CASE OF KOMAROV v. UKRAINE
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 6+6-1 - Right to a fair trial (Article 6-3-c - Defence through legal assistance) (Article 6 - Right to a fair trial;Criminal proceedings;Article 6-1 - Fair hearing)
André Potocki;Ganna Yudkivska;Síofra O’Leary
5. The applicant, a former police officer, was born in 1962 and lives in Zaporizhzhya. He is also acting on behalf of his son, V., who was born in 1991. 6. On 13 September 2003 four people, including the applicant, were apprehended by officers of the Zaporizhzhya office of the Security Service of Ukraine (Служба Безпеки України – “the SBU”) in Novokateshchino village while attempting to transport opiate drugs with a view to selling them on. They were taken to the SBU’s premises for questioning. After being informed of his privilege against self-incrimination, the applicant made a written statement to the effect that he had appeared at the crime scene by chance, at the request of a friend with whom he and his son had been looking for a place to fish. 7. Later the same day criminal proceedings were instituted against the applicant and two other people on suspicion of illegal production, storage and sale of drugs. 8. On 14 September 2003 criminal proceedings were instituted against the applicant and the two others on suspicion of membership of an organised crime group. 9. On the same date the applicant was arrested. Having been informed of his procedural rights as a suspect, he refused to give evidence without a lawyer present. 10. On 15 September 2003 the applicant’s wife hired a lawyer, G., to represent the applicant. 11. On 16 September 2003 the applicant’s pre-trial detention was ordered by a court. 12. On 19 September 2003 the applicant requested that G. be admitted to the proceedings as his lawyer. 13. On the same date, in the presence of his lawyer, the applicant denied his involvement in the crime. 14. On 23 September 2003, in the presence of his lawyer, the applicant was charged with drug-related crimes and questioned. He did not want to be informed of his rights and stated that he would not give any evidence during the pre-trial investigation. 15. On 2 October 2003 the applicant was questioned in the presence of his lawyer. He provided some biographical details as well as information on his family status, state of health and place of residence. 16. On 18 November 2003 the applicant was again questioned in the presence of his lawyer. 17. On 15 December 2003 all the criminal proceedings against the applicant were joined. 18. On 18 December 2003 the applicant was questioned in the presence of his lawyer. He did not confess to the crimes. 19. On 22 and 23 December 2003 confrontations between the applicant and his co-accused were conducted with his lawyer present. 20. On 24 December 2003 amended charges were brought against the applicant in his lawyer’s presence. The applicant pleaded not guilty. 21. On 6 February 2004 the applicant’s wife was admitted to the proceedings as the applicant’s lay representative. 22. On 10 February 2004, upon his written consent, the applicant was questioned without a lawyer. 23. On 9 March 2004 the criminal case against the applicant and his coaccused was sent to the Leninsky District Court of Zaporizhzhya (“the District Court”). During the trial the applicant pleaded not guilty. He maintained that the case had been fabricated by his enemies and that all the evidence had been falsified and was inadmissible. In fact, he, a retired police officer, had been arrested in the company of drug addicts with whom he had been in contact as an advisor to the local police. They might have been producing drugs for their own use. He further claimed that his case should benefit from being examined in camera by a judge who had security clearance, to protect State secrets concerning the functioning of his network of informants. 24. In May 2004 F., a lawyer hired by the applicant’s wife, was admitted to the proceedings to represent the applicant. 25. On 25 October 2005, after having heard the case in public hearings, the District Court convicted the applicant and his co-defendants of drugrelated offences. The applicant was sentenced to eight-and-a-half years’ imprisonment and the confiscation of his personal property was ordered. 26. The applicant, represented by his lawyer and his wife, appealed. He repeated his arguments advanced at trial and complained that he had been unable to defend himself properly during the trial as he had been reticent in order to safeguard confidential information concerning the network of informants. He also complained of various procedural breaches in the collection of evidence. He alleged, with no further details, that he had had no access to a lawyer from the first questioning and, even after his lawyer had been allowed access, the authorities had tried to carry out a number of investigative steps without the lawyer present. 27. On 26 April 2006 the Zaporizhya Regional Court of Appeal allowed the defence’s request to have the proceedings held in camera to prevent public disclosure of information concerning the network of informants and required all the defence lawyers and representatives to undergo security clearance to continue taking part in the proceedings. The applicant’s wife did not receive security clearance in time for the appeal hearing and did not attend it. 28. On 22 June 2006 the Court of Appeal upheld the trial court’s judgment. 29. On 18 December 2007, following a prior appeal by the applicant, the Supreme Court of Ukraine quashed this decision and remitted the case for fresh consideration. It noted, in particular, that the applicant’s right to defence had been breached since the applicant’s wife had been unable to take part in the appeal hearing. It further found that the Court of Appeal had addressed the parties’ arguments in a summary way only, while it should have given detailed explanations in response to those arguments. 30. On 22 December 2008 the Court of Appeal reviewed the case in the presence of the applicant’s wife. It upheld the applicant’s conviction, reduced his sentence to eight years’ imprisonment and ordered the confiscation of his personal property. The conviction was mainly based on the records of the crime-scene inspection and the testimonies of the applicant’s co-defendants, which the trial court found to be corroborated by witness statements, and other evidence in the case. 31. On 2 July 2009 the Supreme Court of Ukraine rejected the applicant’s request for leave to appeal on points of law. 32. The applicant’s twelve-year-old son was with him when he was apprehended on 13 September 2003. He was taken with him to the SBU and remained in the same room with the applicant for most of the time. No other family members were informed of the boy’s whereabouts. 33. On the morning of 14 September 2014, after the applicant had been formally arrested, his son was returned to his mother. 34. On 3 January 2004 the applicant’s wife lodged a criminal complaint with the Zaporizhzhya regional prosecutor’s office (“the prosecutor’s office”) in which she alleged, inter alia, that her son had been unlawfully detained at the SBU’s premises between 13 and 14 September 2003. 35. On 9 February 2004, having questioned the applicant and the SBU officers, the prosecutor refused to institute criminal proceedings as it had been established that no pressure had been applied to the applicant’s son and that he had been able to move freely and had not been deprived of his liberty. It was further noted that the applicant had not complained of the SBU staff’s attitude towards his son. 36. On 20 April 2004 the applicant’s son challenged the above decision before the Prosecutor General. 37. In April 2004 the applicant and his wife lodged another complaint concerning the alleged unlawful detention of their son with the prosecutor’s office. 38. On 7 May 2004 the prosecutor’s office, having questioned the applicant, his wife and son, as well as the SBU officers and some witnesses, refused to institute criminal proceedings in respect of the above complaint, having found no corpus delicti in the officers’ actions. It was established during the relevant investigation that the applicant’s son had been taken to the SBU’s premises at the applicant’s request and had not been arrested or detained and had been returned to his relatives as soon as the decision to arrest the applicant had been taken; and that the applicant had raised no complaints during his son’s stay at the SBU. It was also noted in the relevant resolution that the applicant’s wife had refused to provide her son’s medical file to prove her allegations concerning the worsening of his state of health and that there had been a contradiction in the applicant’s statements and between his and his son’s account of events. The prosecutor thus concluded that the allegations of unlawful deprivation of liberty or of other violations of the applicant’s son’s rights appeared to be ill-founded. He noted that no intention on the part of the officers to interfere with the applicant’s son’s personal security, specifically his freedom of movement, had been established. Likewise, there had been no evidence that the applicant’s son had been subject to any form of pressure or ill-treatment. 39. On 11 May 2004 the applicant’s wife and son instituted civil proceedings against the SBU before the Zhovtnevy District Court of Zaporizhzhya claiming damages for the unlawful detention of her son. Following a request of the applicant’s wife of 15 October 2004, her civil claim was joined to the criminal proceedings against the applicant. 40. On 23 July 2004 the deputy prosecutor of Zaporizhzhya Region quashed the resolution of 7 May 2004 as being premature, given that no evidence regarding the applicant’s son’s state of health had been obtained. 41. On 31 July 2004, having questioned the applicant’s son’s doctors who had observed him in the course of his care previously, the prosecutor again refused to institute criminal proceedings for the same reasons as before. It was noted, inter alia, that none of the doctors had observed any worsening of the applicant’s son’s state of health and that no worsening of his health had been evident from his medical file either. 42. On 14 October 2004 the prosecutor’s office instituted disciplinary proceedings against two officers of the SBU for their negligence towards the applicant’s son. It noted, inter alia, that the applicant’s son had not been formally arrested (затриманий) but had been kept at the SBU’s premises for no reason and no measures had been taken to return him to his relatives. The prosecutor further observed that the applicant’s son had not been subject to any form of ill-treatment. He also stressed the fact that the applicant’s arrest report had been drafted only the next day after the applicant’s initial arrest, in breach of the requirements of the domestic law. This resolution had been sent to the SBU for relevant measures to be taken. 43. On 27 October 2004 the SBU informed the prosecutor’s office that the respective officers could no longer be disciplined as the one-year statutory time-limit had expired. It was also observed in that letter that no violations of domestic law by the SBU officers had been established by a number of investigations into the events complained of and that the applicant’s son had stayed with the applicant at the SBU’s premises from 13 to 14 September 2003 at the applicant’s own request. 44. On 5 November 2004 the applicant’s wife complained to the Prosecutor General about the prosecutor’s decision of 31 July 2004. 45. On 25 October 2005, when convicting the applicant, the District Court delivered a separate ruling, in which it listed the procedural violations committed by the investigating authorities in the criminal proceedings against the applicant. The fact that the applicant’s son had remained in the SBU’s premises for about twenty-four hours after the applicant’s initial arrest, without his relatives having been informed of his whereabouts and with no medical assistance provided in view of the stress he had been under, was listed among the violations referred to by the court. The Chief of the SBU in Zaporizhzhya was invited by the court to take appropriate measures in view of the above mentioned violations. 46. On 25 January 2006 the applicant appealed to the Ordzhonikidzevsky District Court of Zaporizhzhya against the prosecutor’s refusal of 31 July 2004 to institute criminal proceedings against the SBU officers. 47. On 3 April 2006 the applicant’s complaint was left without consideration on the merits. The court noted in this connection that the relevant investigation files had been joined to the criminal case against the applicant and that therefore the prosecutor’s decision was not subject to appeal outside of those criminal proceedings. 48. During the proceedings in his criminal case before the Court of Appeal and the Supreme Court the applicant and his wife repeatedly requested, referring to the separate ruling of 25 October 2005 by the District Court (see paragraph 45 above), that measures be taken to bring the respective officers to trial for the unlawful detention of their son. The case file does not suggest that in their appeals the applicant or his wife claimed damages in this connection. 49. On 22 December 2008, in its judgment upholding the applicant’s conviction, the Court of Appeal observed that the complaint related to the unlawful detention of the applicant’s son had been considered by the prosecutor’s office and no corpus delicti under criminal law had been found on the part of the SBU officers. The court made no separate ruling in this connection. The Supreme Court did not address this issue in its decision of 2 July 2009.