CASE OF OLEKSIY MYKHAYLOVYCH ZAKHARKIN v. UKRAINE
Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 3 (substantial aspect);Violation of Art. 3 (procedural aspect);Violation of Art. 5-1-c;Violation of Art. 5-3;Non-pecuniary damage - award
Karel Jungwiert;Mirjana Lazarova Trajkovska;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
5. The applicant was born in 1979. At the material time he lived in the town of Kalush, Ivano-Frankivsk Region. 6. At about 4 p.m. on 17 May 2003, when the applicant was driving from Ivano-Frankivsk to Kalush, he was stopped by police because they had received information that the applicant, who had previously been convicted of theft, might have been involved in recent burglaries committed in the neighbourhood. 7. When searching the applicant's car, the police officers seized an adjustable wrench, gloves, two pocket torches and some other things. They further allegedly found in the car and the applicant's pocket small amounts of cannabis. According to the applicant, he had no cannabis on him and there was none in his car. 8. Following the search, the police officers decided to formalise the applicant's arrest under Articles 44 and 263 of the Administrative Offences Code for possession of illegal drugs in small amounts (administrative offence). In the meantime they sent the seized adjustable wrench to an expert for an opinion as to whether it might have been used to break down the doors of the recently burgled apartments. 9. During the questioning, the applicant informed the police officers that the cannabis did not belong to him and stated that it had been planted on him and his car by the police officers. In response the applicant was allegedly beaten up. 10. According to the applicant, he was hung over a horizontal crowbar when handcuffed and with his head pointing downwards; when held in this position, he was threatened with being killed. 11. On 20 May 2003, after the expert confirmed that the adjustable wrench had been used for a number of burglaries, the police officers took the applicant to the investigator, who at 1 a.m. on 21 May 2003 formalised the applicant's further detention in the status of criminal suspect in respect of the burglaries. 12. When questioned, the applicant rejected the accusations of burglary. In response, he was allegedly beaten up by police officers. According to the applicant, he was hung over a horizontal crowbar when handcuffed and with his head pointing downwards; when he was in that position his head was beaten with a plastic bottle filled with water and his feet with a wooden bat; a gas mask filled with liquid was placed over his head, which made it impossible to breathe. During this treatment the applicant lost consciousness several times and when he came round he was told he had to confess to the crimes. Finally, he signed a confession to one burglary. Subsequently, he signed a number of other documents given to him by police officers. 13. During the night of 24 May 2003 the applicant, still being detained at the police station, asked to use the toilet. When allowed to use it, he cut his left-hand arterial vein. When the resultant bleeding was seen he was delivered to a local public hospital. The same day, having been provided with the requisite medical assistance, the applicant was released. The medical examinations and treatment provided to the applicant in connection with that injury were documented by medical officers. 14. On 26 May 2003 medical officers examined the applicant and issued a medical report. According to the letter of the Ivano-Frankivsk Regional Prosecutor's Office (“the Regional Prosecutor's Office”) of 16 October 2003, the report attested that the applicant had suffered (in addition to the cut on the left arm) three abrasions to his right shoulder and arm, three bruises to his left shoulder, three abrasions and eight scratches to his left arm, and two abrasions to his right leg. According to the bill of indictment of 28 December 2007 (see also paragraph 32 below), the report, after describing the above injuries, ended with the conclusion that they had to be qualified as minor bodily injuries, which could have been inflicted by blunt objects (except for the cut on the left arm), about five days before the examination. 15. On 29 May 2003 the applicant was diagnosed with a severe and suicidal depressive disorder. 16. Following his release the applicant and his mother lodged numerous complaints with law enforcement authorities requesting that the police officers involved be held criminally responsible. 17. On 21 July 2003 the Ivano-Frankivsk Town Prosecutor's Office refused to institute criminal proceedings following the applicant's allegations, stating that there was no evidence of crime. The fact that the applicant sustained numerous injuries was noted but disregarded without explanation. 18. The applicant challenged that refusal before the Regional Prosecutor's Office which, in the course of reviewing the impugned decision, also requested the Ivano-Frankivsk Regional Police Department, supervising the relevant local police offices, to carry out an additional internal inquiry concerning the facts complained of. 19. On 27 October 2003 the Regional Prosecutor's Office quashed the decision of 21 July 2003 on the basis that the circumstances in which the applicant had sustained the injuries had not been examined. 20. On 3 November 2003 the Regional Prosecutor's Office instituted an investigation of the allegedly unlawful detention and ill-treatment of the applicant. 21. On 15 December 2003 the applicant applied to the General Prosecutor's Office asserting that the Regional Prosecutor's Office could not carry out an impartial investigation in respect of police officers working in the same region. He requested therefore that the case be referred to a prosecutor's office of another region. 22. On 16 June 2004 the applicant repeated that request as there had been no reply to the first one. He stated that he could still remember the events in detail and identify the policemen involved but the relevant investigatory steps had not been taken. 23. On 24 June 2004 the Kalush Town Prosecutor's Office refused to institute criminal proceedings against Yu. and B., two of the police officers who, it was alleged by the applicant, had been involved in the crimes. 24. On 26 July 2004 the Regional Prosecutor's Office itself considered the applicant's requests for referral of the investigation to another prosecutor's office and rejected them as unsubstantiated. 25. On 25 September 2004 the Regional Prosecutor's Office refused to institute criminal proceedings against police officers Zh., K., and H. for lack of evidence of their involvement in the alleged crimes. On several occasions the applicant requested a copy of that decision in order to challenge it before a court, but to no avail. 26. The Regional Prosecutor's Office then charged two police officers, A. (who was the operative officer of the local police office) and M. (who was the head of the division of the local police office dealing with crimes against individuals and crimes committed by group of persons), with abuse and exceeding their powers, forgery of documents, and unlawful arrest in respect of the applicant. 27. On 22 October 2004, having completed its investigation, the Regional Prosecutor's Office referred the case file to the Ivano-Frankivsk Town Court (“the Town Court”) for trial. 28. Between 3 November 2004 and 15 November 2006 the hearings in the case were adjourned by the Town Court five times because of the prosecutor's failure to appear, seven times at the request of the prosecutor, and once because the prosecutor was on holiday. 29. On 18 July 2007 the Town Court held a hearing in the case, in the course of which it established that the investigation had been carried out superficially and inadequately. The Town Court noted that the decisions to refuse to institute criminal proceedings against the other police officers had not been substantiated. It therefore remitted the case for further investigation and ordered that the other police officers be brought before the applicant for identification; that they be questioned; that a confrontation be held between them and the applicant; that the alibi of the accused M. be verified; that the staff of the hospital where the applicant was provided with medical assistance be questioned; and that a detailed reconstruction of the events be held with the participation of the applicant, given that the latter had made contradictory statements about how he had allegedly been hung over the crowbar. 30. On 24 September 2007 the Ivano-Frankivsk Court of Appeal upheld the decision of 18 July 2007 noting, inter alia, that the applicant's inconsistent statements should have been properly verified. 31. On 15 November 2007 the Regional Prosecutor's Office commenced additional investigations ordering that they should be terminated within one month. 32. On 28 December 2007 the Regional Prosecutor's Office, having completed the additional investigation, referred the case file to the Town Court. It charged A. with abuse of powers, excess of powers, forgery of documents, deliberately unlawful arrest. It further charged M. with excess of powers and deliberately unlawful arrest. All of the charges referred to the qualified corpi delicti of the relevant crimes. The bill of indictment stated, among other things, that M. requested the other police officers to handcuff the applicant and to hang him over the crowbar which was placed between two chairs; to place a gas mask over the applicant's head and block the air flow. It was specified that “the torture lasted from 1 a.m. on 21 May to 9.50 a.m. on 22 May 2003”. 33. According to the bill of indictment, the other police officers were not prosecuted as the applicant's mother submitted that, given the lapse of time, the applicant would not be in position to identify any other police officer except for A. and M.; moreover, all the other police officers denied their involvement in the crimes. 34. On 25 March 2009 the Town Court found that the Regional Prosecutor's Office had failed to comply with the investigatory instructions contained in the decision of 18 July 2007. The Town Court further decided to disjoin from the case the charges against M. and remitted this part of the case for additional investigation. As to the charges against A., the Town Court proceeded with their consideration. 35. On 26 March 2009 the Town Court found that in the course of the applicant's arrest A. planted drugs on the applicant, ill-treated him by punching and kicking him, falsified the administrative case in his respect, and illegally detained him. The Town Court found A. guilty of exceeding his powers, forgery of documents and unlawful arrest, and sentenced him to three years' imprisonment with a prohibition on occupying posts in law enforcement bodies for the same period. It also allowed the applicant's civil claim for damages in part. 36. On 15 September 2009 the Ivano-Frankivsk Court of Appeal upheld the decision of 25 March 2009. It further quashed the judgment of 26 March 2009 as unsubstantiated and remitted the whole case for additional investigation. It noted that A.'s guilt had not been properly established either, because of the serious shortcomings of the investigation. It also held thatthe Town Court had been wrong in its decision to examine the charges against A. separately from the charges against M. 37. The investigation against A. and M. is pending. 38. The relevant provisions of the Constitution read 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. ...” “... In the event of an urgent necessity to prevent or stop a crime, bodies authorised by law may hold a person in custody as a temporary preventive measure, the reasonable grounds for which shall be verified by a court within seventy-two hours. The detained person shall be released immediately if he or she has not been provided, within seventy-two hours of the moment of detention, with a reasoned court decision in respect of the holding in custody. ...” 39. Chapter II of the Code deals with crimes against the life and health of an individual. Article 127 of the Code which is included in that chapter provides as follows: “1. Torture, that is intentional causing of strong physical pain or physical or moral suffering by way of beating, tormenting or committing other violent acts with the purpose of compelling the victim or any other person to commit an act against his or her will shall be punished by imprisonment for a period of from three to five years. 2. The same acts, if committed repeatedly or premeditatedly by a group of persons shall be punished by imprisonment for a period of from five to ten years.” 40. Chapter XVII of the Code deals with crimes committed by public servants and other persons performing official functions. These offences include abuse of powers (Article 364); excess of powers (Article 365); forgery of documents (Article 366). The qualified corpi delicti are envisaged in the event of grave consequences and other circumstances. In particular, if the abuse of powers is committed by a law-enforcement officer, punishment for such a crime shall be imprisonment for a period of from five to twelve years with the prohibition to occupy certain posts (or to carry out certain activities) for a period of up to three years and with the confiscation of property (Article 364 § 3). Chapter XVIII of the Code deals with the crimes against the justice and provides, inter alia, the crime of deliberately unlawful arrest (Article 371). 41. Article 4 of the Code provides that the court, the prosecutor or the investigator must, to the extent that it is within their power to do so, institute criminal proceedings in every case where signs of a crime have 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. 42. Article 99 of the Code provides that if there are no grounds to institute criminal proceedings, the prosecutor, the investigator, the body of inquiry, or the court shall take a decision refusing to institute criminal proceedings and give relevant notices to the interested persons, companies, institutions and organisations. 43. The relevant parts of Article 106 of the Code read as follows: “The body of inquiry shall be entitled to arrest a person suspected of a criminal offence for which a penalty in the form of deprivation of liberty may be imposed only on one of the following grounds: 1. if the person is discovered whilst or immediately after committing an offence; 2. if eyewitnesses, including victims, directly identify this person as the one who committed the offence; 3. if clear traces of the offence are found either on the body of the suspect, or on his clothing, or with him, or in his home. If there is other information giving grounds to suspect a person of a criminal offence, a body of inquiry may arrest such a person if the latter attempts to flee, or does not have a permanent place of residence, or the identity of that person has not been established. For each case of detention of a criminal suspect, the body of inquiry shall be required to draw up a minutes outlining the grounds, the motives, the day, time, year and month, the place of detention, the explanations of the person detained and the time when it was recorded that the suspect had been informed of his right to have a meeting with defence counsel as from the moment of his arrest, in accordance with the procedure provided for in paragraph 2 of Article 21 of the present Code. The minutes of detention shall be signed by the person who drew it up and by the detainee. A copy of the minutes with a list of his rights and obligations shall immediately be handed to the detainee and sent to the prosecutor. At the request of the prosecutor, the material which served as a ground for detention shall be sent to him as well. ... Within seventy-two hours of the arrest the body of inquiry shall: (1) release the detainee if the suspicion that he committed the crime has not been confirmed, if the term of detention established by law has expired or if the arrest has been effected in violation of the requirements of paragraphs 1 and 2 of the present Article; (2) release the detainee and select a non-custodial preventive measure; (3) bring the detainee before a judge with a request to impose a custodial preventive measure on him or her. ... Detention of a criminal suspect shall not last for more than seventy-two hours. If, within the terms established by law, the ruling of the judge on the application of a custodial preventive measure or on the release of the detainee has not arrived at the pre-trial detention facility, the head of the pre-trial detention facility shall release the person concerned, drawing up the minutes to that effect, and shall inform the official or body that carried out the arrest accordingly.” 44. Article 217 of the Code provides, inter alia, that after the completion of the investigation in the case, which has to be referred to the court for trial, the investigator gives relevant notices to the victim and his representative, civil plaintiff, civil defendant, or their representatives, and explains to them their right to familiarise themselves with the materials of the case file. 45. Article 44 of the Code prohibits the fabrication, purchase, storage, transport, or dispatch of drugs or psychotropic substances in small quantities without the purpose of their trafficking. 46. Article 263 of the Code provides, inter alia, that anyone who violates the rules on circulation of drugs may be arrested and detained for up to three hours in order for a report on the administrative offence to be drawn up. However, in order to identify the perpetrator of the offence, subject him to a medical examination, clarify the circumstances of purchase of the drugs or psychotropic substances and examine them, the detention may be extended by up to three days. In such cases the prosecutor shall be informed of the extension in writing within twenty-four hours. If the arrested person does not have identity documents the detention may be extended by up to ten days subject to the prosecutor's approval.