CASE OF ALEKSANDR SMIRNOV v. UKRAINE
Violation of Art. 3 (procedural aspect);No violation of Art. 3 (substantive aspect)
Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste
5. The applicant was born in 1970 and lives in Yevpatoriya. 6. On 26 March 2002 the applicant was arrested on suspicion of theft. He was taken to Yevpatoriya Police Base Station No. 8 («Опорний пункт охорони правопорядку № 8»), where the police body-searched him and discovered, in the presence of two attesting witnesses, two packets of opium extract. The record of the search and seizure, which contained a signature appearing to be that of the applicant, indicated that he had admitted having bought those drugs for his own use. However, once the drug seizure was documented, the applicant cut his neck with his key-ring as an indication of protest. The police called an ambulance, which documented the injury as being of a minor nature and provided the applicant with the required aid. 7. The applicant was placed under three-day administrative detention pending clarification of all the circumstances of the supposed drug offence. 8. On the same date he was delivered to the Yevpatoriya Local Police Precinct («РОВД м. Євпаторія»), where, according to the applicant, police officer R. beat him severely. 9. According to the applicant, R. asked him not to raise any complaints in exchange for a promise that the police would turn a blind eye to any future misdemeanours from his side. The applicant accepted this. 10. On 26 March 2002 he was delivered to the Yevpatoriya Temporary Detention Facility, where he was placed in a cell shared by some twelve inmates. According to the registration journal, he arrived there without any visible bodily injuries. During the three days of his detention he did not request or receive any medical assistance. 11. On 29 March 2002 the applicant was released. 12. On 15 April 2002 he complained to a traumatologist in the Yevpatoriya hospital that he was suffering from pain in the chest and was prescribed some antibacterial medication. 13. Having repeatedly sought medical assistance for continuous pain, on 22 April 2002 the applicant was diagnosed with post-traumatic intercostal neuralgia and painful hypodermic indurations from both sides of the rib cage. He told the doctor that he had accidentally fallen down some stairs on 13 April 2002. 14. On 25 April 2002 the applicant was hospitalised with the following diagnoses: right-lung pneumonia concentrated in the inferior lobe, fracture of the middle third of the breastbone and closed fracture of the seventh rib on the right side. He underwent treatment as an in-patient until 8 May 2002. 15. On 22 January 2003 the applicant complained to the Yevpatoriya Town Prosecutor's Office (“the Yevpatoriya Prosecutor”) that on 26 March 2002 he had been beaten up by police officer R., as a result of which he had several rib fractures. He explained the delay in bringing that complaint by the alleged agreement with R. (see paragraph 9 above), which he considered to have been breached. 16. On 29 January 2003 the hospital where the applicant had been treated submitted all the related medical documentation (namely the X-ray films, the medical history sheet and other medical records) to the Yevpatoriya Deputy Prosecutor at the latter's request. As it would be later admitted in the course of the investigation, the content of those documents was never reflected in the investigation paperwork. 17. Overall, in the period from January 2003 to December 2007 the Yevpatoriya Prosecutor refused thirteen times to open a criminal case against R. on the basis of the applicant's complaints. All those refusals were subsequently quashed by the Crimea Prosecutor or by the Prosecutor General as unlawful, premature or groundless. 18. The major investigative steps taken and the omissions indicated by the higher-level prosecution authorities were as follows. 19. In January 2003 the Yevpatoriya Prosecutor questioned police officer R. and the investigator dealing with the applicant's own criminal case, who denied the alleged ill-treatment. 20. In October 2003 the ambulance doctors who had provided the applicant with medical aid on account of the cut to his throat on 26 March 2002 were questioned and noted that he had not raised any illtreatment allegations, whereas the cut itself had been an insignificant injury. The therapist who had hospitalised the applicant in April 2002 was also questioned, but could not remember any details. 21. At about the same time it was found out that the medical documentation seized earlier from the hospital was missing. 22. In February 2004 the Crimea Prosecutor criticised his lower-level colleague for not having questioned the applicant and his family members. Among the other omissions he pointed out the failure to conduct a medical forensic examination of the applicant with a view to establishing the nature, date and gravity of the injuries complained of. 23. That criticism was repeated in June, August and November 2004. 24. On 25 November 2004 a forensic medical examination was conducted to clarify which of the applicant's versions concerning the date and origin of his injuries – from the alleged beatings on 26 March 2002 or from the accidental fall on 13 April 2002 – was more plausible. The examination was limited to an analysis of the few medical documents which were available and concluded that both dates were possible for the applicant's injuries at issue, whereas their nature and origin could not be established in the absence of the X-ray films of the material time, as well as the other essential medical documentation (see paragraphs 16 and 21 above). 25. In December 2004 the attested witnesses present at the applicant's arrest on 26 March 2002 stated that they had not witnessed any illtreatment. 26. The applicant's mother, who was questioned in January 2005, stated that after his release on 29 March 2002 the applicant had complained that he had been beaten by the police and of pain in the chest. 27. On 4 January 2005 the Crimea Prosecutor instructed the investigator, inter alia, to find the applicant's medical documentation and to question the inmates with whom he had been sharing a cell in March 2002. 28. In February and April 2005 efforts were taken to find the applicant's cellmates. The whereabouts only of four of them were established. Three inmates did not remember the applicant complaining of ill-treatment or being in need of medical aid, whereas the fourth one mentioned that the applicant had complained to him that he had been beaten by the police without giving any further details. 29. On 21 April 2006 the Crimea Prosecutor criticised the investigator for not having undertaken an inquiry in respect of the loss of the applicant's medical documents. In June 2006 such an inquiry was held, but to no avail. The Yevpatoriya Deputy Prosecutor stated that he had handed the documents to his superior, who had retired in October 2003 and whose current place of residence was unknown. 30. On 22 June 2006 another forensic medical examination was held. It confirmed the conclusions of the earlier one, also referring to the absence of the X-ray films as an impediment to more specific conclusions. 31. In January 2007 the applicant was questioned for the first time in the framework of the investigation of his allegation of ill-treatment. The administration of the prison where he was serving his sentence at the time questioned him at the investigator's request. According to the investigation documents, he stated that he had earlier explained his injuries by an accidental fall because he did not want to bring the police officer to criminal liability, without giving any further details. 32. On 9 January 2007 the applicant was X-rayed, as a result of which a consolidated fracture of one rib was confirmed. The film was lost in the course of 2007. 33. On 4 December 2007 the Crimea Prosecutor noted that the investigation had fallen short of meeting any of its or the Prosecutor General's earlier instructions, given on eleven occasions. 34. On 30 January 2008 the third forensic medical examination was held. This time it was based on a visual examination of the applicant and took place in the prison where he was serving his sentence. As the X-ray films both of April 2002 and of January 2007 remained missing and the Xray machine in the prison was not operational, the expert made a general conclusion that the applicant might have had his rib broken in April 2002. In any event, it appeared impossible to clearly establish the date, nature and origin of his injuries given the considerable lapse of time. The report contained a general observation that, as a rule, establishing the precise time of a fracture was possible only within a year after it had taken place, as later consolidated fractures appear the same. 35. On 31 January 2008 the Yevpatoriya Prosecutor issued the fourteenth and last decision on the refusal to open criminal proceedings against police officer R. on the basis of the applicant's complaints. It noted that all possible investigative measures had been taken, but had failed to yield any substantiation of the applicant's allegations. 36. On 19 May, 18 November 2008 and 3 June 2009 respectively the Yevpatoriya Town Court (“the Yevpatoriya Court”), the Crimea Court of Appeal (“the Court of Appeal”) and the Supreme Court upheld the above ruling. The reasoning of the three courts was confined to a finding that the requirements of Article 99 of the Code of Criminal Procedure had been fulfilled, with no facts established in proof of the applicant's allegation. 37. On 24 July 2002 and 18 March and 23 September 2003 respectively, the Yevpatoriya Court, the Court of Appeal and the Supreme Court found the applicant guilty of possession of illegal drugs and theft and sentenced him to three years and six months' imprisonment. 38. On 25 November 2002 the applicant was arrested (with the reasons for the delay before his arrest being unclear). 39. On 20 May 2003 the Yevpatoriya Court found the applicant guilty of some fifteen counts of theft committed during October and November 2002 and sentenced him to four years' imprisonment. The final sentence under both verdicts – of 24 July 2002 and of 20 May 2003 – was set at six years. 40. The applicant appealed against the charge of the drug offence. 41. On 2 September 2003 the Court of Appeal rejected the appeal as related to another verdict (of 24 July 2002). 42. On 12 May 2005 the Yevpatoriya Court rejected the applicant's request that his mother be allowed to represent him, referring to the fact that both verdicts against him had entered into force. 43. On 22 November 2008 the applicant was released from prison, having served his sentence in full. 44. In December 2008 he was provided with an opportunity to copy the entire case file. 45. On 4 August 2009 he underwent computer tomography, which revealed old fractures of the breastbone and three ribs. 46. Pursuant to Article 99 of the Code of Criminal Procedure, a prosecutor, an investigator, an enquiry body or a court shall refuse to open a criminal case if there are no grounds for deciding otherwise. 47. Other relevant legal provisions can be found in the Spinov v. Ukraine judgment, no. 34331/03, §§ 32-33, 27 November 2008.