Communicated on 8 November 2016

FIFTH SECTION

Application no. 63441/10 Pavel Aleksandrovich ZAYTSEV against Ukraine lodged on 17 September 2010

STATEMENT OF FACTS

The applicant, Mr Pavel Aleksandrovich Zaytsev , is a Ukrainian national who was born in 1962.

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

On 7 December 2003 two girls were sexually assaulted by a man at gunpoint. Shortly afterwards they reported the assault to the police, who immediately began searching for the perpetrator, taking the girls with them in a police car. As soon as the girls saw the applicant walking down the street, they both pointed him out as the perpetrator. He was arrested and taken to the Leninsky District police station in Sevastopol (“the police station”). He was searched in the presence of witnesses and a gun was found in his pocket. He refused to make any statements in that respect.

On the same day the applicant was examined by a forensic medical expert, following a request by the police officers on duty. He was found to have no injuries.

On 8 December 2003 criminal proceedings were instituted against the applicant for illegal possession of weapons.

According to the applicant, between 8 and 10 December 2003 the police officers ill-treated him in order to extract a confession regarding the rape. He was beaten, threatened, humiliated and deprived of his sleep.

On 10 December 2003 the applicant was questioned in the presence of his legal aid lawyer and stated, among other things, that the victims had voluntarily agreed to have sexual contact with him in exchange for money.

On 11 December 2003 criminal proceedings were instituted against the applicant in connection with the sexual assault of the two girls.

On the same date the investigator ordered a forensic medical examination of the applicant. The case file suggests that the examination was not actually conducted on that date or shortly after as, in his report in reply to the investigator ’ s order, the forensic medical expert relied on the results of the applicant ’ s medical examination of 7 December 2003.

On 12 December 2003 the applicant was allegedly transferred to a special cell in which detainees corroborating with the police were held. The reason for the transfer was, allegedly, his refusal to make a statement that the police had not used any force on him. He was subjected to physical and mental ill-treatment by his cellmates, who forced him to sign the papers the police officers had asked him to sign.

On the same date the applicant was taken to hospital, where he was examined by a neurosurgeon and had his head X-rayed. He was found to have bruises to the head, face and lower spine. It appears from the hospital ’ s inpatient treatment register that the reason he had attended was because of an assault by his cellmates at the p olice station on the night of 7 December 2003.

On 19 December 2003 a cellmate gave the applicant some paper and a pen and asked him to make the statement required by the police, warning him that if he refused he would be sexually abused by his cellmates. In an alleged suicide attempt, the applicant pushed a pen into his ear. He was taken to hospital, where he was also found to have multiple cuts on his right forearm. A suicide attempt was given as the cause of his injuries in the hospital ’ s inpatient treatment register.

On 5 April 2004 the applicant was charged with sexual assault and the illegal possession of a firearm.

On 6 April 2004, in the course of the trial, the applicant testified before the Leninsky District Court of Sevastopol (“the District Court”) that between 7 and 10 December 2003 police officers had ill-treated him in order to extract a confession.

According to the applicant, in June 2005, the District Court ordered the prosecutor ’ s office to investigate the applicant ’ s complaint.

On 13 January 2006 the prosecutor ’ s office refused to institute criminal proceedings against the police officers for lack of evidence that a crime had been committed.

On 13 February 2006 the District Court dismissed an appeal by the applicant against that decision.

On 26 December 2006 the Sevastopol Court of Appeal (“the Court of Appeal”) quashed the above-mentioned decision and sent the case back to the District Court for a new examination. In doing so, it noted that the case file contained none of the documents referred to by the District Court as grounds for its conclusions, and that there had thus been no evidence that it had conducted a thorough and comprehensive examination of the applicant ’ s complaint.

On 1 June 2007 the District Court found the applicant guilty as charged and sentenced him to ten years ’ imprisonment. The Court dismissed his ill ‑ treatment complaint as manifestly ill-founded, referring to the results of the forensic medical examination of 11 December 2003. It further noted that the case file did not contain any statements by the applicant resulting from the alleged ill-treatment which the court could rely on to justify his conviction.

On 4 December 2007 the Court of Appeal quashed that judgment, both as regards his conviction and as regards the dismissal of his ill-treatment complaint, and remitted the case to the prosecutor ’ s office for a new investigation. In doing so, it noted, among other things, that during the trial the applicant had repeatedly complained that he had been ill-treated by the police and that the District Court ’ s conclusion that no ill-treatment had actually taken place was premature and required additional verification.

On 20 February 2008 the prosecutor ’ s office, after an additional investigation following a complaint by the applicant, again refused to institute criminal proceedings against the police officers. The prosecutor referred to the results of a forensic medical examination , conducted on 14 February 2008, of the medical documents dated 12 an d 19 December 2003. According to that forensic report, the applicant had no injuries upon his arrival at hospital on 12 December 2003 and the neurosurgeon ’ s diagnosis that he had bruises to the head, face and lower spine appeared not to be confirmed by any objective c linical evidence. As regards 19 December 2003, the forensic report confirmed that the applicant had light bodily injuries but, at the time the report was made, it was not possible to establish the reasons for them or the time at which they had been inflicted. The prosecutor further referred to the information in the hospital ’ s inpatient treatment register as to the cause of the injuries (see the “Facts” part above) and to a statement by S., the applicant ’ s cellmate at the time, who confirmed that there had been a fight involving the applicant on the night of 7 December 2003. The prosecutor ’ s decision also referred to a written statement made by the applicant on his admission to a temporary detention facility (“ITT”) on 13 December 2012, in which he said that he had fallen down from his bunk at the police station on 7 December 2003 and injured himself. The police officers concerned and the investigator in the applicant ’ s case denied any ill-treatment. Lastly, while acknowledging that the applicant had been ill-treated by his cellmates, the prosecutor denied it was the State ’ s responsibility to prosecute those responsible, noting that it was up to the applicant to lodge a private prosecution complaint with the courts.

On 7 October 2008 the District Court quashed that decision and ordered a new investigation into the applicant ’ s complaint, as the case file contained no documents on which the prosecutor ’ s refusal to institute criminal proceedings against the police officers had been based. That decision was upheld by the Court of Appeal on 6 May 2009.

On 8 September 2009 the prosecutor provided the District Court with the relevant material concerning the investigation into the applicant ’ s complaint against the police officers, together with another decision refusing to institute criminal proceedings against the police officers and the applicant ’ s cellmates. According to the applicant, he had no opportunity to familiarise himself with that material.

On 7 October 2009 the District Court found the applicant guilty of sexual assault and the illegal possession of a firearm and sentenced him to ten years ’ imprisonment. It dismissed his ill ‑ treatment allegations as manifestly ill-founded, finding no evidence in support. The court provided the same reasoning as in the prosecutor ’ s decision of 20 February 2008 and further referred to the results of the latest investigation conducted by the prosecutor in 2009.

On 12 January and 19 July 2010 the Court of Appeal and the Supreme Court respectively upheld the applicant ’ s conviction and the District Court ’ s dismissal of the applicant ’ s allegations of ill-treatment.

COMPLAINTS

The applicant complains under Article 3 of the Convention that he was subjected to ill-treatment while in police custody and that the investigation following his complaints was ineffective.

He further complains that the criminal proceedings against him were excessively lengthy.

QUESTIONS TO THE PARTIES

1. Was the applicant subjected to torture or inhuman or degrading treatment while detained, in breach of Article 3 of the Convention?

In particular, was the applicant subjected to ill-treatment by the police while in police custody? Was he subjected to ill-treatment by his cellmates?

2. Did the State comply with its procedural obligations under Article 3 of the Convention to carry out an effective investigation into the applicant ’ s allegations of ill-treatment by the police and his cellmates?

The Government are requested to provide copies of all documents relevant to the applicant ’ s complaints about his ill-treatment by the police and his cellmates. They are also requested to submit an information note setting out, in chronological order, the course of the criminal proceedings against the applicant.