FIFTH SECTION

Application no. 21987/05 Vitaliy Anatolyevich SADKOV against Ukraine lodged on 2 June 2005

STATEMENT OF FACTS

The applicant, Mr Vitaliy Anatolyevich Sadkov , is a Ukrainian national, who was born in 3 February 1972 and is currently serving a prison sentence in Makoshino . The applicant claims to be a former police officer, though he does not specify the period during which he worked for the police.

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

A . The applicant ’ s arrest and administrative detention

On 11 June 2004 the applicant was arrested, he claims without an arrest warrant, by the police and taken to the Kotovsk police station. In the police report on the applicant ’ s arrest it was noted that he had been arrested for having resisted lawful demands of the police, which was an administrative offence. The applicant was placed in administrative detention for twelve days. Subsequently, the applicant was ordered to remain in detention in view of the pending criminal proceedings against him (see below).

According to the applicant, the information concerning his resisting lawful demands of the police was false; in fact he was arrested as the police suspected him of having been responsible for murder and multiple counts of robbery.

B . Alleged ill-treatment of the applicant, his wife and co-defendants

While in the police station on 11 and 12 June 2004 the applicant was allegedly tortured by several police officers with the aim of extracting his confession of those crimes. In particular, they beat him up, administered electric shocks to him, suffocated him using a gas mask, inserted needles under his nails, hanged him over a metal bar, and attempted to sexually abuse him. Having not been able to stand the ill-treatment, the applicant had made self-incriminating statements and also statements incriminating several other people he knew. The applicant states that had he not done so, the police officers would have killed him as they had killed Mr M., whom the police suspected of being the applicant ’ s accomplice, during his questioning in the same police station on 18 March 2004 (according to the medical report, that person died of loss of blood).

The police officers also forced the applicant to sign a written statement that he had no complaints about them and that he had received his injuries elsewhere.

According to the applicant, the police officers continued torturing him for the next three days. The applicant states that there were two people who witnessed him having been ill-treated by the police. The applicant does not give their details.

Shortly after the applicant ’ s arrest his wife was taken by the police to the police station where she was questioned concerning the crimes. During the questioning several police officers beat her up and tried to rape her. The applicant ’ s wife complained to the prosecutors, but they refused to accept her complaint and threatened that if she continued complaining she and her child would be killed.

The applicant also alleges that during the investigation the people who later became his co-defendants in the proceedings were tortured by the same police officers.

On 12 June 2004 the applicant complained of his ill-treatment to the prosecutors and they ordered the applicant ’ s medical examination. On the same date the applicant was examined by a medical expert who noted multiple injuries on the applicant ’ s body and head, which the expert classified as minor. During his examination the applicant stated that he had been beaten up by the police officers on 11 June 2004. The expert concluded that the applicant could have been punched and kicked in the head and body on the latter date.

At some point of time the applicant complained about his ill-treatment to the prosecutor overseeing the investigation. On 30 August 2004 the prosecutor met with the applicant and tried to force him to confess of having committed other crimes. As the applicant refused, the prosecutor beat him up. As a result, the applicant decided to stop making complaints to that prosecutor.

The applicant ’ s complaints of torture by the police to other prosecutors were re-examined on several occasions. In particular, the prosecutors ’ decisions refusing criminal prosecution of the police officers issued on 6 July and 31 August 2004, 25 January, 28 July and 25 November 2005 were quashed by the higher prosecutors for incomplete inquiry. By the decision of 11 February 2006, the prosecutors again rejected the complaints as unsubstantiated, holding that it had not been demonstrated that the police officers had committed a crime. The applicant did not lodge challenge that decision in a separate appeal to higher prosecutors or the courts, while he raised the complaints of torture during his trial (see below).

On 16 July 2004 the applicant was transferred to Odessa Pre-Trial Detention Centre (“the SIZO”). When he arrived in the SIZO, the applicant complained to the administration that he had a headache and felt pain in his body because of the ill-treatment he had been subjected to in the hands of the police. The applicant was examined by a paramedic who did not note any injuries on the applicant ’ s body or head.

The applicant claims he was denied medical assistance on that date and during his subsequent detention in the SIZO, as a result of which his health substantially declined. In particular, he had gastric ulcer and a kidney disease. The applicant lodged multiple complaints concerning those matters with the prosecutors. In 2006 the prosecutors, having noted that the applicant had not been provided with adequate medical assistance as his health had declined, instructed the Head of the Penitentiary Department in Odessa to ensure that the applicant received such assistance. The applicant alleges that the SIZO administration did not comply with the prosecutors ’ instruction and that he was not given the assistance he needed. Thus, he continued complaining to the prosecutors. The prosecutors further rejected the complaints as unsubstantiated, having studied the applicant ’ s medical file and noted that he had been medically examined and provided with adequate medical assistance during his detention in the SIZO.

The applicant alleges that he has not been provided with adequate medical assistance also during his detention in Zhvyrka ( Sokal ) prison (see below). He does not provide any further details in that regard. According to the most recent information concerning the applicant ’ s state of health, contained in the prosecutors ’ letter of 18 April 2008, the applicant was diagnosed with chronic gastritis in July 2006, while no evidence of gastric ulcer was discovered.

During the trial the applicant claims he was subjected to various forms of ill-treatment by the guards, who were escorting him to court hearings. In particular, the guards wrung his hands and tried to break his vertebral column, did not provide him with food during the lunch breaks, and threatened the applicant with physical punishment. They also placed him temporarily in cells together with inmates, whom the applicant claims he had arrested during the time when he had worked for the police. The guards informed the inmates that they would go unpunished had they killed or raped the applicant. The prosecutors to whom the applicant complained about his ill-treatment did not examine the complaints on the merits.

C . The applicant ’ s criminal prosecution and detention

On 15 June 2004 the applicant was questioned concerning the murder by the investigator without a lawyer being present. On the same date the applicant was officially charged with that crime. Subsequently, the applicant took part in a number of investigative procedures, including crime reconstructions and witness confrontations. The applicant was not represented by a lawyer during those procedures.

On 24 June 2004 a lawyer was appointed by the investigator to represent the applicant in the proceedings.

On the same date the applicant was informed that he was arrested in connection with his criminal prosecution. On the next day the Kotovsk Court approved his arrest. According to the applicant, the maximum period of his detention was unlawfully extended to eighteen months, which expired on 24 December 2005; court decisions warranting his subsequent detention lacked reasons and specific deadlines and were taken in violation of the procedure, in particular without the applicant or his lawyer taking part in the hearings on the matter; some of the periods of the applicant ’ s detention were not covered by any decision at all, the applicant having been detained on the grounds that the case was pending commencement of the trial or that he was studying the case file. The applicant raised those matters in his numerous complaints to the courts, which however did not examine them in due time.

On 22 October 2004 the investigation was completed and the applicant was given the case file to study.

The applicant states that during his studying the case file he noted that verbatim records concerning some of the investigative procedures contained his fake signatures. The applicant alleges that he did not sign those documents because he was not provided with legal assistance.

On 24 December 2004 the court remitted the case for additional investigation, instructing the investigator inter alia to check the defendants ’ complaints of torture by the police.

According to the applicant, in the course of the additional investigation in December 2004 he and one of his co-defendants were questioned by the investigator, in the absence of their lawyers, concerning a robbery committed on 18 March 2004. The applicant claims that during the questioning he and his co-defendant were tortured by the police.

Subsequently, the case was remitted to the prosecutors for additional investigation three more times mainly for it having been incomplete. In April 2004 the case was referred to the Odessa Regional Court of Appeal (“the Odessa Court”) for trial.

During the trial the applicant denied having been guilty of the crimes he had been charged with. The applicant principle argument was that the charges were based on his and his co-defendants ’ testimony obtained under torture and on false evidence. He also complained that before 24 June 2004 all the investigative actions had been carried out without a lawyer ’ s presence.

The court examined the material concerning the applicant ’ s complaints of torture and questioned ten people as witnesses of the alleged events.

On 30 March 2007 the court found the applicant and five other people guilty of a number of crimes, including murder, illegal possession of firearms and multiple counts of robbery, sentenced the applicant to fifteen years ’ imprisonment and ordered the confiscation of all his property. The Odessa Court based its judgment mainly on the testimony of the applicant ’ s co-defendants obtained in the course of the investigation and during the trial. The court also relied on the testimony of a number of witnesses and victims of the crimes and on the conclusions of several forensic, ballistic and other expert examinations. As regards some of the charges, including that of murder, the court took into account the applicant ’ s testimony given at the pre-trial stage and noted that during the trial the applicant had made conflicting submissions concerning the relevant events.

In the verdict, the court, relying on the prosecutors ’ decision of 11 February 2006, noted that the applicant ’ s complaints of torture by the police were unsubstantiated. The court further noted that the applicant ’ s and his co-defendants ’ arrest and administrative detention at the initial stage of investigation (in the applicant ’ s case, between 11 and 24 June 2004) had been contrary to the procedure, as they actually had been arrested on suspicion of having committed criminal acts and had been questioned concerning the relevant events. According to the court, that situation resulted in a substantial violation of the defendants ’ right to mount a defence. The court decided not to accept as evidence all the verbatim records of the investigative actions carried out during the relevant periods.

The verdict was challenged on appeal by the applicant and the prosecutors. The latter disagreed with the first-instance court ’ s legal qualification of some of the crimes.

On 4 December 2007 the Supreme Court upheld the conviction as regards the majority of the charges. By the same decision, the Supreme Court ordered a retrial concerning several counts of robbery, having held that the first-instance court had erred in the legal qualification of the crimes.

During the retrial the applicant maintained that he was not guilty and that he had been tortured by the police.

On 11 August 2008 the Odessa Court convicted the applicant and his co ‑ defendants of the remaining counts of robbery. It did not change the applicant ’ s sentence. The conviction was based mainly on the testimony of the applicant ’ s co-defendants given in the course of the investigation and trial. To a certain extent, the court also relied on the testimony of several witnesses and victims and the results of various expert examinations.

Having relied on the prosecutors ’ decision of 11 February 2006, the court rejected the applicant ’ s complaints of torture by the police.

The applicant appealed in cassation.

On 16 December 2008 the Supreme Court upheld the verdict of 11 August 2008, having noted inter alia that during the investigation the applicant had acknowledged his guilt and had given details of the relevant events. The Supreme Court also noted that there was no evidence that the applicant had been tortured during the investigation or that his co ‑ defendants had wished to perjure the applicant.

The Supreme Court generally noted that the applicant ’ s complaints about a violation of his right to mount a defence did not have any basis in the case material. It further found no violation of the procedure in that the applicant had taken part in the investigative actions during his administrative detention.

According to the applicant, the court hearings in his case were sometimes held in the absence of the defendants ’ lawyers and of the prosecutors, the applicant ’ s requests and complaints were not examined, and his allegations of procedural violations at the investigation stage were ignored.

The applicant also states that the investigators had previously discontinued the proceedings concerning some of the crimes of which the courts found the applicant guilty.

Copies of the applicant ’ s appeals in cassation have not been submitted to the Court.

On an unspecified date the applicant was transferred to the prison in Zhvyrka ( Sokal ) to serve his sentence.

According to the applicant, as a former police officer, he should have been transferred to a specialised prison in which inmates with law ‑ enforcement background are being detained. The applicant alleges that in Zhvyrka ( Sokal ) prison inmates abused and threatened him on account of his previous work for the police.

In reply to his complaints to the prosecutors, the applicant was informed that he was not entitled to be transferred to the specialised prison.

On 29 February 2012 the applicant was transferred to Stryzhavka prison and later in 2012 to Makoshyno prison.

D . The application to the Court

After the applicant lodged his application with the Court, he was invited to submit copies of various documents from the domestic case file, including copies of documents pertinent to his allegations of ill-treatment by the police.

While the criminal proceedings against him were pending, the applicant requested the prosecutors and the administration of the SIZO to provide him with copies of such documents. However, the applicant could not obtain the requested copies. In particular, in September 2005 the prosecutors refused the applicant ’ s requests stating that the criminal procedure did not provide for issuing copies of documents from criminal case files and once the investigation was completed the accused and his lawyer would be given a possibility to study the case file and to make copies of documents by hand. The administration of the SIZO also refused the applicant ’ s requests.

By letter of 5 December 2005, the Court invited the Government to provide factual information concerning the applicant ’ s complaints of his inability to obtain copies of the documents needed for his application.

On 13 January 2001 the Government sent copies of various documents from the applicant ’ s case file to the Court, noting that according to the criminal procedure the accused had the right to study the case file and to make copies of documents after the completion of investigation. The documents, copies of which were submitted by the Government, included the report on the applicant ’ s medical examination on 12 June 2004 and the prosecutors ’ decisions of 6 July 2004 and 25 January 2005 concerning the applicant ’ s complaints of torture by the police.

In April and July 2006 the Court requested the applicant to provide inter alia copies of the documents concerning his complaints of unlawful detention.

The applicant ’ s submitted requests for such documents to the prosecutors and to the courts, but to no avail.

In its letter to the applicant on 8 June 2007, the Odessa Court noted that a copy of the applicant ’ s verdict was given to him on 11 April 2007 and that the criminal procedure did not provide for issuing copies of other documents at the cassation stage.

The applicant states that a copy of the decision of the Supreme Court of 4 December 2007 was given to him after a substantial delay, namely on 19 June 2008.

On 13 February 2009 the Odessa Court sent to the applicant a copy of the decision of the Supreme Court of 16 December 2008, noting that after that date the applicant was not entitled to study the case file.

The applicant alleges that the administration of Zhvyrka ( Sokal ) prison destroyed a letter which he had requested them to send to the Court on 3 August 2009.

COMPLAINTS

Relying on Article 3 of the Convention, the applicant complains about his ill-treatment by the police in June and December 2004, by the prosecutor on 30 August 2004, and by the guards escorting the applicant to court hearings. The applicant alleges that his complaints at the domestic level were not duly examined.

Under the same provision of the Convention the applicant complains of the lack of adequate medical assistance in detention and the prosecutors ’ inaction in that regard.

Relying on Article 5 § 1 (a) of the Convention, the applicant complains about the unlawfulness of his arrest, pre-trial and post-conviction detention. The applicant complains of a violation of Article 5 § 4 of the Convention stating that the question of lawfulness of his pre-trial detention was not considered thoroughly and without delay.

The applicant also complains under Articles 6, 7 and 13 of the Convention that his right to mount a defence during the investigation was violated, that his conviction was unlawful and based on the evidence obtained under torture and on false evidence.

The applicant complains under Article 34 of the Convention that the authorities hindered his application to the Court.

QUESTIONS TO THE PARTIES

1. Has the applicant been subjected to torture, inhuman or degrading treatment or punishment in breach of Article 3 of the Convention during the investigation in his criminal case and during his escorting to court hearings?

2. Has the applicant suffered from any serious health problems during detention? If so, has the applicant received adequate medical treatment in respect of such health problems, as required by Article 3 of the Convention?

3. Have the authorities conducted an effective investigation into the applicant ’ s allegations of ill-treatment and lack of medical assistance in accordance with Article 3 of the Convention?

4. Was the applicant ’ s deprivation of liberty between 11 June 2004 and 30 March 2007 in breach of Article 5 § 1 of the Convention?

5. Did the applicant have at his disposal an effective and speedy procedure by which he could challenge the lawfulness of his detention during that period, as required by Article 5 § 4 of the Convention?

6. 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?

7. Did the applicant benefit from the assistance of a lawyer between 11 June 2004 and 30 March 2007 in accordance with Article 6 § 3 (c) of the Convention?

8. Has there been any hindrance by the State in the present case with the effective exercise of the applicant ’ s right of petition, as guaranteed by Article 34 of the Convention? In particular, did the applicant have the opportunity to obtain copies of the documents from his case files and to send them to the Court in order to pursue his application (see Naydyon v. Ukraine, no. 16474/03, §§ 68-69, 14 October 2010)? Did the applicant have a possibility to send his correspondence of 3 August 2009 to the Court?