Communicated on 24 August 2015
FIFTH SECTION
Application no. 9505/12
Marina Vladimirovna BARYSHEVA
against Ukraine
lodged on 7 February 2012
STATEMENT OF FACTS
The applicant, Ms Marina Vladimirovna Barysheva, is a Ukrainian national, who was born in 1982 and lives in Kharkiv. She is represented before the Court by Ms Y.V. Zaikina, a lawyer practising in Kharkiv.
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 31 January 2009 the applicant was arrested and brought to the Kharkiv City Police Station on suspicion of drug dealing. When seating her in the police car, police officer A.A. hit the applicant in the temple for no reason. Upon arrival in the police station, the applicant was seated in a chair with her hands handcuffed behind her back, police officer A.A. demanding her to confess to drug dealing and to give incriminating statements against several other persons. As the applicant protested, A.A. threatened her that her relatives would have problems, if she did not confess, and hit her with his fists on the head, the face and the chest on many occasions. After one of the blows, the applicant fell to the floor together with the chair and broke her nails. No report on the applicant’s arrest having been drawn up, the police officers signed the ledger of the police station attendance on her behalf, imitating that she had entered and left the premises on several occasions.
Having spent three days in the police station, the applicant did not withstand the pressure and on 2 February 2009 gave self-incriminating statements. At that point she was brought to investigator M. of the Kyivskiy District Police of Kharkiv, who instituted formal criminal proceedings against the applicant (“first criminal case”) on the basis of her confessions. In response to the applicant’s ill-treatment complaints, M. advised her not to file any complaints against the police and to confirm her previous confessions, if she wanted to be released. The applicant agreed and was released under a written undertaking not to abscond.
On 10 February 2009 the applicant complained to the Kyivskiy District Prosecutors’ Office of Kharkiv that she had been ill-treated.
On 17 April 2009 the Leninskiy District Prosecutor’s Office, to which the complaint was redirected, refused to institute proceedings with a view to investigating the applicant’s complaint for want of evidence of a crime.
On an unspecified date the first criminal case against the applicant was referred to the Kyivskiy District Court of Kharkiv for examination.
On 31 March 2010 the Kyivskiy District Court, having examined the case against the applicant, ordered an inquiry into her ill-treatment complaints.
On 23 April 2010 the Kyivskiy District Prosecutors’ Office reported to the court that there was no ill-treatment case to answer, of which decision the applicant was notified by a letter on 6 May 2010.
On 28 May 2010 and 8 June 2010 the applicant complained to the General Prosecutor’s Office that she had been ill-treated and that her relevant complaints had been unfairly dismissed. Her complaint was redirected to the Kharkiv Regional Prosecutor’s Office for examination.
On 24 June 2009 four police officers, including A.A., broke into the applicant’s house. A.A. hit the applicant on the head with the grip of his gun and inflicted several blows on her face with his palm in presence of the applicant’s two-year-old child and two house guests. The police officers also searched the house and took the applicant to the police station, where she was held from about 2 p.m. on 24 June until 5:30 p.m. on 25 June 2009 and was demanded to give further confessions of drug dealing. On several occasions during this period the applicant was beaten by A.A., who also advanced various threats in her address. At about 5:30 p.m. on 25 June 2009 the applicant having confessed of drug related offences, she was brought to an investigator, who initiated a new set of criminal proceedings against her (“second criminal case”) and released her from the police station.
Once released, the applicant came to the Kharkiv City Clinical Hospital no. 4 (“Hospital no. 4”), where she was diagnosed with cerebral concussion, cranial soft tissues contusion and left knee joint contusion and recommended in-patient treatment. She refused not wishing to leave her young child unattended during her hospital treatment.
On 26 June 2009 the applicant came to complain of her ill-treatment to the office of the Assistant Chief of the Kharkiv Regional Department of Interior. Having lost consciousness in his office, she was urgently hospitalised in Hospital no. 4, where she was diagnosed with cerebral contusion of medium gravity accompanied with traumatic subarachnoid haemorrhage and several related syndromes. The applicant spent 24 days in the hospital on in-patient treatment.
On 18 September 2009 the Organised Crime Police decided to institute criminal proceedings into the applicant’s complaints of her ill-treatment in June 2009 against “a group of unidentified police officers” suspected of abuse of authority accompanied with violence and the use of arms.
On 22 September 2009 the applicant joined these proceedings as an injured party.
On 18 June 2010 the Kyivskiy District Court of Kharkiv remitted the first criminal case against the applicant for additional investigation.
On 13 July 2010 the Kharkiv Regional Prosecutor’s Office informed the applicant that, having examined the case file materials concerning her complaints of ill-treatment in winter 2009, they had discovered numerous discrepancies between the explanations of the police officers involved and other materials and decided to forward these materials to the Kharkiv Prosecutor’s Office for joining them to the criminal proceedings instituted on 18 September 2009 concerning the applicant’s alleged ill-treatment episode in June 2009.
On 9 December 2010 the second criminal case against the applicant was discontinued for want of evidence of a crime and the case file materials were sent to the Kharkiv Prosecutor’s Office to be joined to the materials of the case concerning her alleged ill-treatment.
On several occasions in 2012 the applicant unsuccessfully attempted to obtain information on the progress in the proceedings concerning her ill-treatment complaints and received either non-informative answers or no answers at all. She has no information concerning the outcome or current status of the proceedings.
COMPLAINTS
The applicant complains under Article 3 of the Convention that she was tortured by the police officers and that there was no effective investigation of her relevant complaints.
She also complains under Article 13 of the Convention that in the absence of an effective official investigation of her complaints concerning torture she is unable to lodge a civil claim with a view to recovering damages.
QUESTIONS TO THE PARTIES
1. Was the applicant subjected to ill-treatment in breach of Article 3 of the Convention in January and June 2009?
2. Having regard to the procedural protection from ill-treatment (see Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000-IV), was the investigation conducted into the applicant’s allegations of ill-treatment in breach of Article 3 of the Convention?
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