CASE OF KAPUSTYAK v. UKRAINE
No 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);No violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-d - Obtain attendance of witnesses)
André Potocki;Angelika Nußberger;Carlo Ranzoni;Ganna Yudkivska;Mārtiņš Mits;Síofra O’Leary
5. The applicant was born in 1982 and is currently detained in Gorodyshche prison. 6. On 30 November 2008 the applicant, Mr A.S. and Mr V.S. broke into the home of Mr N., a local businessman, which was located in the Pustomyty District. The applicant had four prior convictions for theft, burglary, robbery and carjacking. According to the findings of the domestic court that subsequently convicted the applicant, Mr N. had fought with the intruders and, unable to overcome his resistance otherwise, they had stabbed him to death. As a result of the attack Ms P., N.’s wife, sustained injuries of medium severity. Numerous valuables and documents were stolen, including some jewelry, a reserve officer’s card belonging to N. and certificates showing his achievements in sports. 7. On 1 December 2008 the Pustomyty District police instituted criminal proceedings in connection with the incident. 8. On 5 December 2008 V.S. was arrested and questioned. He stated that the applicant had stabbed N. in the course of the burglary. V.S. had hit Ms P., who had tried to come to N.’s rescue. 9. At around 9 p.m. on 5 December 2008 I.Kot., V.Ye., I.G. and R.D., detectives from the Lviv Regional Police, located the applicant in Chervonograd and apprehended him in the street. According to the subsequent submissions of the applicant and the detectives to the domestic authorities, the applicant attempted to flee; in order to stop him from fleeing the detectives tripped him up, he fell on the asphalt pavement and was then handcuffed. According to the applicant, after he had been handcuffed the police officers continued to hit and kick him. 10. The applicant also claimed that following his arrest he had been illtreated by the police in order to extract his confession. 11. At 10.30 a.m. on 6 December 2008 an arrest report was drawn up by the Pustomyty Police. According to a document provided by the Government, at the same time the applicant was admitted to the Lviv temporary detention facility (ізолятор тимчасового тримання, “the ITT”). 12. On the same day an investigator, K., asked a forensic medical expert to record any injuries on the applicant’s body and to provide an expert opinion as to when and how they had been inflicted. 13. On the same day the forensic medical expert, G. (referred to as Mr H. by the Government), issued a report stating that the applicant had the following injuries: a bruise on his forehead and, overlapping it, four long, deep, vertical parallel scratches; bruises on the bridge of his nose, his chin, wrists and neck; nine small bruises on the fingers of his right hand; and swelling of the back of his right hand. The bruises on his wrists were soft and pink in colour. The other bruises were covered in dry scabs. The expert classified the injuries as minor and expressed the opinion that they could have been inflicted on 30 November 2008. According to the report, the applicant explained to the expert that he had injured his face and hands when he fell trying to run away from the police. 14. At 2.30 p.m. on the same day K., the investigator from the Pustomyty Police, questioned the applicant as a suspect. The applicant stated that on 29 November 2008 he had agreed with V.S.’s proposal to burgle Mr N.’s home. The applicant had not taken a knife with him and had not seen V.S. or A.S. do so. Once they had broken into the house, the applicant switched off the television set N. had been watching, while V.S. and A.S. started punching N. Hearing N.’s screams, P. tried to enter the room, and the applicant hit and kicked her. Afterwards the applicant kicked N. three or four times. While the others continued hitting N., the applicant started looking for money, then took a knife from V.S. and cut some paintings out of their frames. He also took other valuables from the house. 15. At 9.22 p.m. on the same day, following the applicant’s complaint about his health, an ambulance was called to the ITT for the applicant. The ambulance staff noted that the applicant had bruises on his face and right hand, and was suffering from concussion, hypertension and an oedema. 16. On 8 December 2008 the applicant was charged with aggravated burglary and infliction of grievous bodily harm resulting in the death of the victim. Questioned on the same day as an accused, the applicant confirmed the account of events he had given on 6 December 2008 and added that he had seen V.S. hitting N. but not stabbing him. The applicant reiterated that he had not stabbed N. and had had no intention of murdering him. He had used the knife to cut paintings out of their frames. Prior to the burglary V.S. had promised that he would take it upon himself to force N. to give up the money. 17. On 9 December 2008 the applicant was examined by medical staff on his admission to the Lviv pre-trial detention centre (слідчий ізолятор, hereinafter “the SIZO”). According to a certificate issued by the SIZO on 20 January 2015, the applicant did not raise any complaints during that examination. 18. In the period from 5 February to 8 July 2009 the police took the applicant from the SIZO at least eight times in order to carry out investigative measures with him. 19. On 6 February 2009 Mr Ch. was appointed as the applicant’s defence counsel. On the same day the applicant was questioned in Ch.’s presence. The applicant confirmed the account of events he had given on 6 and 8 December 2008, including the statement that at N.’s house he had used the knife to cut paintings out of their frames, and added that there had been no plan to murder N. but simply to burgle his house. When he and his co-defendants had learned that N. would be home, the plan had been simply to tie him up. 20. According to the Government, on 6 February 2009 the applicant was familiarised with the medical expert’s report of 6 December 2008 and made no comments or requests. 21. On 18 March 2009, having examined the applicant as an inpatient, a panel of psychiatric experts issued a report concluding that the applicant was not suffering from a mental illness. In discussing the applicant’s mental health history the experts noted that in October 2008 he had been involved in a fight, suffered a blow to the head and had received outpatient treatment for the injury. On 17 April 2009 the applicant and his lawyer signed a statement confirming that they had examined the report and had no comments or requests to make. 22. On 7 May 2009 the applicant was questioned again in the presence of his lawyer. He reiterated his earlier statement. In the course of the questioning the investigator asked the applicant why he had not initially joined his co-defendants in attacking N. The applicant refused to answer. 23. In the course of the pre-trial investigation A.S. stated that it had been the applicant who had stabbed N. In the course of a confrontation between the applicant and A.S., the latter reaffirmed his statement. The applicant denied A.S.’s allegations but refused to testify. 24. P. stated that it had been V.S., and not the applicant, who had attacked and hit her. 25. Ms I.M. stated that on 1 December 2008 the applicant had given her a mobile phone and a silver chain which he had stolen from N. and P. 26. On 30 July 2009 the case against the applicant and his co-defendants, A.S. and V.S., was sent for trial to the Lviv Regional Court of Appeal (“the Court of Appeal”), sitting as a trial court. 27. On 16 November 2009 the trial court informed the applicant that the question of whether an additional psychiatric examination should be ordered would be examined in the course of the trial. 28. The applicant pleaded guilty to the charge of theft of documents, guilty in part to the charge of aggravated burglary, and not guilty to the charge of murder. He refused to testify at length, but in response to a question stated that he had used a knife to cut the paintings out of their frames at the victims’ house. V.S. pleaded guilty to the charge of aggravated burglary and A.S. pleaded guilty to that charge in part. They largely reiterated the statements they had given during the pre-trial investigation concerning the applicant’s role in the crime, in particular stating that they had not stabbed N. and had seen the applicant, knife in hand and covered in blood, lead N., also covered in blood, to a safe to extract N.’s money. V.K. also stated that the applicant had told him that he had stabbed N. 29. Ms M.M. and Ms A.V. testified that late on the night of the murder the defendants had left the house where they had been staying together. A.S. had been carrying a knife. The defendants had then returned with various objects, including paintings and documents. M.M. testified that she had seen blood on the applicant’s clothes when he returned that night. A.V. also testified that when the applicant had returned, he had given her his clothes and had instructed her to burn them. However, she had left the clothes in the house. 30. Two other witnesses testified that on 5 December 2008 they had witnessed the owner of the house in question handing over to the police a bag of clothes which had been left there by the defendants. According to DNA expert reports, the applicant’s hair and blood possibly originating from the victims were found on the clothes in the bag. 31. On 11 March 2010 the applicant asked the trial court to call G., the medical expert, as a witness, on the grounds that in her report of 6 December 2008 she had failed to specify exactly when the injuries had been inflicted on the applicant. In support of his request he stated that he had been ill-treated in the course of and following his arrest. The applicant also asked for I.Ku., an investigator from the Pustomyty Police to be called as a witness, arguing that his statements during the pre-trial investigation were untrue and had been dictated to him and given under pressure. He also asked for police detectives I.Kot., V.Ye., I.G. and R.M. of the Lviv Regional Police to be called as witnesses, arguing that they had ill-treated him in the course of arrest and in the course of his initial interrogation, causing the injuries recorded in the medical expert’s report of 6 December 2008. The trial court refused those requests. According to the Government, the grounds for the refusal were that the trial court had in its possession the transcripts of the interviews with the police officers in question conducted during the pre-trial investigation. Moreover, the trial court considered that the applicant’s allegations of ill-treatment had already been examined within the framework of pre-investigation enquiries, in the course of which no corroboration of the applicant’s allegations had been found. 32. On 25 March 2010 the trial court convicted all three applicants of murder, of aggravated burglary, and of theft of documents. In respect of the conviction for murder the applicant was sentenced to life imprisonment with confiscation of all of his property, V.S. to thirteen years’ and A.S. to twelve years’ imprisonment. Additional prison sentences were imposed in respect of the other charges but because of the sentencing rules, the overall sentences imposed were the same as the sentences for murder. 33. The court found it established that the applicant and his two co-defendants, A.S. and V.S., had committed aggravated burglary of Mr N. and Ms P. While it was the applicant who had stabbed N. to death, all the defendants had used violence against N. to overcome his resistance and so were guilty of his murder. As evidence of the applicant’s guilt the court referred to the testimony of the co-defendants, of Ms P., Ms I.M., Ms M.M., Ms A.V. (see paragraphs 24, 25 and 29 above), and of a number of other witnesses who had described how the defendants had disposed of their clothing and of the objects taken from the victims’ house. The court also relied on physical and expert evidence. In reaching its finding that it had been the applicant who had stabbed N., the court referred to the testimony of his co-defendants, noting that it was consistent with P.’s testimony to the extent that all three had testified, contrary to the applicant, that it was V.S., and not the applicant, who had attacked P. The court also referred to the DNA expert evidence which had found blood, possibly originating from N., on the trousers worn by the applicant on the night of the murder and seized by the police at the house where the applicant had left them. The court also referred to the applicant’s admission during the pre-trial investigation that he had used the knife, that is the murder weapon, to cut paintings out of their frames. 34. On 18 January 2011 the Supreme Court upheld the applicant’s conviction and mitigated his sentence to fifteen years’ imprisonment. 35. On 12 July 2009 the applicant wrote to the head of the Security Service of Ukraine in the Lviv Region complaining that he had been illtreated in the course of his arrest and afterwards by the police. In particular, he stated that on the day of his arrest he had been going to a meeting with a certain Ms Z. when he had been approached by a stranger, who had turned out to be a police officer. Thinking that the stranger was trying to steal his phone, the applicant started running away. However, other officers tripped him up. He fell and the officers started kicking and punching him. The police officers continued to kick him once he was in their car and subsequently, in the place to which he was taken after his arrest. 36. On 24 July 2009 the Chervonograd prosecutor’s office and on 27 August 2009 the Pustomyty prosecutor’s office refused to institute criminal proceedings in connection with the applicant’s complaint. 37. On 26 February 2010 the Lviv regional prosecutor’s office (“the LRPO”) quashed the decisions of 24 July and 27 August 2009 and remitted the case to the Chervonograd and Pustomyty prosecutors for further examination. The LRPO concluded that the pre-investigation enquiries had been incomplete. The LRPO indicated that the Chervonograd prosecutor’s office should undertake a number of additional measures to establish the circumstances of the incident, most notably: (i) interview Ms Z. whom the applicant had been going to meet when he had been arrested; (ii) identify the ambulance staff who had visited the applicant on 6 December 2008 and interview them; (iii) interview the forensic medical expert to find out whether the injuries observed by the expert on the applicant on 6 December 2008 were consistent with the applicant’s allegations of ill-treatment. 38. On 26 March 2010 the Chervonograd prosecutor’s office again refused to institute criminal proceedings against detectives I.Kot., V.Ye., I.G., R.M. of the Lviv Regional Police. The decision was based on the statements of the police detectives and the expert report of 6 December 2010. The detectives had stated that they had tripped up the applicant while he had been attempting to escape. The prosecutor’s office concluded that that fall explained the applicant’s injuries. On 28 March 2012 the Chervonograd Court upheld that decision, rejecting as unsubstantiated the applicant’s argument that his injuries had resulted from ill-treatment. 39. On 31 March 2010 the Pustomyty prosecutor’s office refused to institute criminal proceedings against the investigator I.Ku. and two other officers of the Pustomyty Police. The decision was based on the interviews with the officers. The prosecutor’s office also referred to the ITT records and an unspecified forensic medical expert report, according to which the applicant had had no injuries at the relevant time. The applicant was informed of that decision on 5 May 2011. 40. On an unspecified date the decision of 31 March 2010 was overruled. 41. On 18 May 2012 the Pustomyty prosecutor’s office again refused to institute criminal proceedings against the police officers of the Pustomyty Police and of the Lviv Regional Police for lack of corpus delicti in their actions. The decision was based on the statements of the officers, who had denied the applicant’s allegations. 42. On 20 June 2013 the Pustomyty District Court quashed the decision of 18 May 2012. The court found numerous omissions in the pre-investigation inquiry, in particular that the authorities had failed to explore under what circumstances an ambulance had been called for the applicant while he had been in the ITT; they had also failed to examine the records from the facilities where the applicant had been detained. 43. On 19 November 2012 a new Code of Criminal Procedure came into force. Under the new Code an investigation is commenced by creating an entry in the Unified Register of Pre-Trial Investigations (“the Register of Investigations”) (see paragraph 51 below). 44. On 15 March 2013 the Chervonograd Court granted the applicant’s claim and ordered the Chervonograd prosecutor’s office to create an entry in the Register of Investigations in order to investigate the applicant’s allegations of ill-treatment. 45. On 20 March 2013 the entry was created. 46. On 21 March 2013 the Chervonograd prosecutor’s office decided to discontinue the investigation. On an unspecified date the Chervonograd Court overruled that decision. 47. On 2 July 2013 the Chervonograd prosecutor’s office reopened the investigation and the applicant was questioned. He insisted that he had been ill-treated by police detectives I.Kot., V.Ye., I.G. and R.M. in the course of his arrest and on the way to the Pustomyty police station, where his arrest had been recorded. The police detectives were interviewed and denied any ill-treatment, insisting that the applicant had been injured when he had fallen while trying to flee. 48. On 24 September 2013 the Chervonograd prosecutor’s office decided to discontinue the investigation for lack of corpus delicti in the actions of detectives I.Kot., V.Ye, I.G. and R.M. The decision referred to an earlier decision of July 2009 to refuse to institute criminal proceedings, according to which the applicant had fallen while trying to flee from the police. As a result, he had sustained concussion and bruises. The decision also referred to a number of pieces of evidence supporting that version of events, most notably the statements of the police officers and the medical expert’s report of 6 December 2008. 49. The decision of 24 September 2013 was upheld by the Chervonograd Court on 7 February 2014 and by the Court of Appeal on 11 March 2014.