Communicated on 17 September 2014
SECOND SECTION
Applications nos. 21048/12 and 55894/13
Aleksandras GEDRIMAS against Lithuania
and Maryan YUSIV against Lithuania
STATEMENT OF FACTS
The facts of the cases, as submitted by the applicants, may be summarised as follows.
Application no. 21048/12, lodged on 26 March 2012 by Aleksandras GEDRIMAS, who was born on 19 December 1950 and lives in Jonava.
A. Facts
On 23 April 2008, early in the morning three policemen entered the premises where the applicant worked as a night watchman. According to the information submitted by the applicant, they accused him of drunk driving and fleeing from the police. After the applicant had denied this, the policemen handcuffed his hands behind his back, pinned him to the floor and kicked him 4 or 5 times in the abdomen. In addition, by pulling and holding his hands up they caused severe pain to him. Following his apprehension, the applicant, who was also suffering from a heart malfunction of which the policemen were aware, was taken to the police headquarters of the Jonava Region and detained there from 5.00 a.m. to 7.30 a.m. He asked the policemen to call an ambulance but they refused. The applicant was interrogated on suspicion of an administrative offence and his sobriety was tested; the results of the test showed that he was sober.
On the same day the applicant lodged a request to initiate a pre-trial investigation into alleged ill-treatment by the police officers. An investigation into alleged abuse of office was started the same day by the District Prosecutor’s Office of the Jonava Region.
According to the reports of the policemen who were present at the scene, the applicant was apprehended after a police dog had followed a trail to the applicant’s car parked near his workplace and after he had failed to obey to their orders and had resisted them by pushing them and swearing. There was a suspicion that the applicant or his relative had been involved in a robbery of a jewellery shop the same night.
The applicant was examined by doctors on 23 and 24 April 2008. A specialist’s report delivered on 27 June 2008 stated that several wrist bruises, shoulder sprain and an abdominal contusion had been sustained by the applicant. Those injuries corresponded to light bodily injury.
On 30 July 2008 the applicant was granted victim status.
In July-September 2008 several witnesses were questioned by the prosecutors.
On 4 November 2008, the investigation was discontinued by the prosecutor after he found that no abuse of office had taken place given that the actions of the policemen had been lawful and necessary to prevent the applicant’s resistance. Upon the applicant’s complaint, the investigation was reopened and on 16 April 2009 the prosecutor was withdrawn from the case.
On 28 April 2009 another medical report was delivered which confirmed the conclusions of the first one.
On several occasions, on 1 June 2009, 12 November 2009, 8 March 2010 and 7 June 2010 the pre-trial investigation was discontinued by the prosecutors, who found that the force used by the police had not been excessive but had been justified by the situation. However, following complaints by the applicant the investigation was each time reopened on the grounds that it had not been thorough and not all relevant circumstances had been fully examined and contradictions between testimonies of witnesses clarified.
One more medical report was delivered on 22 August 2009 which essentially confirmed the conclusions of the previous ones.
Several witnesses were again questioned by the prosecutors in January and April 2010.
On 29 July 2010 the Jonava District Court quashed the discontinuance of the investigation and, inter alia, observed that two policemen involved in the incident of 23 April 2008, J.D. and V.B., had never had the status of accused persons during the proceedings but had been questioned merely as witnesses about their own actions. For that reason the procedural actions of the prosecutors in respect of those policemen were to be considered unlawful from the beginning.
On 15 September 2010 the applicant requested the transfer of the pre-trial investigation to prosecutors of another region. The case was then transferred to the Kaunas City District Prosecutor’s Office.
The applicant submits that during the investigation he could not actively participate in the proceedings given that his requests to the investigators were constantly dismissed without reasons and he was often not informed about major procedural actions and decisions by the prosecutors.
On 30 June 2011 the pre-trial investigation was discontinued again. The applicant appealed against that decision to the higher prosecutor, the Kaunas City District Court and, later, to the Kaunas Regional Court, which by a final decision of 25 October 2011 dismissed his appeal. The court noted that the arguments justifying the discontinuance of the case were sufficient and comprehensive and all the possibilities during the investigation had been exhausted.
B. Complaints
The applicant complains under Article 6 § 1 of the Convention that he was ill-treated by the police during his apprehension on 23 April 2008.
He further complains that the authorities have failed to carry out an effective and objective investigation into his allegations of ill-treatment.
Application no. 55894/13, lodged on 26 August 2013 by Maryan YUSIV, who was born on 9 September 1995, and lives in Kaunas.
A. Facts
The applicant is a Ukrainian citizen permanently living in Lithuania. On 22 October 2011 the applicant, who was a minor at that time, was stopped while walking down the street at 11.30 p.m. by a police patrol car and asked to show his hands. It appears that no reason for his being stopped was given by the police officers. Suddenly, the applicant started running away, but he was soon caught at another location in Kaunas. Reinforcements were called for and six more policemen came to the spot. Handcuffs were put on the applicant and one of the officers kicked him in the abdomen and beat him with a truncheon. The applicant was put inside the police car handcuffed and was told to lie down on the floor. He was threatened and told to pray. Later on, the police took him applicant to the Panemunė police station of the Police Headquarters of the Kaunas Region where at a certain moment an electric shock weapon was pointed at him and he was threatened again. The applicant was released about an hour after his apprehension. The next day he was seen by a doctor.
According to the information as submitted after the incident by the police officers who worked at the Police Headquarters of the Kaunas Region, the applicant was stopped on suspicion of robbery in the neighbourhood. He tried to flee, did not obey their orders, actively resisted arrest and ignored a warning that coercive force would be used. Therefore, the police officers were obliged to use force, including the use of a truncheon and handcuffs. They were not aware that he was a minor.
On 23 October 2011 a record of an administrative offence was drawn up and the applicant was accused of disobeying the lawful orders of the police officers.
On 24 October 2011 the applicant’s mother lodged a complaint with the Police Headquarters of the Kaunas Region, alleging her son’s ill-treatment during his apprehension. Although certain procedural actions were carried out, it appears that no pre-trial investigation as such was started by the investigators.
On 5 November 2011 and again on 23-24 November 2011 several police officers who had apprehended the applicant were questioned as witnesses by an investigator of the Police Headquarters of the Kaunas Region. On 15 November 2011 the investigator questioned the applicant, who also had the status of a witness; his mother and an interpreter were present.
According to a forensic medical report delivered on 17 November 2011 several contusions were detected during the examination of 24 October 2011 on the applicant’s body, as a result of at least 18 impacts. Several bruises on his palm and wrist, haematomas on shoulders, upper arm, chest, thighs, left knee, and calves were observed. Those injuries corresponded to light bodily harm.
On 17 November 2011 in separate administrative proceedings against the applicant the Kaunas City District Court remitted the case concerning his resistance against the police in order for shortcomings to be remedied.
In a report of 28 November 2011, the investigator of the Police Headquarters of the Kaunas Region refused to bring criminal proceedings. Relying mostly on the testimonies of the police officers she concluded that the force used against the applicant had not been excessive and had been justified by his active resistance.
However, on 19 December 2011 the prosecutor quashed that decision and ordered a pre-trial investigation into abuse of office after having concluded that the examination had not been comprehensive and the reasons given by the investigator were dubious given the extent and nature of the applicant’s injuries. The same investigator from the Police Headquarters of the Kaunas Region continued to deal with the case.
In separate administrative proceedings, on 4 May 2012 the Kaunas City District Court found the applicant guilty of disobeying the lawful orders of the police and imposed a fine of 150 Lithuanian litai (LTL, approximately 40 euros (EUR)).
In July 2012 the applicant lodged a request with the prosecutors to withdraw the investigator, alleging that the pre-trial investigation had been protracted and necessary procedural actions had not been carried out. On 11 July 2012 the prosecutor rejected the request for the withdrawal but ordered the same investigator to carry out the necessary actions.
Shortly after that, additional witnesses were questioned. On 3 August 2012 the applicant was granted victim status and was questioned by the investigator.
A forensic medical report of 25 September 2012 essentially confirmed the conclusions of the first report.
In October 2012 additional witnesses were questioned and a confrontation between the applicant and the police officers who had been present at the scene was arranged. It appears that no charges were ever brought against any of the police officers during the proceedings in question.
On 12 December 2012 the prosecutor discontinued the pre-trial investigation having found that no crime had taken place. The applicant’s mother appealed to the higher prosecutor and later to the District Court, alleging that the investigation had not been comprehensive and independent given that it had been conducted by the Police Headquarters of the Kaunas Region, that is, the same headquarters where the police officers involved in the incident had worked. However, the Kaunas Regional Court dismissed her appeal on 11 April 2013.
B. Complaints
The applicant complains under Article 3 of the Convention that he was ill-treated by the police during his apprehension on 22 October 2011. Excessive force was used against him without any necessity, thus causing bodily injuries and, given his young age and vulnerability, irreparable emotional harm.
Relying on Articles 3 and 13 of the Convention the applicant further complains that the authorities have failed to carry out an effective and objective investigation into the circumstances surrounding the incident of 22 October 2011.
QUESTIONS TO THE PARTIES
1. Were Mr Aleksandras Gedrimas and Mr Maryan Yusiv subjected to treatment incompatible with the requirements of Article 3 of the Convention during their apprehension by the police?
2. Having regard to the procedural protection against inhuman or degrading treatment, were the investigations by the domestic authorities in the present cases in breach of Article 3 of the Convention?
The parties are requested to inform the Court and submit relevant documents about any other related proceedings the applicants have instituted/undergone. As concerns the case no. 21048/12 the parties are requested to submit relevant documents concerning administrative or criminal proceedings instituted by the authorities against the applicant.
Full & Egal Universal Law Academy