CASE OF VOYKIN AND OTHERS v. UKRAINE
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 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for home);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for home);Violation of Article 13+8-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 8 - Right to respect for private and family life;Article 8-1 - Respect for home)
Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Georges Ravarani
6. The first applicant was born in 1978. At the time of the events he was a district police officer in the Kalyninskyy district police in Horlivka. As of February 2014, he has been serving a prison sentence in Menska prison no. 91. The second applicant is his wife who was born in 1984. She lives in Horlivka with her mother, the third applicant, who was born in 1951. The fourth applicant, the mother of the first applicant, was born in 1948 and died on 5 December 2010. The first applicant expressed wish to pursue his mother’s complaints on her behalf. 7. At the night from 18 to 19 June 2008, shortly after midnight, the second applicant had a conflict with a police officer, M., who was a colleague of her husband. 8. The second applicant’s account of the events was as follows. When walking in the street with a friend, B., she heard somebody running after them. That person pushed her on the shoulder. Having turned, she saw M., whom she knew. He was wearing plain clothes and appeared to be heavily drunk. When she asked him what the matter was, M. shouted that he would subject her to a body search, without explanation. He snatched her bag from her. Having searched its contents, he threw it on the ground. Then M. grabbed the second applicant by the neck and started strangling her. In reply to her protests, he noted that the local prosecutor was there next to him and that it was pointless to complain. He hit the second applicant twice in the head with something heavy, which, in her opinion, could have been a mobile phone. At that moment the first applicant telephoned his wife’s friend B., who was then with her, to find out whether everything was fine (as his wife had not returned home at the expected time and was not answering his telephone calls). Having found out about the incident, the first applicant went there. M. threatened him in a rude manner with dismissal. He let the second applicant go only after two other police officers in plain clothes, who happened to be there, approached them. 9. The second applicant’s friend B. supported the above version of events. However, eventually she specified that M. had not been strangling the second applicant, but had simply held her and not let her leave. 10. M.’s version of the events was as follows. He was walking in the street with an acquaintance, P., a businessman, after the celebration of the professional holiday of police inspectors. They met two colleagues of M. and stopped to talk with them. Two women passed by. M. thought that one of them was a certain T., who was under administrative supervision and was not supposed to be out of her home so late. He went to ask her what she was doing there. However, having approached her, he realised that he had been mistaken. He recognised the second applicant and apologised for his mistake. The second applicant, who appeared to be heavily drunk, started insulting and pushing him. M. submitted that he had not touched her. As regards the possible origin of her injuries, he noted that she had had serious incidents in the past with her husband and that those injuries might have been inflicted by him. As regards the fact that the plastic bag that she had had in her hands had been torn, he explained it by her intense gesticulating. 11. M.’s version was supported by the statements of his friend P. and the two police officers, who had been there. 12. Having come home, the second applicant called an ambulance. She was diagnosed with several bruises on her neck and situational neurosis. She explained that she had been strangled by a police officer. In the presence of an ambulance paramedic, the second applicant called the police. According to the Government, she did not mention that M. was a law-enforcement official. The second applicant contested that submission. 13. In the morning on 19 June 2008 the second applicant was examined by a neuropathologist who diagnosed her with concussion and bruises on her neck, and prescribed outpatient medical treatment. 14. On 28 June 2008 the Kalyninskyy police issued a ruling refusing to institute criminal proceedings in respect of the second applicant’s complaint. It noted that she had complained to the police at 1.05 a.m. on 19 June 2008 of having been hit by an acquaintance. As further stated in the ruling, it had been impossible to question her, as she had never been at home when visited by the police. 15. On 9 July 2008 the second applicant complained about the incident to the Horlivka town prosecutor’s office (“the Horlivka prosecutor’s office”). She requested that the investigation not be entrusted to the Kalyninskyy district prosecutor’s office (“the Kalyninskyy prosecutor’s office”), given that one of its officials had allegedly been with M. at the time of the events and that M. had referred to that fact as a guarantee of his impunity (see paragraph 8 above). The second applicant submitted that there had been no attempts by the authorities to contact them with a view to hearing their version of the events. 16. On 15 July 2008 the Horlivka prosecutor’s office forwarded her complaint to the Kalyninskyy prosecutor. 17. On 25 July 2008 the second applicant gave a written account of the incident to the Kalyninskyy prosecutor’s office. On the same date that authority quashed the refusal of 28 June 2008. It noted that the investigation had wrongly been entrusted to the Kalyninskyy police despite the fact that the second applicant’s complaint concerned her alleged ill-treatment by one of its officers. 18. On 28 July 2008 the police officer who had been on duty during the night from 18 to 19 June 2008 was disciplined for not having followed up the second applicant’s call (see paragraph 12 above). 19. On 1 August 2008 the Kalyninskyy prosecutor’s office refused to initiate criminal proceedings against M. under Article 365 § 2 of the Criminal Code (exceeding individual power by engaging in violent or degrading treatment of a victim), having held that there were no constituent elements of a crime discernible in his actions. The prosecutor noted that the second applicant’s allegation was supported by the statements of her husband and her friend. However, there were also statements of M. and the witnesses from his side, who denied any ill-treatment of the second applicant. The prosecutor therefore found her allegation to be unsubstantiated. It was also noted in the ruling that at the time of the events M. had been wearing civilian clothes and had not been acting as a law-enforcement official. Lastly, it was observed that the second applicant had ignored numerous summonses for questioning. 20. On 4 August 2008 the Kalyninskyy prosecutor’s office annulled its refusal of 1 August 2008 as premature. It noted, in particular, that not all the relevant facts had been established. Furthermore, there had been no forensic medical expert examination of the second applicant. 21. On 14 August 2008 the second applicant underwent such an examination, which documented no visible injuries. Having analysed her medical file, the expert concluded that she had sustained a bruise on her neck and a craniocerebral injury which led to concussion. Those injuries, assessed as insignificant, had resulted from “contact with blunt objects” at the time indicated by the second applicant. 22. On the same day the Kalyninskyy prosecutor’s office once again refused to open a criminal case against M. for lack of the constituent elements of a crime in his actions. It relied, in particular, on the witnesses’ statements, according to which M. had not ill-treated the second applicant. Furthermore, the prosecutor noted that M. had not acted in his official capacity and that the injuries sustained by the second applicant had been insignificant. 23. On 5 September 2008 a senior official of the same prosecutor’s office annulled the above ruling as premature. He noted, in particular, that an additional forensic medical examination was required with a view to verifying the second applicant’s allegation that she had been hit in the head with a mobile phone. 24. On 15 September 2008 the prosecutor ordered such an examination of the second applicant with a view to answering the following questions: (1) how exactly could her injuries have been inflicted; (2) whether there were marks on her head possibly resulting from blows with a mobile phone; (3) whether she could have sustained the injuries in question in the circumstances as she alleged; and (4) when exactly she had sustained the injuries in question. 25. On 9 October 2008 a forensic medical expert examination report was issued. It answered the above questions as follows: (1) the craniocerebral injury and the bruise on the neck had resulted from contact with blunt objects; (2) neither the examination of the second applicant nor the evaluation of the medical file had established any injuries to her head (apparently, implying visible injuries); (3) the second applicant’s injuries could have been inflicted on her in the circumstances described; and (4) according to the medical documents, the second applicant could have sustained the injuries on 19 June 2008. 26. On 19 November 2008 the Kalyninskyy prosecutor’s office delivered yet another ruling refusing to open a criminal case in respect of the second applicant’s complaints. Having relied on the forensic medical examination reports and the witnesses’ statements, the prosecutor stated that her allegation had not been sufficiently corroborated. 27. On 20 April 2009 the Donetsk regional prosecutor’s office (“the regional prosecutor’s office”) annulled the above ruling as premature and based on an incomplete investigation. 28. On 5 May 2009 the Kalyninskyy prosecutor’s office again refused to institute criminal proceedings against M. It was stated in the ruling that the forensic medical expert evaluations of 14 August and 9 October 2008 refuted the second applicant’s allegations. Furthermore, the prosecutor noted that the second applicant had refused to give her account during the additional investigation. 29. The second applicant challenged the above refusal before the Prosecutor General’s Office (“the PGO”) on at least three occasions (on 20 July and 8 October 2009 and on 4 January 2010). Her complaints were forwarded to the regional prosecutor’s office. 30. On 21 February 2010 the regional prosecutor’s office wrote to her that it agreed with the lower prosecution authority’s decision. As further stated in the letter, it was open for her to challenge that decision before the courts if she so wished. 31. In May 2008 the first applicant underwent knee surgery. From 8 August to 2 September 2008 he underwent a follow-up course of outpatient medical treatment in Horlivka Hospital. 32. On an unspecified date (illegible in the available copy) the Kalyninskyy prosecutor’s office sent a summons to the first applicant at his registered residence (his mother’s home), instructing him to come to the prosecutor’s office on 5 September 2008. It is not clear whether it was issued in the context of the criminal investigation in respect of the complaints by the first applicant’s wife (see above) or whether it was rather related to the subsequent criminal proceedings against him. 33. On 10 September 2008 the Kalyninskyy prosecutor’s office opened a criminal case against the first applicant on suspicion of abuse of power and forgery committed in his capacity as a law-enforcement official in January 2008. More specifically, on 14 March 2008 the local court had informed the prosecutor of some factual inaccuracies in a report on an administrative (minor) offence, which had been drawn up by the first applicant. The latter was suspected of having forged that report. 34. On the same date the Kalyninskyy prosecutor’s office informed the first applicant of the above decision by a letter sent to the address where he was de facto living with his wife (separately from their parents). It was also noted in the letter that he had to come to the prosecutor’s office to receive a copy of the decision and for questioning. 35. Still on the same date, 10 September 2008, the prosecutor ordered the Kalyninskyy police to ensure the first applicant’s presence for investigative measures. On 12 September 2008 the police informed the investigator that it was impossible to comply with the above order given that the first applicant had been found neither at the address of his usual residence nor at his mother’s flat. When they had also gone to enquire about his whereabouts with his parents-in-law, the third applicant “had attacked them hysterically”, which made the police believe that the first applicant might be hiding there. 36. On 13 September 2008 a judge of the Kalyninskyy Court ordered the first applicant’s arrest with a view to bringing him before the court to examine the issue of a preventive measure in his regard. 37. On 19 September 2008 the first applicant was declared wanted by the police. 38. On the same date he wrote to the regional prosecutor’s office that, following the incident with his wife, the Kalyninskyy police had been threatening him and his family with his dismissal, criminal prosecution, or even a fatal accident. He therefore sought that the Kalyninskyy prosecutor withdraw from the case. He also submitted that he was scared even to go to the hospital as some suspicious-looking persons had been loitering near his home. The first applicant indicated as his address that of his mother. 39. On 22 September 2008 the investigator visited the first applicant’s mother (the fourth applicant) at her home and asked her whether she knew where the first applicant was. She stated that he had been living separately from her for about two years and that she was not aware of his whereabouts. 40. On 24 September 2008 she sent to the investigator the first applicant’s request of 23 September 2008 to admit her to the proceedings as his representative and to give her a copy of the ruling of 10 September 2008 initiating the criminal investigation against him. In substantiation of that request, the first applicant stated that he was restricted in his movement following knee surgery. 41. On 29 September 2008 the chief of medicine of Horlivka Hospital informed the investigator, in reply to the latter’s enquiry, that the last time the first applicant had come to the hospital had been 15 September 2008 and that the hospital administration did not know how he could be reached. 42. On 1 October 2008 the internal security unit of the Kalyninskyy police wrote to the prosecutor that it had information that the first applicant had been secretly visiting the flats of his parents and parents-in-law. 43. On 3 October 2008 the Kalyninskyy prosecutor wrote to the first applicant at his mother’s address, indicating that the latter could not be admitted in the proceedings as his representative at such an early stage. The prosecutor indicated that the first applicant was on the wanted list and that he needed to show up to receive copies of the rulings in respect of the institution of the criminal proceedings against him and for his questioning. 44. On 31 October 2008 the Kalyninskyy prosecutor sent another letter to the first applicant, informing him that another criminal case had been opened against him on that date on suspicion of abuse of power by a law-enforcement official and forgery in office and that he had to come to the prosecutor’s office to get a copy of that decision and for questioning. 45. During the period from October 2008 to January 2010 further eight criminal cases were opened against the first applicant on additional counts of abuse of office, as well as on suspicion of bribe-taking. He was suspected of having committed those offences in order to report better results to his superiors and thus be entitled to additional remuneration and promotions. The first applicant was informed of each such decision by a letter sent to his mother’s address. 46. On 25 March 2009 the first applicant complained to the PGO that his numerous requests for the Kalyninskyy prosecutor to withdraw had been ignored. He further submitted that he required protection measures as “a person who had reported a crime”. Lastly, the first applicant requested that the prosecutor annul the decision on placing him on the wanted list “so that [he] could defend himself against the criminal charges and continue [his] medical treatment”. 47. On 13 May and 26 June 2009 the regional prosecutor’s office wrote to the first applicant that his complaints had been dismissed as unsubstantiated. 48. On 29 June 2009 the first applicant was arrested at the address where he lived with his wife. The investigator relied on Articles 106 and 115 of the Code of Criminal Procedure (hereinafter “the CCP”, see paragraph 78 below) and substantiated the arrest as follows: the first applicant had been on the wanted list since 19 September 2008, had impeded the establishment of the truth and had committed serious criminal offences. It was also noted in the arrest report that the first applicant was suspected of offences under Articles 364 § 3 (abuse of power or office by a law-enforcement official), 366 § 1 (forgery in office) and 368 § 2 (bribe-taking) of the Criminal Code. The investigator drew up a report on the explanation to the first applicant of his procedural rights. The first applicant refused to sign it. He also refused to make any submissions as regards the charges against him. 49. On 30 June 2009 the Kalyninskyy Court extended the term of the first applicant’s arrest to ten days on the grounds that the case file lacked information about his character. That ruling was not amenable to appeal. 50. On 3 July 2009 the same court ordered the first applicant’s pre-trial detention as a preventive measure, “having regard to the seriousness and circumstances of the crimes committed and the character of [the first applicant]”, without further details. 51. On 6 July 2009 the first applicant appealed. He submitted that his remand in custody was not based on sufficient and relevant reasons. He noted that he had been arrested at his home, where he had been living for over two years, and that he had not absconded. He noted that the reasoning in support of his pre-trial detention had been overly formalistic. Thus, although the court had referred to his character, it had failed to specify what exactly in his character had justified his detention as the most appropriate preventive measure. 52. On 21 July 2009 the Donetsk Regional Court of Appeal (“the Court of Appeal”) quashed the ruling of 3 July 2009 and released the first applicant subject to an undertaking not to leave the town. It found that the first-instance court had not given reasons as to the necessity to choose the strictest preventive measure. 53. On 17 November 2011 the Kalyninskyy Court found the first applicant guilty of fraud, abuse of power in his capacity of a law-enforcement official, forgery causing grave consequences, and bribe-taking, and sentenced him to seven years’ imprisonment with a ban to occupy posts in law-enforcement authorities, and confiscation of his personal property. 54. On 6 March 2012 the Court of Appeal quashed the judgment in the part concerning the forgery charge and remitted it to the first-instance court for a fresh examination. It upheld the judgment in the remaining part, having slightly reclassified some of the charges and having reduced the term of the first applicant’s imprisonment to six years. 55. On 9 October 2012 the Kalyninskyy Court again found the applicant guilty of forgery causing grave consequences and sentenced him to four years’ imprisonment. The final sentence was six years’ imprisonment, as the most severe of the applicant’s punishments absorbed the more lenient one. In the absence of any appeals, the judgment became final. 56. On 1 August 2013 the Higher Specialised Court for Civil and Criminal Matters quashed the appellate court’s ruling of 6 March 2012 in the part concerning the first applicant’s conviction (the part concerning the remittal of the case to the first-instance court remained in force) and remitted the case for fresh appellate examination. 57. On 3 December 2013 the appellate court upheld the judgment of 17 November 2011 in so far as it concerned the first applicant’s conviction for abuse of power in his capacity as a law-enforcement official and his sentencing to six years’ imprisonment. As regards the other charges (with the exception of that dealt with by the judgment of 9 October 2012 – see paragraph 55 above), they were slightly reclassified and the first applicant had the penalty in respect of that part removed. 58. The case file does not contain any further information as regards the criminal proceedings against the first applicant. 59. On 10 September 2008 the investigator applied to the Kalyninskyy Court for authorisation to search the first applicant’s registered residence (the flat of the fourth applicant). It was stated in the application that on 27 January 2008 the first applicant had drawn up a report on an administrative (minor) offence in respect of unauthorised street trading by a private individual. As subsequently established, the information in that report had not been accurate, which had led to the institution of criminal proceedings against the first applicant on suspicion of abuse of power and forgery. The investigator considered that “some items and documents relevant for establishing the truth” in the case could be found in the first applicant’s residence. 60. On 11 September 2008 the Kalyninskyy Court in a final ruling, allowed the above application, having reiterated the investigator’s reasoning and description of the search’s scope. It relied on Article 177 of the CCP (follow the references in paragraph 78 below). 61. On 12 September 2008 the investigator applied to the Kalyninskyy Court for authorisation to search the second applicant’s registered residence (the flat of the third applicant). The text of the application was identical to that submitted on 10 September 2008 (see paragraph 59 above). 62. On the same day the police knocked at the third applicant’s door. She and her husband were at home, but did not let the police in. 63. The third applicant’s account of the events of 12 September 2008 is as follows. A group of nine to ten persons, including police officers and some suspicious-looking persons, came to her flat. They knocked at the entrance door in a violent manner, demanding to be let in. The third applicant’s husband went out and asked them for a search warrant or another document authorising their actions, but no such document was produced. The police threatened the third applicant and her husband that they would break in and that they would find a pretext to criminally prosecute the entire family. They stayed on the stairs and in the yard and shouted for about three hours. 64. According to the Government’s version, three police officers went to the third applicant’s flat. They informed her about the criminal proceedings against the first applicant and enquired as to his whereabouts. As she and her husband refused to cooperate, the police left. 65. On 13 September 2008 the Kalyninskyy Court allowed the investigator’s application of 12 September 2008 (see paragraph 61 above). Its ruling was identical to that delivered on 11 September 2008 (see paragraph 60 above). 66. On the same day the police carried out a search at the flat of the third applicant. According to her, they broke the entrance door using an electric saw. The third applicant further alleged that the police had not shown a search warrant to her. Two attesting witnesses were present. According to the third applicant, they were acquaintances of the police officers. 67. As indicated in the search report, it lasted from 5.20 p.m. to 7.04 p.m. The police seized a number of documents related to the first applicant’s work. Furthermore, they seized a mobile telephone, which did not have a SIM card, together with its box. Lastly, they found and seized a package appearing to contain cannabis. According to the third applicant, it had been planted by the police. 68. On 16 September 2008 the police conducted a search of the flat of the fourth applicant. They discovered and seized some documents which were deemed to be related to the criminal investigation in respect of the first applicant. According to the first and fourth applicants, those documents had been brought there by the police themselves the previous day. The fourth applicant submitted that the officers, whom she knew as colleagues of her son, had explained to her that, following an attack on their police station, they had not had a safe place to store the documents, which had been intended in any event for handing over to the first applicant. 69. On 23 September 2008 an expert established that the package discovered in the third applicant’s flat on 13 September 2008 contained cannabis. On 2 October 2008 the Kalyninskyy police refused to institute criminal proceedings in that regard, having held that it had been impossible to establish to whom the cannabis might have belonged. 70. On 7 October 2008 the Kalyninskyy Court allowed another application to search the first applicant’s registered residence (the flat of the fourth applicant) given that the investigator had information that the first applicant might be hiding there. 71. On 11 February 2009 the police conducted a search of the fourth applicant’s flat on the basis of the court ruling of 7 October 2008. As indicated in the search report, the police were searching for “items, valuables and documents related to the criminal activity of [the first applicant]”. The search did not discover anything of interest for the investigation. 72. The third and fourth applicants requested many times that the Kalyninskyy Court provide them with copies of the rulings authorising the searches of their flats. The president of the court replied that the searches had been carried out in compliance with the CCP and that sending a copy of the respective court rulings was not provided for by the legislation. 73. The third and fourth applicants also complained many times to the prosecution authorities of the unlawfulness of the searches. They submitted, in particular, that the police had been rude and intrusive, that the attesting witnesses had not been independent, and that it was not clear what the police had actually been looking for. 74. On 23 December 2008 the Horlivka prosecutor’s office refused to open a criminal case in respect of the police officers involved in the operation of 12 September and the searches of 13 and 16 September 2008, with the generally couched reasoning that there had been no violations of law. It appears that the applicants were unaware of that decision. 75. On 17 June 2009, following complaints by the third and fourth applicants, the Kalyninskyy prosecutor’s office refused to institute criminal proceedings against the judge of the Kalyninskyy Court in respect of the rulings authorising the searches of their flats. 76. On 20 November 2009 the third applicant got acquainted with the ruling of the Kalyninskyy Court of 13 September 2008 (see paragraph 65 above). It is not known whether, and if so when, the fourth applicant got access to the respective rulings of 11 September and 7 October 2008 (see paragraphs 60 and 70 above). 77. On 5 June 2006 a local heating company initiated civil proceedings against the first and fourth applicants, who had their registered domicile at the same address, for debt recovery. The domestic courts found against the applicants. On 19 May 2008 the Supreme Court refused to examine an appeal on points of law by the first and fourth applicants on the grounds that they had not paid the court fees.