Communicated on 7 December 2016
FIFTH SECTION
Application no. 54012/07
Vartan Dzhanibekovych SARGSYAN
against Ukraine
lodged on 26 November 2007
STATEMENT OF FACTS
The applicant, Mr Vartan Dzhanibekovych Sargsyan, is a Ukrainian national who was born in 1969 and lives in Kharkiv. He is represented before the Court by Mr G.V. Tokarev, a lawyer practising in Kharkiv. The applicant is registered as a person suffering from “a second-degree” disability (moderately serious health condition, according to the domestic classification) on account of an unspecified illness.
The facts of the case, as submitted by the applicant, may be summarised as follows.
A. The applicant’s detention in April 2007 on suspicion of murder and the ensuing proceedings
On 22 April 2007 the applicant informed the police that he had found a human body in a deserted place on the banks of the Lopan river, and subsequently showed that place to the police.
At about 10 a.m. on 24 April 2007, the applicant was walking down the street when several police officers in civilian clothes stopped him and shoved him into a car, disregarding the protests by M.Y., his civil partner.
The police officers took the applicant to the Chervonozavodskiy District police station, where he was urged to confess to the murder of the person whose body he had found, O. As the applicant denied the accusations, the officers undressed him and made him lie face down on a thick layer of foam rubber. Then they twisted his handcuffed arms behind his back to immerse his face deep into the foam so that he could not breathe. After some time, as the applicant continued to deny any involvement in the murder, two officers had the applicant sit naked and handcuffed on the floor and immobilised his legs by sitting on them. A third officer squeezed the applicant’s genitals with a plastic bag. The applicant’s pleas that he had a disability and that such treatment could have grave consequences for his health were ignored. In addition to the above, the officers also repeatedly hit the applicant on the head with a thick file folder, threatened to prosecute his relatives and spat in his face.
At about 4 p.m. on the same date the police officers informed the applicant that he would be taken to the Chervonozavodskiy District Court in Kharkiv on charges of malicious insubordination, having refused to obey a lawful police order to show an identity document. They threatened that if the applicant did not acknowledge his responsibility for the offence, they would inflict more severe forms of torture on him. The applicant, exhausted by the torture he had already suffered, agreed to their demand.
At about 5 p.m. on the same date the Chervonozavodskiy District Court held a hearing, during which the applicant acknowledged that he had disobeyed a police order to show an identity document, had attempted to run away, had pushed the officer and had attempted to provoke a fight. In a final decision which was not amenable to appeal, the court decided to subject the applicant to ten days’ administrative detention.
At about 6 p.m. on the same date the applicant was taken back to the police station, where his torture continued. In particular, the police officers placed wet rags on the applicant’s ears, chin and other parts of the head, to which they applied electric current.
On 25 April 2007 the police officers continued torturing the applicant until he signed a statement confessing to having committed the murder.
On 26 and 27 April 2007 the applicant was questioned by an investigator, A.Kh., concerning his purported involvement in O.’s murder, his requests for access to a lawyer having been denied.
In the meantime, M.Y. complained to the Chervonozavodskiy district prosecutor’s office that the applicant had been arbitrarily taken into custody. She appointed Mr Tokarev to represent the applicant’s interests.
In the afternoon of 27 April 2007 the Chervonozavodskiy district prosecutor and Mr Tokarev arrived at the police station to visit the applicant by way of following up M.Y.’s complaint. During a confidential interview with Mr Tokarev, the applicant told him that he had been tortured and had signed a false confessional statement.
On 28 April 2007 Mr Tokarev demanded that the Chervonozavodskiy district prosecutor institute criminal proceedings in respect of the applicant’s allegations of torture and abduction by the police. He noted in this demand that as the torture described by the applicant had left hardly any physical marks, an urgent forensic assessment would be required, applying special techniques to verify the truthfulness of the allegations. The applicant would have to be questioned and the place where he had been interrogated by the police inspected.
On 28 April 2007 the Chervonozavodskiy district prosecutor lodged a request for extraordinary review against the court decision of 24 April 2007 subjecting the applicant to ten days’ administrative detention. He argued that such a punishment was disproportionately severe in view of the fact that the applicant had acknowledged his responsibility for the insubordination offence and was a disabled person.
On the same date the Chervonozavodskiy District Court allowed the prosecutor’s request and reduced the applicant’s punishment to four days’ administrative detention.
The applicant was released later the same day.
On 29 April 2007 the applicant was examined in the municipal hospital and diagnosed as suffering from contusions of the soft cranial tissue, abrasions on the ankles and chronic pain in the genitals.
On 7 May 2007 the Chervonozavodskiy district prosecutor notified the applicant that it had been decided not to institute criminal proceedings against him concerning the murder, as there was no evidence of his involvement in that crime.
On 10 May 2007 and 9 July 2007 Mr Tokarev contacted the prosecutor’s office requesting follow-up information concerning his complaint of 28 April 2007 in respect of the applicant’s alleged abduction and ill‑treatment. No answer was provided.
On 3 August 2007 Mr Tokarev lodged an administrative complaint with the Kharkiv District Administrative Court concerning the failure of the prosecutor’s office to follow up his complaint. Subsequently (on 24 February 2009) the Kharkiv Administrative Court of Appeal allowed Mr Tokarev’s administrative complaint, having found that the prosecutor’s office had failed to provide adequate follow up to his complaint of 28 April 2007.
In the meantime, on 20 October 2008 Mr Tokarev received a copy of a decision taken by the prosecutor’s office on 8 May 2007 not to institute criminal proceedings in respect of the applicant’s alleged abduction and ill‑treatment. According to the decision, after questioning the police officers involved, the investigator concluded that the applicant had been correctly arrested on 24 April 2007 in view of his refusal to show his identity document when requested to do so by a police officer. There had been no evidence of any physical or other ill-treatment.
On 27 October 2008 the applicant, represented by Mr Tokarev, appealed against that decision to the Chervonozavodskiy District Court.
On 17 December 2009 the Chervonozavodskiy District Court dismissed the applicant’s appeal against the decision of 8 May 2007 not to institute criminal proceedings in respect of the ill-treatment and abduction allegations on the grounds that the original version of the relevant decision could not be found in the prosecutor’s office’s case file. Accordingly, the applicant’s appeal was devoid of purpose.
Having received that decision, the applicant, represented by Mr Tokarev, abandoned any attempts to seek redress for his complaint.
B. The applicant’s detention in July 2007 on suspicion of drug possession and the ensuing proceedings
On 24 July 2007 the applicant was again stopped at a public place and shoved into a car by several plain-clothes police officers, who took him to the Dzerzhinskiy District police station in Kharkiv. Once inside the police station, the officers cut out a pocket from the applicant’s trousers and put a newspaper bundle in it. It later transpired that the newspaper contained 5.49 grams of cannabis. The police officers then demanded that the applicant sign a confessional statement that he had been in possession of the bundle seized from him. They threatened him with torture unless he obeyed. Having already been tortured by the police in April 2007, the applicant agreed to sign the confessional statement.
While in custody on 25 and 26 July 2007 the applicant was visited several times by the investigator in charge of the case concerning O.’s murder. During the meetings the investigator urged the applicant to confess to the murder. The applicant protested and demanded access to a lawyer, which request was denied.
On 27 July 2007 criminal proceedings were instituted against the applicant on suspicion of drug possession.
In the meantime, M.Y., who had been informed of the applicant’s arrest by some acquaintances who had witnessed it, again appointed Mr Tokarev as his representative. Having unsuccessfully attempted to obtain access to the applicant on 24 and 25 July 2007, on 27 July 2007 Mr Tokarev complained to the Kharkiv regional prosecutor’s office of interference with his right to confer with his client.
Later the same day Mr Tokarev was allowed to visit the applicant and obtained his release on condition that he would not abscond.
On numerous occasions in 2007 and 2008 M.Y. and Mr Tokarev enquired with the police and the prosecutor’s office about the outcome of the criminal proceedings instituted against the applicant on 27 July 2007. They did not receive any definitive answer.
On 5 August 2008 the Kharkiv City police department informed Mr Tokarev that the latest decision in the case had been taken on 13 June 2008. They enclosed a copy of that decision, which stated that the decision to institute criminal proceedings against the applicant had been revoked, as it had been established that he had found the newspaper bundle containing cannabis in the street and had not been aware that it contained cannabis.
On 12 August 2008 the applicant, represented by Mr Tokarev, appealed against that decision to the Kharkiv City prosecutor’s office. He insisted that the bundle had been planted on him by the police. It appears from the case file, that his appeal was never followed up.
On 23 July 2010 the applicant complained to the Leninskiy District Court in Kharkiv that there had been no legal basis for his arrest in July 2007 and that his resulting detention had been arbitrary within the meaning of Article 55 of the Constitution of Ukraine.
On 27 July 2010 the Leninskiy District Court refused to hear the applicant’s complaint and referred the applicant to the administrative court.
On 26 October 2010 the Kharkiv Administrative Court of Appeal allowed an appeal lodged by the applicant, having found that his complaint fell to be examined within the framework of the Code of Criminal Procedure. It referred the case back to the Leninskiy District Court.
On an unspecified date the Leninskiy District Court again refused to hear the applicant’s complaint.
Having received that decision, the applicant, represented by Mr Tokarev, abandoned any attempts to seek redress for his complaint.
COMPLAINTS
The applicant complains under Article 3 of the Convention that he was tortured in police custody in April 2007 with a view to obtaining false self-incriminating statements and that there was no effective domestic investigation of his respective complaint.
He further complains under Article 5 § 1 of the Convention that his detention in April and July 2007 was arbitrary and effected with an ulterior motive: namely, to force him to give false self-incriminating statements concerning his participation in the murder.
In addition, the applicant refers to Article 5 § 5 in respect of the second episode of his detention.
Lastly, the applicant complains that there were no effective remedies available to him within the meaning of Article 13 of the Convention for his complaint concerning his alleged ill-treatment and the first episode of his purportedly arbitrary detention.
QUESTIONS TO THE PARTIES
1. Was the applicant subjected to ill-treatment by the police, in breach of Article 3 of the Convention, while in detention in April 2007?
2. Having regard to the procedural protection from inhuman or degrading treatment (see Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000-IV), was the investigation by the domestic authorities into the allegations of ill-treatment in breach of Article 3 of the Convention?
3. Was the deprivation of the applicant’s liberty between 24 and 28 April 2007 and between 24 and 27 July 2007 in breach of Article 5 § 1 of the Convention?
The Government are requested to provide copies of all relevant procedural documents pertaining to the applicant’s detention in July 2007.
4. Did the applicant have an effective and enforceable right to compensation for his detention in July 2007 in alleged contravention of Article 5 § 1, as required by Article 5 § 5 of the Convention?
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