Communicated on 29 October 2015
FIFTH SECTION
Application no. 59824/12
Leonid Oleksiyovych KHARCHENKO
against Ukraine
lodged on 1 September 2012
STATEMENT OF FACTS
The applicant, Mr Leonid Oleksiyovych Kharchenko, is a Ukrainian national, who was born in 1982 and lives in Rokytne.
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 5 January 2010 the Sh. family complained to the Kremenchuk District Police that the applicant had unlawfully disposed of a truck chassis, which they had entrusted to him for safekeeping in 2004.
At about 3 p.m. on the same date several police officers, including G.G., arrived at the applicant’s home, searched it in the presence of the applicant, and at about 5 p.m. took him to the district police station, where he was questioned in connection with the Sh. family’s complaint. At about 8 p.m. on the same date the applicant was released. On 13 January 2010 the district police decided against instituting criminal proceedings against the applicant in connection with the Sh. family’s allegations, noting, in particular, that they had failed to provide evidence that the truck chassis allegedly entrusted for safekeeping to the applicant had belonged to them.
On 6 January 2010 the applicant complained to the Kremenchuk District Prosecutor that he had been ill-treated during his questioning and was referred to the Poltava Regional Forensic Expert Bureau for a medical examination.
On the same date an expert at the Forensic Bureau reported that the applicant had multiple small round burn marks on both thighs, which could possibly have been sustained on 5 January 2010.
On 11 January 2010 the applicant requested that the Kremenchuk District Prosecutor’s Office institute criminal proceedings against Sh. for having falsely accused him of a criminal offence, and against police officer G.G. for alleged abuse of office by, in particular, having unlawfully detained the applicant at the police station between 5 and 8 p.m. and having ill-treated him during the questioning. In that regard, the applicant submitted that G.G., along with other unidentified police officers, had insisted during the questioning that the applicant sign a false confession. As the applicant had protested against this, G.G. had had him handcuffed to a chair and had then had an electric shock administered to him by means of a device applied to both of his thighs. The device was black, some fifteen centimetres long, and had two electrodes. In addition, unidentified police officers had punched and kicked the applicant several times on his head and legs. The applicant had been so frightened as a result that he had signed a false statement to incriminate himself, which had been written by the police. It was only after that that he had been released.
On 21 January 2010 the District Prosecutor’s Office refused to institute criminal proceedings in relation to the applicant’s allegations of ill‑treatment, referring to statements given by G.G. and several of his colleagues, who denied taking part in any ill-treatment or other unlawful act against the applicant or witnessing any such conduct by G.G. or any other colleagues.
On 21 May 2010 the Poltava Regional Prosecutor’s Office overruled that decision following an appeal by the applicant and ordered a further inquiry.
On 28 May 2010 the district prosecutor requested that the Poltava Regional Police Department carry out an internal investigation into the alleged misconduct of its subordinate officers.
On 22 June 2010 the Police Department concluded that there was a possibility of misconduct in G.G.’s actions in relation to the applicant. In particular, the internal investigation confirmed that on 5 January 2010 the applicant had been questioned at the district police station without his presence having been recorded in the visitors’ log. Regard being had to the findings of the expert assessment in respect of the applicant’s injuries, the eventual refusal of the police to prosecute the applicant for having stolen the truck chassis and the applicant’s own submissions as to the origin of his injuries, there was a possibility of official misconduct in the actions of G.G. towards the applicant, which needed to be investigated by the prosecutor’s office.
On 27 October 2010 the District Prosecutor’s Office took a fresh decision not to institute criminal proceedings in relation to the applicant’s complaints, referring to the applicant’s failure to cooperate in the collection of evidence (for example, failing to report for a further medical examination and to provide the originals of his medical records).
On 11 January 2011 the applicant appealed against that decision to the Kryukivskiy District Court in Kremenchuk. He noted, in particular, that it had only been on 6 January 2011 that he had been notified of the decision of 27 October 2010 and that the Prosecutor’s Office had in fact not taken all the necessary steps to investigate his complaints. In particular, a number of potential witnesses had not been questioned and the fact that he had signed a confession to a crime which he had not committed had not been taken into account.
On 12 April 2011 the Kryukivsky District Court allowed the applicant’s appeal.
On 8 September 2011 the District Prosecutor’s Office again decided against instituting criminal proceedings, referring to G.G.’s statements, in which he had vigorously denied that any ill-treatment had taken place, and to the applicant’s avoidance of a further expert assessment.
On 1 November 2011 the applicant complained about that decision to the District Prosecutor, noting that in October 2011 he had provided the medical records requested by the officers in charge of his case and that he had not objected to a further medical examination.
On 8 November 2011 the District Prosecutor’s Office instructed the Forensic Bureau to explore, in particular, the probability of the applicant’s account of events and, alternatively, whether the injuries could have been inflicted by objects such as a lit cigarette or a match.
On 7 December 2011 the Forensic Bureau issued its report, which stated that it was unlikely that the applicant’s burns had resulted from contact with a match or cigarette and that it was not improbable, on the other hand, that they had resulted from the application of an electric current. It was, however, not possible in the circumstances to establish whether the burns had been inflicted by an electric-shock device.
On 29 December 2011 the District Prosecutor’s Office again refused to institute criminal proceedings in relation to the applicant’s allegations of ill-treatment, noting that, in line with the forensic expert’s assessment, it was not possible to conclude that the applicant had been burned with an electric‑shock device.
On 3 March 2012 the Kryukivskiy District Court quashed that decision and remitted the case for further investigation.
On 14 June and 31 August 2012 and on 15 March 2013 the Kryukivskiy District Court quashed a series of further refusals by the Prosecutor’s Office to institute criminal proceedings, taken on 4 May, 1 August and 26 October 2012 respectively.
On 29 March 2013 a criminal investigation was initiated on suspicion of misconduct by the police in their actions towards the applicant.
On 17 April 2013 the District Prosecutor’s Office ordered another expert report, instructing the Forensic Bureau, which had been supplied with an “IR-4” stun gun seized from the district police station and with the trousers the applicant had allegedly worn on the date of his questioning, to assess the probability of his account of events.
On 3 June 2013 the Forensic Bureau concluded that the applicant’s account was improbable. It noted that the trousers had several puncture holes in them, which could have resulted from contact with a sharp object. However, application of the stun gun to the thighs of a fresh cadaver through the trousers had not inflicted any burns nor made any holes in the trousers.
On 27 June 2013 the District Prosecutor’s Office closed the criminal proceedings, referring in particular to the experts’ findings.
The applicant appealed, noting in particular that the investigation had not been effective, as it had not uncovered the source of his injuries.
On 22 July 2013 the investigating judge at the Avtozavodskiy District Court in Kremenchuk ordered a further investigation into the applicant’s complaints with a view to establishing the cause of his injuries.
On 28 December 2013, following the quashing by the Avtozavodskiy District Court on 26 September and 12 November 2013 of two further decisions to close the criminal proceedings, taken on 29 August and 17 October 2013 respectively, the Regional Prosecutor’s Office took a fresh decision to close the proceedings. It noted, in essence, that it was impossible to establish the origin of the applicant’s injuries. It was not possible to exclude the possibility that they had been inflicted by his own hand, but there was also no objective evidence to support that version of events, or any other version, beyond reasonable doubt. The applicant’s account of his ill-treatment, which he insisted was true, had in the meantime been disproved by objective evidence, in particular, by the experts’ conclusions.
On 28 March 2014 the Oktyabrskiy District Court in Poltava rejected an appeal by the applicant against that decision.
On 24 April and 28 May 2014 the Poltava Regional Court of Appeal and the Higher Specialised Court respectively rejected further appeals by the applicant.
COMPLAINTS
The applicant complains under Article 3 of the Convention that he was ill-treated by the police with a view to extracting self-incriminating statements. He also complains under Article 13 of the Convention that there was no effective investigation into his complaint of ill-treatment.
QUESTIONS TO THE PARTIES
1. Was the applicant subjected to ill-treatment by the police officers in breach of Article 3 of the Convention on 5 January 2010?
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?
The parties are requested, in particular, to provide the records of the applicant’s questioning by the police on 5 January 2010 and copies of any confessions he may have made to the police on that date.
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