CASE OF SUPTEL v. UKRAINE
Violation of Article 3 - Prohibition of torture (Procedural aspect);Violation of Article 3 - Prohibition of torture (Substantive aspect);Violation of Article 6 - Right to a fair trial
Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Stanislav Shevchuk
4. The applicant was born in 1963 and lives in Kyiv. 5. On 22 December 1998 the applicant, accompanied by S.N. and V.B., threw a burning torch into a car belonging to O.S. as a retaliatory measure for allegedly unfair business dealings with the applicant. The interior of the car was damaged. The police decided not to initiate criminal proceedings into the incident at the material time for lack of corpus delicti. 6. On 8 May 1999 O.S. was fatally injured in a stabbing. 7. Criminal proceedings into the circumstances of his death were initiated on the same date. 8. According to the applicant, at about 8 p.m. on 8 May 1999 he was arrested on suspicion of incitement to murder and taken to the Vatutinsky District Police Station, where he was severely ill-treated by some ten police officers until he confessed to the offence on 10 May 1999. In particular, he alleged that the police officers had handcuffed and kicked him and fractured his ankle with a crowbar. He had lost consciousness and, on coming round, had found himself suspended from a crowbar with his hands locked under his knees. After he had signed the confession, the officers had contacted his wife and requested her to bring fresh clothes and a coat, on which he was then carried down to a police cell. Afraid that the staff of the Temporary Detention Centre (the “IVS”) would not admit the applicant on account of his injuries, the officers left him in a cell at the police station, unable to walk and without even the most basic care. 9. According to the official record, the applicant was arrested on 10 May 1999 at 3 p.m. in the premises of the Vatutinsky District Police Station. 10. On 10 May 1999 criminal proceedings were instituted against the applicant and two other individuals: M.V., who was suspected of O.S.’s stabbing, and S.N., who was suspected of having hired M.V. to do so. 11. On 19 May 1999 the applicant was admitted to the IVS. The officer on duty noted that he had a leg injury. 12. On 20 May 1999 the IVS paramedic called an ambulance. The ambulance paramedic found that the applicant had suffered a severe chest contusion and arranged for his admission to the Emergency Hospital, where he was treated until 17 June 1999. According to a medical certificate issued by the hospital, the applicant had suffered a closed chest injury, closed fragmental fracture of the right ankle and a haematoma in an ankle joint. He was operated on to drain abscesses on both ankles. 15 ml of puss was recovered from one ankle and 5 ml from the other. 13. On 22 May 1999 the applicant was officially indicted for incitement to murder. 14. On 29 October 1999 the Vatutinsky District Prosecutors’ Office rejected a request by the applicant to initiate criminal proceedings against the police officers on account of his alleged ill-treatment, as it found his complaint unfounded. 15. On 24 April 2000 the case-file concerning the murder charges was sent with the bill of indictment to the Kyiv City Court for examination on the merits. 16. On 10 May 2000 the court held the first hearing. 17. Between May and October 2000 the court held some eleven hearings. At the trial all the defendants retracted their initial confessions. Two witnesses also complained that they had been ill-treated by the police, who had incited them to give evidence against the defendants, who were friends of theirs. The applicant further alleged that the police officers had drafted a confession which they had forced him to sign. 18. On 31 October 2000 the Kyiv City Court found the defendants guilty as charged and sentenced the applicant to fifteen years’ imprisonment. It rejected the defendants’ allegations of ill-treatment, primarily on the strength of the testimony of eight police officers who had denied the allegations while admitting that force had been used to arrest the defendants. The court further referred to the prosecutors’ office’s decision of 29 October 1999, dismissing the applicant’s request to institute criminal proceedings. 19. On 14 January 2001 the applicant filed a new request with the prosecutors’ office for a criminal investigation into his alleged ill-treatment. This was rejected on 9 February 2001. 20. On 19 February 2001, following complaints by the defendants and several witnesses involved in the proceedings of ill-treatment, the Deputy Head of the Parliamentary Committee on Organised Crime and Corruption, R., sent a letter to the Prosecutor General requesting a criminal investigation. 21. In a letter of 2 March 2001 the Deputy General Prosecutor requested the Kyiv City Court to include his letter in the case-file and informed R. that no investigation had been possible at the material time, as the case had been pending before the judicial authorities, which prevented the prosecution from having access to the relevant materials annexed to the case-file. 22. On 27 March 2001 the Vatutinsky District Polyclinic issued the applicant with a certificate stating that, in addition to the injuries recorded in the hospital, in May 1999 he had also suffered injuries to his wrist and coccyx. 23. On 17 May 2001 the Supreme Court quashed the judgment of 31 October 2000 and remitted the case for additional pre-trial investigations. It found it peculiar that the applicant’s confession was dated 8 May 1999, while the official record stated that he had first been questioned and arrested on 10 May 1999. Further, it noted that the trial court should have ordered a medical report on the applicant in order to obtain objective information concerning his injuries and an assessment by a handwriting expert to verify his allegation that his confession had not been drafted by him. 24. On 23 July 2001 the investigators decided to resume the criminal proceedings against the applicant, S.N. and V.B on suspicion of arson in connection with the torching of O.S.’s car in 1998. Subsequently, the applicant was formally charged with arson. 25. On 26 July 2001 the criminal cases concerning both the arson and murder charges were joined. 26. On 31 August 2001 the medical records of the applicant’s injuries were assessed by a medical expert, who confirmed that in May 1999 the applicant had suffered a haematoma to his right ankle joint. At the same time he found that the chest contusion diagnosis was insufficiently substantiated. He did not provide any conclusions concerning the other injuries listed in the applicant’s records. 27. On 7 September 2001 the police instituted criminal proceedings against N.N., the applicant’s wife on the grounds that, while working as a nurse, she had forged, in particular, a certificate that purported to have been issued by the Vatutinsky District Polyclinic on 27 March 2001. On 16 October 2001 she was amnestied. 28. On 30 September 2001 the Vatutinsky District Prosecutors’ Office again refused to institute criminal proceedings in connection with the applicant’s allegation of ill-treatment. It noted, in particular, that the applicant had been arrested on 8 May 1999 and that, as the arresting officers had been aware that the applicant, a former sportsman, was well-built, might have been armed and was implicated in a serious offence, they had had to use force to arrest him. In doing so, they had tripped him up, thrown him against the bonnet of a car, and handcuffed him. The Prosecutor’s Office considered that this was what had caused the applicant to suffer the haematoma. As regards the other injuries noted in the applicant’s medical records, they had not been confirmed by the recent medical expert report. 29. On 29 November 2001 the Kyiv Forensic Experts Institute found it probable that the applicant’s confession had been dictated by a professional, skilled in the preparation of procedural documents, to an individual, who had written the text under stress, possibly on account of physical pain. No assessment was carried out to determine whether the statement had been written by the applicant’s hand. 30. In February 2002 the criminal case concerning the murder and arson charges was sent to the Kyiv City Court of Appeal (the former Kyiv City Court) for trial. 31. On 10 April 2002 the court decided that further pre-trial investigations were necessary. It found, inter alia, that the investigation had not fully complied with the Supreme Court’s instructions. In particular, it had not been established why the applicant’s confession had been dated 8 May 1999, while no other procedural documents had been executed on that date; nor was there any indication as to where the applicant had been held between 8 and 18 May 1999 and why he had arrived in the IVS only on 19 May 1999. The court further noted that the officers manning the premises where the applicant had been kept before 19 May 1999 should have been questioned about his state of health during that period. Finally, the investigation should have established whether it was likely that the applicant’s injuries had been caused in the manner he had described. 32. On 13 June 2002 the Supreme Court of Ukraine upheld the decision to order additional investigations. 33. On 31 October 2002 the case was referred to the Kyiv City Court of Appeal for trial. Between December 2002 and November 2003 that court held some forty hearings. 34. On 6 November 2003 the Kyiv City Court of Appeal remitted the case for a pre-trial investigation in respect of the murder charges. It found, in particular, that the materials relating to the applicant’s first interrogation, in which he had confessed to the murder, were inadmissible as evidence, as he had been questioned as a witness in the absence of a lawyer, whose presence was obligatory in view of the gravity of the alleged offence. Furthermore, the court referred to the failure of the investigation to establish the facts concerning the drafting of the applicant’s confession and the other circumstances of his arrest and initial interrogation, including the date. It noted, in particular, that the investigator had alleged that he had been unaware of the applicant’s detention on 8 May 1999. According to him, the applicant had confessed on 10 May 1999. At the same time, several police officers had submitted that the investigative and prosecuting authorities had been fully aware of the applicant’s arrest on 8 May 1999. The court also noted that the expert who had carried out the applicant’s medical assessment had not made any findings concerning certain of his injuries, including the wrist injury and two abscesses that had been noted in various medical records. Moreover, the assessment had not been carried out by a panel of experts as required, but by a single expert. 35. On 14 November 2003 the court found the applicant, S.N. and V.B. guilty of arson and sentenced the applicant to seven years’ imprisonment. 36. On 15 April 2004 the Supreme Court upheld the Court of Appeal’s decision of 6 November 2003 and judgment of 14 November 2003. 37. On 26 July 2004 the investigators ordered the applicant’s medical assessment by a panel of experts. 38. On 24 December 2004 the Kyiv City Bureau of Forensic Medical Experts found the diagnosis of the closed chest injury unfounded. They confirmed, however, that on 20 May 1999 the applicant had had the following injuries: a haemorrhage of the left ankle and contusion of soft tissue on the left arm, which qualified as light bodily injuries, and a haemorrhage of the right ankle and a closed fracture of the right ankle, which qualified as bodily injuries of “intermediate” gravity. Based on the available documents it was not possible to establish the exact date of the infliction of these injuries, however, their infliction in the period between 8 and 11 May 1999 was not improbable. 39. By 28 December 2006 the proceedings in respect of M.V., the alleged perpetrator of the murder, were terminated for want of evidence of his involvement. As of April 2008 the proceedings in respect of the applicant and S.N. were still pending. 40. The relevant provisions of the Constitution and the Code of Criminal Procedure can be found in the judgment in the case of Kozinets v. Ukraine (no. 75520/01, §§ 39-42, 6 December 2007).