Communicated on 7 September 2015

FIFTH SECTION

Application no. 48040/09 Roman Grigoryevich ANTONYUK against Ukraine lodged on 24 August 2009

STATEMENT OF FACTS

The applicant, Mr Roman Grigoryevich Antonyuk, is a Ukrainian national, who was born in 1972 and is currently serving a prison sentence.

On 21 November 2007 the applicant was brought to the Saksaganskiy District Police Station of Kryvyy Rig on suspicion of having participated in robbery of I.G. ’ s house and subsequently remanded in custody by a court order. According to the applicant, until the end of November 2007 he was held in unsuitable conditions in the police station.

According to the applicant, on either 22 or 23 November 2007 police officer R. together with another unidentified officer brought him to office no. 418 of the police station, handcuffed him to a chair and demanded that he confessed to the robbery. As the applicant protested, the officers beat him with their legs and a wooden object and squeezed his front teeth with pliers, causing him severe pain. The applicant having complained of the actions of these officers to T., the investigator in charge of his case, these complaints were ignored.

On 27 November 2007 the applicant confessed to having participated in the robbery.

On 4 December 2007 the applicant saw his mother and requested her to complain of his ill-treatment to the prosecutor ’ s office, which she did.

On 10 December 2007 T. commissioned an expert assessment of the applicant ’ s purported injuries.

On 11 December 2007 T. and two convoy officers brought the applicant for an examination at the Kryvyy Rig Forensic Expert Assessment Bureau, where expert K. instructed them to obtain an X-ray of the applicant ’ s swollen finger at the First Municipal Hospital and an opinion by a dental specialist.

On the same day T. brought the applicant to the First Municipal Hospital for an X-ray and to a private dental cabinet of Doctor G. for a dental consultation.

According to the conclusion by an X-ray specialist, the applicant ’ s finger had been swollen on account of a trauma dating back to 1,5-2 years and arthrosis (a chronic disease).

According to a certificate provided by G., the dental doctor, the applicant had no injuries of the oral cavity. On the other hand, he had enamel chips on his two upper front incisors, which were described in that certificate as “old”.

Having collected the documents from the X-ray and dental specialists, T. submitted them to K., who issued a conclusion, according to which the applicant suffered minor bodily injuries inflicted at various times. This conclusion, insofar as relevant to the present case, read as follows:

“1. [the applicant] has ..: a skin scar in place of a former skin wound on the head. Parcels of skin on the left upper limb and right lower limb – locations of possible former skin abrasions.

2. Nature of bodily injuries of the suspect indicates that his injuries had been caused by impact of a blunt hard object (objects) with limited contact surface, such as a bare hand [or] a booted foot; [the impact] could be a blow or bumping into the blunt hard objects (object), which had similar features ...

...

4. It is not excluded that these injuries could result from a single fall from one ’ s own height ...

... the skin scar on the head dates back to six months - one and a half years prior to the examination; parcels of skin on the left upper limb and right lower limb ... date back to no less than 11 to 16 days before the examination ... chips ... of the ... teeth, according to the certificate provided by the dental specialist, are old, their timing is not possible to establish.”

On 20 December 2007 the applicant was committed to stand trial before the Saksaganskiy District Court of Kryvyy Rig on charges of having participated in I.G. ’ s house ’ s robbery. During the trial, the applicant alleged that he had given false self-incriminating statements as a result of having been ill-treated by R. and another unidentified police officer upon his arrest.

On 9 January 2008 the court instructed the Saksaganskiy District Prosecutor ’ s Office to conduct an inquiry into the applicant ’ s ill-treatment complaints.

On 23 January 2008 the Prosecutor ’ s Office issued a decision not to institute criminal proceedings (not provided to the Court), in which it noted that there was no case of ill-treatment to answer. This decision was joined to the case-file materials.

As the applicant insisted on his complaints, the court summoned T., R., K. and G. for questioning in connection with the applicant ’ s complaints.

During the trial, R. denied any accusations and submitted that on the dates of the purported ill-treatment he had been on leave.

T. submitted that she had done everything in her power to secure evidence with a view to prompt examination of the applicant ’ s ill-treatment complaints. In particular, she had brought the applicant to the expert, had arranged for his X-ray and dental consultation, and paid for the services of the X-ray and dental specialists. Having arrived at the municipal hospital for an X-ray, T. had discovered that they had no dental specialists available, so she had picked the first available private doctor practicing in the neighbourhood. She had not been familiar with this doctor prior to the applicant ’ s examination.

K. confirmed his previous assessment and submitted that he had no reason to distort any evidence.

G. ’ s testimony, given in March 2008 and recorded in the court ’ s minutes, insofar as relevant, read as follows:

“On 11 December 2007 the investigator and two convoy officers brought to me [the applicant] for examination of the oral cavity ...

... At first there came a woman and two men from the police, the woman paid for everything ... [she] said that there was a need to examine a patient, I agreed, and then two men brought [the applicant] ...

Chips on the upper teeth were not obliterated, but I can ’ t say anything of their age, such things can be learned only from the patients ...

I am not an expert, I am simply a dentist ...

The patient said that his front teeth had been injured, but I am not an expert, and there were no evident injuries in the oral cavity ... Small chips may be caused by anything ...

The police was in the corridor, one can hear everything that I do from there. I did not close the doors of my office ...

The chips were sharp, it is possible to cause them by pliers, without damaging the mucous membrane ...

[the applicant] said that his teeth had been injured, but when, by whom and how, he did not say, and I did not introspect into this situation ...

An old chip is [the one] which dates back to half a year, a year, i.e. it does not cut the tongue, the lip ... there were no complaints concerning discomfort. A lip [and] the tongue were not injured, mucous membrane was not injured, the chips were small ... ”

On 4 March 2008 the Saksaganskiy District Court ordered a further expert assessment with a view to establishing the mechanism of the applicant ’ s teeth injuries and the timing of their infliction, as well as whether the enamel chips had been sharp and whether they could have been inflicted by application of iron objects such as pliers.

According to the applicant, he was not examined in person by the experts.

On 18 March 2008 the Kryvyy Rig forensic expert bureau delivered a conclusion, which, insofar as relevant, read as follows:

“2. These injuries could result from impact of a blunt hard object (objects) with limited contact surface, including by application of metal objects (slim pliers) ... or by squeezing ... of a blunt hard object between the teeth ... with application of physical force.

3. The nature of the chips was not established by the dental doctor in the course of the consultation of 11 December 2007.

4. The timing of these injuries is impossible to establish in view of the lapse of time ... ”

On 12 May 2008 the Saksaganskiy District Court convicted the applicant and his co-defendants of having participated in a robbery and sentenced them to various terms of imprisonment. The court substantiated its findings concerning the applicant ’ s guilt by references to the statements by one of his co-defendants, witness testimonies, mobile telephone logs, the applicant ’ s own statements given during the pre-trial investigation and other evidence examined at trial. The court noted that, insofar as the applicant alleged that he had given self-incriminating statements as a result of ill-treatment by the police officers, these allegations had been unsubstantiated. The relevant part of the judgment read as follows:

“Statements by [the applicant] that he had been beaten [and that] his teeth had been damaged are not substantiated and are disproved not only by the expert conclusion of 12 December 2007, which states that ... the scar on the head and [traces of injuries] on the limbs date to the period of six months to one and a half years [before the assessment], the chip on the upper ... teeth is old, and this is confirmed by ... an additional expert assessment of 18 March 2008, which certifies the presence of the old chips on the teeth, and the dentist G., questioned in court as a witness, testified that with fresh chips the lips and the gums must be wounded, which was established not to be the case during the [applicant ’ s] examination ... ”

On 26 May 2008 the applicant complained to the Prosecutor ’ s Office that when familiarising himself with the case-file materials, he had discovered a forgery of the certificate concerning his dental examination of 11 December 2007. In particular, when witnessing the drafting of this certificate in G. ’ s office, he had seen her write that he had “enamel chips”, and not “ old enamel chips”. In the meantime, the certificate included in his case-file stated that he had “old” enamel chips. The word “old” in his view had been added later, by a different pen and by a different hand, which had tried to imitate G. ’ s handwriting. According to the applicant ’ s suspicion, the forgery could be done by either T., K. or I.G. (the crime victim) to cover up the applicant ’ s ill-treatment by the police officers. The applicant therefore demanded a graphology assessment of this certificate. According to the applicant, this and several subsequent analogous requests had been left without reaction.

On 20 January 2009 the Dnipropetrovsk Regional Court of Appeal upheld the applicant ’ s conviction and sentence.

The applicant appealed in cassation, reiterating, in particular, his arguments concerning the forgery of G. ’ s certificate.

On 16 July 2009 the Supreme Court rejected the applicant ’ s cassation appeal and the applicant ’ s conviction and sentence became final.

COMPLAINTS

The applicant complains under Article 3 of the Convention that he had been ill-treated by the investigative authorities with a view to extracting a confession of a crime and under Article 13 of the Convention that he had no effective remedies for this complaint.

The applicant further complains under Article 6 of the Convention that his trial had been unfair.

- Article 13 of the Convention other than mentioned in Section A above: unsubstantiated and in any event not related to an arguable complaint.

QUESTIONS TO THE PARTIES

1. Was the applicant subjected to ill-treatment in breach of Article 3 of the Convention in November 2007?

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 conducted into the applicant ’ s allegations of ill-treatment in breach of Article 3 of the Convention?

The Government are invited, in particular, to comment on the independence of the investigation, regard being had to the involvement of the investigator in charge of the applicant ’ s case in the initial collection of evidence and on the quality of the procedures with a view to collecting the evidence concerning the applicant ’ s purported ill-treatment.

3. Did the applicant have a fair hearing in the determination of the criminal charges against him, in accordance with Article 6 § 1 of the Convention? In particular, was there a violation of his right not to incriminate himself (see Gäfgen v. Germany [GC], no. 22978/05, § 166, ECHR 2010, with further references; Tarasov v. Ukraine , no. 17416/03 , §§ 83-85, 31 October 2013 and Zhyzitskyy v. Ukraine , no. 57980/11 , §§ 64-66, 19 February 2015)?