CASE OF A.V. v. UKRAINE
No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 6+6-3-c - Right to a fair trial (Article 6-1 - Fair hearing) (Article 6-3-c - Defence through legal assistance;Article 6 - Right to a fair trial)
Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Mark Villiger;Vincent A. De Gaetano
5. The applicant was born in 1982 and lives in Kyiv. 6. On the evening of 29 December 2006 the applicant was arrested on a street in Kyiv and taken to the Shevchenkivskyy District Police Department of Kyiv (“the police department”), where he was asked to empty his pockets in the presence of two attesting witnesses. The attesting witnesses were two unemployed men. The applicant produced small bags containing cocaine. 7. According to the applicant, during his arrest on the street some police officers struck him down, handcuffed him and escorted him to their car, where they allegedly planted drugs (small bags of cocaine) on him and continued to beat him up. The assault was accompanied by threats of sexual abuse, and continued until he arrived at the police department. 8. At 10 p.m. on 29 December 2006 the police took the decision to arrest and detain the applicant under Article 263 of the Administrative Offences Code for violating drug circulation rules, an administrative offence pursuant to Article 44 of that Code. 9. The applicant was then interviewed. He wrote a confession admitting that he had unlawfully bought cocaine for personal use. According to him, he was forced to make the confession, which was dictated to him by one of the police officers. 10. After the confession he was placed in a police cell. 11. According to the applicant, during his stay in the police department he was not given enough food or water. He was held in bad sanitary and hygienic conditions. Allegedly, he was locked for one night in a toilet of the police department, which was dirty and stinking. He felt unwell and had acute lower back pain. 12. On 2 January 2007 the police received a specialist report stating that the substance seized from the applicant had contained 1.18 grams of cocaine. 13. That day the police investigator instituted criminal proceedings against him for illegally purchasing and storing narcotic drugs in large quantities, an offence pursuant to Article 309 § 2 of the Criminal Code. 14. At 5.25 p.m. the investigator, relying on Articles 106 and 115 of the Code of Criminal Procedure, took a decision to arrest and detain the applicant on suspicion of the above-mentioned offence. The decision authorised the applicant’s preliminary detention for another seventy-two hours. 15. The applicant was also questioned that day and gave details of the circumstances surrounding his purchase of the drugs. According to him, his lawyer, who had been hired by his parents, joined him when the interview had gone on for a considerable length of time. In the lawyer’s presence he complained of being in a poor state of health, and added that one of his acquaintances had instigated purchasing the drugs. 16. According to the Government, on 2 January 2007 the applicant was given a medical examination and diagnosed with intercostal neuralgia. His state of health was considered satisfactory. 17. On 5 January 2007 the prosecutor refused to approve the investigator’s application to have the applicant placed in pre-trial detention. The investigator then decided to release him on a written undertaking not to abscond. 18. On the afternoon of 5 January 2007, following his release, the applicant was examined by an ambulance team, who noted that he was suffering from acute pyelonephritis (a severe kidney infection) and lumbosacral radiculitis (sciatica). 19. On 6 and 8 January 2007 he was examined by ambulance teams again, who diagnosed him with acute radiculitis and possible acute pyelonephritis. 20. Between 9 and 19 January 2007 the applicant was provided with inpatient treatment at the neurological department of Kyiv Hospital no. 1. He was diagnosed with lumbar spinal osteochondrosis (остеохондроз поперекового відділу хребта), vertebrogenic lumbodynia (вертеброгенна ломбаргія) and pain and muscular tonic syndrome (больовий та м’язово-тонічний синдром). 21. On 16 January 2007 he was examined by a psychiatrist, who noted that he was showing signs of post-traumatic stress disorder. 22. On 22 January 2007 the Shevchenkivskyy District Court of Kyiv (“the District Court”) considered the applicant’s complaint concerning the unlawfulness of his arrest and detention under Article 106 of the Code of Criminal Procedure. It found that the investigator’s decision of 2 January 2007 to arrest and detain him as a criminal suspect had been unlawful in so far as the grounds for his arrest in such a capacity had existed as from 29 December 2006. 23. On 6 February 2007 the applicant, assisted by a lawyer, denied the charges and refused to answer any of the investigator’s questions. 24. On 9 February 2007 the Shevchenkivskyy District prosecutor’s office refused to institute criminal proceedings against the police officers in connection with the applicant’s allegations of a violation of his rights during his arrest and detention. According to the decision, the officers’ actions lacked the elements of an offence. It referred to explanations given by the police investigator in charge of the applicant’s criminal case and to the official custody records concerning his detention. 25. On 1 March 2007 the applicant’s father complained to the investigator that there had been numerous violations of his son’s rights, including an extraction of his confession through pressure and unlawful arrest and detention. 26. On 7 March 2007 the applicant, assisted by his lawyer, denied the charges and refused to answer any of the investigator’s questions. 27. On 16 March 2007 he complained to the prosecutor of failure on the part of the investigative authorities to carry out an appropriate examination of the circumstances in which he had been arrested and questioned in the initial period of the investigation. 28. On 4 April 2007 the prosecutor replied that the criminal case against the applicant had been referred to the District Court, and that he could raise the relevant issues during the trial. 29. On 15 June 2007 a linguistic specialist, in reply to a request by the applicant, issued a report stating that the confession of 29 December 2007 had been written by the applicant with the assistance of another person who had dictated the text. 30. During a court hearing on 18 June 2007 the applicant requested that the linguistic specialist report be admitted to the case file. He further requested that the statements he had made on 29 December 2006 and 2 January 2007 be excluded, as they had been obtained in breach of his rights. The court rejected his requests. 31. The applicant denied the charges throughout the trial. He insisted that the drugs had been planted on him, and that he had been psychologically pressured and physically ill-treated by the police officers. The court then questioned the officers and investigators concerned, who denied the applicant’s allegations. The court also questioned the two attesting witnesses who had been present when the applicant had taken the drugs from his pocket. They stated that when he had produced the little bags in their presence, he had told them they contained cocaine; they had not noticed any visible injuries on him at the time. 32. On 8 July 2008 the District Court found the applicant guilty of illegally purchasing and storing narcotic drugs in large quantities, and sentenced him to three years’ imprisonment. The sentence was suspended conditional upon two years’ probation. In reaching its conclusions, the court had regard to the witness statements and material, documentary and expert evidence. It considered that there was no indication that the applicant had been ill-treated or had suffered a violation of his procedural rights at the time of making his initial self-incriminating statements. 33. The applicant appealed, claiming that the key evidence had been obtained during his unlawful detention and ill-treatment, and that he had not been given access to a lawyer after the arrest. 34. On 7 November 2008 the Kyiv Court of Appeal upheld the judgment of the first-instance court. It noted that in the applicant’s confession of 29 December 2006 he had explained in detail how he had committed the crime. The Court of Appeal further noted that on 2 January 2007 the applicant had also admitted he was guilty. 35. On 22 May 2009 the Supreme Court, sitting in private, dismissed a cassation appeal by the applicant on the grounds that his guilt had been well established by the evidence in the case file, including the original self-incriminating statements he had made. On 2 June 2009 his lawyer received a copy of that decision.