CASE OF KULISH v. UKRAINE
Preliminary objections dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 3 - Prohibition of torture (Article 3 - Torture) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Pecuniary and non-pecuniary damage - award
André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska
5. The applicant was born in 1947 and lives in Kharkiv. 6. On 6 December 2004 the applicant met with Ms Ch., who tried to bribe him. When the applicant refused to take the bribe, Ms Ch. threw a package of money into his car and retreated. Following this, strangers in plain clothes (who later turned out to be police officers) got into the applicant’s car and without any introduction started wrenching his arms behind his back. One of the officers sat behind the applicant and started strangling him. Two others punched the applicant in the lower back. Then the applicant was handcuffed. One of the officers stretched the applicant out, hooked his finger in the applicant’s mouth and started pulling on his cheek. In acute pain, the applicant bit the officer’s finger. The officer concerned punched the applicant four times in the head, while another officer punched the applicant in the jaw. Then they pulled the applicant out of his car, threw him to the ground and started kicking him in the kidney area. This scene was witnessed by the applicant’s wife. 7. The police officers placed the applicant in the car with his cuffed hands between his legs and his head on the seat of the car. The officer who had been bitten by the applicant covered the applicant’s head with the hood of his jacket and sat on it. The applicant started suffocating and lost consciousness. 8. The applicant was then taken to Kharkiv Regional Police Department, where the investigator explained to him that he had been arrested for taking a bribe. The investigator suggested to the applicant that they might “come to an agreement” and ignored his complaints of violence on the part of the police officers. The applicant also complained of an acute headache and dizziness during the questioning, which lasted for five hours. Then the applicant was taken to the prosecutor’s office, where the prosecutors questioned him about the events of that day. Following this, the applicant was released under a written undertaking not to abscond. 9. On 6 December 2004 the applicant was apprehended by the police in the street and taken to the Kharkiv Regional Police Station for questioning on suspicion of swindling and instigation to bribery. The same day the applicant gave a written obligation not to abscond. 10. At about 11.30 p.m. on the same day the applicant complained to Dzerzhinsky District Police Department of having been ill-treated by police officers during his arrest. He received a hospital referral for a medical examination. The police also questioned two eyewitnesses and one testifying witness, who had been present at the time of the applicant’s arrest. 11. On 7 December 2004 the applicant underwent a medical examination. According to the certificate of Kharkiv Emergency Hospital No. 4 of 9 December 2004, the applicant’s injuries included the following: closed head trauma, bruises, brain injury, and soft tissue injuries to the chest and lower back. These injuries were classified as being of “medium severity”. 12. On 8 December 2004 criminal proceedings were instituted against the applicant for swindling and instigation to bribery. These proceedings were terminated on 22 June 2006 for lack of proof. 13. On 9 December 2004 the applicant lodged a complaint with the Kharkiv Regional Prosecutor’s Office against the police officers who had ill-treated him. 14. Between 9 and 31 December 2004 the applicant underwent in-patient treatment and between 1 and 10 January he also received out-patient treatment for his injuries. 15. On 10 December 2004 the Kharkiv Regional Prosecutor’s Office received the applicant’s above-mentioned complaint. 16. On 15 December 2004 the Kharkiv City Prosecutor’s Office received the complaint. 17. On 24 December 2004 the Kharkiv City Prosecutor’s Office refused to institute criminal proceedings for lack of corpus delicti in the actions of the police officers. The decision mentioned that three police officers, who had arrested the applicant, had been questioned and had testified that during the arrest the applicant had behaved violently, shouted at them and then fallen on the ground where he had started hitting himself against the ground in an attempt to cause himself bodily injuries. It further indicated that there were testimonies of other witnesses to the incident. It lastly mentioned that the applicant was in hospital, but that this could be considered an attempt to avoid liability for the crime he had committed. 18. On 5 January 2005 the Kharkiv Regional Office for Forensic and Medical Examination drew up an expert opinion on the applicant’s injuries. The opinion noted that the injuries had been caused by hard objects and could have been caused in the circumstances described by the applicant. 19. On 31 January 2005, upon a complaint by the applicant, the Kharkiv Regional Prosecutor’s Office quashed the decision of 24 December 2004 on the ground that the applicant’s allegations had not been verified in full. It referred the case to the Kharkiv City Prosecutor’s Office for further inquiries. 20. On 3 February 2005 the Kharkiv City Prosecutor’s Office received the applicant’s criminal complaint, together with a copy of the expert opinion of 5 January 2005. 21. On 26 April 2005 the Kharkiv City Prosecutor’s Office refused to institute criminal proceedings against the police officers for lack of corpus delicti in their actions. The reasoning of the decision was similar to that of 24 December 2004. 22. On 6 May 2005 the Kharkiv City Prosecutor’s Office instituted criminal proceedings in connection with the infliction of bodily harm of medium severity on the applicant. 23. On 4 June 2005 the criminal proceedings were transferred to the Kharkiv Dzerzhinsky District Police Department, which had territorial jurisdiction. The police investigator questioned the applicant, his wife and son and the police officers who had arrested the applicant. According to the Government, the investigator held confrontations between the applicant and the police officers. According to the applicant, the confrontations were ordered but not conducted. 24. On 5 June 2005 the Kharkiv Regional Office for Forensic and Medical Examination drew up an expert opinion classifying the applicant’s injuries as being of medium severity. 25. According to the Government, on 18 January 2006 the investigator conducted an on-site reconstruction of events with the applicant’s participation. According to the applicant, he did not participate in the reconstruction. 26. On 19 August 2006 the criminal proceedings were suspended due to the failure to establish a perpetrator. 27. On 26 September 2006, upon a complaint by the applicant, the Kharkiv Regional Prosecutor’s Office quashed the decision of 19 August 2006 and remitted the case to the District Police Department for further investigation. 28. On 8 October 2006 the criminal proceedings were resumed. The investigator conducted an on-site reconstruction of events with all those involved in the incident. The investigator also seized all the medical documentation concerning the applicant’s treatment after the accident. 29. On 4 November 2006 the investigator ordered a comprehensive medical report to be drawn up by the Kharkiv Regional Office for Forensic and Medical Examination. 30. On 19 December 2006 the case was referred to the Central Office for Forensic and Medical Examination, as the Kharkiv Regional Office could not provide comprehensive answers to the investigator’s questions and the applicant had expressed a lack of confidence in the specialists of the Kharkiv Regional Office. 31. On 10 July 2007, at the applicant’s request, the case was transferred to the Poltava Regional Office for Forensic and Medical Examination, as the waiting time for an expert examination in the Central Office exceeded two years. 32. On 1 April 2011 the Central Office for Forensic and Medical Examination issued its opinion, in which it concluded that the applicant had only sustained some of the injuries indicated in the previous report and that those injuries should be classified as minor bodily injuries, which could have been inflicted under the circumstances described by the applicant or by himself. As to the other injuries, the experts questioned them as having been diagnosed on the basis of subjective factors not confirmed by objective information. 33. On 29 August 2011 the investigator terminated the criminal proceedings for lack of proof of a crime. The decision mentioned for the first time the testimonies of the applicant’s wife and son, who had confirmed his version of events. The investigator further mentioned that, in the light of the forensic expert opinion of 1 April 2011, the applicant’s injuries should be classified as minor and therefore the criminal proceedings concerning infliction of injuries of medium severity on the applicant should be terminated. 34. The applicant challenged that decision before the prosecutor and the court. 35. On 30 August 2011 the Kharkiv Dzerzhinsky District Prosecutor’s Office quashed the decision of 29 August 2011 on the ground that it had been premature and the investigator had not taken all the actions necessary for a gave a number of instructions to the police investigator. 36. On 9 September 2011 the Kharkiv Regional Prosecutor’s Office decided to change the jurisdiction in the case and transfer it for further investigation from the police to the prosecution service. The case was accordingly handed over to the Kharkiv City Prosecutor’s Office. The proceedings are pending. 37. By letter of 19 September 2011, the Kharkiv Dzerzhinskiy District Court informed the applicant that the examination of his appeal against the investigator’s decision of 29 August 2011 was scheduled for 5 October 2011. 38. The relevant domestic law is summarised in the judgment of Oleksiy Mykhaylovych Zakharkin v. Ukraine (no. 1727/04, §§ 38-41 and 4546, 24 June 2010).