Communicated on 11 February 2016
FIFTH SECTION
Application no. 53747/09
Aleksandr Anatolyevich MAKARENKO against Ukraine
and 4 other applications
(see list appended)
STATEMENT OF FACTS
A list of the applicants is set out in the appendix.
The circumstances of the cases
The facts of the cases, as submitted by the applicants, may be summarised as follows.
1. Application no. 53747/09
On 23 March 2008 the applicant, Mr Makarenko, was arrested on suspicion of having committed a robbery. He maintains that police officers beat him after his arrest to coerce him into confessing.
On 25 March 2008 the applicant was examined by a doctor who diagnosed him with concussion, and chest and abdomen injuries. The applicant told the doctor that he had been beaten by unknown persons.
On 9 June 2008 a forensic medical expert concluded that the applicant had suffered a concussion and had had chest, neck and abdomen injuries, bruises and scratches of the left side of his face. Those injuries were classified as light.
On 19 September 2008 a prosecutor refused to institute criminal proceedings following the applicant’s complaints.
On 4 March 2009 the Kirovskyy District Court, Dnipropetrovsk, sentenced the applicant to seven years’ imprisonment for a robbery of which K. was the victim. On 7 August 2009 and 11 March 2010 the Dnipropetrovsk Regional Court of Appeal and the Supreme Court of Ukraine, respectively, upheld this decision. The courts found that the applicant together with several other persons had inflicted serious injuries on K. and had robbed him. The courts based their findings on the testimonies of the applicant’s co-accused and of K., and on other evidence. In respect of the applicant’s allegations of ill-treatment the Supreme Court referred to the prosecutor’s decision not to institute criminal proceedings against the police officers.
On 20 February 2010 the decision of 19 September 2008 was quashed by the Kirovskyy District prosecutor’s office.
On 1 March, 30 August and 9 September 2010, respectively, a prosecutor again refused to institute criminal proceedings following the applicant’s complaints. In particular, it was noted that three police officers had testified that they had not ill-treated the applicant and, while examining the criminal case against the applicant, the national courts had not established any breaches of law.
The applicant later tried to challenge the decision of 30 August 2010 in court but to no avail.
2. Application no. 17361/10
On 28 January 2008 the applicant, Mr Kravets, was returning from Dnipropetrovsk to Dniprodzerzhynsk. When the applicant got off a bus, he was apprehended by three police officers and brought to the Dniprovskyy regional police station. The applicant states that there he was accused of murder. When the applicant denied those accusations he was ill-treated by police officers. Officers V. and Sh. bound his hands, put a gas mask on him and put four cigarettes one after another in the gas mask valve. When the applicant started to lose consciousness, he was left in a police officer’s office for a night.
The next day the applicant was beaten up and forced to confess by Officer P.; he was forced to memorise his confession by heart. The applicant eventually signed a confession after which he was brought to a crime scene where he was told what to say during the reconstruction of events.
The applicant was kept in the Dniprovskyy regional police station until 4 p.m. on 30 January 2008. Subsequently, he was brought to the Dzerzhynskyy town police station. There the applicant was beaten by Officer B. The applicant was later questioned by an investigating officer and placed in a temporary detention centre where his shoes and trousers were taken from him.
On 30 January 2008 criminal proceedings against the applicant were instituted on allegations of infliction of grievous bodily harm causing death to V. On 31 January 2008 the applicant met with his lawyer. On the same day the applicant’s mother complained to a prosecutor that her son had been ill-treated.
On 31 January 2008 the applicant was examined by a forensic medical expert. The applicant submitted that he had been beaten and forced to wear a gas mask on 28 January 2008, and that he had been beaten by his cellmates on 30 January 2008. The expert concluded that the applicant had four bruises of 1.5 to 3 cm in diameter on his upper body near his ribs (approximately three to six days old) and several bruises (one 16 by 8 cm and two 4.8 by 5 cm) on his left shoulder (two days old). Those injuries were classified as light bodily injuries.
After that the applicant’s clothes and shoes were returned to him and he was released.
The applicant stayed in hospital between 4 and 28 February 2008. He complained that he had been beaten by the police and was diagnosed with a hypotonic type of a neurocirculatory dystonia. It was noted that he had bruises on his chest and shoulders.
At the end of February 2008 the applicant complained to a prosecutor about his ill-treatment. On six occasions between March 2008 and April 2010 the prosecutor’s office refused to institute criminal proceedings following the applicant’s complaints. Those refusals were subsequently overruled.
On 19 April 2010 the Dniprovskyy District prosecutor’s office instituted criminal proceedings into an alleged abuse of power by the police officers.
On 19 October 2011 the criminal proceedings against the applicant were terminated for lack of evidence of the applicant’s guilt.
On 23 December 2011 the Dniprovskyy District prosecutor’s office terminated the criminal proceedings instituted on 19 April 2010. On 29 March 2013 the Dniprovskyy District Court, Dniprodzerzhynsk, quashed this decision and returned the case to the prosecutor’s office for further investigation. More recent information about those proceedings is absent from the case file.
3. Application no. 24753/13
On 25 April 2008 the applicant, Mr Boyko, a former border guard, was charged with organising an unlawful crossing of the national border between Ukraine and Slovak Republic for a group of persons. This attempted crossing ended in the death of three children.
On 9 June 2011 the applicant was arrested in Kyiv by officers of the Security Service of Ukraine (“the SSU”) and was transported to Uzhgorod. The applicant states that in the evening of 9 June 2011 on the way to Uzhgorod the SSU officers had brought him into a forest and tortured him forcing him to confess to organising an unlawful crossing of the State border. According to the applicant, he was beaten, handcuffed to a tree and shot three times in the right leg with rubber bullets. After that the applicant was brought to Uzhgorod where at 9.20 p.m. on 9 June 2011 an SSU investigating officer drew up a detention report stating that the applicant had been arrested following a decision of the Uzhgorodskyy Local Court of 11 April 2008 in the criminal case against the applicant on the organisation of an unlawful crossing of the State border. That detention report was signed by the applicant.
At around 11.30 p.m. the applicant was brought to a hospital where rubber bullets were removed from his leg. The applicant states that he remained in hospital for twelve hours handcuffed to a bed.
On 10 June 2011 the Uzhgorodskyy Local Court authorised the applicant’s pre-trial detention. On the same day the applicant received the decision of 25 April 2008.
On 24 June 2011 the applicant complained to the Zakarpattya regional prosecutor’s office about his ill-treatment. On 6 October 2011 the prosecutor’s office refused to institute criminal proceedings because of lack of evidence of a crime. On 9 December 2011 the Uzhgorodskyy Local Court quashed this decision as it had been based exclusively on the testimonies of the SSU officers.
On 3 February 2012 the Zakarpattya regional prosecutor’s office again refused to institute criminal proceedings against the SSU officers. The latter testified that on the way to Uzhgorod the applicant had tried to escape and therefore they had shot him in the legs.
On 27 April and 14 June 2012 the Uzhgorodskyy Local Court and the Zakarpattya Regional Court of Appeal upheld this decision.
On 25 September and 22 November 2012, and on 14 January 2013 the Higher Specialised Court for Criminal and Civil Cases refused to examine the evidence in the applicant’s case for his failure to comply with procedural requirements. In particular, in the decision of 22 November 2012 it was noted that the applicant had actually disagreed with the factual findings in the case and that therefore it could not be a matter to be examined in an appeal on points of law.
By a letter of 24 September 2014 the applicant informed this Court that he had been released from detention without specifying the grounds for release or an exact date.
4. Application no. 46982/13
On 15 March 2011 the applicant, Mr Udaltsov, was arrested by the police in a bar following a fight. According to the applicant, in the police station he was beaten and his fingers were squashed in a door. Upon release he went to a hospital where he was diagnosed with several broken fingers. He also had a bruise on his face. On 16 March 2011 the applicant complained to a prosecutor’s office about his ill-treatment. On 20 March 2011 it was decided not to institute criminal proceedings for lack of evidence of a crime. On 21 March 2011 the applicant’s injuries were diagnosed as being of medium severity. The applicant further stayed in hospital between 21 March and 4 April 2011 with a concussion.
On 1 April 2011 the decision of 20 March 2011 was overuled by the first deputy of the Khmelnytskyy city prosecutor and the case was returned for additional investigation. On 16 May 2011 the Khmelnytskyy city prosecutor’s office again refused to institute criminal proceedings for lack of the evidence of crime. The police officers testified that they had not ill-treated the applicant. By a letter of 20 March 2013 the applicant was informed about the decision of 16 April 2011. It was noted in that letter that the new Code of Criminal Procedure of 2012 did not provide for appeal against such decisions.
5. Application no. 65553/13
On 20 October 2010 the applicant, Mr Goncherenko, was apprehended by three police officers in Odessa when he was getting into his car. According to the applicant, he was brought to a forest near Odessa where he was beaten. The next day the applicant was brought to the Dniprovskyy district police station in Kyiv. There he was also ill-treated.
On 22 October 2010 the applicant signed a murder confession. On the same day the applicant was placed in a temporary detention facility.
On 25 October 2010 the applicant was transferred to Kyiv Detention Center No. 13. Upon arrival he was examined by a doctor. It was noted that the applicant had bruises on his head and on his buttocks.
On 18 November 2010 the applicant’s lawyer complained of ill-treatment to the Kyiv city prosecutor’s office .
On 14 December 2010 the prosecutor’s office refused to institute criminal proceedings following the applicant’s complaints. On 9 February 2011 this decision was quashed by the Dniprovskyy District Court, Kyiv and the case was returned for additional investigation.
Between February 2011 and November 2013 the investigating authorities refused six times to institute criminal proceedings following the applicant’s complaints or, having instituted them, terminated them. Those decisions were all subsequently reversed by the prosecutors or by the courts.
On 7 August 2014 the applicant was informed by the Kyiv city prosecutor’s office that the criminal proceedings following his complaints of ill-treatment were still pending. More recent information about those proceedings is absent from the case-file.
The criminal case instituted against the applicant for murder is currently pending before a court of appeal.
COMPLAINTS
The applicants complain under Article 3 of the Convention that they were subjected by State agents to a treatment prohibited by said Article and about the failure to effectively investigate their complaints.
In application no. 17361/10 the applicant also complains, under Articles 6 and 13 of the Convention, about the length of the criminal proceedings against him and the absence of any remedy in this respect.
QUESTIONS TO THE PARTIES
1. Has the applicant been subjected to torture or inhuman or degrading treatment, in breach of Article 3 of the Convention?
2. Having regard to the procedural protection from torture or 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?
Appendix
No
Application No
Lodged on
Applicant
Date of birth
Place of residence
Represented by
53747/09
06/02/2010
Aleksandr Anatolyevich MAKARENKO
08/10/1988
Diyevka
17361/10
07/10/2010
Konstantin Vladimirovich KRAVETS
08/12/1984
Dniprodzerzhynsk
Mikhail Aleksandrovich TARAKHKALO
24753/13
15/03/2013
Valeriy Valeriyovych BOYKO
28/03/1976
Svalyava
46982/13
11/07/2013
Viktor Oleksiyovych UDALTSOV
03/01/1955
Khmelnytskyy
65553/13
06/10/2013
Dmitriy Aleksandrovich GONCHARENKO
28/08/1984
Kyiv
Nataliya Gennadyevna OKHOTNIKOVA
Full & Egal Universal Law Academy