CASE OF STROGAN v. UKRAINE
Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);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);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Procedure prescribed by law);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention;Reasonableness of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation)
Angelika Nußberger;Carlo Ranzoni;Erik Møse;Ganna Yudkivska;Khanlar Hajiyev;Síofra O’Leary
5. The applicant was born in 1967 and lives in Kharkiv. 6. Late in the evening of 15 August 2010 the applicant had a fight with his neighbour. The neighbour complained to the police that the applicant had injured him. 7. On the morning of 16 August 2010 the police took the applicant to the Kyivskyy District police station in Kharkiv (“the district police”). The applicant was at the police station from 7 a.m. to 9.45 a.m. and gave evidence in relation to the fight with his neighbour. The applicant claimed that he had acted in self-defence. According to the Government, at 9.45 a.m. the applicant left the police station and had no further contact with the police during the period at issue. His presence at the police station from 7 a.m. to 9.45 a.m. was noted in the police’s records. 8. According to the applicant, at 9.45 a.m., as he left the police station, police officers took him and drove him to a forest where they beat him up and tortured him using handcuffs and an electric shock device. The police officers then took the applicant to another part of the police station that he had just left, where they continued to ill-treat him. During that time the police officers put pressure on the applicant to admit that he had intended to murder his neighbour. On 19 August 2010 they released him. 9. On 21 August 2010, following the applicant’s complaint to the internal security unit of the Kharkiv Region police, he was examined by a forensic medical expert. The latter found that the applicant had sustained bruises on his head, nose, upper lip and chest. The expert considered those injuries as being minor and that they could have been caused by blunt, solid objects during a period of three to five days before the medical examination. 10. On 25 August 2010 the assistant prosecutor of the Kyivskyy District prosecutor’s office of Kharkiv (“the prosecutor’s office”) inspected the premises of the police station where the applicant had allegedly been ill-treated. He found traces of a brown substance on the floor, wall, and balcony, as well as on the pillowcase and two mattress covers. Samples of the substance were taken and submitted to an expert for examination. 11. On 26 August 2010 the expert stated that the brown substance was blood. 12. The prosecutor’s office then questioned police officers A., M.B., M.A. and G. They all denied the allegations of ill-treatment and submitted that the applicant had sustained the injuries before being taken to the police station, namely during the scuffle with his neighbour. The officers stated that the applicant’s nose had been injured before and that it bled from time to time, that he had been offered an antiseptic tissue, that he had declined an offer by the police officers to go to a hospital and that he had continued voluntarily to give evidence about the fight with his neighbour. They also mentioned that the applicant had gone on to the balcony to have a smoke where he might have left traces of blood. 13. On 7 and 8 October 2010 the applicant submitted further complaints of ill-treatment to the internal security unit of the Kharkiv Region police and the prosecutor’s office. 14. On 29 October 2010 the prosecutor’s office, having completed its pre-investigation inquiry, refused to initiate criminal proceedings concerning the applicant’s allegations that he had been ill-treated by police officers between 16 and 19 August 2010. According to that decision, the applicant had only been present at the district police station between 7 a.m. and 9.45 a.m. on 16 August 2010 and there had been no evidence suggesting that the police officers had been involved in any alleged illtreatment or unlawful detention. The applicant challenged that decision in the courts. 15. On 23 February 2011 the Kyivskyy District Court of Kharkiv (“the District Court”) found that the decision of 29 October 2010 by the prosecutor’s office had been lawful and substantiated. The applicant appealed. 16. On 11 April 2011 the Court of Appeal upheld the District Court decision of 23 February 2011. The applicant lodged an appeal on points of law. 17. On 9 February 2012 the Higher Specialised Court for Civil and Criminal Matters quashed the District Court decision of 23 February 2011 as unfounded and remitted the case to the District Court for fresh consideration. 18. On 10 May 2012 the District Court reversed the decision of the prosecutor’s office of 29 October 2010, finding that the measures taken to examine the applicant’s allegations had been insufficient. The court ordered a further pre-investigation inquiry to establish the applicant’s whereabouts between 16 and 19 August 2010 and the circumstances in which he had sustained his injuries. 19. On 27 June 2012 the prosecutor’s office refused to initiate criminal proceedings against the police officers for lack of corpus delicti. According to the decision, which referred to the explanations by the police officers and other evidence, the applicant had left the police station at 9.45 a.m. on 16 August 2010 and there had been no involvement of the officers in any unlawful action in relation to the applicant. 20. On 19 May 2014 the applicant lodged a complaint under the Code of Criminal Procedure of 2012 (“the CCP of 2012”), alleging that he had been ill-treated by police officers. 21. On 11 August 2014 the Kharkiv Region prosecutor’s office commenced a pre-trial investigation in relation to the alleged events of 16 to 19 August 2010. 22. On 13 November 2014 a forensic medical expert issued a report repeating the findings of the forensic report of 21 August 2010 as regards the documented injuries. 23. On 15 December 2014 the Kharkiv Region prosecutor’s office terminated the investigation, finding that the applicant’s allegations had been refuted by the statements of the police officers, other witnesses, and documentary and medical evidence which suggested that the applicant might have sustained minor injuries during his fight with the neighbour on 15 August 2010. 24. On 15 September 2010 a forensic medical expert issued a report stating that the applicant’s neighbour had sustained three incised wounds, one of which had been on the neck. 25. On 23 September 2010 the district police opened criminal proceedings in relation to the moderately severe injuries sustained by the applicant’s neighbour during the fight of 15 August 2010. Subsequently, the case was classified as attempted murder. 26. At 2.45 p.m. on 9 December 2010 an investigator with the district police arrested the applicant on suspicion of attempted murder. The investigator relied on Article 115 of the Code of Criminal Procedure of 1960 (“the CCP of 1960”). As regards the grounds for the applicant’s arrest without a court decision, the investigator cited the three sub-paragraphs of the first paragraph of Article 106 of the CCP of 1960 (see paragraph 45 below). He further noted in his report that the applicant had been suspected of attempted murder, that he had a record of serious offences, and that his arrest would prevent the applicant from absconding and impeding the execution of a judgment. The investigator then charged the applicant and questioned him in relation to the case. 27. On 10 December 2010 the District Court ordered the applicant’s pretrial detention. It stated that the applicant had been charged with a serious crime, that he had two criminal offences on his record, and that he had no official income. The court concluded that there was a risk that if the applicant remained at liberty he might impede the establishment of the truth, hide evidence, influence the investigation, abscond or reoffend. The court further considered that a personal guarantee, which had been offered by an NGO in respect of the applicant, would not ensure his proper conduct during the criminal proceedings. Furthermore, there had been no suggestion that the applicant could not be held in a detention facility for health reasons. 28. On 16 December 2010 the Kharkiv Regional Court of Appeal (“the Court of Appeal”) dismissed an appeal by the applicant against the decision of 10 December 2010, finding that there were sufficient grounds to keep him in custody. 29. On 4 February 2011 a bill of indictment was approved by the prosecutor and the case file was sent to the District Court. 30. On 25 February 2011 the District Court committed the applicant for trial on a charge of attempted murder. As regards the preventive measure, the court ruled that the applicant should be held in custody. It stated that the applicant had been charged with a serious offence, that he was unemployed, had refused to admit his guilt, and that he had two serious offences on his criminal record. The court pointed out that no new information had been added to the material which had been examined earlier by the District Court and the Court of Appeal when deciding on keeping the applicant in custody. 31. On 11 May, 1 July and 29 September 2011 the District Court dismissed applications by the applicant for a change in the preventive measure and maintained its earlier decision to keep him in custody. The court stated that the applicant had been charged with a serious offence, was unemployed, had a criminal record, and had refused to admit his guilt. As to the question of bail, the court noted that no document had been produced to suggest that any funds were available for that purpose. 32. On 12 March 2012 the applicant was released from custody after giving a written undertaking not to abscond. The District Court stated that the trial was in its final stages so the applicant could no longer impede the establishment of the truth. The applicant also had a permanent place of residence where he lived with his family. 33. On 13 August 2012 the District Court convicted the applicant of inflicting minor bodily injuries on his neighbour. The court found that attempted murder had not been established during the trial. It sentenced the applicant to two years of restriction of liberty. Having regard to the period of the applicant’s pre-trial detention, the court found that the sentence had been served. 34. On 14 February 2013 the Kharkiv Court of Appeal upheld the judgment of 13 August 2012. 35. On 9 December 2010, following his arrest and questioning (see paragraph 26 above), the applicant was placed in a police cell. According to the applicant, on the evening and night between 9 and 10 December 2010 police officers beat him up at the police station. 36. As the applicant had complained about his health, he was examined late in the evening of 9 December 2010 by a panel of doctors who found no injuries on his body. 37. On 10 December 2010 the hearing before the District Court concerning the preventive measure in the applicant’s case was interrupted because the applicant had to be provided with medical care. The ambulance team which arrived at the court stated that the applicant had concussion, a haematoma by the left eye and a bruise on his chest. The applicant complained that the injuries had been inflicted by police officers. 38. On the same day the deputy prosecutor of the Kyivskyy District of Kharkiv ordered that the applicant be examined and asked the medical expert to detail, among other things, the nature, quantity, location, and severity of his injuries. He also asked the expert to state whether the injuries could have been inflicted by the applicant himself. 39. On 11 December 2010, following the court decision of 10 December 2010 to hold the applicant in custody (see paragraph 27 above), he was taken under escort to the Kharkiv pre-trial detention centre. Upon arrival he was examined by the medical staff who documented the following injuries: a haematoma by the left eye, bruises on the left abdominal area and neck, a haematoma on the right thigh, and swelling in his genitals. 40. On 13 December 2010 a doctors’ panel examined the applicant and found that he had sustained bruising on the soft tissue of his head and had a haematoma on his left eyelid. 41. On 14 December 2010 the applicant was examined by a forensic medical expert as requested (see paragraph 38 above). In his report of 15 December 2010 the expert stated that the applicant had sustained bruises on his face, neck, chest, left shoulder, right leg and right shin. The expert considered the injuries to be minor and that they had been inflicted by blunt, solid objects during a period of between three to six days before the examination. The expert added that all the injuries could have been selfinflicted. 42. On 21 December 2010 the prosecutor’s office, having concluded its pre-investigation inquiry, refused to open criminal proceedings concerning alleged police brutality against the applicant on 9 and 10 December 2010. According to the decision, there had been no evidence suggesting that the applicant’s injuries documented after the alleged ill-treatment had been caused by police officers. The decision referred to the police officers’ statements that the applicant had inflicted the injuries on himself. 43. The applicant challenged that decision before the District Court, but received no reply. In 2012, 2013 and 2015 he made applications to the District Court in relation to his complaint, but to no avail.