Communicated on 12 April 2015
FIFTH SECTION
Application no. 37882/08
Roman Sergiyovych PANKIV
against Ukraine
lodged on 28 July 2008
STATEMENT OF FACTS
The applicant, Mr Roman Sergiyovych Pankiv, is a Ukrainian national, who was born in 1987 and is currently serving his prison sentence. He is represented before the Court by Mr O.V, Mytsyk, a lawyer practising in Lviv.
The facts of the case, as submitted by the applicant, may be summarised as follows.
At about 5.30 p.m. on 6 February 2008 the police arrested the applicant next to his apartment and took him to a police station in order to verify his involvement in a number of crimes following confessions made by his alleged accomplices.
According to the applicant, during the following twelve days his father was not given clear information about the place where he was detained, and his father’s requests to see the applicant were refused. Consequently, they could not meet.
On 7 February 2008 administrative offence and administrative arrest reports were drawn up by the police against the applicant for resisting the police in the course of his arrest. The applicant refused to sign the documents or to provide any explanations.
On the same day the applicant was brought before the Drogobych District Court which ordered his administrative detention for twelve days starting from 6 February 2008. This decision was not subject to appeal. The applicant’s requests to be represented by a lawyer and to examine eyewitnesses who could disprove the police statements were allegedly ignored by the court.
Later on the same day the applicant was taken to the Drogobych police station where he wrote a voluntary surrender, in which he confessed to a robbery of the G. family. The applicant was allegedly beaten by police officers to make him confess to the crime. The police officers handcuffed his hands behind the back and beat his head with a chair back, and his back with a stool leg; they further placed him on the table and beat him with a stool leg in the heels. He had no access to a doctor in that period and his stay in the police station was allegedly unrecorded.
At about 8.30 p.m. on 7 February 2008 the applicant was transferred to the Sambirsky police station where he wrote another confession that in 2007 he had also robbed the B. family. According to the applicant, he wrote the confession, as dictated by a police officer, to avoid any further ill‑treatment.
On 8 February 2008 the applicant was placed in the Sambirsky Temporary Detention Centre (“the ITT”) to serve his administrative detention. He had no access to a doctor and was allegedly forced by the ITT governor to state in writing that the he had injured his foot accidently on the stairs in the circumstances he could not remember anymore.
On 12 February 2008 following the applicant’s repeated complaints of severe heel pain he was taken to a civilian hospital, where he was diagnosed as suffering from a fracture of the foot.
On 18 February 2008 criminal proceedings in connection with the robbery of the B. family were instituted against the applicant and he was arrested as a suspect in the case on the basis of Articles 106 and 115 of the Code of Criminal Procedure of 1960. According to the arrest report, the applicant was arrested on the grounds that he had been identified by an eyewitness. The applicant was informed of his procedural rights as a suspect and he requested to be provided with a lawyer before the first questioning. He also stated that his confessions given earlier were true.
On 21 February 2008 the applicant was brought before a court, which authorised his pre-trial detention and dismissed the applicant’s lawyer’s request for a more lenient preventive measure, in particular bail. It noted that the applicant was suspected of a serious crime and that there were grounds to believe that, if not detained, he could obstruct the investigation. As regards bail, the court noted that the amount of the proposed bail was not appropriate; that the applicant’s father, as the bail guarantor, would not be able to ensure the applicant’s proper behaviour, and that difficulties could arise afterwards in respect of civil claims. On 4 March 2008 the Lviv Court of Appeal upheld this decision.
Between 21 February and 4 March 2008, following the investigator’s order, a medical forensic examination of the applicant was conducted. A skin injury of the applicant’s fingers was revealed.
On a number of occasions the applicant’s father and his lawyer complained to the prosecutor about the applicant’s ill-treatment and his arbitrary detention in February 2008 and requested that criminal proceedings would be instituted against the police officers. On 7 March 2008 the prosecutor refused to initiate criminal proceedings against the police officers due to lack of corpus delicti. In so far as the applicant’s alleged ill-treatment was concerned, the prosecutor referred, inter alia, to the explanations given by the applicant to the ITT governor (see above) and to the fact that he had never complained in person about any ill-treatment by police officers but, on the contrary, submitted in writing that he had not been subject to any ill-treatment. This decision was not appealed against by the applicant.
On 28 December 2010 the Sambirsky District Court of Lviv Region (“the District Court”) found the applicant and five other persons guilty of aggravated robbery of the B. family and sentenced the applicant to nine years’ imprisonment with confiscation of all his property. The District Court based its findings on the victims’ and witnesses’ statements as well as on the applicant’s confessions of 7 February 2008, his testimonies as a suspect, and the confessions of his accomplices. Having noted that the applicant eventually retracted the self-incriminatory statements as having been given under duress, the District Court dismissed the ill-treatment allegations as ill-founded. With reference to the applicant’s testimonies as an accused, the court noted that once arrested the applicant was delivered to the Sambirsky police station where he confessed to the crime, and only after that was he transferred to the Drogobych police station, where the alleged ill-treatment took place. It thus concluded that the confessions were given voluntarily. Allegations by other defendants as to their ill-treatment by the police were also dismissed by the trial court.
On 23 November 2011 the Court of Appeal of Lviv Region (“the Court of Appeal”) dismissed the defendants’ appeals and upheld the judgment of 28 December 2010. In reply to the applicant’s complaint about ill-treatment by the police, the Court of Appeal recalled the District Court’s findings and further referred to the results of the investigation conducted following the relevant complaints of the applicant’s lawyer and father. It also noted that the refusal to institute criminal proceedings had never been appealed against.
On 22 January 2013 the High Specialised Court on Civil and Criminal Cases upheld the decisions of the lower courts.
COMPLAINTS
The applicant complains under Article 3 of the Convention that he was ill-treated by the police in order to extract confessions from him and that medical assistance was provided to him only six days after the beating. He further states that no effective investigation of the fact of ill-treatment has been conducted at the domestic level.
The applicant further complains under Article 5 of the Convention about the unlawfulness of his detention between 6 and 21 February 2008.
He also alleges that he was denied a fair trial in the administrative offence case as well as in the criminal proceedings in violation of Article 6 of the Convention.
Finally, the applicant claims that during his twelve-day administrative detention he could not communicate with his family in violation of Article 8 and that he had no domestic remedy in that regard, as required by Article 13 of the Convention.
QUESTIONS TO THE PARTIES
1. Was the applicant subjected to torture, inhuman or degrading treatment in police custody in breach of Article 3 of the Convention?
2. Having regard to procedural protection from inhuman or degrading treatment (see paragraph 131 of Labita v. Italy [GC], no. 26772/95, ECHR 2000-IV), was the investigation undertaken by the domestic authorities into the applicant’s allegation of ill-treatment in breach of Article 3 of the Convention?
3. Was adequate medical assistance provided to the applicant during his administrative detention in respect of his foot injury in accordance with Article 3 of the Convention? In particular, did the applicant require urgent treatment for his foot injury and if so, was such treatment provided to him in a timely fashion?
4. Was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention? In particular, did the applicant’s deprivation of liberty between 6 and 21 February 2008 fall within any of paragraphs (a), (b), (c), (d), or (e) of this provision and was in compliance with it?
5. Was Article 6 § 1 of the Convention applicable, under its criminal head, to the proceedings by which the applicant had been found guilty of the administrative offence?
If so, did the applicant have a fair hearing in the determination of the criminal charge against him, in accordance with Article 6 § 1 of the Convention?
Was the applicant afforded adequate time and facilities to prepare his defence, as required by Article 6 § 3 (b) of the Convention?
Was the applicant able to defend himself through legal assistance of his own choosing, as required by Article 6 § 3 (c) of the Convention?
Was the applicant able to obtain the attendance of witnesses on his behalf, as required by Article 6 § 3 (d) of the Convention?
6. Did the applicant have a fair hearing in the determination of the criminal charges against him, in accordance with Article 6 § 1 of the Convention? In particular, was the applicant’s right not to incriminate himself respected, given that the domestic courts convicted him, inter alia, on the basis of his confessions allegedly obtained by means of ill-treatment on 7 February 2008 during a period when the applicant served his administrative detention and had no legal representation?
7. Was there an interference with the applicant’s right under Article 8 § 1 of the Convention to respect for his private and family life on account of the alleged hindrance of the applicant’s contact with his father? If so, was that interference in accordance with the law and necessary within the meaning of Article 8 § 2?
8. Did the applicant have at his disposal an effective domestic remedy for his above complaint under Article 8, as required by Article 13 of the Convention?
Your Government are also invited to submit all the documents concerning:
- the applicant’s allegations of ill-treatment in police custody and the investigation of this complaint;
- the applicant’s administrative and pre-trial detention, including his complaints in that respect and responses to them or decisions taken following their examination, the trial records, etc;
- copies of the applicant’s appeal and appeal in cassation are also requested.
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