Communicated on 3 February 2014

FIFTH SECTION

Application no. 10705/12 Sergey Viktorovich USHAKOV and Anna Mikhaylovna USHAKOVA against Ukraine lodged on 2 February 2012

STATEMENT OF FACTS

The applicants, Mr Sergey Viktorovich Ushakov (the first applicant) and Ms Anna Mikhaylovna Ushakova (the second applicant) , are Ukrainian nationals, who were born in 1976 and 1988 respectively. The first applicant is serving a sentence of imprisonment in Kholodnogirska penitentiary no. 18. The second applicant lives in Kharkiv . The applicants are represented before the Court by Mr G.V. Tokarev and Ms M.G. Motorygina, lawyers practising in Kharkiv.

A. The circumstances of the case

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

1. Background facts

At the time of the events the applicants lived in a two-room apartment together with Ms S., the second applicant ' s mother.

Ms S. had a pending judicial dispute with a certain Mr L. regarding the inheritance of a house. The applicants, being interested in improving their accommodation, provided her with various support in those proceedings.

In April 2008 the first applicant visited Mr L. with a view to dissuading him from pursuing the mentioned dispute.

2 . Events between 27 June and 2 July 2008

On 27 June 2008 Mr L. was found dead in his house. His throat was cut and there were multiple stabs and cuts on his body. One of the windows was broken, and there was a hoe lying nearby on the floor.

On the same day a criminal investigation was opened into the murder.

At about 10 p.m. on that same day the applicants came home where several police officers were waiting for them. The applicants were taken to the Kharkiv Frunzenskyy District Police Department ( Фрунзенський районний відділ Харківського міського управління Головного управління внутрішніх справ МВС України в Харківській області ) under the pretext that they needed to be questioned in respect of the first applicant ' s debt vis-à-vis some third persons.

The applicants were questioned, however, as regards their whereabouts and actions on 26 and 27 June 2008. They submitted that they had been together shopping, going to the cinema, having meals, etc.

Both applicants were held in the police station during the night on 27 ‑ 28 June 2008. They stated in the application form that they had not been subjected to any ill-treatment at that stage.

On 28 June 2008, at about 9.30 a.m., the first applicant underwent a forensic medical examination. According to his summary of the relevant facts in the application form, the mentioned examination revealed “some injuries, which [he] had sustained having accidentally fallen the day earlier”. According to the summary of the examination ' s findings in some documents in the case file (there is no copy of the examination report itself), it revealed multiple bruises and sores on virtually all the body of the first applicant. They included about thirty multidirectional sores on his back and about the same number of sores on his hips, buttocks and knees. The expert gave the following possible dates of the injuries: a bruise on the left shoulder and a sore on the torso – between 22 and 24 June 2008; bruises on the right part of the torso – between 25 and 27 June 2008; sores on the torso, the back and the legs – between 25 and 27 June 2008. Those sores were assessed as having possibly originated from the impact of some protruded blunt objects, such as glass fragments.

After the aforementioned examination, the first applicant was taken to the criminal investigation department, where one of the officers suggested that he should confess to the murder of Mr L. As the first applicant refused to do so, some officers brought in a dirty matrass and a gas mask. They put wet cloths around his wrists and handcuffed him. One of the officers punched him in the solar plexus and pushed him on the matrass. The others twisted his arms behind his back and made him split his legs while beating him to his torso and genitals. The gas mask was then put on the first applicant ' s face and the vent was blocked. He fainted several times and was made regain consciousness with cold water. The gas mask was repeatedly put on his face, and he was made inhale cigarette smoke. At the same time, his genitals were being twisted.

The first applicant ' s ill-treatment continued as described above in several rounds. The officers threated him that they would bring his wife and do the same with her in front of him. He then signed a confession to the murder of Mr L. He had, however, to adjust it many times as dictated by the police.

The first applicant was made memorise his confession.

On the same date, 28 June 2008, the investigator appointed a lawyer, Mr M., for the first applicant. Not trusting that lawyer and fearing further ill-treatment, the first applicant maintained his initial confession during his questioning in the presence of the lawyer.

As regards the second applicant, in the morning on 28 June 2008 she was taken from the police station to her home, where a search was conducted. The police threatened her that if she did not testify against her husband, they would accuse her of a drug-related offence having previously planted drugs in her apartment.

Thereafter the second applicant was taken back to the police station, where she was coerced into making statements against the first applicant. Three police officers hit her several times in the head and pulled her by the hair. The second applicant finally stated that her husband had admitted to her that he had murdered Mr L.

On 30 June 2008 a reconstruction of the crime was conducted in the presence of the first applicant ' s lawyer, during which the first applicant maintained his confessing statements.

On the same day the first applicant had a confidential conversation with his lawyer, who convinced him that he should complain to the investigator of his ill-treatment by the police.

Accordingly, later on 30 June 2008, during his questioning as an accused, the first applicant retracted his earlier confessions as obtained under duress and complained to the investigator about his ill-treatment.

On 1 July 2008 the investigator submitted for approval to the Frunzenskyy District Prosecutor ' s Office (“the Frunzenskyy Prosecutor ' s Office”) an application for the first applicant ' s remand in custody as a preventive measure pending trial. The prosecutor decided to question the first applicant himself before taking a decision. He saw that the first applicant had multiple injuries and found out that his confession had been extracted by force. Furthermore, the prosecutor noted a number of discrepancies between the confessing statements of the first applicant and the autopsy report. The second applicant was questioned too. She admitted that she had incriminated her husband under duress.

As a result, the prosecutor refused to approve the investigator ' s application, quashed the latter ' s decision on bringing the charges against the first applicant and released him. The prosecutor also directed his subordinates to question both applicants about their ill-treatment in police custody and to duly report their submissions.

While the applicants were making written statements in the office of the deputy prosecutor, at about 10.30 p.m., four officers of the Frunzenskyy District Police Department, namely, the first deputy head of the department ( перший заступник начальника райвідділу ) Mr K. [1] , the head of the criminal investigation department (начальник сектору карного розшуку) Mr Pap., his deputy (заступник начальника карного розшуку) Mr Par., and the chief of the investigation unit (начальник слідчого відділу) Mr M., broke in. Disregarding the objections of the deputy prosecutor and constraining him by force, they took the applicants out. There were more police officers waiting in the corridor.

The applicants were handcuffed and taken to the Frunzenskyy Police Department, located near the prosecutor ' s office. On the way, one of the officers hit the first applicant in the right hip.

The first applicant was taken to an office on the ground floor where he was made sit quiet with one of the police officers. The office was locked from inside, and the light was switched off. About an hour later, he was taken to another office where the bars on the window could be removed. He was made write a note that he had left the police station at 10.30 p.m. The first applicant was then taken outside through the window behind the building of the police station. The police officers placed him a car, parked that car in a nearby yard and waited there till 3 or 4 a.m. It is not known what happened thereafter. As it appears from the events of 2 July 2008 (see below), the first applicant remained de facto detained.

After the police had taken the applicants from the prosecutor ' s office, at 11.15 p.m. the deputy prosecutor visited the Frunzenskyy Police Department. According to the visitors ' logbook, the applicants had entered the building at 10.30 p.m. and had been remaining there. Having searched the premises, the prosecution officials found the second applicant in tears in one of the offices. The first applicant could not be found. Police officer K. submitted to the prosecutor a note on behalf of the first applicant, but without his signature, that he had left the police department at 10.30 p.m. (see above). The prosecution officers went to the applicants ' home, but the first applicant was not there.

3 . Investigation of the applicants ' allegations of ill-treatment by police and related events

On 2 July 2008 the Frunzenskyy Prosecutor ' s Office opened a criminal case against the police officers K., Pap. and Par. under Article 365 § 2 of the Criminal Code ( exceeding power by engaging in the violent or degrading treatment of a victim ). The respective ruling referred to the events of the evening of 1 July and the night from 1 to 2 July 2008 as summarised above.

On 2 July 2008 two police officers took the first applicant for a forensic medical examination, after which he was released.

On 4 July 2008 a report of the mentioned examination was delivered. It documented multiple bruises on the first applicant ' s shoulders, torso, back, chest, arms, hips, thighs and legs. Their colouring varied from yellowish to violet and purple. The first applicant also had crust-covered sores and bruises on both wrists . The expert concluded that most of the injuries had originated from the impact of blunt objects between 23 and 27 June 2008. One bruise on the first applicant ' s back below the left shoulder blade was assessed as sustained between 30 June and 1 July 2008. Lastly, according to the report, some sores on the right forearm, the left elbow and the right ankle had been inflicted on the first applicant on 1 July 2008.

On 2 July 2008 the second applicant underwent a medical examination too, which did not reveal any injuries. According to the second applicant, she complained to the expert that she had headaches and was advised to apply for help to a hospital.

On 5 July 2008 she was examined by a neurosurgeon in the local hospital who reported that she had bruises of the head soft tissues.

On 8 and 9 July 2008 the applicants were questioned by the prosecution officials in respect of their alleged ill-treatment by the police. They recognised the officers K., Pap. and Par. at the photos shown to them.

On 11 July 2008 a reconstruction of the events of 28 June and 1-2 July 2008 was conducted with the participation of the second applicant.

On 14 July 2008 such a reconstruction was conducted with the participation of the first applicant.

On an unspecified date the Frunzenskyy Prosecutor ' s Office directed the management of the police department to establish the whereabouts of the officers K., Pap. and Par., who had been ignoring the prosecutor ' s summonses.

On 18 July 2008 the Chief of the Frunzenskyy Police Department wrote to the prosecutor that all those three officers were on sick leaves and that their whereabouts were being established.

On 21 August 2008 the police officers K., Pap. and Par. were questioned in respect of the alleged ill-treatment of the applicants. K. and Pap. refused making any statements. It is not known what Par. stated.

On an unspecified date in October 2008 K., Pap. and Par. were questioned again. They denied any ill-treatment of the applicants. As to their behaviour on 1 July 2008, they submitted that they had believed that the applicants had posed a danger to the deputy prosecutor.

On 21 October 2008 the prosecutor, who had been involved in the events of 1 July 2008, gave detailed statements regarding those events, when questioned as a witness in the framework of the criminal investigation against the police officers.

From 19 to 23 December 2008 the first applicant underwent a forensic medical examination with a view to establishing the origin of his injuries documented earlier.

On 23 December 2008 the examination report was completed. It reiterated the findings of the first applicant ' s examinations of 28 June and 2 July 2008. Furthermore, it noted that the sores on the first applicant wrists could have been caused by his handcuffing. The report stated that the findings of the earlier examinations of the first applicant did not contradict the other materials in the case file.

On 30 December 2008 the Kharkiv Regional Prosecutor ' s Office terminated the criminal investigation into the applicants ' allegations of ill-treatment, for the lack of corpus delicti in the actions of the police officers. The prosecutor noted a contradiction in the first applicant ' s submissions, according to which his only injury as of 28 June 2008 had been a bruise on his right hip from an accidental falling the day earlier, and the forensic medical examination report of 28 June 2008, which had established many others injuries. The expert who had examined the first applicant on 3 July and 23 December 2008, had stated during his questioning by the prosecutor that the injuries sustained by the first applicant after 28 June 2008, were located in the body parts accessible for self-infliction, apart from the bruise below the left shoulder blade. It appeared impossible to establish the origin of that bruise. The expert had also noted that no injuries on the first applicant ' s genitals had been revealed. Overall, the prosecutor concluded that those few injuries which were dated later than 28 June 2008 “could have been sustained [by the first applicant] in circumstances unrelated to any use of force by the police against him”. It was also noted in the ruling that the first applicant had never raised any complaints before the medical personnel of the detention facility. Lastly, as regards the allegations of the second applicant that she had been ill-treated by the police, the prosecutor noted that her medical examination of 2 July 2008 had not revealed any injuries. In sum, the ill-treatment allegations of both applicants were found to be without basis.

On 9 October 2009 the Kharkiv Chervonozavodskyy District Court (“the Chervonozavodskyy Court”) quashed the above decision and directed the prosecution authorities to carry out an additional investigation. It noted, in particular, that the contradictions between the first applicant ' s submissions that he had had no injuries as of 28 June 2008 and the forensic medical examination report of that date, according to which he had had numerous injuries, had to be clarified.

On 31 May 2010 the Kharkiv Regional Prosecutor ' s Office once again terminated the investigation initiated on 2 July 2008 for the lack of corpus delicti in the actions of the police officers concerned. The prosecutor noted that, even though the first applicant had sustained some injuries while in detention, the exact time and circumstances of their infliction remained unknown. Furthermore, the location of some of the injuries allowed to presume that they could have been self-inflicted. The prosecutor also noted that the first applicant had not “personalised” his injuries: in other words, that he had not specified who exactly of the police officers had inflicted each specific injury on him. The investigator had also questioned the forensic expert who had conducted the examination of the first applicant on 28 June 2008 who had confirmed her findings. In sum, the prosecutor considered that there was no case to be examined.

On the same date, 31 May 2010, the Regional Prosecutor ' s Office delivered two additional rulings refusing to open a criminal case following the complaints of ill-treatment by each of the applicants.

On 29 November 2010 the Kharkiv Regional Court of Appeal, acting as a court of first instance in the first applicant ' s trial (see below), ordered the Kharkiv Regional Prosecutor ' s Office to investigate the first applicant ' s allegation of ill-treatment by the police. It noted that, according to the first applicant, the presence of his fingerprint on the hoe seized at the crime scene was explained by the fact that the police officers had put that hoe in his hands by force during his ill-treatment. The first applicant had complained to the prosecution authorities to that regard, but his complaint had remained without due examination.

On 28 December 2010, 25 April and 5 May 2011 the Frunzenskyy Prosecutor ' s Office, to which the investigation was re-assigned, refused to open a criminal case against the police, having mainly relied on the respective rulings of 31 May 2010. All those decisions were, however, quashed as premature.

On 24 April 2012 the Chervonozavodskyy Court also quashed all the three rulings of the Frunzenskyy Prosecutor ' s Office of 31 May 2010 and remitted the case for additional investigation.

On 18 May 2012 the Frunzenskyy Prosecutor ' s Office again refused to open a criminal case against the police officers allegedly involved in the applicants ' ill-treatment.

On 6 August 2012 the Kharkiv Regional Prosecutor ' s Office, which was apparently investigating the matter in parallel, refused to open a criminal case against the police officers too. On the same day it terminated, on similar grounds as earlier, the criminal investigation initiated on 2 July 2008.

On 5 September 2012 the Chervonozavodskyy Court quashed the rulings of the Kharkiv Regional Prosecutor ' s Office of 6 August 2012 as based on an incomplete and one-sided investigation .

On 8 October 2012 the Kharkiv Regional Court of Appeal upheld that decision.

4 . The first applicant ' s trial

The first applicant maintained his confession to the murder of Mr L. till 30 June 2008 (see above).

On 3 July 2008 a forensic dactyloscopic expert examination of the hoe, which had been seized at the scene of the crime, concluded that there was the first applicant ' s fingerprint on it.

On an unspecified date the criminal case was transferred from the Frunzenskyy District to the Kharkiv City Police Department.

On 21 July 2008 the investigator in charge applied to Kharkiv Leninskyy District Court for the first applicant ' s remand in custody as a preventive measure pending trial. On the same day that application was granted, and the first applicant was detained.

On 7 August 2008 a forensic medical expert issued a report establishing the time of the death of Mr L. at no less than eight to ten hours prior to the examination of the body, which was conducted at 6 p.m. on 27 June 2008.

On 11 November 2008 the first applicant was committed for trial.

On 29 January 2009 an independent criminalist, Mr T., acting upon the request of the first applicant ' s lawyer, attempted to establish the time of the death of Mr L. on the basis of the case-file materials. His report indicated at least ten possible time references varying from 2 p.m. on 26 June to 2 p.m. on 27 June 2008.

On 18 May 2009 the Kharkiv Regional Court of Appeal, sitting as a court of first instance, remitted the case for additional investigation. It noted, in particular, that the first applicant ' s initial confession could not be relied on because he had later retracted it as obtained under duress and given that his ill-treatment complaint had not been duly investigated. The court also indicated a number of contradictions between the first applicant ' s confessing statements and the case-file materials.

On 22 March 2010 a panel of forensic medical experts issued a report establishing the time of the death of Mr L. at twelve to twenty-four hours prior to the examination of the body (at 6 p.m. on 27 June 2008).

On 26 January 2011 the Kharkiv Regional Court of Appeal found the first applicant guilty of murder for profit and sentenced him to fourteen years ' imprisonment with confiscation of all his personal property. The court relied, in particular, on the first applicant ' s confession given during the pre-trial investigation. His allegations that he had been ill-treated and that the evidence against him had been fabricated were dismissed as unsubstantiated.

On 20 September 2011 the Higher Specialised Civil and Criminal Court quashed the above judgment mainly on the ground that Article 3 of the Convention and the Court ' s case-law required a proper investigation of the first applicant ' s allegations of ill-treatment, which had not been done.

On 4 July 2012 the Kharkiv Regional Court of Appeal again found the first applicant guilty of murder for profit and sentenced him to fourteen years ' imprisonment with confiscation of all his personal property. The court relied on his confessing statements made during the pre-trial investigation. As regards his allegations of ill-treatment, it noted that they remained to be investigated within the separate criminal case initiated to that effect. The outcome of that investigation was not deemed essential for the first applicant ' s trial, as there was sufficient evidence of his guilt. The court also relied on the material evidence, such as the hoe with the first applicant ' s fingerprint and his shorts with a blood stain originating not from him. It could not be ruled out that it originated from Mr L. It was noted in the judgment that the first applicant had already broken in the house of Mr L. in April 2008 with a view to dissuading him from pursuing the inheritance dispute. The court also relied on the forensic medical expert reports of 7 August 2008 and 22 March 2010 regarding the time of the death of Mr L. It additionally examined the report by the independent criminalist of 19 January 2009, which had been solicited by the first applicant ' s lawyer, but concluded that it did not contradict the findings of the other experts. Finally, the court heard several witnesses who submitted having heard a noise of breaking glass in the house of Mr L. at about 3 a.m. on 27 June 2008.

The first applicant challenged the judgment in cassation. He submitted, in particular, that that there was no solid evidence proving his guilt and that the trial court had wrongly relied on his self-incriminating statements obtained under duress, without any adequate investigation of his ill-treatment complaint. He referred in this connection to the Court ' s judgment in the case of Savin v. Ukraine , no. 34725/08 , 16 February 2012 (see the footnote above ) . The first applicant also alleged that the forensic medical examination report of 28 June 2008 had been fabricated.

On 23 January 2013 the Higher Specialised Civil and Criminal Court upheld the judgment of the first-instance court and its reasoning.

B. Relevant domestic law and practice

Article 365 § 2 of the Criminal Code provide s for three to eight years ' imprisonment with a prohibition on holding certain offices or carrying out certain activities for a period of up to three years , and a fine, as punishment for exceeding one ' s power by engaging in the violent or degrading treatment of a victim.

COMPLAINTS

The first applicant complain s under Article 3 of the Convention that he was subjected to torture in police custody and that there was no effective investigation into the matter .

He also complains under Article 6 §§ 1 and 3 (c) that his self-incriminating statements extracted by torture and in the absence of a lawyer were used to secure his conviction.

The second applicant complains under Article 3 about her ill-treatment by the police amounting, in her view, to her inhuman and degrading treatment. She also complains about the lack of an effective domestic investigation in that regard.

QUESTIONS TO THE PARTIES

1. Were the applicant s 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 first applicant have a fair hearing in the determination of the criminal charge against him, in accordance with Article 6 § 1 of the Convention? In particular:

(a) Has there been a breach of his right to a fair trial under Article 6 § 1 on account of the use by the domestic courts of the evidence obtained in alleged contravention of Article 3 of the Convention? Was there a violation of his right not to incriminate himself?

(b) Was the first applicant provided with timely access to a lawyer following his arrest on 27 June 2008, in accordance with the requirements of Article 6 §§ 1 and 3 (c) of the Convention? Has the principle of fairness of the proceedings been impaired in this regard?

[1] This police officer is mentioned in another case, Savin v. Ukraine (no. 34725/08) , on which the Court delivered its judgment on 16 February 2012. In the cited case it was established by the domestic authorities that K. had seriously ill-treated the applicant in October 1999, which had not prevented him (K.) from building a successful career in law-enforcement authorities during the subsequent ten years (the events in the judgment ended in March 2010). The Court found K.’s actions, having resulted in the applicant’s permanent disability, to amount to torture ( §§ 59-73).