Communicated on 27 August 2015
FIFTH SECTION
Application no. 52212/13
Nina Ivanivna KOZLOVSKA
against Ukraine
lodged on 10 August 2013
STATEMENT OF FACTS
The applicant, Ms Nina Ivanivna Kozlovska, is a Ukrainian national, who was born in 1962 and lives in Kryvyy Rig. She is represented before the Court by Mr M.I. Panchenko, a lawyer practising in Kryvyy Rig.
The facts of the case, as submitted by the applicant, may be summarised as follows.
Prior to 30 April 2010 the applicant had been the chief accountant of Y., a major mining company.
On 30 April 2010, following a corporate dispute, management of the company changed and its former CEO Mr B. was dismissed.
According to the applicant, on 8 May 2010 around 7 p.m. she, her husband and daughter were apprehended by the police and brought to the Kryvyy Rig police station.
The applicant alleges that throughout her stay at the police station she was pressured by the police to force her to give testimony which would tend to incriminate the former management of the company. In particular, she alleges that she was interrogated without interruption by police officers from the moment she was brought to the station on 8 May 2010 until around 6 a.m. on 9 May 2010. According to her, throughout this time she was not allowed to rest or sleep, was given neither water nor food, was not allowed to take medicine for her heart condition and asthma. The applicant states that due to this treatment, constant heat and lack of fresh air she felt heartache, had an unset of asthma, felt fear, humiliation and despair. According to her, this led her to attempt to commit suicide at around 6 a.m. on 9 May 2010 by jumping from a third floor window of a toilet at the police station. Her suicide was, according to her, only prevented due to her daughter’s intervention.
On an unspecified date the applicant’s husband wrote to Member of Parliament O. complaining about the treatment allegedly inflicted by the police on the applicant and her family members.
On 29 June 2010 O. wrote to the Dnipropetrovsk Region Prosecutor’s Office (“the DRPO”) describing the applicant’s allegations about her detention and treatment at the Kryvyy Rig police station on 8 and 9 May 2010. He asked the DRPO to conduct pre-investigation enquiries into the allegations and, should they be confirmed, institute criminal proceedings against police officers in question for false imprisonment, abuse of power, and unlawful compulsion to testify.
On 16 July 2010 the Kryvyy Rig Prosecutor’s Office (“the KRPO”) refused to institute criminal proceedings against the police officers for lack of a corpus delicti and informed Member of Parliament O. of this decision. In its decision the KRPO found established that at 8 p.m. on 8 May 2010 the police had received information that an act of extortion had been committed with respect to company Y. and criminal proceedings had been instituted in this respect. An investigative group of several police officers had been formed, headed by officer Ts. At 00.10 a.m. on 9 May 2010 the applicant had been recognised as an aggrieved party in the criminal proceedings. Then she had been questioned in the capacity of the aggrieved party and had testified, out of her own free will and without any compulsion, that on 6 and 7 May 2010 she had been kidnapped by strangers and had been forced to sign certain documents concerning transfer of funds from company Y.’s accounts, some of which had also been signed by B. The applicant had left officer Ts.’s office at 7 a.m. on 9 May 2010. In the course of her night interview the applicant had not indicated that she needed to take any medicines, she had been given water on request, and had not been pressured in any way. The KRPO went on to note that the police station in question had no room for arrestees and for this reason the applicant’s detention at the station would have been impossible. The KRPO’s decision was based mainly on the results of interviews with police officers. The KRPO noted that the applicant could not be interviewed since she had been in a hospital.
On 27 July 2010 the DRPO quashed the KRPO’s decision and remitted the materials to the KRPO with instructions to conduct another round of pre-investigation enquiries. In the course of the new round of enquiries the KRPO was instructed to conduct a number of additional actions, in particular to examine the records of the police station to verify the presence of the applicant and her family members at the station, and to interview the applicant.
On 7 August 2010 the KRPO refused to institute criminal proceedings for the same reasons as in its decision of 16 July 2010 and, in addition, noted that it had not been possible to examine the log of persons brought to the police station because the station had no room for arrestees. The KRPO sent a copy of the decision to the DRPO asking that the DRPO inform Member of Parliament O. about the decision.
According to the applicant, on 2 January 2011 she was informed by post about the decision of 7 August 2010. On 7 February 2011 she appealed.
On 24 March 2011 the Kryvyy Rig Tsentralno-Miskyy District Court (“the District Court”) quashed the KRPO’s decision and remitted the materials to the KRPO for further examination. The court held, in particular, that the KRPO had failed to examine the police station’s entry log, to establish exactly when and where the applicant and her family members had been interviewed and whether their rights had been explained to them.
On 16 April 2011 the KRPO refused to institute criminal proceedings and informed the DRPO about this decision. In addition to repeating its findings set out in its decision of 16 July 2010 the KRPO stated that there was no record of entry of the applicant, her husband and daughter in the police station’s entry logs for the relevant dates. On an unspecified date the applicant appealed.
On 20 September 2011 the District Court quashed the KRPO’s decision and remitted the materials to the KRPO for further examination. The court held that the KRPO had failed to comply with the court’s previous ruling, in particular had failed to establish when and where the applicant and her family members had been interviewed and whether their rights had been explained to them, on what grounds they were brought to and kept at the police station.
On 2 December 2011 the KRPO again refused to institute criminal proceedings on the grounds similar to those given in its earlier decisions, also adding that the applicant had been interviewed in police officers’ offices in accordance with the Constitution and the Code of Criminal Procedure. The KRPO informed the DRPO about its decision. On an unspecified date the applicant appealed.
On 25 June 2012 the District Court quashed the KRPO’s decision and remitted the materials to the KRPO for further examination stating that the KRPO had failed to comply with the court’s ruling of 20 September 2011.
On 9 September 2012 the KRPO refused to institute criminal proceedings on the same grounds as in its decision of 2 December 2011 and informed the DRPO about this decision. On an unspecified date the applicant appealed.
On 20 November 2012 the new Code of Criminal Procedure came into force. Instead of initiating criminal proceedings, it provides for initiation of investigation by way of making an entry in the Unified Register of Pre-Trial Investigations.
On 25 January 2013 the District Court quashed the KRPO’s decision of 9 September 2012 and remitted the materials to the KRPO for further examination stating that the KRPO had failed to comply with the two previous rulings of the court.
On 14 February 2013 the KRPO, pursuant to the District Court’s ruling of 25 January 2013, made an entry in the Unified Register of Pre-Trial Investigations in respect of three police officers including Ts. on suspicion that they had exceeded their authority.
On 15 February 2013 the KRPO discontinued the investigation opened the previous day for lack of a corpus delicti in the police officers’ actions. By way of reasoning the KRPO repeated the findings set out in its previous decisions to refuse to institute criminal proceedings.
On 18 July 2013 the District Court quashed the KRPO’s decision and remitted the case for additional investigation. The court held that the KRPO had failed to comply with its rulings of 20 September 2011, 25 June 2012 and 25 January 2013.
On 2 September 2013 the KRPO again discontinued the investigation. No copy of this decision was provided to the Court.
On 8 July 2014 the District Court quashed the KRPO’s decision and remitted the case for additional investigation holding that the KRPO had failed to comply with the court’s rulings of 20 September 2011, 25 June 2012 and 18 July 2013.
COMPLAINTS
The applicant complains under Article 3 of the Convention that she was subjected to torture in police custody and that her complaints in this respect were not duly investigated. She also complains under Article 5 that she was brought and kept at the police station unlawfully. With reference to the same facts the applicant also invokes Article 5 § 5.
QUESTIONS TO THE PARTIES
1. Has the applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention, in respect of her complaint under Article 5 § 1 of the Convention? In particular, did the complaint lodged by Member of Parliament O. concerning the applicant’s case and the applicant’s participation in the proceedings concerning that complaint constitute an effective remedy within the meaning of this provision?
2. Has the applicant complied with the six-month time-limit laid down in Article 35 § 1 of the Convention in respect of her complaint under Article 5 § 1 of the Convention?
3. Has the applicant been subjected to inhuman or degrading treatment, in breach of Article 3 of the Convention (see Soare and Others v. Romania, no. 24329/02, § 222, 22 February 2011)?
4. Having regard to the procedural protection from torture, inhuman or degrading treatment (see paragraph 131 of Labita v. Italy [GC], no. 26772/95, ECHR 2000-IV), was the investigation in the present case by the domestic authorities in breach of Article 3 of the Convention?
5. Was the applicant deprived of her liberty in breach of Article 5 § 1 of the Convention as regards the period between 7 p.m. on 8 May 2010 and 7 a.m. on 9 May 2010?
6. Does the applicant have an effective and enforceable right to compensation for her alleged detention in alleged contravention of Article 5 § 1, as required by Article 5 § 5 of the Convention?
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