CASE OF YAROSHOVETS AND OTHERS v. UKRAINE
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 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 5+5-3 - Right to liberty and security (Article 5-1 - Lawful arrest or detention) (Article 5-3 - Length of pre-trial detention;Reasonableness of pre-trial detention;Article 5 - Right to liberty and security);Violation of Article 5+5-3 - Right to liberty and security (Article 5-1 - Lawful arrest or detention) (Article 5-3 - Length of pre-trial detention;Reasonableness of pre-trial detention;Article 5 - Right to liberty and security);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
André Potocki;Angelika Nußberger;Carlo Ranzoni;Ganna Yudkivska;Mārtiņš Mits;Síofra O’Leary
5. The first applicant was born in 1978; the second, third and fourth in 1981; and the fifth in 1982. With the exception of the second applicant who died on 9 March 2014, the applicants currently live in Kyiv. Ms O.P. Vorona, the second applicant’s mother, informed the Court of her wish to pursue the application on his behalf. 6. The applicants, along with two other persons, were co-defendants in criminal proceedings instituted against them in October 2005. The charges against them included a number of counts of ill-treatment, theft, extortion and abuse of power, which the applicants allegedly committed during their service in the police. 7. At about 9 a.m. on 14 October 2005 the applicants, then police officers, were arrested by a special police unit and taken to the Kyiv City Police Department to be questioned by the prosecutors responsible for the investigation. Later that day the prosecutors ordered the applicants’ detention under Article 115 of the Code of Criminal Procedure of 1960. During the night of 14 to 15 October 2005 they were taken to police stations in the Shevchenkivskyy and Podilskyy Districts of Kyiv. 8. On 15 October 2005 the applicants were taken back to the Kyiv City Police Department for questioning. 9. The applicants were detained on different police premises until the end of October 2005, when they were placed in the Kyiv Temporary Detention Centre (слідчий ізолятор – “SIZO”). 10. From 17 October 2005 until the pre-trial investigations were completed and the case was referred to the Desnyanskyy District Court of Kyiv for trial on 12 December 2006, the courts at three levels of jurisdiction ordered the applicants’ continued detention. The courts based their decisions mainly on the grounds that the case was complex and the investigations were pending, that the applicants were accused of serious crimes, that they might evade investigation and trial and obstruct the establishment of the truth in the case, and that they might continue committing crimes. No further details were given by the courts. Some of the decisions also contained a statement that the applicants’ state of health and family situation had been duly noted. Between 14 and 23 January 2007 the applicants continued to be detained as the case was awaiting examination by the trial court. There was no decision authorising the applicants’ detention during that period. 11. At trial, which started with a preliminary examination of the case on 23 January 2007, the courts refused the applicants’ and their lawyers’ repeated requests for release. Some of the decisions made reference to the seriousness of the crimes of which the applicants were accused and stated that there were no grounds for changing the preventive measures imposed, while other decisions provided no explanation for the refusal to release the applicants. 12. On 25 May 2007 the District Court ordered the second applicant’s release on an undertaking not to abscond. 13. On 28 October 2008 the District Court convicted the applicants and sentenced them to five years’ imprisonment with a ban on holding office in a law-enforcement capacity for three years and with confiscation of property. The second applicant’s sentence was suspended for three years. The other applicants were ordered to remain in detention pending the entry into force of the judgment. 14. On 14 May 2009 the Court of Appeal quashed the first-instance court’s judgment and adopted a new judgment, convicting the applicants and sentencing them to longer periods of imprisonment. It also ordered the second applicant’s detention. 15. On 3 November 2009 the Supreme Court quashed the judgment of the Court of Appeal, mainly because of the lower court’s incomplete examination of the facts and non-compliance with the rules of procedure, and remitted the appeal against the judgment of 28 October 2008 to the Court of Appeal for reconsideration. The Supreme Court did not examine the applicants’ and their lawyers’ requests for release. 16. On 24 December 2009 the Court of Appeal quashed the judgment of 28 October 2008, finding that the first-instance court had failed to duly examine the applicants’ arguments and evidence, and that the criminal classification of their actions had been incorrect. The case was remitted to the District Court for retrial. The applicants were ordered to remain in detention. 17. In the course of the new examination of the case at first instance the applicants requested the District Court to release them arguing that there was no reason for their further detention and that their state of health was declining. On 15 February 2010 the District Court refused the requests as unsubstantiated. 18. On 13 August 2010 the District Court delivered a new judgment, finding the applicants guilty of a number of counts of torture, extortion, knowingly unlawful searches, and abuse of power. With the exception of the fourth applicant, they were also convicted of theft and forgery. The applicants were sentenced to five years’ imprisonment and banned from holding office in a law-enforcement capacity for three years. The court also ordered the confiscation of the property of some of the applicants. The second applicant was dispensed from serving his sentence and released from detention. The others were ordered to remain in detention pending the entry into force of the judgment. The starting date for the calculation of the duration of their imprisonment was 14 October 2005. 19. The third and fourth applicants and the prosecutor appealed against the judgment. The prosecutor challenged, in particular, the first-instance court’s refusal to find that the applicants had committed the crimes as members of an organised group, resulting in the wrong classification of their actions. The prosecutor also argued that the sentence was too lenient. 20. On 14 September 2010 the case was transferred to the Court of Appeal. On 21 October 2010 the Court of Appeal allowed in part the prosecutor’s procedural request and decided to examine afresh the evidence concerning the part of the case challenged by the prosecutor. 21. The first, third, fourth and fifth applicants requested the Court of Appeal to release them, arguing that by 14 October 2010 they had had served their sentences and that there were no grounds to suggest that they would avoid further proceedings in their case. The first and fifth applicants also argued that during their detention in the SIZO their state of health was declining. 22. On 8 November 2010 the Court of Appeal refused the applicants’ requests for release, holding that they were accused of serious crimes and sentenced to five years’ imprisonment, that the judgment of 13 August 2010 did not enter into force and that it was being challenged by the prosecutor and by two of the applicants. On 17 January 2011 the Court of Appeal refused the applicants’ repeated requests for release principally for the same reasons, having further noted that the verdict was being challenged inter alia for the reason of lenient sentence and that it was being reviewed by that court. 23. In the course of the proceedings before the Court of Appeal, about thirty hearings took place. On 20 September 2011 the Court of Appeal allowed the prosecutor’s appeal and quashed the judgment of 13 August 2010. The appeals of the third and fourth applicants were dismissed as unsubstantiated. The Court of Appeal adopted another new judgment, convicting the applicants and sentencing them to longer periods of imprisonment. In particular, the first applicant was sentenced to eight years’ imprisonment, the second applicant to six years, the third and fifth applicants to seven and a half years, and the fourth applicant to seven years. It ordered the second applicant’s detention. The other applicants were also ordered to remain in detention. The starting date for the calculation of the duration of the first, third, fourth and fifth applicants’ imprisonment was 14 October 2005. The Court of Appeal further ruled that the second applicant’s detention between 14 October 2005 and 25 May 2009 and between 14 May 2009 and 13 August 2010 counted towards the duration of his imprisonment, the calculation of which had to start from the date on which the enforcement of the judgment of 20 September 2011 would begin. 24. On 8 May 2012 the Higher Specialised Court for Civil and Criminal Matters quashed the judgment of 20 September 2011 for various procedural violations, including the failure of the Court of Appeal to question the applicants concerning the charges, the unreasoned refusal to examine the material concerning the allegations of police ill-treatment (see paragraphs 28-36 below) and for the court’s failure to comply with the instructions contained in the decision of the Supreme Court of 3 November 2009. The case was remitted to the Court of Appeal for fresh examination. The applicants were released from detention on an undertaking not to abscond. 25. On 16 September 2014 the Court of Appeal quashed most of the judgment of 13 August 2010. It found the applicants guilty of seven counts of ill-treatment, extortion and abuse of power. The applicants, excluding the second applicant, were sentenced to four and a half years’ imprisonment. The second applicant was not sentenced because he had died in the meantime. 26. In its decision of 16 September 2014, the Court of Appeal held that, in view of the case-file material on which the prosecutors’ decision of 16 May 2007 was based, there had been no violation of the applicants’ rights at the initial stage of the investigation. While injuries had been discovered on the first applicant’s body in October 2005 (see paragraph 30 below), the “possible use of force in the course of his arrest had had no impact on his [defence] position in the case”, as he had not confessed to having committed the crimes of which he had been suspected at the pre-trial stage. The Court of Appeal further found that the alleged psychological pressure – allegations made by the applicants at trial though not supported by any evidence – “had had no impact on the [defence] position” of the applicants. 27. According to the fourth applicant, on 16 June 2015 the Higher Specialised Court for Civil and Criminal Matters quashed the judgment of the Court of Appeal of 16 September 2014 and delivered a new judgment. The parties have not provided a copy of that judgment. 28. According to the first applicant, between 5 p.m. on 14 October 2005 and 2 a.m. on 15 October 2005 he was beaten up and threatened with physical violence by police officer B. for refusing to answer questions relating to the crimes of which he was suspected. In particular, officer B. hit the first applicant in the face, the body and the legs, and also tightened the handcuffs on his wrists, causing him considerable pain. During the same period several other police officers insulted and threatened the first applicant and his close family members in an attempt to force him to confess to having committed the crimes of which he was eventually charged. Because of the ill-treatment, the first applicant refused to be questioned on 14 October 2005. His refusal was recorded in the case file. 29. On 17 October 2005 the applicant was taken to a police detention unit (ізолятор тимчасового тримання – “ITT”) in which he was examined by a paramedic who noted that he had bruises on his face and the legs. 30. Further to instructions issued by the prosecutors, on 19 and 26 October 2005 the first applicant was examined by doctors, who noted a number of bruises on his face and legs. They stated that the injuries could have been inflicted by “blunt objects” during the period referred to by the applicant (see paragraph 28 above). 31. On an unspecified date an official inquiry was launched into the first applicant’s allegations of ill-treatment. During the inquiry, the first applicant and his close relatives made detailed submissions, giving the names of some of the alleged offenders and specifying the time-frame and the place of the relevant events. 32. The inquiry initially resulted in a decision of 14 November 2005, by which the prosecutors rejected the complaints as unfounded. Following an appeal lodged by the first applicant, in September 2006 a district court quashed that decision, finding that the inquiry had been incomplete. In particular, the court noted that the prosecutors had not questioned the first applicant and his co-accused, that not all the police officers involved in the events had been questioned, and that the origin of the first applicant’s injuries had not been established. In March 2007 the courts found a further inquiry also incomplete, inter alia, because the prosecutors had failed to establish the origin of the first applicant’s injuries. The matter was again remitted to the prosecutors. 33. On 16 May 2007 the prosecutors rejected the complaints as unsubstantiated, finding that there was no evidence that the first applicant’s bruises had been inflicted by police officers. The prosecutors’ decision was principally based on the statements of the police officers who had taken part in the first applicant’s arrest and those who had been in contact with him afterwards. Those police officers stated that the first applicant had not been subjected to “physical or psychological coercion” and that he had not raised any complaints in that regard on 14 or 15 October 2005. They also argued that after his arrest on 14 October 2005 and until his placement in a cell at the Shevchenkivskyy District police station on 15 October 2005, the first applicant had been under the constant supervision of several police officers. At the police station, he had been detained alone in a cell and “without constant supervision” of the police. In his statements, officer B. also suggested that the first applicant had complained about him because the first applicant had been dissatisfied with the fact that officer B. had recorded all the items found in the car which he and his fellow suspects had used. During the search of that car the first applicant had insulted officer B. The incident had been witnessed by other people. 34. In their decision, the prosecutors also referred to the statements of the doctor who had examined the first applicant on 26 October 2005, obtained during the inquiry. In particular, the doctor stated that, given the location of the first applicant’s injuries, it could not be ruled out that they had been inflicted by the first applicant himself or “by a traumatic impact with a blunt object”. 35. The prosecutors’ decision was eventually upheld by the courts of first and appeal instances on 29 August and 21 November 2007 respectively. 36. Relying on the prosecutors’ findings, the District Court and the Court of Appeal dealing with the applicants’ criminal case also rejected identical complaints lodged by the first applicant, finding that the “possible use of force in the course of his arrest had had no impact on [his defence] position in the case”, as the first applicant had not confessed to having committed the crimes of which he had been suspected at the pre-trial stage (see, in particular, paragraph 26 above). 37. In April 2006 the fourth applicant was examined by a doctor from the SIZO medical unit and was diagnosed with chronic prostatitis. In September 2006 he was further examined by a doctor and an urologist from the SIZO medical unit, who prescribed specific medication for the treatment of his chronic prostatitis. Subsequently, the fourth applicant underwent a number of medical checks by SIZO doctors in October and December 2006, June 2007, April and May 2008, May 2009, and June 2010, in the course of which it was confirmed that he had a serious urological dysfunction, often diagnosed as chronic prostatitis. He was prescribed specific medication. 38. During that period of time the fourth applicant, his lawyer and members of his family asked the authorities to allow the fourth applicant to be examined at a specialised clinic, but to no avail. Requests for the fourth applicant’s release in view of his state of health were also refused. By a letter dated 21 April 2008, the SIZO governor informed the fourth applicant’s lawyer that the SIZO medical unit did not have the equipment necessary to make an accurate diagnosis of the fourth applicant’s condition. 39. During a court hearing in the applicants’ criminal case on 2 February 2011 an ambulance was called for the fourth applicant because he was suffering from acute bladder pain. Doctors noted that he needed urgent catheterisation of the bladder. The judge of the Court of Appeal dealing with the applicants’ criminal case asked the SIZO governor to provide the fourth applicant with adequate medical assistance, transferring him to a civilian hospital if necessary. On the same day, the fourth applicant was examined on the premises of the SIZO by a doctor from a civilian hospital. The doctor diagnosed him with acute chronic prostatitis and chronic cystitis, prescribed an antispasmodic drug and instructed him to undergo a urine test. He found no reason to prescribe urgent hospitalisation. The next day the fourth applicant underwent a urine test, which did not reveal any pathology. 40. On 3 February 2011, following a complaint by the fourth applicant’s mother that he had not received the required medical treatment, the judge of the Court of Appeal sent a letter to the SIZO governor requesting him, for the second time, to provide the fourth applicant with adequate medical assistance, transferring him to a civilian hospital if necessary. 41. On 4 February 2011 the fourth applicant was taken to a civilian hospital where he was examined by a urologist, who diagnosed him with chronic prostatitis and chronic cystitis without a urinary disorder. The urologist found that the fourth applicant did not need a catheter or inpatient treatment. He was prescribed special medication. 42. Subsequently, in February and March 2011 the fourth applicant was further examined and treated with medication by a dermatologist from the SIZO medical unit, who eventually noted a certain improvement in his urological problem. 43. On 31 March 2011, following the fourth applicant’s request for interim measures under Rule 39 of the Rules of Court, the Court asked the Government to provide information concerning the fourth applicant’s state of health. 44. On 5 April 2011 the fourth applicant was examined by a panel of SIZO doctors and diagnosed with chronic prostatitis at the remission stage. 45. On 8 April 2011 a urologist from a civilian hospital examined the fourth applicant. He was diagnosed with urethroprostatitis at the exacerbation stage. Urine and prostatic fluid tests were recommended. Following the tests, the urologist prescribed specific medication. 46. On 4 May 2011, having received updated information concerning the fourth applicant’s medical situation from the Government and the fourth applicant himself, the Court decided to refuse his request under Rule 39. 47. Urologists carried out further medical examinations in September and October 2011. They noted that the fourth applicant was suffering from acute chronic prostatitis and chronic cystitis and prescribed him medication, which he received in a parcel from his relatives in October 2011. 48. By a letter of 17 October 2011, the deputy head doctor of a civilian hospital at which the fourth applicant had been examined informed the applicant’s lawyer that the treatment initially prescribed had been ineffective and that the fourth applicant needed “physiotherapeutic treatment along with ethiopathogenetic medication, which could not be made available in the SIZO”. 49. On 10 November 2011 the Court indicated, under Rule 39, that the Government should ensure that the applicant was urgently provided with medical treatment for his health problems in accordance with the doctors’ instructions, including those contained in the aforementioned letter of 17 October 2011. The interim measure was eventually lifted on 5 February 2013. 50. On 16 November 2011 the fourth applicant was examined by a urologist at a civilian hospital. He was diagnosed with chronic prostatitis beyond the stage of active inflammation and it was concluded that he did not require inpatient treatment. There is no information about his medical situation while in detention after that date. 51. After his release from detention on 8 May 2012, the fourth applicant was further examined by various doctors. In particular, on 22 May 2012 he was examined at a private urological clinic; the doctor discovered “congestive inflammatory modification” of his prostate, chronic calculous prostatitis, double-sided vesiculitis (inflammation and infection of the seminal vesicles) and intra-pelvic venous (інтрапельвікальна) congestion. In June 2012 the fourth applicant underwent surgery on his urethra. In June 2014 he underwent similar surgery. 52. According to the applicants, excluding the second applicant, when they were transported to and from court hearings they were kept for several hours in overcrowded prison vans, with insufficient access to fresh air and no heating. They were thus exposed to high temperatures in summer and freezing temperatures in winter. It took the vans several hours to get to the Desnyanskyy District Court and there were instances where, on returning to the SIZO, the applicants concerned had to wait in the vans for several hours while security checks were carried out. 53. The applicants concerned stated that they had been transported in the above conditions on more than 200 occasions. 54. They further submitted that on court days they had been routinely taken out of their cells at about 8 a.m. and before being taken to a prison van, had been placed in special transit boxes measuring 3.75 square metres with no ventilation for durations ranging from thirty minutes to several hours. Upon their return from court hearings, often at about 8 p.m., the applicants concerned had also had to wait for several hours in the same transit boxes before being escorted to their regular cells. 55. According to the Government, prison vans measured 8 square metres inside and were designed to accommodate twenty-two people in three compartments (two larger ones, measuring 2.5 square metres and designed for ten passengers each, and one small compartment for two passengers). The vans had no windows, but they were equipped with ventilation grills and benches for sitting on. The Government further submitted that on average it took up to forty minutes to transport prisoners between the SIZO and the Court of Appeal. 56. During their detention, the applicants, excluding the second applicant, received a certain number of one-hour visits by their close relatives, during which the applicants concerned and their visitors had to communicate via glass partition. No dates of those visits were specified. Nor did the applicants concerned claim that they or their relatives had requested any other visits. The applicants concerned stated that their relatives had had to consent to be questioned as witnesses in order to meet with the applicants concerned in detention.