Communicated on 3 December 2015
FIFTH SECTION
Applications nos. 1781/14 and 71563/14
Yuriy Oleksiyovych LUTAYENKO against Ukraine
and Oleksandr Mykolayovych KLYMENKO against Ukraine
lodged on 2 December 2013 and 31 October 2014 respectively
STATEMENT OF FACTS
The applicant in the first case (“the first applicant”), Mr Yuriy Oleksiyovych Lutayenko, is a Ukrainian national, who was born in 1977 and is detained in Poltava. He is represented before the Court by Ms L.G. Ibadova, a lawyer practising in Kharkiv.
The applicant in the second case (“the second applicant”), Mr Oleksandr Mykolayovych Klymenko, is a Ukrainian national, who was born in 1961 and is detained in Poltava. He is represented before the Court by Ms Y.N. Ashchenko, a lawyer practising in Kharkiv.
The facts of the case, as submitted by the applicants, may be summarised as follows.
On 30 December 2008 the applicants were arrested. A gun was discovered on the second applicant’s person. The applicants were brought to a police station.
According to the second applicant, at the police station police officers subjected him to a beating. They then kept him sitting with his hands handcuffed behind his back until the next day. He was denied food and access to a toilet and was unable to sleep in this position.
On 31 December 2008 an arrest report was drawn up according to which the applicants had been arrested on suspicion of the murder of Mr N. The applicants were placed in the temporary detention centre at the Poltava city police station (ізолятор тимчасового тримання, hereinafter “the ITT”). Upon the second applicant’s admission there, the ITT medical unit observed that he had a bruise on his left eyebrow.
On the same day criminal proceedings were instituted against the applicants on suspicion of unlawful possession of weapons.
According to the first applicant, on 5 January 2009 he was questioned in the ITT: at that time he was subjected to torture by electric shocks by Officer T. and two other officers of the Poltava Leninskyy district police station in order to force him to confess to the murder of N. According to him, they laid him face down on the floor with his hands handcuffed behind his back and applied electricity to his ears using a machine resembling a field phone. One of the police officers pinned him down by standing on his legs and back. This treatment caused him to suffocate and to bang his head on the floor.
According to the second applicant, during his questioning on 5 January 2009 in the ITT, police officers tortured him to force him to confess. They threw him face down on the floor and two officers pinned him down by sitting on his back while the third applied electricity to his ears from a manual electricity generator. He was then handcuffed and chained spread-eagled to metal bars while lying on the floor until the morning of 6 January 2009.
According to the second applicant, as he was not able to withstand the ill-treatment, he attempted to commit suicide by swallowing the handle of a teaspoon. According to a medical certificate issued by a hospital in Poltava, on 5 January 2009 a teaspoon handle was removed from the applicant’s oesophagus at the hospital.
According to the second applicant, the police officers continued to ill-treat him until his transfer to the Poltava Pre-Trial Detention Centre (слідчий ізолятор, hereinafter “the SIZO”).
On 8 January 2009 the applicants were transferred to the SIZO.
On 19 January 2009 the second applicant was examined by doctors at the SIZO. The doctors recorded that the second applicant had a 5 cm haematoma on his shoulder and a 2.3 cm haematoma on his thigh. The second applicant also complained about acute chest pain and limited mobility of his left hand but an X-ray did not reveal any abnormality in those areas. The second applicant stated to the doctors that he had been injured by police officers at the ITT.
The second applicant was returned from the SIZO to the ITT on several occasions, in particular from 29 January to 5 February 2009. According to the second applicant, on 29 January 2009 he was again ill-treated by the police at the ITT.
In the course of the applicants’ trial the second applicant alleged that he and the first applicant had been ill-treated during the pre-trial investigation.
On 29 October 2009 the Poltava Leninskyy District Court (“the Leninskyy Court”) asked the Leninskyy district prosecutor’s office (“the DPO”) to investigate the second applicant’s allegations.
On 26 November 2009 the DPO, having interviewed the investigator who had been in charge of the applicants’ case and who had denied all allegations of ill-treatment, refused to institute criminal proceedings finding no corpus delicti in the police officers’ actions.
On 28 September 2011 the Leninskyy Court upheld the DPO’s decision of 26 November 2009.
On 13 February 2012 the Poltava Regional Court of Appeal (“the Court of Appeal”) quashed the ruling of the Leninskyy Court of 28 September 2011 and the DPO’s decision of 26 November 2009. The Court of Appeal remitted the case to the Poltava regional prosecutor’s office for further examination. By way of reasoning, the Court of Appeal held that the regional prosecutor’s office had not conducted a meaningful investigation into the applicants’ allegations. In particular, neither the applicants nor the officers they had accused of ill-treatment had been interviewed and no medical examination had been conducted. The court also concluded that the DPO had not been independent for the purposes of Article 3 of the Convention, since it had previously supervised the investigation in the criminal case against the applicants. The court concluded that the pre-investigation inquiries had not met the requirements of Article 3.
On 26 March 2012 the DPO again refused to institute criminal proceedings. By way of reasoning, the DPO noted that after the first applicant had been admitted to the SIZO, he had been examined by a doctor on 19 January 2009 but no injuries had been recorded. The DPO also referred to the results of the second applicant’s medical examination at the ITT and the SIZO on 31 December 2008 and 19 January 2009 respectively. The DPO further noted the written statements of a police investigator and another police officer who had denied the allegations of ill-treatment.
On 6 July 2012 the Leninskyy Court quashed the decision of 26 March 2012, noting that, contrary to the Court of Appeal’s previous ruling, the applicants had not been questioned, no medical examination had been conducted, and the pre-investigation inquiries had again been carried out by the DPO.
On 23 August 2012 a prosecutor of the Poltava city prosecutor’s office again refused to institute criminal proceedings. According to the decision, in the course of the new round of pre-investigation inquiries the applicants had been interviewed. They had stated that they had been ill-treated by Officer T. on 5 January 2009 at the ITT. Officer T. and several officers of the ITT had also been interviewed and had denied any allegations of ill-treatment. Noting that a long period of time had passed since the events in question, the prosecutor found that there were no objective data which would corroborate the applicants’ allegations.
On 28 September 2012 the Poltava city prosecutor quashed the decision of 23 August 2012.
On 8 October 2012 another prosecutor of the Poltava city prosecutor’s office refused to institute criminal proceedings.
On 13 November 2012 the Poltava Oktyabrskyy District Court (“the Oktyabrskyy Court”) rejected the second applicant’s appeal and upheld the decision of 8 October 2012. Having rejected the second applicant’s appeals, on 13 March 2013 the Court of Appeal and on 5 June 2014 the Higher Specialised Civil and Criminal Court upheld the ruling of 13 November 2012.
On 17 December 2012 the Oktyabrskyy Court rejected the first applicant’s appeal against the decision of 8 October 2012. The first applicant appealed. On 21 June 2013 the Court of Appeal quashed the ruling of 17 December 2012 and remitted the case to the first-instance court for a fresh examination, noting in particular that the first-instance court had failed to examine the material gathered during the pre-investigation inquiries and had failed to respond to the first applicant’s arguments.
COMPLAINTS
The applicants complain, under Article 3 of the Convention, that they were tortured by the police to make them confess to murder, and that the investigation of their complaints in this respect was ineffective.
QUESTIONS TO THE PARTIES
1. Have the applicants been subjected to torture, or to inhuman or degrading treatment, in breach of Article 3 of the Convention?
2. 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?
Full & Egal Universal Law Academy