CASE OF POMILYAYKO v. UKRAINE
Violation of Article 3 - Prohibition of torture (Article 3 - Torture) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Angelika Nußberger;Erik Møse;Ganna Yudkivska;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev
5. The applicant was born in 1968 and lives in Kharkiv. 6. At the beginning of November 2008 some equipment was stolen from the enterprise at which the applicant worked. 7. The Kharkiv Ordzhonikidze District Police Department invited the applicant and one of her colleagues for questioning in respect of the theft. 8. On 8 November 2008, at 11.15 a.m., the applicant came to the police station. 9. At about 11.35 a.m. on 8 November 2008 a senior detective officer, T., accompanied the applicant to the fourth floor of the police station. He asked her to wait in the corridor and entered office no. 56. Five minutes later the applicant heard a woman’s scream emanating from that office. T. opened the door and directed an officer passing by to take the applicant to his office. She was made to wait there for about twenty minutes. Then T. took her to office no. 56. He pushed her inside, twisted her arms behind her back and handcuffed her, even though she had offered no resistance. 10. T. and his colleague, S., who was also in the office, intimidated the applicant with a view to making her confess to the investigated theft. They told her that her colleague, Ms L., had already started to “crack”. The applicant noticed Ms L.’s belongings on the floor. She concluded that it was her scream that she had heard. 11. Having failed to obtain a confession from the applicant, T. and S. made her sit on a chair, put a plastic bag over her head and started to strangle her. At the same time they struck her head, face and mouth so that she could not bite through the bag. The applicant fainted several times. When she told the officers she needed to use the toilet, S. hit her in the stomach and the head. She fainted once again and urinated involuntarily. Sometime later the applicant noticed the presence of another officer, P., in the office. 12. After several hours of ill-treatment, the applicant was taken to another office where she stayed for about twenty minutes. Thereafter she was brought before a female officer, who conducted her formal questioning. 13. At about 6 p.m. the applicant signed the official report of the questioning. She was then taken to the office of the head of the search unit, who stated that she was the main suspect in the theft case and that all her colleagues had indicated her as the likely thief. The applicant complained about her ill-treatment. Her complaint was ignored. 14. She was taken again to office no. 56, where the officers threatened her and tried to pressure her into confessing. She repeatedly refused to do so and professed her innocence. The applicant was forced to write a statement that she had no complaints about the way the police had treated her. 15. At about 8 p.m. on 8 November 2008 she was released. 16. The applicant submitted to the Court five colour photographs of herself in which extensive bruising on her both arms and forearms is visible. 17. On 9 November 2008 (the day following her release) the applicant felt unwell and called an ambulance. 18. From 9 to 27 November 2008 she underwent in-patient hospital treatment for a closed head injury, concussion, soft tissue contusions on the head, upper and lower limbs, bruising of the abdominal wall, lumbar osteochondrosis and asthenia. 19. On 9 November 2008 the hospital authorities informed the Ordzhonikidze Police Department about the applicant’s injuries allegedly inflicted on her by police officers. 20. On 10 November 2008 the applicant complained to the Kharkiv Ordzhonikidze District Prosecutor’s Office (“the Ordzhonikidze Prosecutor’s Office”) about her ill-treatment. Ms L. lodged a similar complaint. 21. On 18 November 2008 the police department refused to open a criminal case following the information from the hospital administration. 22. On 12 December 2008 the Ordzhonikidze Prosecutor’s Office opened a criminal case against the police officers on suspicion of their exceeding their powers by engaging in violent and degrading treatment. As a result, on 16 December 2008 the prosecutor also quashed the ruling of 18 November 2008. 23. After her discharge from hospital, the applicant remained on sick leave until 19 December 2008. 24. On 15 January 2009 the investigator seized the trousers which the applicant had been wearing on 8 November 2008. A forensic immunological examination discovered traces of her urine on them. 25. From 27 November 2008 until 26 January 2009 a forensic medical expert evaluation was carried out with a view to establishing the applicant’s injuries and their nature. That evaluation was based on her medical file, as well as a medical examination of her. The expert considered it established that, at the time of her hospitalisation, the applicant had had bruises to both arms that had been inflicted by blunt objects a day to three days previously. The expert stated that it was impossible to establish more precisely the time at which those injuries had been inflicted. As regards the soft tissue contusions, the expert did not find it necessary to take that diagnosis into account as being based merely on a personal opinion of the doctor who had examined the applicant. The same doctor’s diagnoses of a closed head injury and concussion were considered by the expert as not sufficiently supported by “clinical data”. Lastly, the expert report stated that the applicant was suffering from neurotic asthenia, but that it was impossible to establish its origin. 26. On 9 February 2009 a forensic expert evaluation was carried out of the applicant’s handwritten statement on the official report on the questioning of 8 November 2008. The expert concluded that she had been “in an unusual state” when writing that note. 27. On the same date officer T. challenged the decision of 12 December 2008 before the Ordzhonikidze District Court (“the Ordzhonikidze Court”). 28. On 24 February 2009 the Ordzhonikidze Court rejected his complaint. 29. On 19 March 2009, however, the Kharkiv Regional Court of Appeal (“the Court of Appeal”) quashed that decision and remitted the case to the first-instance court for fresh examination. 30. Between 3 March and 2 April 2009 another forensic medical expert evaluation of the applicant’s injuries was carried out. It concluded that she had sustained numerous bruises on her arms, shoulders and thighs. These could have been inflicted at the time and in the circumstances described by her. Because of the delay before the first forensic medical examination was undertaken, it appeared impossible to reach more specific findings. 31. On 22 April 2009 the Ordzhonikidze Court quashed the prosecutor’s decision of 12 December 2008. This ruling was quashed by the Court of Appeal on 7 May 2009. 32. On 5 June 2009 the Ordzhonikidze Court once again quashed the prosecutor’s decision of 12 December 2008. On 25 June 2009 this ruling too was quashed by the Court of Appeal. 33. On 18 November 2009 the applicant and Ms L. identified the officers who had ill-treated them from photographs shown to them by the investigator. 34. On 4 February 2010, however, the investigator closed the criminal case against the police officers, citing a lack of proof of their guilt. 35. On 30 September 2010 the Ordzhonikidze Court upheld that decision. 36. On 15 November 2010 the Court of Appeal quashed the ruling of the first-instance court and remitted the case to it for fresh examination. 37. On 21 December 2010 the Ordzhonikidze Court allowed the applicant’s complaint and quashed the investigator’s decision of 4 February 2010. 38. On 13 January 2011 the Court of Appeal upheld that ruling. 39. In March and May 2011 the applicant enquired about the progress of the investigation. Her enquiries received no answer.