Communicated on 10 November 2015

FIFTH SECTION

Application no. 53941/12 Mircha Stepanovich ROTAR against Ukraine lodged on 30 July 2012

STATEMENT OF FACTS

The applicant, Mr Mircha Stepanovich Rotar , is a Ukrainian national, who was born in 1983 and is currently in detention in Kharkiv . He is represented before the Court by Mr A.A. Kristenko , a lawyer practising in Kharkiv .

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

A. Alleged ill-treatment and investigation of the complaints of ill-treatment

On 9 September 2011 the applicant was forced to the ground, beaten and restrained by several men on the pretext that he had stolen a mobile telephone from a woman ’ s pocket when travelling on a bus. The men then handed the applicant over to the police.

Criminal proceedings were instituted against the applicant on the same date and he was placed in the police ’ s temporary detention facility (ITT) in Kharkiv . According to the applicant, police officers punched and kicked him when he was being questioned and employed various methods of sensory deprivation to force him to make self-incriminating statements.

At 11.35 p.m. on 9 September 2011 an ambulance was called for the applicant. He was found to be suffering from various injuries, including concussion, a haematoma in the temple area and bruising in the nasal area. The applicant was taken to Kharkiv Clinical Hospital no. 4, where he was provided with treatment for his injuries before being returned to police detention.

According to the applicant, on 10 and 11 September 2011 he suffered further, unspecified, ill-treatment at the police station, and several more calls were made for an ambulance. According to the case file, an ambulance was called for the applicant at 9.35 a.m. on 10 September 2009 and at 6 p.m. on 11 September 2009 to provide treatment for concussion, injuries to the chest and abrasions on the hip and on the left hand.

At some point, the date is not specified in the case material, the applicant signed a confession that he had stolen the mobile telephone.

On 19 September 2011 the Chervonozavodskyy District Court in Kharkiv (“the District Court”) remanded the applicant in custody pending criminal proceedings against him and he was transferred to Kharkiv Pre-trial Detention Facility (SIZO) no. 27.

On 3 October 2011 the applicant was committed to stand trial. By that time he had retracted his confession and had submitted that he had made the statements as a result of ill-treatment by the police, at a time when he had been feeling extremely unwell.

According to the applicant, during the pre-trial investigation he made numerous complaints to the prosecutor ’ s office of having been ill-treated. As is evident from the documents in the case file, such a complaint was lodged on 20 June 2012 with the Chervonozavodskyy District Prosecutor ’ s Office. It implicated police officers E.P., D.P. and an investigator, A.P., in unlawful conduct towards the applicant.

On 30 July 2012 the prosecutor ’ s office decided not to institute criminal proceedings with a view to investigating the applicant ’ s complaints of ill ‑ treatment, having found no evidence that any such crime had been committed. The Court has not been provided with a copy of that decision.

On 2 November 2012 the District Court quashed that decision and ordered a further investigation of the applicant ’ s complaints. The court noted in particular that the decision to dismiss the applicant ’ s allegations had largely been based on statements given by the police officers he had implicated in his ill-treatment, while no objective evidence had been collected to corroborate the officers ’ submissions. The court, in particular, instructed the investigative authorities to question the ambulance staff, the ITT governor and other possible witnesses.

On 29 December 2012 the prosecutor ’ s office instituted criminal proceedings with a view to investigating the applicant ’ s complaints of ill-treatment.

On 31 January 2013 the proceedings were closed for lack of evidence that the applicant had been subjected to ill-treatment.

On 3 April 2013 the District Court convicted the applicant of having stolen a mobile telephone from a bus passenger and sentenced him to four years ’ imprisonment. As regards the applicant ’ s allegations of ill-treatment by the police, the court noted that, as followed from the case-file, he had initially refused to testify and subsequently denied having committed any criminal offences. Accordingly, the case-file did not contain any evidence which might have been obtained from the applicant under duress. The finding of the applicant ’ s guilt was based on statements made by eyewitnesses and the victim of the crime, and on other evidence lawfully collected by the police in the course of their investigation. The judgment was later upheld by the Kharkiv Regional Court of Appeal ( on 6 August 2013) and became final after the Higher Specialised Civil and Criminal Court refused to give the applicant leave to appeal in cassation (on 17 October 2013).

On 23 April 2013 the District Court quashed the decision by the prosecutor ’ s office to close the criminal proceedings concerning the applicant ’ s complaint of ill-treatment and ordered further investigative measures to be taken with a view to establishing the origin of his injuries.

On 18 June 2013 the prosecutor ’ s office again decided to close the criminal proceedings, noting that it had not been able to find any evidence that the injuries suffered by the applicant had been inflicted by the police officers whom he had implicated in his alleged ill-treatment.

On 17 July 2013 the District Court dismissed an appeal by the applicant against that decision, having found that the investigative authorities had questioned all the possible witnesses and taken all the measures that could reasonably have been expected of them when investigating the applicant ’ s allegations of ill-treatment before deciding to close the criminal proceedings.

On 21 July 2013 the applicant appealed against that decision, noting, in particular, that the investigation of his complaints had been ineffective as it had not resulted in the identification and punishment of the persons who had inflicted severe injuries on him.

On 5 August 2013 the Kharkiv Regional Court of Appeal dismissed the applicant ’ s appeal, having endorsed the reasoning of the District Court as being relevant and sufficient.

B. Conditions of the applicant ’ s detention

On 19 September 2011 the applicant was placed in cell no. 629 of SIZO no. 27. According to the applicant, the conditions of his detention in that cell were inhuman. In particular, the cell was very overcrowded. It measured some 17.5 square metres and accommodated between nine and fifteen inmates at various times. There were nine sleeping places in the cell, arranged as three ‑ storey bunks. When there were more than nine detainees, they had to take turns to sleep. No bed linen was provided, only worn-out mattresses which were stained with grease and urine.

The cell had no artificial ventilation. The windows were covered by metal shutters with very small openings that let in hardly any daylight or fresh air. As a result of the poor ventilation, the cell was very smelly and damp and its walls were covered with mould and fungus. The foul odours and damp were further aggravated by the fact that the detainees, who were confined to the cell for most of the time, used it, among other things, for cooking food and for washing and drying clothes. Washing clothes in winter was completely impossible as the tap water was ice-cold. The bucket used for the laundry was the same as for washing the floors, meaning that the environment was generally insanitary. In addition, the cell was infested with cockroaches and bedbugs.

The detainees were also very poorly fed. Bread and sugar were the only products that could be considered as being edible. Dishes were cooked from low quality ingredients, which were often rotten (for instance, cereal ( каша ) boiled in water without the addition of any fat or salt, or soup from rotten vegetables and meat or fish waste). Cockroaches and other insects were often found in the food.

The SIZO also lacked medicines and medical assistance was virtually impossible to obtain.

COMPLAINTS

1. The applicant complains that he was ill-treated by the law ‑ enforcement authorities in September 2011 and that this ill-treatment was serious enough to qualify as torture.

2. He further complains that no effective investigation has been carried out into his complaints of ill-treatment.

3. In addition, the applicant complains that the conditions of his detention in Kharkiv SIZO no. 27 were inhuman.

He invokes Article 3 of the Convention in respect of the above complaints.

QUESTIONS TO THE PARTIES

1. Was the applicant subjected to torture or ill-treatment by the law ‑ enforcement authorities in breach of Article 3 of the Convention in September 2011?

2. Having regard to the procedural protection from ill-treatment (see Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000-IV), was the investigation of the applicant ’ s allegations of ill-treatment conducted in breach of Article 3 of the Convention?

The Government are requested, in particular, to provide documents relating to the investigation of the applicant ’ s complaints of ill-treatment (namely, medical files, copies of complaints concerning purported ill ‑ treatment and any other documents which may be relevant).

3. Were the conditions of the applicant ’ s detention i n SIZO no. 27 from 19 September 2011 onwards, including the availability of personal space, the furnishings and sanitary conditions in the cell, the diet, and the provision of basic necessities and medical assistance, compatible with Article 3 of the Convention?