Communicated on 1 June 2015
FIFTH SECTION
Application no. 6648/14
Vadim Aleksandrovich POLISHCHUK
against Ukraine
lodged on 30 December 2013
STATEMENT OF FACTS
The applicant, Mr Vadim Aleksandrovich Polishchuk, is a Ukrainian national, who was born in 1975 and lives in the United Kingdom. He is represented before the Court by Ms N.V. Gurkovska, a lawyer practising in Vinnytsya.
The facts of the case, as submitted by the applicant, may be summarised as follows.
A. The applicant’s arrest and criminal proceedings against him
On 31 May 2007 Mr. T. was shot and killed. On the same day the Kozyatyn Inter-District Prosecutor’s Office (“the KIPO”) initiated criminal proceedings to investigate his murder.
According to the applicant, on 2 June 2007 the police summoned him by telephone to be questioned about his relations with T. On the same day he arrived at a police station with his lawyer but the police did not allow the lawyer to accompany the applicant inside the station. The applicant further alleges that subsequently the police continued to prevent the lawyer from seeing the applicant, in particular by clandestinely transporting the applicant to another police station.
At 5 p.m. on 2 June 2007 an arrest report was drawn up indicating that the applicant was arrested on suspicion of disorderly conduct committed in 2005. The alleged offence in question was apparently unrelated to T.’s murder.
According to the applicant, on 3 and 4 June 2007 he was ill-treated by police officers in order to force him to confess to T.’s murder. In particular, on 3 June 2007 he was placed in a police temporary detention facility where the police officers hit him on the head with a book containing a metal sheet inside, hung him from bars by his cuffed wrists and ankles, hit him in the groin and on the legs, and applied electricity to his genitals. On 4 June 2007 in an interrogation room he was chained to a stool and then the police officers put a plastic bag on his head smothering him.
According to the findings of the court which subsequently acquitted the applicant (see below), on 6 June 2007 the applicant, examined by the investigator as a witness, testified that he had not been involved in T.’s murder.
On 6 June 2007 the Kozyatyn Court, finding that more time was needed to collect information about the applicant’s personality, extended the applicant’s detention on suspicion of disorderly conduct to ten days.
On 7 June 2007 the applicant wrote a statement addressed to the investigator admitting that he had murdered T.
On 8 June 2007 the investigator drew up an arrest report documenting that the applicant had been placed under arrest on suspicion of murder.
On the same day the applicant was questioned as a suspect. He admitted that he had shot T. During the questioning the applicant’s lawyer posed a question to him asking him about the origin of the hematomas on his body. According to the record of the questioning, the applicant responded that he had injured himself while climbing onto his bed in his cell. The lawyer then stated for the record that he believed that the applicant was speaking under duress.
On the same day the applicant was examined by a forensic medical expert. The expert noted that the applicant had a bright red spot on the right shin resulting from healing of a bruise, two hematomas on the left side of his waist, hematomas on the right side of his rib cage and on the left thigh. The applicant stated that the injury on his left shin was caused by a dog bite prior to his arrest and the hematomas he had caused himself when he tried to climb into his bed in his cell. The expert concluded that the injuries could have been caused under the circumstances indicated by the applicant.
On 11 June 2007 the Kozyatyn Court extended the applicant’s detention on suspicion of murder to ten days.
On 13 June 2007 a police investigator issued a decision according to which the applicant was to be released from detention in connection with the investigation of disorderly conduct since his guilt had not been proven.
On 14 June 2007 the applicant’s lawyer wrote to the prosecutor of Vinnytsya Region pointing out, in particular, that the applicant’s clothes handed over by the police to his mother had borne what the lawyer thought had been numerous bloodstains. He requested that the applicant be allowed to undergo an urgent medical examination.
On 15 June 2007 the applicant was again examined by a forensic medical expert who confirmed the findings of the examination conducted on 8 June 2007.
On 18 June 2007 the Kozyatyn Court ordered that the applicant be placed in pre-trial detention pending the murder investigation.
On 27 September 2007 the applicant, questioned as an accused, denied any involvement in T.’s murder and stated that his confession had been extracted by the police officers under duress.
On an unspecified date the case was sent to court for trial.
According to the applicant, on an unspecified date Judge S. recused himself from examining the criminal case concerning T.’s murder on the ground that he had been T.’s personal friend.
On 29 May 2009 the Kalynivka Court remitted the criminal case against the applicant for additional investigation. On 9 September 2009 the final charges were presented to the applicant and the case was again sent to court for trial.
Examined during the trial, the expert who had examined the applicant on 8 and 15 June 2007 stated that it could not be ruled out that the injuries he had recorded had been inflicted due to ill-treatment.
On 12 April 2012 the Pogrebyshche Court acquitted the applicant and released him from detention. The court found, in particular, that the applicant’s detention on unrelated charges from 2 to 8 June 2007 was unlawful, that the applicant’s admissions during the pre-trial investigation were likely extracted under duress and that physical evidence as to the mechanism of T.’s shooting and the bullet’s trajectory contradicted the applicant’s confession.
On the same day the trial court also issued a separate ruling addressed to the Prosecutor General and the Minister of the Interior and drawing their attention to the breaches of the applicant’s rights on account of his unlawful detention from 2 to 8 June 2007 and his ill-treatment by the police in the said period.
It appears that subsequently the judgment of 12 April 2012 was quashed and criminal proceedings against the applicant continued.
B. Investigation into the applicant’s allegations of ill-treatment
On 16 June 2007 the KIPO, having examined the complaint of the applicants’ lawyers that the applicant had been ill-treated, refused to institute criminal proceedings against the police officers.
On 12 September 2007 and on 28 August 2010 the KIPO again refused to institute criminal proceedings against the police officers.
On 13 September 2012 the Kozyatyn Inter-District Prosecutor quashed the KIPO’s decision of 28 August 2010 finding that it had been based on incomplete pre-investigation enquiries.
On 25 October 2012 the KIPO refused to institute criminal proceedings against the police officers for lack of corpus delicti in their actions. The decision was based essentially on the assessment of statements of the applicant and his mother and medical evidence. The police officers were never questioned because the officers accused by the applicant could not be identified.
On 20 November 2012 the new Code of Criminal Procedure came into effect. Instead of initiating criminal proceedings, it provides for initiation of investigation by way of making a respective entry in the Unified Register of Pre-Trial Investigations.
On 4 January 2013 the applicant’s mother and his lawyer lodged criminal complaints against the police officers accusing them of having ill-treated the applicant. An entry was made in the Unified Register of Pre-Trial Investigations.
On 15 April 2013 the KIPO concluded that no evidence had been found indicating that the police officers had committed a criminal offence and decided to discontinue criminal proceedings against the officers.
On 1 June 2013 Judge S. of the Kozyatyn Court rejected the applicant’s complaint and upheld the decision of 15 April 2013.
On 13 August 2013 the Vinnytsya Regional Court of Appeal upheld the ruling of 1 June 2013.
COMPLAINTS
The applicant complains under Article 3 that he was subjected to torture by police officers and under Article 13 that there was no effective investigation in this respect. Under Article 6 he complains that Judge S. who examined the applicant’s appeal against the decision to discontinue criminal proceedings against the police officers on 1 August 2013, was not impartial because he was T.’s personal friend.
QUESTIONS TO THE PARTIES
1. Has the applicant been subjected to torture, 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? The Parties are invited to comment, in particular, on the applicant’s allegation that Judge S. was T.’s personal friend.
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