Communicated on 5 January 2016

FIFTH SECTION

Application no. 68356/13 Vladimir Vladimirovich POCHTAREV against Ukraine lodged on 15 October 2013

STATEMENT OF FACTS

The applicant, Mr Vladimir Vladimirovich Pochtarev , is a Ukrainian national, who was born in 1973 and is currently in detention in Mariupol.

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

A. Criminal proceedings against the applicant

In July 2011 the applicant was arrested on suspicion of having inflicted grievous bodily harm on F., his acquaintance. There is at this stage in the proceedings a lack of clarity regarding the precise date of this arrest.

On 7 July 2011 the applicant confessed to having committed the offence.

On 15 July 2011 the Zhovtnevyy District Court in Mariupol (“the District Court”) remanded the applicant in custody pending a criminal investigation against him.

In the course of the investigation the applicant was also charged with several other crimes, to which he confessed.

On an unspecified date the applicant retracted his confessions, alleging that they had been made as a result of ill-treatmen t by the police on 6 and 7 July 2011 and out of fear of future reprisals.

On 10 October 2012 the District Court convicted the applicant as charged and sentenced him to seven years ’ imprisonment.

On 5 February 2015 the Higher Specialised Civil and Criminal Court quashed the applicant ’ s conviction following an appeal on points of law and remitted the case for a retrial. It found, in particular, that the applicant ’ s right to an effective defence had been breached on account of the inadequate performance of his legal aid lawyer.

It appears from the case file that the proceedings against the applicant are currently pending before the District Court.

B. Investigation of the applicant ’ s complaints concerning his purported ill-treatment and arbitrary deprivation of liberty

In December 2011 the applicant complained to the Zhovtnevyy District Prosecutor ’ s Office in Mariupol that he had been arbitrarily deprived of his liberty on 6 July 2011 and subjected to ill-treatment by police officers with a view to extracting self-incriminating statements.

According to the applicant ’ s written submiss ions, at about 9 a.m. on 6 July 2011 several police officers had arrested him in Donetsk on the pretext that he had no identification documents. The applicant had then been taken to the Kyivskiy District police station in Donetsk and held there in handcuffs until about 1.30 p.m., when he had been surrendered to three officers of the Zhovtnevyy District Police from Mariupol. Those officers had escorted the applicant out of the police station, handcuffed him to a fixture on the back seat of the private car of one of the officers and had driven to Mariupol. No formal documents recording the applicant ’ s arrest had been drawn up; however, his arrival and departure from the police station in Donetsk had been registered in the visitors ’ log. On the way to Mariupol, the police officers had taken a detour to a nearby forest, tied the applicant to a tree and threatened to torture and kill him unle ss he confessed that on 30 June 2011 he had beaten F. and stabbed him with a knife. The officers had also poured gasoline onto wood by the applicant ’ s feet, threatening to set him on fire. Fearing for life and limb, the applicant had promised to cooperate. Having arrived at the Zhovtnevyy District police station in Mariupol at about 4 p.m. (which was recorded in the visitors ’ log) the police officers had held the applicant in their custody, handcuffed, without food or drink or the possibility to lie down and slee p, until about 2 p.m. on 7 July 2011. During that period they had also coached the applicant in what he needed to say to the investigator during his questioning, threatening him with reprisals if he did not cooperate. The applicant ’ s requests to be provided with a lawyer and to inform his mother of his arrest were ignored. The applicant had also been given various papers to sign, and he had done so without reading them.

The applicant further submitted to the prosecutor ’ s office that at about 2 p.m. on 7 July 2011 he had been taken to the forensic assessment bureau. Fearing further ill-treatment by the police, the applicant had informed the expert that he had been arre sted at about 11 a.m. on 7 July 2011 and had no complaints. Upon completion of the forensic assessment, the applicant had been taken back to the police station, where, as instructed by the police, he had confessed to investigator A.Sh . to having stabbed F. The investigator had then drafted an arrest report. According to this report, the applicant had been arrested at 4.40 p.m. on 7 July 2011 on the premises of the district police station on suspicion of having inflicted grievous bodily harm on F.

On 23 December 2011 an investigator with the Zhovtnevyy District Prosecutor ’ s Office refused to institute criminal proceedings in respect of the applicant ’ s allegations of ill-treatment, having found them to be unsubstantiated. He noted, in particular, that there was no medical evidence whatsoever of the applicant ’ s ill-treatment and that the officers of the Zhovtnevyy District Police implicated by the applicant in his ill-treatment had denied his allegations.

On 23 January 2011 the supervising prosecutor at the district prosecutor ’ s office quashed that decision and ordered a further inquiry.

Between February 2012 and March 2013 five more decisions against instituting criminal proceedings (taken on 2 February, 14 March, 17 May, 2 July and 27 September 2012) were quashed, either by the prosecutor ’ s office or the District Court (on 13 March, 7 May, 15 June and 16 August 2012 and on 12 March 2013 respectively).

On 9 January 2013 the district prosecutor ’ s office refused to provide the applicant with access to the case file concerning the inquiry into his complaints of ill-treatment, noting that no such right of access was provided for by the Code of Criminal Procedure.

On 2 April 2013 the prosecutor ’ s office instituted criminal proceedings with a view to investigating the applicant ’ s complaint of ill-treatment.

On 13 June 2013 the prosecutor ’ s office closed the proceedings, having found that the applicant ’ s complaints were unsubstantiated.

As followed from the aforementioned decision, the prosecutor ’ s inquiry confirmed that the applicant had indeed been in the Kyivskiy District police station in Donetsk from 10 a.m. to 1.30 p.m. on 6 July 2011 and had subsequently arrived at the Zhovtnevyy District police station in Mariupol at 4 p.m. the same day, as was evident from the visitors ’ logs of the two police stations involved. Several Mariupol police officers questioned by the inquiry acknowledged that the applicant had been escorted by them from Donetsk to Mariupol on that date. However, all the officers submitted that shortly after arrival the applicant had been released and asked back for questioning on the following day. It was during that questioning that the applicant had confessed to having stabbed F. and had accordingly been arrested by the investigator. As concluded by the prosecutor ’ s office, the statements by the police officers, the applicant ’ s statements to the forensic expert that he had been arrest ed in Mariupol at about 11 a.m. on 7 July 2011, and the absence of any recent injuries detected by the expert on his body on that date were sufficient to clear the police officers of any accusation of wrongdoing. The prosecutor ’ s office also concluded that the police officers had acted lawfully in taking the applicant to the police station in Donetsk and escorting him to Mariupol as the applicant had been wanted for possibly having stabbed F. As regards the absence of an entry in the Mariupol police station visitors ’ log concerning the applicant ’ s arriv al for questioning on 7 July 2011, it was likely to have been an omission by Z., an officer on duty on that day, who could not be questioned as she had been transferred to Donetsk.

On 30 July 2013 the applicant appealed against the decision to close the proceedings taken by the prosecutor ’s office on 13 June 2013. He noted, in particular, that by arresting him in Donetsk and escorting him to Mariupol, the police officers had unlawfully deprived him of his liberty as there had been no formal arrest warrant justifying such actions. He further noted that, apart from the statements given by the police officers implicated in his unlawful detention and ill-treatment, there was no other evidence that he had been released from the police station in Mariupol on 6 Jul y 2011. The visitors ’ log contained no record of his arriving at the police station on 7 July 2011 or leaving it the previous day. There was likewise no documentary evidence that the applicant had been sum moned for questioning on 7 July 2011. Logically speaking, it was also improbable that, having gone to the trouble of locating the applicant in another town and escorting him to Mariupol on suspicion of having committed a serious offence, the police officers would have simply let him leave the police station without imposing any formal constraints on him or drawing up any procedural documents. Furthermore, in so far as the prosecutor ’ s office had relied on the applicant ’ s submissions to the forensic expert that he had been arrested at about 11 a.m. on 7 July 2011, those statements were at odds with the police officers ’ submissions that the applicant had come to the police station for questioning of his own accord. Consequently, the prosecutor ’ s office had wrongly included those statements among the evidence corroborating the police ’ s version of events.

On 21 August 2013 the District Court rejected the applicant ’ s appeal on the grounds that the reasoning of the prosecutor ’ s office for closing the criminal proceedings was sufficient.

On 3 September 2013 the Donetsk Regional Court of Appeal upheld that decision after a further appeal by the applicant and it became final.

COMPLAINTS

The applicant complains of having been subjected to ill-treatment by the police during his unl awful detention on 6 and 7 July 2011 and of having been unable to obtain effective remedies in respect of his complaints. He invokes Articles 3, 5 and 13 of the Convention.

QUESTIONS TO THE PARTIES

1. Was the applicant subjected to ill-treatment by the police authorities in breach of Article 3 of the Convention on 6 and 7 July 2011 (see Kovalchuk v. Ukraine , no. 21958/05, § 60, 4 November 2010 and Dushka v. Ukraine , no. 29175/04 , § 52, 3 February 2011, and contrast with Kirpichenko v. Ukraine , no. 38833/03 , § 73, 2 April 2015 ) ?

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 applicant deprived of his l iberty between 9 a.m. on 6 July 2011 and 4.40 p.m. on 7 July 2011 in breach of Article 5 § 1 of the Convention (see, for example, Belousov v. Ukraine , no. 4494/07 , §§ 83-88, 7 November 2013 )?

The Government are requested to provide copies of all relevant procedural documents pertaining to the aforementioned period, including a copy of the forensic expert ’ s report on the physical examina tion of the applicant on 7 July 2011, the applicant ’ s confession and other statements given by him to the investigation authorities.

4. Did the applicant have at his disposal an effective domestic remedy in relation to his complaint under Article 5 § 1 of the Convention, as required by Article 13 of the Convention (see, mutatis mutandis , Belousov , cited above, § 73) ?