Communicated on 7 September 2015
FIFTH SECTION
Application no. 9462/12
Leonid Sergiyovych LYMANETS against Ukraine
lodged on 23 January 2012
STATEMENT OF FACTS
The applicant, Mr Leonid Sergiyovych Lymanets, is a Ukrainian national, who was born in 1989 and resides in Vysoka Pich.
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 16 May 2009 the applicant was approached by three police officers, N., I. and K., while playing cards with V. and O., his acquaintances, near the house where he lived, and inquired whether he knew anything concerning car thefts that had taken place in the area. As the applicant declined it, the officers instructed him to follow them to their car for a conversation. While the applicant was taking a seat in the car, his father came out of the house and inquired what was going on. The police officers told him that they needed to talk to the applicant and left the site. On the way to the police station, the officers stopped the car in a forest, took the applicant out and demanded information concerning his purported criminal activity. As the applicant protested, they inflicted about ten blows with truncheons on various parts of his body and eventually continued their way to the police station. Having arrived at the police station, the officers brought the applicant to office no. 25 where they knocked him face down to the floor. V. and I. were twisting the applicant’s arms, while N. sat on his buttocks and twisted his legs towards his spine. They continued demanding the applicant to confess to his involvement in criminal activity. As the applicant protested, they put him on a chair and V. kicked him with his leg in the chest. Fearing further ill-treatment, the applicant signed a statement drafted by the police, acknowledging that he was arrested for being drunk in public and swearing at the passers-by.
On 18 May 2009 a judge of the Zhytomyrskyy District Court convicted the applicant of petty hooliganism and sentenced him to three days’ administrative arrest.
On the same date the applicant was brought to the Zhytomyrskyy Region Forensic Expert Bureau, where he was certified as having no injuries.
Also on the same date the applicant’s mother, acting on behalf of her detained son, complained to the Zhytomyrskyy District Prosecutor that her son had been arbitrarily detained and that she had been refused by the police to see him. She also noted that several weeks before the applicant’s arrest, investigator J. had solicited a bribe from her for not investigating whether her son had been involved in theft of computer equipment from the village council in March 2009.
On 19 May 2009 the applicant was released from detention, having served his sentence in full. He did not appeal against his conviction.
On 21 May 2009 the applicant took an appointment at the Zhytomyr Regional Clinical Hospital, where he complained that the police officers had beaten him and was diagnosed as suffering from contusion of soft cerebral and chest tissues.
In June 2009 the applicant was questioned by the prosecutor’s office in connection with his mother’s allegations of his unlawful arrest and described the events as set out above. The applicant also submitted that the forensic expert had in fact never examined him and referred to the Regional Hospital’s findings of 21 May 2009 as corroborating his submissions concerning the injuries. The applicant’s father, V. and O. corroborated the applicant’s statements insofar as they related to the circumstances of his arrest. The police officers I., K. and N., also questioned in connection with the applicant’s allegations of their unlawful conduct, denied his accusations. They submitted that during their patrol on 16 May 2009 they saw the applicant in an obviously drunk state, swearing and deranging unidentified passers-by. As he had not properly reacted at the officers’ verbal remarks, they had arrested him with a view to interrupting his disorderly behaviour and brought him to the police station, where they had documented the offence. At the police station the applicant had voluntarily acknowledged in writing to having drunk 300 grams of vodka and having engaged in disorderly public conduct so the police officers had not arranged for the alcohol level test to be carried out.
On 22 June 2009 the District Prosecutor lodged a protest against the applicant’s conviction, in which he noted that there was no evidence whatsoever that the applicant had committed the petty hooliganism offence on 16 May 2009. Subsequently, on 17 July 2009, the Zhytomyr Regional Court of Appeal (“the Court of Appeal”) rejected this protest, having noted, in particular, that the applicant had not availed himself of an opportunity to bring an ordinary appeal against his conviction within the ten-day statutory time-limit and that he had not shown up for the hearing concerning the prosecutor’s protest.
On 26 June 2009 the applicant lodged a formal criminal complaint against the three police officers implicated by him in having unlawfully arrested, detained, and ill-treated him.
On 30 June 2009 the District Prosecutor’s Office refused to institute criminal proceedings to investigate the applicant’s allegations against the police officers. In the relevant decision it was noted, in particular, that no injuries had been detected during the applicant’s expert assessment of 18 May 2009, that he had acknowledged having committed the offence at issue at the time of his arrest and that he had not appealed against his conviction by a competent court. In these circumstances, witness statements given by such engaged witnesses as the applicant’s family and friends in support of his sobriety and proper conduct, being the only evidence in support of the applicant’s allegations, were insufficient to raise a reasonable suspicion that a crime had been committed. In addition, the prosecutor’s office referred to a statement by L., who submitted that, having been detained at the police station on 16 May 2009, he had shared a cell with several other detainees including a young man obviously quite drunk.
On 14 September 2009 the Regional Prosecutor’s Office quashed this decision and remitted the case for additional inquiry, having instructed the inquirers, in particular, to examine the court record relevant to the applicant’s conviction and to question the court secretary.
On 21 September 2009 the District Prosecutor’s Office took a fresh decision not to institute criminal proceedings, in which it referred to the same grounds as before and noted, additionally, that no record had been kept of the hearing, as there was no such obligation in law.
In January 2010 the applicant was arrested and detained on remand on suspicion of having robbed and beaten M.Sh. and subsequently indicted of this crime as well as of the theft of computer equipment from the village council in March 2009.
On 24 November 2010 the Zhytomyrskyy District Court convicted the applicant as charged and sentenced him to eight years’ imprisonment. Following unsuccessful appeals, this judgment became final.
In November 2010 the applicant’s mother received a copy of the decision of 21 September 2009 not to institute criminal proceedings against the police officers, which she appealed against it in the interests of her detained son.
On 16 March 2011 the Bogunskyy District Court allowed the applicant’s mother’s appeal and ordered further investigation of the applicant’s complaints against the police officers. It noted, in particular, that the previous action with a view to verify the applicant’s allegations was insufficient and that not all instructions of the prosecutor’s office had been fulfilled.
On 4 July 2011 the prosecutor’s office took a fresh decision not to institute criminal proceedings, referring to essentially the same evidence and arguments as in its previous decision.
On 21 March 2012 the Bogunskyy District Court quashed this decision, having found that it contained no evidence whatsoever that any additional actions had been taken after the previous similar decision had been quashed.
On 27 August 2012 a new decision not to institute criminal proceedings was taken in which, in addition to the grounds cited previously, a reference was made to the statements by the forensic expert, who asserted that the conclusions of the assessment of 18 May 2009 concerned, indeed, the applicant and had been correct.
On 12 November 2013 the Bogunskyy Court quashed this decision, having noted, in particular, that no assessment had been given to the applicant’s diagnoses established at the Regional Hospital on 21 May 2009.
On 3 December 2013 the Court of Appeal dismissed the prosecutor’s office’s appeal against this decision.
On an unspecified date criminal proceedings were opened.
On 30 July 2014 the Regional Prosecutor’s Office took a decision to close these proceedings for want of evidence that a crime had been committed referring in it to essentially the same grounds as in its previous decisions.
On 21 October 2014 the Bogunskyy District Court refused to examine the applicant’s mother’s appeal against this decision, having found that she missed the applicable time-limit and that in any event her submissions had to be lodged with the Korolyovskiy District Court.
On 6 November 2014 the Court of Appeal dismissed the applicant’s mother’s appeal.
COMPLAINTS
The applicant complains under Article 3 of the Convention that in May 2009 he had been ill-treated by the police with a view to obtain self-incriminating statements from him.
He also complains under Article 13 of the Convention that the State authorities failed to carry out an effective investigation of his complaints and his search of a remedy proved to be ineffective.
QUESTIONS TO THE PARTIES
1. Was the applicant subjected to ill-treatment by the police officers in breach of Article 3 of the Convention in May 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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