CASE OF OGORODNIK 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);Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance)
Aleš Pejchal;André Potocki;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano
5. The applicant was born in 1983 and is currently serving a sentence of imprisonment in Berdychiv Prison no. 70. 6. At the time of the events the applicant had four criminal convictions for theft, in particular. He had been released from prison in October 2007. 7. From January 2008 onwards, a number of armed robberies and thefts were committed in the Kyiv and Vinnytsia regions. 8. On 16 July 2008 the Vinnytsia Police Department for Combating Organised Crime, having received some preliminary reports concerning the possible involvement of the applicant in the aforementioned crimes, arrested him together with his brother and an acquaintance. The police approached them when they were in a car at a fuel station. They attempted to flee, but without success. The police broke the side window and, having overcome the resistance of those inside, took them out by force and handcuffed them. Two passers-by witnessed this and gave written explanations to that effect to the police, in which they confirmed the above. 9. Several guns, gas sprays, some jewellery and several pairs of gloves were found in the car. 10. The officers wrote a report stating that the detainees had demonstrated manifest disobedience to their orders and had attempted to escape, in response to which martial arts techniques had been practised and handcuffs had been applied to them. The report noted that no firearms had been used. 11. On the same day, 16 July 2008, the applicant confessed to several counts of theft and robbery. He also wrote a note stating that he had no complaints against the police and that no physical or psychological coercion had been applied to him. 12. On 17 July 2008 the police drew a report on an administrative offence (a minor offence under Ukrainian legislation) committed by the applicant. It stated that during his arrest he had manifested malicious disobedience to a lawful order given by police officers in breach of Article 185 of the Code of Administrative Offences (see paragraph 67 below). 13. On the same day the applicant wrote a statement to the effect that during his arrest he had resisted the police and had tried to escape and that he regretted his behaviour. 14. Still on that day the Zamostyanskyy District Court of Vinnytsia (“the Zamostyanskyy Court”) found the applicant guilty under Article 185 of the Code of Administrative Offences and sentenced him to ten days’ administrative detention commencing at 11:20 a.m. on 16 July 2008. 15. It appears from the material in the case file (see paragraph 42 below) that on 17 July 2008 the applicant was examined by doctors after his admission to the Vinnytsia Temporary Detention Facility (ITT). The examination revealed scratches and bruises on his right shoulder. No complaints or requests for medical assistance from the applicant were recorded. 16. On 16, 17, 18, 19 and 22 July 2008 the applicant confessed to numerous counts of theft and robbery committed in the Vinnytsia and Kyiv regions. All his confessions were accompanied by written statements by the investigator co-signed by the applicant to the effect that the latter had had his rights explained to him. Furthermore, each confession was accompanied by a written waiver by the applicant of his right to legal assistance. 17. On 25 July 2008 the investigator detained the applicant on suspicion of banditry, numerous counts of theft and armed robbery, money laundering, hooliganism, and illegal arms possession and handling. The applicant signed the report and stated that he agreed with his detention. 18. On 25 and 26 July 2008 the applicant confessed to some other episodes of theft and robbery. 19. On 26 July 2008 he was examined by a general practitioner on duty in Central Vinnytsia City Hospital no. 2. The applicant did not raise any complaints and the examination did not reveal any injuries or pathologies. 20. On the same day the applicant was transferred to Vyshgorod in the Kyiv region, where he was detained till 7 August 2008 in the local temporary detention centre (the “ITT”) described by him as a metal cage in the police station. 21. On 28 July 2008 the Zamostyanskyy Court remanded the applicant in custody as a preventive measure pending trial. 22. On 30 July 2008 the applicant had his chest X-rayed in a tuberculosis dispensary, with no anomalies having been revealed. 23. On 2, 3, 4, and 5 August 2008 he reiterated his earlier confessions and confessed to yet more crimes. Like before, all those confessions were accompanied by written confirmation of the explanation to the applicant of his rights and by the applicant’s waiver of his right to a lawyer. 24. On 7 August 2008 the applicant was taken to the Brovary Town Police Department in the Kyiv region. He underwent a standard initial medical examination there. As noted in the respective journal, he raised no complaints and the examination revealed no bruises, lice or scabies. 25. On 14 August and on 2 September 2008 the applicant again reiterated his confessions and waived his right to legal representation. 26. On 3 September 2008 an ambulance was called for him. This was recorded as entry no. 370 in the medical assistance journal. The copy of the journal provided to the Court by the Government ends at entry no. 369. No further information is available concerning the applicant’s condition on 3 September 2008 (see also paragraph 57 below). 27. On 9 September 2008 an ambulance was again called for the applicant. According to a memo issued by the governor of the Brovary ITT on 27 October 2008, this was done in response to the applicant’s complaining of headache. 28. According to the applicant, on 11 September 2008 he complained to the Brovary Town Prosecutor’s Office about his ill-treatment, but his complaint remained without response. 29. On 11 September 2008 the applicant was transferred from Brovary to Vyshgorod. It appears from the material in the case file (see paragraph 42 below) that he was examined by a doctor at his arrival in the Vyshgorod ITT. Some bruises on his shoulders, an abrasion on his right temple and an abrasion on his right elbow were documented. According to the examination report, the applicant raised no complaints and did not seek medical assistance. 30. On 16, 22 and 26 September 2008 the applicant reiterated his earlier confessions and confessed to yet more crimes. He also signed reports confirming that his rights had been explained to him and waived his right to a lawyer. 31. On 25 September 2008 the applicant refused to accept a food parcel from his parents handed to him by the Vinnytsia ITT administration. As confirmed by notes written by the applicant’s cell mates, he did so because the cigarettes and the food had been cut into small pieces. The applicant refused to sign any report or write any explanation. 32. On 30 September 2008 the pre-trial investigation was declared complete and the case was referred to court for trial. 33. On 7 October 2008 the applicant complained to the Vinnytsia Regional Prosecutor’s Office that from 16 to 26 July 2008 he had been ill-treated by the police in the Vinnytsia ITT. The alleged ill-treatment included being beaten, strangled with a plastic bag and suspended from an iron bar. The applicant also submitted that he had received the threat that, if he did not confess, his brother would be imprisoned for life on a false charge of murder. Accordingly, the applicant contended that he had been coerced into signing numerous confessions and waivers of legal assistance. He further complained that from 26 July to 7 August 2008 his ill-treatment had continued in the Vyshgorod ITT. He noted that, although his parents had hired a lawyer for him, he had continuously been forced to waive his right to legal assistance. Lastly, the applicant complained about having suffered psychological pressure and humiliations from the Brovary ITT personnel from 7 to 30 August 2008. He noted that his complaint to the Brovary Prosecutor had been without reply. 34. On 13 October 2008 the applicant complained to the Vinnytsia Regional Police Department about the attitude of the Vinnytsia ITT personnel towards him, which he considered humiliating. He referred, in particular, to the incident with the food parcel of 25 October 2008. 35. On an unspecified later date the chief of the aforementioned police department issued an internal inquiry report stating that no food parcels for the applicant had been received during the period of his detention in the ITT from 16 to 30 July 2008 and that the applicant had been arrogant and rude to the administration. 36. On 14 October 2008 the investigator of the Vinnytsia police department dealing with the applicant’s case gave written explanations to the regional prosecution in respect of the applicant’s allegations of ill-treatment. He submitted that the applicant and those detained as his accomplices had given their confessions and waived their right to a lawyer in a voluntary manner. Since legal representation was not mandatory in the circumstances, those waivers had been accepted. The other police officers concerned gave similar explanations. 37. On 15 October 2008 the applicant complained to the Minister of the Interior that he had been subjected to various kinds of ill-treatment and humiliation in all the detention facilities. He alleged, in particular, that on 11 September 2008 he had been ill-treated by the Vinnytsia police officers for about eight hours and that his ill-treatment had included beatings, strangling with a plastic bag, hanging from an iron bar and the insertion of a baseball bat into his anus. The applicant also submitted that the Vinnytsia police had failed to deliver a food parcel to him, had extorted a bribe from him and had not allowed him to see the lawyer contracted by his parents. 38. On 18 October 2008 ‒ in response to the applicant’s complaint of ill-treatment ‒ the Vinnytsia Regional Prosecutor’s Office issued a ruling announcing its refusal to institute criminal proceedings against the police officers of the local police department. The officers concerned had been questioned and had contested the applicant’s allegations as untruthful. As noted in the ruling, there was no indication that the applicant had sustained any injuries or that he had complained previously. It was therefore considered clear that he had given his confessions voluntarily. 39. On 27 October 2008 the governor of the Brovary ITT issued a memo, apparently at the prosecutor’s request, about the applicant’s detention in that facility. It stated that no physical force had been used against the applicant. The memo noted the fact that an ambulance had been called for the applicant following his complaints of headaches on 9 September 2008, but with no further details. 40. On 31 October 2008 K., the lawyer contracted by the applicant’s parents on an unspecified earlier date, asked the Staromiskyy Court for a meeting with the applicant. On the same date that request was allowed. 41. On 7 November 2008 the applicant was examined by doctors in the Vinnytsia SIZO. They found him in good health. The examination report noted that the applicant did not raise any complaints and that there were no injuries on him. It should be noted that the copy of the aforementioned report in the case file before the Court, as it stood prior to the communication of the application to the Government, was of very poor quality. Moreover, the report was written in barely legible handwriting. According to the summary of the facts prepared by the Court at that stage, the report in question had referred to several bruises on the applicant. However, as it has since emerged, there were two reports copied on the same page: one of 7 November 2008 and one of 5 February 2009, and it was the latter report which had noted the applicant’s injuries (see paragraph 54 below). 42. On 10 November 2008 a senior official of the Vinnytsia Regional Police Department for Combating Organised Crime delivered a report on the internal investigation into the applicant’s complaints of ill-treatment (as summarised in paragraph 37 above). The investigation had consisted mainly of questioning of the police officers involved, who had denied any ill-treatment of the applicant. The report noted that the medical examinations of the applicant of 17 July and 11 September 2008 had revealed some injuries which had been inflicted in unestablished circumstances (for more details see paragraphs 15 and 29 above). It was decided that the internal investigation be considered complete, the conclusion being that it had not established any evidence to support the applicant’s complaints. 43. On 19 November 2008 the Vinnytsia Regional Prosecutor’s Office refused to institute criminal proceedings against the officials of the Vinnytsia ITT in respect of the allegedly inadequate conditions of the applicant’s detention and his ill-treatment there. It was noted in the ruling that the ITT officials had been questioned and had denied any ill-treatment of the applicant. They had also submitted that he had been detained in adequate conditions. 44. On 20 November 2008 the Vinnytsia Regional Prosecutor issued another ruling refusing the institution of criminal proceedings ‒ this time against the police officers of the Vinnytsia Regional Police Department for Combating Organised Crime, who had been involved in the applicant’s apprehension and the subsequent investigative measures ‒ for the lack of corpus delicti in their actions. The officers submitted that the applicant and his accomplices had manifested malicious disobedience to the orders of the police on 16 July 2008. As a result, “measures of physical intervention and ... handcuffing” had been applied to them. Furthermore, according to the police officers’ statements, the detainees had made their confessions voluntarily. Lastly, the prosecutor noted that the applicant had been examined by doctors on 26 and 30 July 2008, when no injuries were documented or complaints raised (see paragraphs 19 and 22 above). 45. On 4 December 2008 the Vyshgorod Town Prosecutor’s Office refused to institute criminal proceedings against the Vyshgorod police officers, for the lack of corpus delicti in their actions. The prosecutor noted that the officers in question had denied the veracity of the applicant’s allegations of ill-treatment. Furthermore, it appeared that the applicant himself had eventually retracted his complaints. 46. On the same day the Brovary Town Prosecutor’s Office also refused to institute criminal proceedings against the Brovary police as regards the conditions of the applicant’s detention in the local ITT. The decision was based on the explanations of the respective police officers. 47. On 5 January 2009 the applicant refused the services of the lawyer retained by his parents and asked the Staromiskyy Court to allow his parents time to find a new lawyer for him. 48. On 15 January 2009 he repeated the above refusal and asked the court to conduct its hearing with the participation of his sister, who had earlier been admitted in the proceedings as his “civil defender”. 49. On 15 January 2009 the applicant complained to the Staromiskyy Court that he had been subjected to ill-treatment by the police on 16 July 2008 and thereafter. He submitted that all his confessions and waivers of legal assistance had been given under duress. 50. On the same date the applicant also complained of his ill-treatment in police custody to the Prosecutor General’s Office. 51. On 27 January 2009 the Staromiskyy Court appointed a free lawyer for the applicant, since his parents had not retained a new lawyer for him. 52. On 4 February 2009 the Staromiskyy Court instructed the Kyiv and Vinnytsia Regional Prosecutor’s Office to investigate the applicant’s complaints of ill-treatment. 53. On 4 February 2009 the applicant was examined by a doctor, who recorded the absence of any injuries, apart from some old scars on both forearms. No further details concerning this examination are available. 54. On 5 February 2009 the applicant underwent another medical examination which revealed bruises on his buttocks measuring 7x10 cm and 15x10 cm respectively, as well as abrasions on his wrists caused by handcuffs. Another bruise measuring about 15 x ? cm was recorded (the copy of the report in the case file is illegible in this respect; nor is it possible to read where that bruise was located). It is not clear in what circumstances and where that examination was carried out. It has not been commented on by any of the parties. 55. On 5 March 2009 the Vyshgorod Town Prosecutor’s Office refused to institute criminal proceedings against the police officers in the light of their statements denying the veracity of the applicant’s complaints. 56. On 11 March 2009 the Kyiv Regional Prosecutor’s Office quashed the aforementioned ruling as premature and superficial. It criticised the prosecutor’s failure to clarify when and on what grounds the applicant had been taken to the Vyshgorod ITT before his further transfer to the Brovary ITT, when he had been detained in the Brovary ITT, which of the police officers had been assigned to him and when. Furthermore, it observed that it was essential to question all the doctors who had examined the applicant and had provided him with medical assistance. According to the applicant, it was after his detention in the Vyshgorod ITT that he had requested medical assistance. It was also necessary to analyse all the records pertaining to the ambulance calls made for the applicant, as well as the report on his initial medical examination in the Brovary ITT. Lastly, the applicant’s complaints concerning the refusal to allow a lawyer to see him warranted investigation. 57. On 24 March 2009 a senior officer in the Vyshgorod police department issued a memo noting that he had visited the Brovary ITT, where he had consulted the medical examination and assistance journal. Two records, those of 7 August and 3 September 2008, concerned the applicant. The ambulance doctor had been questioned. She had recognised her signature next to the record of 3 September 2008 and had verbally explained that she had provided the applicant with the assistance documented in the record. However, she had refused to make any written statements. The memo in question did not contain any further details as to the applicant’s condition on 3 September 2008 or what medical assistance had been provided to him (see also paragraph 26 above). 58. On 6 May 2009 the Staromiskyy Court found the applicant guilty on seventeen counts of aggravated theft and robbery and sentenced him to eleven and a half years’ imprisonment, as well as confiscation of all his personal property. The confiscated property included a house and a car which had been purchased by the applicant’s parents, but which the court considered to have been bought using the revenue from his criminal activities. The applicant was acquitted of the charges of banditry, money laundering, hooliganism and illegal arms handling. The court noted that the applicant had cooperated with the investigation. At the court hearing, the applicant commented on only two of the charges against him: he denied his participation in one episode of theft and one episode of robbery and submitted that he had earlier confessed to those two episodes under duress. The court dismissed that allegation as unsubstantiated. 59. The applicant appealed, submitting that he had voluntarily confessed to the criminal offences in question and had shown remorse. Referring to his cooperation with the investigation, as well as the fact that he had a child who was a minor, the applicant sought mitigation of his sentence. He also contested the confiscation-related part of the verdict. 60. On 16 July 2009 the Vinnytsia Regional Court of Appeal rejected his appeal. 61. On 16 December 2009 the applicant lodged an appeal on points of law. He submitted that the lower courts’ decisions should be quashed as being contrary to Article 59 of the Constitution (right to legal assistance – see paragraph 65 below) and Article 398 of Code of Criminal Procedure (listing grounds for the annulment of a judgment – see paragraph 66 below). The applicant contended that he had not committed the crimes of which he had been found guilty and that he had incriminated himself after succumbing to “psycho-physical influence and deception by the police”. 62. On 26 February 2010 the Supreme Court rejected the applicant’s request for leave to appeal on points of law. As to his submission on the ostensibly involuntary nature of his confessions, the Supreme Court noted that the first-instance court had not established any facts showing any coercion of the applicant and he had not disputed that in his appeal. The Supreme Court furthermore observed that the applicant’s allegation of breach of the criminal procedural legislation were too vague. 63. On 18 August 2010 the Prosecutor General’s Office wrote to the applicant stating that it had instructed the Vinnytsia Regional Prosecutor’s Office to investigate his complaints of ill-treatment. 64. On 2 September 2010 the Vinnytsia Regional Prosecutor’s Office also wrote to the applicant stating that it had already dismissed his complaints, namely on 20 November 2008 (see paragraph 44 above). The prosecutor also referred to a similar ruling by the Kyiv Regional Prosecutor’s Office of 7 November 2008 (the case file before the Court does not contain a copy of the quoted ruling and there is no information about its contents).