Info

Main issues

1. Torture at police station.

2. Lack of effective investigation.

3. Unregistered detention.

Status

At international level - in March 2010 the application no. 34725/08 was communicated to the Government of Ukraine

Additional information

The case is supported by the Fund for Legal Aid to Victims of Ill-Treatment

Lawyers - Andrey Kristenko

Facts

The applicant, Mr Vyacheslav Yuryevich Savin, is a Russian national who was born in 1972 and lives in Kharkiv. He is represented before the Court by Mr A.A. Kristenko, a lawyer practising in Kharkiv.

The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

1.  The applicant's arrest and alleged ill-treatment

On 18 October 1999 the applicant was summoned to the Dzerzhynskyy District Police Station as a witness in a fraud-related criminal investigation.

According to him, he was held there by force from 3 p.m. on 18 October to 1 p.m. on 19 October 1999. Furthermore, several police officers under the leadership of K. allegedly beat him up on both days with a view to extracting his confession to the investigated fraud. Before his release the applicant signed a form which stated that he had been arrested for using obscene language (minor hooliganism).

2.  The applicant's medical condition

On 21 October 1999 the applicant received a permit from the Kharkiv City Prosecutor for a forensic medical examination, which he underwent on the same day. It established that he had bruises on his face, scalp, left ear, neck and chest. The applicant was also found to have a closed head injury with concussion of the left frontal lobe and an intracerebral haematoma. The doctor concluded that those injuries had been caused by blunt objects and could have dated from 18 or 19 October 1999.

During the period from 21 October to 23 November 1999 the applicant underwent in-patient treatment in a neurological hospital.

In 2002 he was recognised as falling into the third category of disability (the mildest) on account of the residual effects of the head injury and the post-traumatic encephalopathy.

From 2004 onwards the applicant's condition was classified as the disability of the second category (more serious) as the post-traumatic encephalopathy had worsened.

Since October 1999 eight forensic medical examinations were held with a view to verifying the applicant's allegation of his ill-treatment. According to the last of them, which was held between 5 May and 14 June 2007, the applicant had suffered bodily injuries of medium seriousness, which could have been inflicted at the time and in the circumstances as described by him. Furthermore, the examination established that the applicant's disability had resulted from the injuries sustained by him in October 1999.

3.  Investigation of the applicant's allegations

Starting from 19 October 1999 the applicant has lodged numerous complaints with the prosecution authorities of all levels that he was detained unlawfully and arbitrarily and was ill-treated in police custody under the leadership of officer K.

On 20 December 1999 the Dzerzhynskyy District Prosecutor instituted a criminal investigation into the infliction of grievous bodily injury on the applicant, without it being targeted against any specific persons (although the applicant pointed out specific police officers who he alleged had detained and beaten him).

On 9 February 2002 the applicant was formally assigned victim status in the criminal investigations.

The prosecution authorities refused to institute criminal proceedings against the involved police officers on the charges of abuse of power and infliction of grievous/medium bodily injuries on the applicant and subsequently quashed those refusals four times (most recently in 2005). The case file, as it presently stands, contains copies only of two such refusals: the ruling of the Kharkiv Regional Prosecutor (“the regional prosecutor”) of 2 December 2002 and the ruling of the Ordzhonikidzhe District Prosecutor of 5 November 2003.

Both aforementioned rulings contained identical findings regarding the applicant's detention. It was noted there, in particular, that, according to police officer K., he had placed the applicant under administrative arrest for using obscene language, for about two hours on 18 October 1999, after which the applicant had been released at 10.50 p.m. On the following day, at about 10 a.m., the applicant had come back to the police station to be questioned. Two officers who had been on duty on those dates had confirmed that. Officer K. further stated that he had transferred the administrative arrest report to another officer who, in his turn, denied that.

The rulings further read as follows, in their relevant parts:

“In order to verify [the applicant's] allegation about his detention, a request for investigation has been sent to the Kharkiv City Police Department. According to [its] reply, the report about the administrative offence committed by [the applicant] had not been registered and was not in the archive of the Dzerzhynskyy District Police Department. Furthermore, [such] report has to be completed on the correct report form with a unique number. No such forms are missing. Given the fact that there is no case file concerning the administrative offence committed by the applicant, it is impossible to verify whether his detention in the room for administrative detainees in the [police station] was well-grounded. ...

Although the investigation established that [the applicant] had in fact been held in the room for administrative detainees in the [police station] from 8:40 p.m. on 18 October to about 9 a.m. on 19 October 1999, that was not contrary to Article 263 of the Code on Administrative Offences which provided for the possibility of such detention pending the examination of the case by the [chief of police] or by the [court].

It ... has been impossible to establish ... where the administrative offence case file in respect of the applicant presently is, what contents it had and what decision had been taken on the basis of the contents of that file. The investigation considers that the fact that the administrative arrest report concerning [the applicant] had been completed by [the police officers] ... and registered in the police department's journal indicates that [they] had had no intention of detaining him unlawfully and that [this proves that] the administrative offence case file had indeed been completed.

Having regard to the foregoing, it is impossible to draw the conclusion that [the applicant] had not committed an administrative offence and that he had been detained unlawfully. The absence of the administrative offence case file and the lack of its adequate registration in compliance with the legally established procedure do not amount to a criminal offence, but rather disclose some disciplinary omissions.

The investigation considers it important to emphasise that given the absence of the case file on the applicant's alleged [minor hooliganism] it appears impossible to reach the conclusion that [officer K.] had completed a clearly fictitious ... case file and that [the applicant] had been detained unlawfully.”

On 27 March 2006 the investigator applied to the Dzerzhynskyy District Court for termination of the criminal case as time-barred, given the fact that the offender(s) had not been identified.

On 6 July 2006 the court rejected that request and returned the case for investigation. It referred, in particular, to the fact that on 27 December 2001 the city prosecutor had brought charges against police officer K. of abuse of power and infliction of grievous bodily injuries on the applicant. As noted by the court, that ruling was not in the case file and there was no information as to whether it had ever been quashed.

On 23 May 2008 the regional prosecutor informed the applicant that there had been an “operational conference” concerning his case, as a result of which it was decided to speed up the investigation and that unspecified measures had been taken against the officials in charge on account of its unreasonable duration.

On 30 July 2008 the Ordzhonikidzhe District Prosecutor instituted, in response to the applicant's complaints, criminal investigations against officer K. under Article 365 § 2 of the Criminal Code (2001) on suspicion of exceeding of powers associated with violence and degrading treatment. That decision was based on the following findings of the preliminary investigation:

“At 7 p.m. on 18 October 1999 [K.] punched [the applicant] in the head during questioning. After that he tied his wrists behind his back, made him sit on a chair and punched him again eight or ten times on [the different parts of] his head.

In continuation of his unlawful actions, [K.] took the applicant, against the latter's will, to the corridor of [the police station], put him on the floor with his face down and pulled [his] arms up behind the back at least seven or eight times, causing [the applicant] physical pain and psychological suffering and humiliating his human dignity. [K.] also kicked [the applicant] two or three times in the ribs from the left side.

Subsequently [K.] submitted to the operational unit of [the police station] knowingly false information that on that day [the applicant] had committed an administrative offence ... by being drunk and using obscene language [in public]. As a result of the unlawful actions of [K. the applicant] was placed in a cell for administrative detainees ..., where he was unlawfully held from 8:40 p.m. on 18 October to about 9 a.m. on 19 October 1999.

On 19 October 1999 [K.] took [the applicant] to his office where he tied the former's wrists behind his back and punched him at least three or four times in the head, as well as in the ribs from the left side, acting deliberately and exceeding his official powers, having a false idea about the interests of [the police], resorting to violence and seeking [the applicant's confession to the fraud].”

There is no information in the case file as it stands about any further developments.

Domestic laws

According to paragraph 1 of Article 263 of the Code on Administrative Offences (as worded in October 1999), detention for an administrative offence could not be for longer than three hours, subject to exceptions established by law. Paragraph 4 provided that detention for hooliganism could last until the case was examined by the police chief or by the court.

Article 365 § 2 of the Criminal Code (2001) provided for three to eight years' imprisonment with a prohibition on holding certain offices or carrying out certain activities for a period of up to three years as punishment for exceeding powers associated with violence or degrading treatment of the victim.

Proceedings

On 15 June 2008 application to the European Court was lodged. 

The applicant complains under Articles 3 and 5 of the Convention that he was unlawfully detained and subjected to torture in police custody between 18 and 19 October 1999 and that the domestic authorities failed to duly investigate his complaints in that respect.

The application was communicated to the Government of Ukraine in March 2010. The Court put to the parties the following questions:

1.  Was the applicant subjected to ill-treatment in police custody on 18 and 19 October 1999 in breach of Article 3 of the Convention?

2.  Having regard to the procedural protection from torture (see Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000-IV), was the investigation conducted in the present case by the domestic authorities in breach of Article 3 of the Convention?

3.  Has the applicant complied with the six-month time-limit for raising his complaint under Article 5 § 1 of the Convention concerning his detention on 18 and 19 October 1999 given the ongoing criminal investigation into the matter? If so,

4.  Was the applicant deprived of his liberty on 18 and 19 October 1999 in breach of Article 5 § 1 of the Convention?