recognised the applicant; and the conclusion of the forensic examination of tyre tracks found near M.’s house, which matched the applicant’s car. 22. In respect of the applicant’s punishment, the court noted that the applicant was young, had positive character traits, and it was the first crime he had committed; however, his guilt had been aggravated by the fact that he was transporting criminals to and from the place of the crime. 23. The applicant’s lawyer appealed against that decision. In her appeal she stated that the applicant had been ill-treated and had pleaded guilty under physical pressure. The applicant had been paid by D. to drive him and the others. As the applicant had been drunk, D. had driven the car himself. The applicant had remained in the car all the time. The applicant’s dog had also been in the car as the applicant had initially been taking him to an acquaintance to have him mated. Once there, he had been asked to drive D. The applicant’s lawyer also noted that during the investigation stage the victims had given contradictory statements as to whether they had seen their aggressors. Moreover, the identification parade had been carried out in the absence of a lawyer. 24. On 18 August 2005 the Poltava Regional Court of Appeal dismissed the appeal. The court held that the applicant’s guilt was confirmed by the testimony of D. and Zh. given during the pre-trial investigation in the presence of their lawyers. The court also noted that the applicant’s complaints of ill-treatment were unsubstantiated and that the separate ruling adopted on 9 November 2004 (see paragraph 36 below) had been quashed accordingly. 25. On 23 February 2006 the Supreme Court of Ukraine rejected the applicant’s appeal in cassation. The court noted that the applicant’s complaints of ill-treatment had been properly checked and dismissed as unsubstantiated. 26. The applicant stated that police officers had beaten him in Kyiv and on 7 May 2003 in Pyryatyn. They had hit him with a book on the head, punched him, threatened him with murder and rape, and put a gas mask over his face and blown cigarette smoke into it. After being severely beaten he had been forced to confess. 27. On an unspecified date the applicant made a complaint about this illtreatment. 28. The case-file materials contain references to an expert forensic medical examination performed on 12 September 2003 (the applicant stated that it was performed on 12 May 2003 following his complaint lodged on 9 May 2003). According to the references, the expert concluded that the applicant had minor bodily injuries which could have been caused by “items in his surroundings” (предмети оточуючої обстановки). However, the applicant stated that the expert had concluded that the injuries could not have been caused by “items in his surroundings”. Neither of the parties submitted a copy of the report in question. 29. On 29 October 2003 an investigative officer of the Pyryatynskyy District Prosecutor’s Office issued a decision refusing to institute criminal proceedings following the applicant’s complaints of ill-treatment. Several police officers had been questioned. They had testified that the applicant had confessed his guilt and that nobody had ill-treated him. The prosecutor also referred to the forensic medical examination report of 12 September 2003. 30. On 2 April 2004 that decision was quashed by another prosecutor of the same prosecutor’s office. It was noted that not all of the circumstances of the applicant’s complaint had been looked into. In particular, it should have been ascertained why the applicant had been arrested in Kyiv, and under what circumstances he had sustained the bodily injuries; his medical documents should have been studied and his complaints should have been carefully examined. 31. On 29 April 2004 the Pyryatynskyy District Prosecutor’s Office refused to institute criminal proceedings against the police officers. The decision was similar to the one of 29 October 2003. 32. On 10 June 2004 the Pyryatynskyy District Court quashed that decision and ordered an additional investigation. The court specified that the investigation should ascertain the cause of the applicant’s injuries, whether he had had those injuries upon his arrival at the Pyryatynskyy Police Station, and which police officers had had contact with him. 33. On 16 July 2004 the Pyryatynskyy District Prosecutor’s Office again dismissed the applicant’s complaints. In its decision it noted that the applicant had been arrested in Kyiv on 9 May 2003. Upon his arrest and transfer to the Pyryatyn Temporary Detention Centre the applicant had not complained about any ill-treatment. The rest of the decision was similar to the one of 29 October 2003. 34. On 10 September 2004 the court quashed that decision and remitted the case for additional investigation. The court raised the same points as in its decision of 10 June 2004. 35. On 9 November 2004 the Pyryatynskyy District Prosecutor’s Office adopted another refusal to institute criminal proceedings which was identical to its previous decisions. In particular, it was noted that the applicant had been arrested in Kyiv on 9 May 2003. 36. On the same date, the Pyryatynskyy District Court adopted a separate ruling by which it requested the Poltava Regional Prosecutor’s Office to examine the applicant’s complaints of ill-treatment. The court stated that the applicant had been unlawfully transported from Kyiv to Pyryatyn and that, according to the forensic medical report, he had had three bruises on his chest from being punched. 37. On 20 May 2005 the Poltava Regional Court of Appeal adopted another separate ruling in which it requested the Poltava Regional Prosecutor’s Office to examine the applicant’s complaints of ill-treatment. The court noted that according to the conclusions of the forensic medical examination of the convicted persons, they had bodily injuries which could have been inflicted on the date and under the circumstances described by them. However, the court did not indicate whether the persons concerned included the applicant. The court also noted that the applicant had made a note on the decision ordering his arrest of 9 May 2003 that he had been illtreated on 7 May 2003. The court further noted that on 11 June 2003 the applicant had complained about ill-treatment, but the case-file contained no response to that complaint. 38. On 31 May 2005 the Poltava Regional Prosecutor’s Office quashed the decision of 9 November 2004 not to institute criminal proceedings and remitted the case for additional investigation. On the same date it requested the Kyiv City Prosecutor’s Office to ascertain the following: - which police officers had arrested the convicted persons and on what grounds; - who had conducted the “pre-investigation” activities (дослідчі дії) in respect of the applicant and prepared the relevant procedural documents; - who had picked up and transported the convicted persons from the Golosiyivskyy Police Station to the Pyryatynskyy Police Station; - whether the convicted persons had had bodily injuries upon their arrival at the Pyryatynskyy Police Station. It further requested the Kyiv City Prosecutor’s Office to question the personnel of the Golosiyivskyy Police Station. 39. A decision not to institute criminal proceedings was adopted on 15 June 2005. It was similar to the one of 29 October 2003. It was noted that the applicant had been arrested in Kyiv on 9 May 2003. The police officers of the Pyryatyn Police Station had testified that the applicant had not been ill-treated but had confessed on his own free will. According to the forensic medical report of 12 September 2003, the applicant had had minor bodily injuries which could have been caused by “items in his surroundings”. Scratches on his wrists had been caused by handcuffs. 40. On 18 August 2005 the Poltava Regional Court of Appeal quashed the separate ruling of 9 November 2004.