CASE OF GAVULA v. UKRAINE
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);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 5-3 - Length of pre-trial detention);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);No violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition)
Aleš Pejchal;André Potocki;Angelika Nußberger;Mark Villiger;Myroslava Antonovych;Paul Lemmens
5. The applicant was born in 1977 and lives in the village of Berezhinka, Ukraine. 6. At 3 p.m. on 6 February 2003 the applicant was arrested in an apartment rented by his acquaintance and alleged accomplice D., and taken to a police station. At the police station he was allegedly handcuffed, beaten and according to the applicant, had his nose broken. 7. On the same day between 9 p.m. and 10 p.m. the applicant was questioned. He admitted to having robbed an apartment. 8. Criminal proceedings for robbery were instituted against the applicant; it is unclear whether this was done before or after his arrest. It was noted that on 6 February 2003 at around 12.20 a.m. the applicant, together with some other individuals, had threatened K. with a knife and taken 12,800 United States dollars (USD) from her. 9. The Government submitted that the applicant was in fact arrested on 7 February 2003. 10. On 10 February 2003 the Dniprovskiy District Court of Kyiv (“the Dniprovskiy Court”) ordered that the applicant be placed in pre-trial detention on the grounds that he was accused of committing a serious crime and could abscond or hinder the investigation if at liberty. 11. On 1 April 2003 the same court extended the term of the applicant’s detention until 7 June 2003 since “there were no grounds for the applicant’s release and his detention was necessary for carrying out further investigations (expert examinations etc.)”. 12. Between May 2003 and September 2007 the criminal case against the applicant was presented to the court for consideration but referred back for further investigation on five subsequent occasions (18 June 2004, 11 February and 10 June 2005, and 6 February and 5 September 2007). On the first occasion (18 June 2004) the court decided that the applicant’s case could not be considered separately from the cases of Kr. (another alleged accomplice of the applicant) and D., and that further investigative measures such as a reconstruction of events and confrontations between the accused and the witnesses should be carried out. On each occasion the court also decided that the applicant should remain in pre-trial detention. 13. On 11 December 2006 and 15 January 2007 the Dniprovskiy Court denied the applicant’s requests for release. The court held, without elaborating further, that the applicant was accused of committing a serious crime and, if released, could “continue his criminal activity”, abscond or hinder the investigation. 14. On 30 May 2008 the same court again referred the case back for further investigation. On 4 September 2008 the Kyiv City Court of Appeal quashed that decision and remitted the case to the first-instance court. The court also decided that the applicant should remain in pre-trial detention. 15. On 18 February 2009 the Dniprovskiy Court rejected the applicant’s request to have P. as his legal representative on the basis that he did not hold an advocate’s licence. The decision was not subject to appeal. 16. On 3 September 2009 the Dniprovskiy Court, upon a request by the prosecutor, ordered a forensic psychological and psychiatric examination of the applicant. In her request the prosecutor stated that the applicant had behaved aggressively and improperly. The court noted that on numerous occasions the applicant had actively interrupted a court hearing, giving instructions as to who should be cross-examined and what evidence should be considered. When his requests were rejected, he began to shout and swear. The applicant was removed from a courtroom on two occasions. 17. In order to carry out a forensic examination the applicant was allegedly detained in a special ward of a psychiatric hospital. According to an expert report dated 20 October 2009, the applicant had no mental illnesses either at the time of the report or when the crime was allegedly committed. 18. On 1 March 2010 the Dniprovskiy Court sentenced the applicant to eight and a half years’ imprisonment for robbery committed together with other persons. The criminal cases against each defendant were considered separately. The applicant was represented by his mother and by a lawyer, Da. In court the applicant denied committing the offence and refused to answer any questions. The court referred to his statements, given at the investigation stage of the proceedings, in which he had made a partial confession. In particular, on 6, 7, 9, 13 and 16 February 2003 the applicant had stated that at the material time he had been working in a flower shop run by D. Kr., who also worked in the shop, had told him that K. (D.’s acquaintance) had been keeping a lot of money at home and that he proposed to rob her. On 6 February 2003 the applicant followed K.’s son home from school. When K. opened the door to let her son in, the applicant threatened her with a knife and took USD 12,800 from her. At that time another witness, T., was also in the apartment. On leaving, the applicant lost a balaclava he was wearing. He joined Kr., who was waiting for him in a car, and they split the money. Kr. gave him USD 4,155 and told him that D. should be given USD 4,000. 19. Some of the statements were given in the presence of the applicant’s lawyer, Ka. They were further confirmed by confrontations held between the applicant, D. and other witnesses. 20. In court K.’s statements were read out. T., A. (a woman who saw a man running out of K.’s house and losing his balaclava), M., and Kr.’s wife were all cross-examined as witnesses. A. said that she could not recall the man’s face but described his clothes and other features such as age and height. M. gave evidence that at around 3 p.m. on 6 February 2003 the police arrived at the apartment she rented with D. The applicant and D. left together with some police officers. At around 8 p.m. the police officers returned and seized the applicant’s bag in which there was the sum of USD 4,155. Kr.’s wife told the court that her husband Kr. was missing and that she did not know of his whereabouts. 21. The court also noted that the applicant had complained of ill-treatment by the police. In particular, the applicant stated that his initial statements had been given under duress and that he had changed them as soon as there was no longer a threat to his life and health. Referring to a decision by the prosecutor of 27 March 2008 and subsequent court judgments (see paragraphs 33-35 below), the court found the applicant’s complaints unsubstantiated. The court also noted that the applicant had been provided with appropriate medical assistance whilst in detention. 22. Lastly, the court indicated that on 11 February 2005, 10 June 2005, 6 February 2007 and 5 September 2007 the criminal case had been referred back by the court for further investigation for non-compliance with the court’s instructions of 18 June 2004, in particular, the failure to institute criminal proceedings against D. and Kr., who was currently missing. On 23 October 2008 D. had signed an undertaking not to abscond as she was pregnant. The criminal case against D. was under investigation. 23. On 6 August 2010 and 1 November 2011 respectively the Kyiv City Court of Appeal and the Supreme Court of Ukraine upheld the applicant’s sentence. 24. On 26 March 2011 the applicant was released on probation. 25. According to the applicant, during the period between August 2003 and April 2004 (December 2004 according to the Government) he complained that police officers had subjected him to physical and psychological abuse and had misappropriated his gold ring, mobile telephone and clothes. 26. On 28 December 2006 the Dniprovskiy District Prosecutor’s Office (прокуратура Дніпровського району в м. Києві), having considered a complaint by the applicant forwarded to it by the court, refused to institute criminal proceedings against the police officers. Police officers P.A. and P.S. were questioned. They denied any ill-treatment of the applicant. 27. On 26 June 2007 the Dniprovskiy Court, in the applicant’s presence, overturned that decision and referred the case back for further examination. In court, the applicant did not complain of having been ill-treated but said that police officers had stolen his belongings (clothes, mobile telephone and a ring). The court noted that it should be established at what point the applicant’s belongings had been seized and under which circumstances. 28. On 12 July 2007 the prosecutor’s office again refused to institute criminal proceedings against the police officers. 29. On 30 August 2007 that decision was overturned by the Kyiv City Prosecutor’s Office (прокуратура м. Києва) which referred the case back for further examination. It was noted that the instructions of the Dniprovskiy Court of 26 June 2007 had not been complied with. 30. On two occasions between September 2007 and January 2008 the prosecutor’s office refused to institute criminal proceedings against the police officers but these refusals were set aside by a senior prosecutor. 31. On 30 January 2008 the Dniprovskiy District Prosecutor’s Office again refused to institute criminal proceedings. The applicant stated that the police officers “had resorted to violence” and had misappropriated his mobile phone and a revolver. The police officers gave evidence that neither they nor the other police officers had subjected the applicant to ill-treatment. It was noted that there was no medical evidence to suggest that the applicant had sustained any injuries. 32. On 17 March 2008 the Dniprovskiy District Prosecutor’s Office reversed its decision of 30 January 2008. 33. On 27 March 2008 the prosecutor’s office again rejected complaints by the applicant. It was established that there was no medical evidence in support of his allegations. 34. The applicant appealed against that decision to the Dniprovskiy Court. He complained that there had been no legal right for the police to seize his personal belongings. He also stated that he had been “beaten, tortured and subjected to physical and psychological abuse” without giving any further details. 35. On 3 June 2009 the prosecutor’s decision of 27 March 2008 was upheld by the Dniprovskiy Court. The court held that the applicant’s complaints had been properly examined and were unsubstantiated. On 2 September 2009 the Kyiv City Court of Appeal upheld the decision of 3 June 2009. On 17 January 2010 the Supreme Court of Ukraine rejected the applicant’s request for leave to appeal on points of law since copies of court judgments submitted by the applicant had not been properly certified. 36. The applicant submitted to this Court three undated photographs as part of his evidence. On the first and third photos his nose appears to be straight; on the second one it is bent. The applicant also submitted a medical certificate stating that in April 2011 he had been diagnosed with posttraumatic nasal deformation which impeded his breathing. On 15 April 2011 the applicant had his nasal bones repositioned. 37. Between 26 February 2003 and August 2010 the applicant was detained in the SIZO no. 13. Upon his arrival the applicant was examined by a doctor, to whom he did not mention anything about any injuries. 38. The applicant stated that he had been detained in a cold and damp cell infested by cockroaches. The bedding was dirty and torn, and the toilets and sink were filthy. The applicant submitted photos on which it could be seen that the cell was dirty and that there were dark brown stains on the ceiling and walls. 39. On 19 November 2007 the applicant’s mother complained to the head of the SIZO medical ward that the applicant was suffering from headaches and a pain in his right kidney, both of which needed treatment. She also alleged that on 6 February 2003 the applicant had been “tortured and beaten by police officers”. 40. On 21 December 2007 the applicant was examined by a urologist. He was diagnosed with chronic pyelonephritis and crystalluria, and was recommended outpatient treatment. 41. In January 2008 the applicant complained about the conditions of his detention to the Ministry of Health of Ukraine. 42. By letter of 12 March 2008 the Kyiv Department of Execution of Sentences informed the applicant that he had been detained in a cell measuring 52.06 square metres with eighteen other people. The cell had a toilet which was separated from the main living area by a one-metre-high partition. The cell was disinfected once a week. The bedding was in a reasonable condition. Insulation had been added to the windows and the cell (no. 10) had been refurbished. 43. On 17 March 2008 the applicant was examined by a general practitioner. It was concluded that his state of health was satisfactory. 44. On 21 May 2008 the applicant was examined by a cardiologist and an ophthalmologist. No pathological conditions were discovered. On 28 May 2008 he was examined by a urologist in Kyiv City Hospital no. 3. It was concluded that the applicant did not need any specialist treatment. 45. On 30 May 2008, following complaints by the applicant, the Department of Execution of Sentences concluded that the conditions of the applicant’s detention met the current legal requirements. The applicant was detained together with three other people in cell no. 40, which measured 9.9 square metres. The applicant was permitted to shower once a week. In May 2008 there was a disinfection and clean-up of rodent-infested areas. It was noted that the maximum capacity of the SIZO was 2,850 persons; however, on some days there were nearly 3,200 detainees. The applicant received the requisite medical assistance. 46. In a letter of 2 June 2008, the Kyiv City Prosecutor’s Office informed the applicant that he had been detained in cell no. 10 together with sixteen other detainees. The cell measured 49.59 square metres. 47. On 4 June 2008 the applicant, following a letter from the Court, asked the head of the SIZO to provide him with copies of documents from his case file and copies of his medical records. 48. According to the Government, on 17 June 2008 the SIZO sent a copy of the applicant’s medical records to his mother. The Government also submitted a copy of a statement written by the applicant dated 17 October 2008 on which he confirmed having received “copies of medical documents (six pages)”. 49. On 23 July 2009 the applicant’s lawyer, Da., complained to the SIZO administration that the applicant had lost 8-10 kilograms in weight in a two-week period and had severe stomach pains. He requested that the applicant be diagnosed and given appropriate medical treatment. It is unclear whether that complaint was ever addressed. 50. The applicant lodged numerous unsuccessful complaints challenging the decision to institute criminal proceedings against him and requesting that criminal proceedings be instituted against various authorities. 51. By letter of 16 April 2012 the applicant submitted to the Court that police officers and prosecutors had contacted him requesting that he appear as a witness in the criminal proceedings against Kr. and D. The applicant also alleged that police officers had threatened to institute new criminal proceedings against him if he did not withdraw his application to the Court. 52. A visit to Ukraine by a delegation of the European Committee for the Prevention of Torture and Inhuman and Degrading Treatment and Punishment (“the CPT”) took place from 9 to 21 September 2009, during which the delegation inspected the Kyiv SIZO. 53. The relevant parts of the CPT report read as follows: “100. ... With an official capacity of 2,950 places, on 8 September 2009 the establishment was holding 3,440 inmates ... 101. The vast majority of the cells holding male prisoners were seriously overcrowded (for example, 52 prisoners in a cell measuring some 50 m² and containing 40 beds; 32 prisoners in a cell measuring 33 m² and containing 20 beds). ... Because of the human mass, ventilation was almost non-existent and the cells were very hot and stuffy. The level of hygiene was also highly unsatisfactory: in some cells the delegation saw cockroaches, and prisoners also referred to the presence of mice and rats. The in-cell sanitary installations (a partitioned toilet and sink) were generally in a decrepit state and were clearly not sufficient for the numbers of inmates held in the larger cells. The negative consequences of the deplorable material conditions described above were compounded by the fact that some prisoners had spent lengthy periods of time at the SIZO .... In the CPT’s view, the combination of negative factors to which a large number of prisoners were subjected at the Kyiv SIZO (overcrowding, appalling material conditions and levels of hygiene, and practically non-existent activity programmes) could easily be described as inhuman and degrading treatment. ... 106. In the light of the above remarks, the CPT recommends that at the Kyiv SIZO: ... - strenuous efforts be made to decrease the overcrowding and to distribute prisoners more evenly amongst the available accommodation, the objective being to offer a minimum of 4 m² of living space per prisoner; - measures be taken to ensure, as a matter of priority, access to natural light and adequate ventilation in prisoner accommodation; - efforts be made to renovate the prisoner accommodation and ensure an adequate level of hygiene; - prisoners be guaranteed access to adequate quantities of essential personal hygiene products and cleaning products for their cells ...”