CASE OF AFANASYEV v. UKRAINE
Preliminary objection rejected (non-exhaustion of domestic remedies);Violation of Art. 3;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
8. The applicant was born in 1964 and lives in the city of Kharkiv, Ukraine. 9. On 1 March 2000 the applicant was arrested on suspicion of crimes of swindling and taken to the Kyivsky District Police Station (Київський районний відділ міліції міста Харкова). 10. According to the applicant, he was handcuffed in the police station and police officers demanded that he confess. When he refused to do so, he was severely beaten several times. After each beating he was told that if he did not confess he would be subjected to further beatings. During the last beating one of the police officers, G., hit the applicant on the left ear, causing swelling and partial deafness. After the beatings, the police officers warned the applicant to “think it over” during the night, otherwise he would be beaten again the next day. 11. The applicant maintained that he had had many scratches and bruises on his body. On 2 March 2000, when the police officers wanted to transfer him to a temporary detention centre (ізолятор тимчасового утримання), the centre refused to admit him on account of his numerous injuries. 12. On 3 March 2000 the applicant was escorted to hospital where he was examined. 13. The same day the applicant was transferred to a temporary detention centre. 14. On 4 March 2000 the applicant was charged, but released on bail on condition that he did not abscond, by a decision of the Kyivsky District Prosecutor. 15. From 7 March to 5 April 2000 the applicant underwent medical examinations at the forensic medical examination department (відділ судово-медичної експертизи). The forensic expert recorded various injuries to the applicant’s body. The injuries included a damaged left ear, and bruises on the trunk, face, left arm and left leg (qualified as minor injuries by the Government). The expert also indicated the approximate dates on which the applicant had sustained these injuries, some 5 to 7 days before 7 March 2000. Those dates coincided with the applicant’s detention in the Kyivsky District Police Station. 16. On 13 April 2000 the applicant requested the Kharkiv Regional Prosecutor to institute criminal proceedings against the police officers for torture. The request was transferred to the Kyivsky District Prosecutor’s Office for consideration. 17. On 24 April and 18 May 2000, the applicant requested the Kyivsky District Prosecutor’s Office to inform him about the outcome of his complaint. 18. On 24 April 2000, the deputy prosecutor of the Kyiv District of Kharkiv issued a decree refusing to institute criminal proceedings on the ground that there was no evidence that an offence had been committed. In his decree, the deputy prosecutor stated that criminal proceedings had been initiated against the applicant on 10 February 2000. The applicant confessed voluntarily to having committed the crimes of which he was charged when he learned that his accomplices had also confessed. Furthermore, police officers had been questioned about the applicant’s allegations and had refuted the accusations against them. The deputy prosecutor concluded: “(...) despite the fact that the forensic medical expert opinion No. 747/c of 5 April 2000 [established that the applicant suffered] minor bodily injuries giving rise to a short-term disability, no evidence has been obtained that those injuries were inflicted by officers of the Kyivsky District Police Station of Kharkiv. The [applicant’s] arguments set out in his request must be considered to have been invented by him. He was fully aware that the investigation gave rise to sufficient proof that he had committed the crimes of which he was accused. He is now trying to avoid the punishment he deserves”. 19. On 3 June 2000 the applicant appealed against this decision to the Kyivsky District Court and to the City Prosecutor’s Office. (According to the Government, it was on 3 July 2000 that the applicant complained to the Kharkiv Regional Prosecutor’s Office, and then on 14 September 2000 to the court, paragraph 21 below.) 20. On 20 July 2000 the Kharkiv City Prosecutor’s Office informed the applicant that it had rejected his request to quash the decree of 24 April 2000. 21. On 14 September 2000 the applicant lodged a complaint with the Kyivsky District Court of Kharkiv challenging the decree of 24 April 2000. 22. On 19 October 2000 the Kyivsky District Court quashed the decree of 24 April 2000 and ordered that criminal proceedings be opened against the accused police officers under Article 166 § 2 of the Criminal Code (excess of power). The court stated that the prosecutor had failed to investigate the cause of the applicant’s injuries and that the prosecutor’s refusal to institute criminal proceedings against the police officers in question had been unreasonable. 23. The criminal case was sent to the Kyivsky District Prosecutor’s Office. On 10 November 2000 this Office requested the Kharkiv Regional Prosecutor’s Office to lodge a supervisory review appeal with the Presidium of the Kharkiv Regional Court against the Kyivsky District Court’s decision of 19 October 2000. The applicant was informed of this on 26 January 2001. 24. On 25 April 2001 the Kharkiv Regional Prosecutor’s Office rejected the request, finding no grounds for such a review, and returned the case file to the District Prosecutor’s Office. The applicant was informed of this development by letter of 27 April 2001. 25. Criminal proceedings were initiated on 28 April 2001 by the Kyivsky District Prosecutor, but terminated by decree on 3 September 2001 for want of evidence that any crime had been committed. Nevertheless, according to the Government, between May and November 2001 investigators interviewed several witnesses, including the police officers and the applicant’s relatives. 26. Following the applicant’s complaint, on 29 October 2001 the Kharkiv Regional Prosecutor’s Office quashed the decree of the Kyivsky District Prosecutor and sent the case to the Kharkiv City Prosecutor’s Office. The latter in turn transferred the case on 7 November 2001 to the Zhovtnevy District Prosecutor’s Office for a further preliminary investigation. 27. On 13 November 2001 the Zhovtnevy District Prosecutor’s Office began the investigation. 28. In November and December 2001 several other witnesses were questioned and confrontations were organised. 29. On 20 November 2001 a forensic medical examination was ordered within the framework of the investigation. 30. On 4 December 2001 the expert examination concluded that the applicant had suffered bodily harm of medium severity which could have occurred in the circumstances alleged by the applicant. 31. On 12 December 2001 a supplementary forensic examination was ordered as the first was deemed incomplete. 32. According to the Government, on 25 February 2002 the second expert opinion established that the applicant had sustained minor bodily harm prior to his detention in the Kyivsky District Police Station. 33. At the request of the applicant’s lawyer, one of the medical experts was interviewed in the presence of the lawyer on 21 March 2002. The same day the lawyer requested an additional medical examination since, in his view, the second report lacked any scientific basis and was contradicted by the other evidence in the case. Although the prosecutor received the request, the lawyer never had a reply. 34. On 28 March 2002, on conclusion of the additional investigation, the Zhovtnevy District Prosecutor’s Office issued a decree terminating the criminal proceedings on the ground that there was no evidence that a crime had been committed. (The applicant was informed of this on 16 April 2002.) The prosecutor stated, inter alia, that the police officers who had been questioned had denied the accusations against them and had explained the applicant’s allegations with reference to the criminal proceedings brought against him. The prosecutor further stated that the testimonies of T. and O., confirming the applicant’s allegations, had to be disregarded since they were the applicant’s co-accused. The prosecutor also maintained that the medical examination had concluded that the applicant’s injuries could have been caused before he was detained at the police station. 35. On 16 April and 31 May 2002 the applicant and his lawyer requested the district prosecutor to provide them with the case file. By letter of 10 June 2002, the prosecutor replied that the materials in the case file had been sent to the Regional Prosecutor’s Office for examination. 36. Following the filing of several complaints by the applicant and his lawyer with the District, Regional and General Prosecutor’s Office, the Kharkiv Regional Prosecutor’s Office informed the applicant on 9 October 2002 that the criminal case, in so far as it concerned the alleged excess of power by police officers, had been closed, but that the question of the infliction of minor bodily harm had been remitted for further investigation. 37. That same day, 9 October 2002, the Kharkiv City prosecutor’s Office quashed the decision of 28 March 2002 and remitted the case to the Zhovtnevy District Prosecutor’s Office, which on 23 August 2002 recommenced the investigation. 38. Because of the contradictory findings of the previous forensic medical examinations, an additional examination was entrusted to the Central Office of Forensic Medical Examination in Kyiv. 39. On 2 June 2003 the Zhovtnevy District Prosecutor’s Office received an expert opinion dated 3 February 2003 in which it was stated that the applicant had sustained bodily injury of medium severity that could have been inflicted in the circumstances alleged by the applicant. 40. On 25 June 2003 the Kharkiv Regional Prosecutor’s Office instructed the Zhovtnevy District Prosecutor’s Office to complete the investigation as soon as possible. 41. On 9 July 2003 the Zhovtnevy District Prosecutor’s Office issued a decree terminating the criminal proceedings on the ground that the actions of the law-enforcement officers had not given rise to any criminal offence. It reclassified the criminal offence as the infliction of bodily injury of medium severity by unknown person(s) and remitted the criminal case for investigation to the Kyivsky District Police Department. 42. The applicant appealed against this decree to the Zhovtnevy District Court. 43. On 15 November 2003 the criminal investigation was stayed and it was decided to continue the operative search as the offender had not yet been identified. 44. On 31 December 2003 Zhovtnevy District Court quashed the decree of 9 July 2003 and remitted the case for an additional investigation. The court noted, in particular, that the investigating authorities had failed to take all necessary measures to identify and question independent witnesses, given that the applicant and the law-enforcement officers had made contradictory statements. 45. On 30 March 2004 the Zhovtnevy District Prosecutor’s Office passed a resolution discontinuing the criminal investigation against the police officers indicated by the applicant, and decided that the fact of the infliction of bodily harm of medium severity required further investigation. 46. The investigation is still pending because the offender has not yet been found. 47. The relevant extract of the Constitution of Ukraine provides: Article 28 “Everyone has the right to respect for his or her dignity. No one shall be subjected to torture, cruel, inhuman or degrading treatment or punishment that violates his or her dignity. ...” 48. Article 4 of the Code provides that the court, prosecutor or investigator shall, within their competencies, institute criminal proceedings in every case where signs of a crime have been discovered, take all necessary measures provided by law to establish the commission of the crime and the identity of the offenders and punish them. 49. Article 22 of the Code prohibits extracting confessions from an accused or any other participant in the proceedings through violence, threats or other illegal means. 50. Article 28 of the Code provides that the person who sustained material damage from the crime shall be entitled to lodge a civil claim against the accused person or persons who bear material liability for the actions of the accused. 51. Article 221 of the Code foresees an obligation of the court to suspend proceedings in the case, if it cannot be examined prior to the decision in another case examined under civil, criminal or administrative proceedings. 52. The relevant extract of the Law provides: Article 2 “The right to compensation for damages in the amount and in accordance with the procedure established by this Law shall arise in the cases of: - acquittal by a court; - termination of a criminal case on grounds of an absence of proof of commission of a crime, absence of corpus delicti, or lack of evidence of the accused’s participation in the commission of the crime; - refusal to initiate criminal proceedings or termination of criminal proceedings on the grounds stipulated in sub-paragraph 2 of paragraph 1 of this Article; - termination of proceedings for an administrative offence.”