Communicated on 1 December 2014

FIFTH SECTION

Application no. 26230/11 Petr Petrovich KAPUSTYAK against Ukraine lodged on 20 April 2011

STATEMENT OF FACTS

The applicant, Mr Petr Petrovich Kapustyak , is a Ukrainian national, who was born in 1982 and is detained in Gorodyshche .

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

A. The applicant ’ s arrest and criminal proceedings against him

The applicant was arrested around 9 p.m. on 5 December 2008 on suspicion of murder and other offences. His arrest was recorded at 10 a.m. on 6 December 2008.

He alleges that while in police custody he was ill-treated in order to extract his confession.

On 6 December 2008 an ambulance was called for the applicant to the temporary detention centre where he was held. The doctor noted that the applicant had bruises on his face and right hand, suffered from brain concussion, hypertension, and edema.

On 25 March 2010 the Lviv Regional Court of Appeal (“the Court of Appeal”) acting as the trial court convicted the applicant of murder, armed robbery and theft of documents, and sentenced him to life imprisonment and confiscation of all of his personal property. The Court of Appeal noted that the applicant pleaded guilty to the charge of theft of documents, guilty in part to the charge of robbery, and not guilty to the charge of murder.

The Court of Appeal found established that the applicant and his two co-defendants, Mr Sha . and Mr Shchu ., committed an armed robbery of Mr N. and his wife in their home, in the process of which the applicant stabbed N. to death. As evidence of the applicant ’ s guilt the Court of Appeal referred to the applicant ’ s confession during the pre-trial investigation in which the applicant testified that he had participated in the robbery and had used a knife, the murder weapon, to cut paintings in N. ’ s home from their frames but that N. had been stabbed by one of his co-defendants. The Court of Appeal also referred to the testimony of the applicant ’ s co-defendants who testified that it was the applicant who stabbed N., testimony of other witnesses, and physical and expert evidence.

On the same date the Court of Appeal, in a separate ruling, decided to draw the attention of the prosecutor of Lviv region to the delay in recording the applicant ’ s detention on 5 December 2008 and to the fact that no document had been drawn up to record the seizure of certain items of stolen property from the applicant.

On 18 January 2011 the Supreme Court upheld the applicant ’ s conviction and mitigated his sentence to 16 years ’ imprisonment with confiscation of all of his property.

B. Investigation of the applicant ’ s allegations of ill-treatment

On 5 May 2011 a judge of the Court of Appeal informed the applicant that on 31 March 2010 an assistant prosecutor of the Prosecutor ’ s Office for Pystomyty District of Lviv Region (“the District Prosecutor ’ s Office”) refused to institute criminal proceedings against police officers for ill-treatment for lack of corpus delicti in their actions. The judge sent the applicant a copy of the prosecutor ’ s decision of 31 March 2010.

On 18 May 2012 an assistant prosecutor of the District Prosecutor ’ s Office again refused to institute criminal proceedings against the police officers for ill-treatment for lack of corpus delicti in their actions.

On 28 May 2012 the Pystomyty District Court (“the District Court”) rejected the applicant ’ s complaint in which he sought to quash the decision of 31 March 2010.

On 17 May 2013 the Court of Appeal quashed the decision of 28 March 2012 remitting the case for fresh consideration to the District Court.

On 18 June 2013 the District Court rejected the applicant ’ s complaint against the decision of 31 March 2010 holding that the issue was moot. It found that there was no copy of the prosecutor ’ s decision of 31 March 2010 in the case-file. The District Court also found that the investigative authorities refused to institute criminal proceedings on 27 August 2009, 27 October 2011 and on 18 May 2012, but not on 31 March 2010.

On 20 June 2013 the District Court quashed the prosecutor ’ s decision of 18 May 2012. The District Court found numerous omissions in the investigation, in particular noting that the investigative authorities failed to explore under what circumstances the ambulance was called for the applicant while he was in custody and to examine records from the places of his detention.

COMPLAINTS

The applicant complains under Article 3 of the Convention that he was subjected to torture in police custody and that his complaints in this respect were not duly investigated .

Under Article 6 of the Convention the applicant complains that the domestic courts refused to call investigator K., police officers K., G., Ye., M., and medical expert G. as witnesses during his trial.

QUESTIONS TO THE PARTIES

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

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

3. Did the proceedings in the applicant ’ s case comply with the requirements of Article 6 §§ 1 and 3 (d) of the Convention, on account of the trial court ’ s alleged failure to call as witnesses investigator K., police officers K., G., Ye., M., and medical expert G.?

The Government are requested to submit a chronologically ordered information note on their investigation of the alleged ill-treatment of the applicant, as well as copies of all relevant documents, including but not limited to:

- the applicant ’ s complaints regarding his alleged ill-treatment;

- all relevant medical reports;

- the relevant decisions of the authorities;

- the applicant ’ s confessions.