CASE OF CHMIL v. UKRAINE
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)
Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Josep Casadevall;Vincent A. De Gaetano
5. The applicant was born in 1936 and lives in the town of Ananyiv, Ukraine. At the material time, the applicant was the head of a territorial election commission. 6. At approximately 6.30 a.m. on 31 October 2004 – the day of the first round of the presidential elections – while on his way to the territorial election commission headquarters, the applicant met four police officers walking in the same direction who were unfamiliar to him (later identified as police officers K., L., P. and D.). The applicant struck up a conversation with them, which apparently ended up in a verbal confrontation. 7. According to the applicant, when they reached Ananiyivskyy District Police Station, the police officers pushed him inside and physically assaulted him. 8. According to the Government, when the group reached the police station, the applicant suddenly grabbed L.’s uniform and the grille of the security door and started shouting that he was being beaten. After that, the applicant talked to the head of the police station and left. 9. On the same day, the applicant phoned a prosecutor and complained of the above events. The applicant stated that at 6.30 a.m. police officers he did not recognise had pushed him into the corridor of the police station, knocked him to the ground and started to kick him. A police officer who had been on duty at the time had seen this. The applicant had been kicked in the head, the groin and the spine. As he had also been shouting out during the incident, the head of the police station had come and had ordered the officers to let him go. These events had been witnessed by a certain S. 10. Later, the applicant also testified that he had seen five unfamiliar police officers while walking to work. He had asked them where they were from, and had said that they would be working together that day. They had answered that they were from the town of Ananyiv. When the group had neared the police station, the applicant had been pushed inside. He had grabbed the door grille and shouted. The police officers had continued to hit him and had dragged him into the police station. There, they had kicked him to the floor and had continued to kick him while he was on the floor. 11. At around 1 p.m. on 31 October 2004 the applicant was examined by a forensic medical expert, B. The applicant complained of nausea and a headache, in addition to pain below his right shoulder blade, in the lumbar part of his spine, in his legs and in his groin. The applicant had a scratch on his left cheek and an oedema on his right leg. He was advised to consult both a surgeon and a neuropathologist. The applicant was supposed to go and see the expert again the next day, but did not do so. 12. On the same day, the police officers involved in the incident (K., L., D. and P.) were questioned. Police officer K. reported to the head of the police station that, while walking along the street with his three colleagues, they had been approached by a stranger who had asked them provocative questions such as, “Did you come here to kill and hang people? What are you doing here? What are you eavesdropping on?” The police officers had answered that they had been sightseeing and that the town was very beautiful. In reply, the man had said that they had seen enough and that they, “should go to the town of Reni where police officer P. should sit on the stork’s post”. The group had stopped near the police station, where the man had grabbed L.’s shoulder strap with one hand and the door grille with the other hand, and had started shouting that he had been beaten. After that, the man had entered the police station. 13. The Government also submitted the testimonies of the above police officers, which were dated 31 October 2004 and drafted in almost identical terms. According to those testimonies, in the morning of 31 October 2004, the police officers who had gone to Ananyiv to assist in maintaining public order on election day had been walking from their accommodation to the police station. An unknown man had approached them and shouted, “The fascists are coming!” and had followed them to the police station while insulting them. When L. had tried to enter the police station, the man had grabbed the door grille and L.’s left shoulder strap, and had started shouting that he was being beaten. The head of the police station had intervened. Nobody had hit the man. 14. On the same day, the entrance to the police station was inspected and no trace of a struggle was detected. L.’s uniform coat was also inspected, and it was established that one of the bands with which his left shoulder strap had been attached had been torn off. 15. Police officers K., L., D. and P. were examined by a forensic expert and by a hospital doctor. It was confirmed that they had not sustained any physical injuries and had not been drunk at the relevant time. 16. On 31 October 2004 testimonies of potential witnesses were collected. 17. The testimonies of the police officers present at the time of the incident in the police station were as follows: - police officer Sa. saw the applicant grab the door grille and shout as if somebody had been hitting him; - police officer Bo. saw the applicant grab the door grille and shout hysterically. Twice, the applicant tried to kick a police officer, but missed; - police officer N. saw the applicant in the police station. The applicant was shouting at the police officers, threatening them with dismissal and calling them names; - police officer G. saw four unfamiliar police officers, the applicant, and police officers Bo., Da., and Sa. in the reception area of the police station. The applicant was shouting that he had been beaten; - the head of the police station, Le., and police officer Kl. saw the applicant talking to L. and asking, “Who allowed you to beat me?”. 18. Forensic expert B. testified that he had examined the applicant at around 1.00 p.m. on 31 October 2004. The applicant had been complaining of nausea and a headache, in addition to pain in his back, groin and right leg. The applicant had had a scratch on his left cheek, which may have been caused by the skin being rubbed against some flat object with an uneven surface. The applicant had also had an oedema on his right leg. He had been advised to consult both a surgeon and a neuropathologist. The applicant had said that he had to work that day, and so would consult the doctor the next day. According to B., the applicant’s account – that he had been severely beaten by five police officers – was doubtful, as it contradicted the results of the physical examination. 19. S., a journalist, testified that he had seen a group of police officers walking along the street, flanking the applicant. When the group had reached the police station, the police officers had pushed the applicant inside. The applicant had resisted and the police officers had kicked him on the legs, the stomach and groin and possibly in the back. S. had run towards the police station. He had heard the applicant shout at a police officer, “Why are you beating me?” The head of the police station had been standing nearby. 20. A number of people were standing across the street from the police station at the relevant time and allegedly saw the incident. They testified as follows: - Se., the town mayor, said, “The police officers and A.V. Chmil were walking along the street quite normally. I continued my conversation with other people and suddenly heard A.V. Chmil shouting, ‘Leave me alone!’ A.V. Chmil grabbed the police officers’ clothes and tried to tear away their shoulder straps. The police officers did not use any force. Everybody went into the police station. After three to four minutes, A.V. Chmil then left the police station”; - Ko., a district election commission member, said, “A man was following three or four police officers. As the first police officer was entering the police station, the man squeezed in between them. This was followed by some shouts and a shove in the doorway. The man was pushing the police officers and shouting, ‘Help!’ and ‘Let me go!’”; - Ku said, “A man was following four unfamiliar police officers. As one police officer was entering the police station, the man started to push the others and to shout that they were not to touch or beat him. I did not see anybody beating him”; - Tk., a police officer, said, “A man was walking behind the police officers. As one police officer was entering the police station, the man pushed him. The man also shouted that they were not to touch him. After one minute, the man left the police station”; - Ts., a police officer, said, “A.V. Chmil was following four police officers. As one of the police officers started to go into the police station, A.V. Chmil squeezed in between the other three and started shouting that he was being beaten. He pushed the first police officer inside and then went in himself. A.V. Chmil left the police station after one to two minutes”. 21. The applicant was in hospital from 2 to 19 November 2004. While there, he complained that he had been physically assaulted on 31 October 2004, and was diagnosed with concussion. 22. On 10 November 2004 the Ananiyivskyy District Prosecutor’s Office refused to institute criminal proceedings against the police officers. The available evidence was summarised as follows. Five witnesses (including two police officers) testified that in the morning of 31 October 2004 they had seen the applicant walking to the police station, accompanied by four police officers. As one of the police officers had gone into the police station, the applicant had squeezed in between the police officers and had started pushing them – grabbing at their uniforms and shouting that they should stop beating him and leave him alone. The witnesses did not see the applicant being physically assaulted. The police officers involved in the incident testified that they had not hit him. Six more police officers who had been in the police station at that time testified that nobody had hit the applicant. A forensic expert, B., testified that he had examined the applicant at 1 p.m. on 31 October 2004. The applicant had had scratches on his left cheek and on his right leg. Judging by the applicant’s injuries, the expert had doubted that the applicant had been beaten by five police officers in the manner that he had alleged. The Ananiyivskyy District Prosecutor’s Office also noted that, as the applicant was in hospital at that time, it was impossible to establish the seriousness of the injuries he had sustained. In view of the evidence outlined above, the prosecutor concluded that the applicant’s allegations were unsubstantiated and that there was no evidence of a crime having been committed. 23. On 22 November 2004, following a request from the Ananiyivskyy District Prosecutor’s Office, a forensic medical expert concluded that the applicant had sustained minor physical injuries. 24. On 30 December 2004 the Odessa Regional Prosecutor’s Office overruled the decision of 10 November 2004 and remitted the case for further investigation. Amongst other things, it was noted that, in view of the applicant’s stay in hospital, a forensic medical examination should have been carried out, and witnesses other than police officers – such as the applicant’s relatives – should have been questioned. 25. In January 2005 in the course of further investigation, a hospital doctor testified that, following his admission to hospital, the applicant had complained that he had been physically assaulted, and had had bruises on his right leg. 26. A territorial election commission secretary testified that on 31 October 2004 she had arrived at work at 8 a.m. The applicant had already arrived, and he had told her that he had been beaten. He had had no visible injuries. 27. On 16 February 2005 the Ananiyivskyy District Prosecutor’s Office instituted criminal proceedings against the police officers for abuse of power. 28. The case material contains records of testimonies drafted in almost identical terms, which the four police officers involved in the incident gave on 19 March 2005. Those testimonies are nearly identical to those given by the police officers on 31 October 2004, save that in the more recent testimonies all of the police officers added that they had been trained, and that, if they had indeed beaten the applicant, then he would have sustained much more serious injuries. 29. On 19 March 2005 four formal confrontations between the applicant and the police officers were also held. The parties were asked the following questions: - Do you know each other and, if so, how did you meet and what is your current relationship? - Do you have any reason to lie about each other? - What were you doing when you met each other on the way to the Ananiyivskyy District Police Station? - In what manner did you enter the Ananiyivskyy District Police Station? - (Of the police officers) When did you learn that A.V. Chmil was the head of the territorial election commission? - Was A.V. Chmil subjected to physical or psychological pressure on 31 October 2004? - Were any procedural documents regarding A.V. Chmil drafted at the police station? 30. The answers in all four confrontation records are identical and are drafted in nearly identical terms. 31. In response to the third question, the police officers said that the applicant had asked them who they were and what they were doing in town. Police officer K. had answered the applicant and had said that they were police officers and were walking around the town. The applicant had started to insult them. 32. The record of the confrontation between the applicant and L. also contains the following verbatim extract: “Как Вы оказались в здании Ананьевского РО УМВД Украины в Одесской области? ... Л.: В райотдел милиции заходили через дверь по одному. Первым в двери зашел Л., за ним начал заходить я, в этот момент гр. Чмиль А.В. встал между мной и П., в дверях в райотдел. При этом одной рукой схватился за решетку двери, другой за мое плече.” “In what manner did you enter the Ananiyivskyy District Police Station? ... L.: We entered the police station one by one through the door. L. went in first, then me, but at that moment A.V. Chmil went to stand between me and P. in the doorway. He grabbed the door grille with one hand and my shoulder with the other hand.” 33. On 12 April 2005, following a decision of 20 March 2005 of the Ananiyivskyy District Prosecutor’s Office to conduct a forensic examination, a group of forensic medical experts concluded that the applicant had sustained a concussion, a scratch to his left cheek, and bruising to the left part of his face, his left hip and the lower part of his right leg. These injuries were categorised as minor. 34. Between April and May 2005 some of the above-mentioned witnesses (see paragraphs 17 - 20 above) were questioned again. They gave testimonies similar to those of October 2004. 35. On 14 July 2005, following a decision of 10 May 2005 of the Ananiyivskyy District Prosecutor’s Office to conduct a forensic examination, a group of forensic medical experts, having studied the relevant case file material, concluded that the applicant had sustained a concussion and a scratch to his left cheek. He had also sustained bruising to the left part of his face, his left hip and the lower part of his right leg. The bruises had been noted on the applicant’s medical card on 2 November 2004. The expert had not mentioned them in the initial examination of 31 October 2004, as they had not yet been visible at that time. The forensic medical experts were of the opinion that the concussion, the scratch and the bruises to the left cheek and lower part of the applicant’s right leg had been caused several hours before the initial examination at 1 p.m. on 31 October 2004. It was impossible to establish the exact time that the applicant’s injuries had been caused. They could have been inflicted between 7 and 8 a.m., but also earlier or later. All of the injuries had been caused by blunt trauma. The possibility that the applicant had sustained the injuries when he had fallen could not be excluded. 36. On 8 September 2005 the Ananiyevskyy District Prosecutor’s Office terminated the proceedings for the absence of any corpus delicti. The prosecutor concluded that the applicant had sustained the injuries in question when he had grabbed L.’s coat inside the police station, lost his footing and fallen down. 37. On 12 September 2005 the Odessa Regional Prosecutor’s Office overruled that decision and remitted the case for further investigation. It was noted that not all of the witnesses had been questioned. 38. On 10 October 2005 the proceedings were terminated again. It was noted that the witnesses Kol. and Sam. had not seen the applicant being subjected to ill-treatment. Kol. had testified that the police officers “had accompanied” the applicant to the police station, but that he had not seen the applicant being beaten. Sam. had seen the applicant after the incident. 39. On 19 December 2005 the Odessa Regional Prosecutor’s Office overruled that decision and remitted the case for further investigation. 40. On 8 August 2006, following a complaint lodged by police officers K. and P., the decision of 16 February 2005 to institute criminal proceedings against the police officers (see paragraph 27 above) was quashed by the Ananiyivskyy Local Court as unsubstantiated, and the case material was sent to a prosecutor’s office for a decision. 41. On 13 August 2006 a group of forensic medical experts gave an opinion on the applicant’s case. They were asked to say whether they thought that the applicant’s second-degree disability (друга група інвалідності) was related to the injuries which he had sustained on 31 October 2004. The Government submitted an incomplete copy of the experts’ conclusion (seven pages out of ten). 42. On 27 November 2006 the Ananiyevskyy District Prosecutor’s Office refused to institute criminal proceedings against the police officers. It found that the applicant had created a conflict situation and had sustained injuries as a result of a fall. 43. On 7 March 2008 the Odessa Regional Court of Appeal quashed the decision of 8 August 2006. The police officers tried again to challenge the decision of 16 February 2005 in court, but to no avail. 44. On 5 May 2008 the Ananiyevskyy District Prosecutor’s Office overruled the decision of 27 November 2006 and remitted the case for further investigation. 45. In the course of that further investigation, the witnesses (the police officers who were present at the time of the incident in the police station and the people who saw the incident from across the road), the applicant and police officers K., L., P. and D. were questioned again. They all confirmed their previous testimonies. A formal confrontation between the applicant and K., L., P. and D. was undertaken, as well as a reconstruction of events. 46. On 27 February 2009, following a decision of the Ananiyivskyy District Prosecutor’s Office, another forensic medical examination was completed. It concluded that the applicant had sustained a concussion and a scratch to his left cheek, bruises to the left part of his face, his left hip and the lower part of his right leg. Those injuries could have occurred on 31 October 2004 between 7 and 8 a.m., or later. All injuries had been caused by blunt trauma – impact from blunt objects or from falling down onto a hard surface, such as the floor. 47. On 2 April 2009 the criminal proceedings were terminated for the absence of any corpus delicti. The conclusion was that at around 6.30 a.m. on 31 October 2004 the applicant had approached four police officers – D., K., P. and L. – who had been in charge of maintaining public order on the day of the elections. The applicant had started to call them names. When the police officers had tried to go into the police station, the applicant had squeezed in between them, grasped the iron grille of the door with one hand and L.’s coat by the other, and had started shouting that he was being beaten in an effort to attract attention. The police officers and the applicant had finally entered the police station, and police officer L. had had his left shoulder-strap torn off. Seven police officers had testified that nobody had beaten the applicant in the police station. Other witnesses had testified that they had not seen the applicant being physically assaulted. According to the forensic medical examination, the applicant’s injuries could have been inflicted between 7 and 8 a.m. or later on 31 October 2004. On 17 February 2009 a forensic medical expert, B., had testified during the reconstruction of events that if the applicant’s version of events had been true, then he would have sustained more serious physical injuries. It was therefore concluded that the police officers had committed no crime. 48. The applicant challenged that decision before more senior prosecutors, but to no avail. By letter of 11 December 2009, the General Prosecutor’s Office informed the applicant that, following the investigation, it had been established that on 31 October 2004 he had approached four police officers and started to insult them and call them “black-shoulder-strappers”. He had also torn off the left shoulder strap of police officer L. Moreover, it had been established that the police officers had not used force against the applicant and that, on the contrary, the applicant had tried to kick one of the police officers in the groin while in the police station. Consequently, there were no grounds for overruling the decision of 2 April 2009. 49. The applicant also instituted proceedings for damages against the Ananiyivskyy District Prosecutor’s Office, but to no avail, as his claims were rejected for failure to comply with procedural requirements.