FIFTH SECTION

Application no. 60426/11 Svitlana Mykolayivna POMILYAYKO against Ukraine lodged on 13 July 2011

STATEMENT OF FACTS

The applicant, Ms Svitlana Mykolayivna Pomilyayko , is a Ukrainian national, who was born in 1968 and lives in Kharkiv . She is represented before the Court by Ms O. Z. Stanislavska , a lawyer practising in Kharkiv .

A. The circumstances of the case

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

1. Alleged ill-treatment of the applicant on 8 November 2008

In the beginning of November 2008 some equipment was stolen from the enterprise in which the applicant worked.

The Kharkiv Ordzhonikidze District Police Department invited the applicant and one of her colleagues for questioning in respect of the theft.

On 8 November 2008, at 11.15 a.m., the applicant came to the police station as instructed.

At about 11.35 a.m. senior detective officer T. accompanied her to the fourth floor. He asked her to wait in the corridor and entered office no. 56. Five minutes later the applicant heard a woman ’ s scream from that office. T. opened the door and directed an officer passing by to take the applicant to his office. She was made wait there for about twenty minutes. Thereafter T. took her to office no. 56. He pushed her inside, twisted her arms behind her back and handcuffed her even though she did not show any resistance.

Officer T. and his colleague S., who was also in the office, intimidated the applicant with a view to making her confess to the investigated theft. They told her that her colleague, Ms L., had already started to “crack”. The applicant noticed Ms L. ’ s belongings on the floor. She concluded that it was her scream that she had heard.

Having failed to get the applicant ’ s confession, T. and S. made her sit on a chair, put a plastic bag on her head and started to strangle her. At the same time they were hitting her head, face and mouth so that she could not bite through the bag. The applicant fainted several times. When she told the officers she needed to use the toilet, S. hit her into the stomach and to the head. She fainted once again and urinated involuntarily. Some time later the applicant noticed the presence of another officer, P., in the office.

After several hours of ill-treatment, the applicant was taken to another office where she stayed for about twenty minutes. Thereafter she was brought before a female officer who conducted her formal questioning.

At about 6 p.m. the applicant signed the questioning report. She was then taken to the office of the head of the search unit who stated that she was the main suspect in the theft case and that all her colleagues had indicated her as the likely thief. The applicant complained about her ill-treatment. Her complaint remained ignored.

She was taken again to office no. 56 where the officers threatened her and pressured her to confess. She repeatedly refused to do so and claimed her innocence. The applicant was forced to write a statement that she had no complaints against the police.

At about 8 p.m. she was released.

2. The applicant ’ s medical treatment

On the following day, 9 November 2008, the applicant felt unwell and called an ambulance.

From 9 to 27 November 2008 the applicant underwent inpatient medical treatment in hospital for a closed head injury, brain concussion, soft tissue contusions on the head, upper and lower limbs, a bruise of the front abdominal wall, lumbar osteochondrosis and asthenia.

After her discharge from hospital, the applicant remained on sick leave until 19 December 2008.

3. Investigation of the applicant ’ s ill-treatment complaints

On 9 November 2008 the administration of the hospital, in which the applicant was treated, informed the Ordzhonikidzhe Police Department about the applicant ’ s injuries allegedly inflicted on her by police officers.

On 10 November 2008 the applicant complained to the Kharkiv Ordzhonikidze District Prosecutor ’ s Office (“the Ordzhonikidze Prosecutor ’ s Office”) about her ill-treatment. Ms L. lodged a similar complaint.

On 18 November 2008 the police department refused to open a criminal case following the information from the hospital administration.

On 12 December 2008 the Ordzhonikidze Prosecutor ’ s Office opened a criminal case against the police officers on suspicion of exceeding their powers by engaging in the violent and degrading treatment of the victims. As a result, on 16 December 2008 the prosecutor also quashed the ruling of of 18 November 2008.

On 15 January 2009 the investigator seized the trousers which the applicant had been wearing on 8 November 2008. A forensic immunological examination discovered traces of her urine on them.

From 27 November 2008 to 26 January 2009 a forensic medical expert evaluation was carried out with a view to establishing the applicant ’ s injuries and their nature. It was based on her medical file, as well examination of her. The expert considered it established that, at the time of her hospitalisation, the applicant had had bruises to her both arms inflicted by blunt objects a day to three days earlier. It was impossible to establish their time with more precision. As to the soft tissue contusions, the expert held that it was a subjective statement by the doctor who had examined the applicant and that it should be disregarded. Her diagnoses of a closed head injury and brain concussion were considered as not sufficiently supported by “clinical data”. Lastly, the report stated that the applicant was suffering from neurotic asthenia, but that it was impossible to establish its origin.

On 9 February 2009 a forensic expert evaluation of the applicant ’ s handwritten statement on the questioning report of 8 November 2008 was carried out. The expert concluded that she had been “in an unusual state” when writing that note.

On the same date officer T. challenged the decision of 12 December 2008 before the Ordzhonikidze District Court (“the Ordzhonikidze Court ”) .

On 24 February 2009 the Ordzhonikidze Court rejected his complaint.

On 19 March 2009 the Kharkiv Regional Court of Appeal (“the Court of Appeal”) however quashed that decision and remitted the case for fresh examination to the first-instance court.

Between 3 March and 2 April 2009 another forensic medical expert evaluation of the applicant ’ s injuries was carried out. It concluded that she had sustained numerous bruises on her arms, shoulders and thighs. They could have been inflicted at the time and in the circumstances as described by her. Given the delay with the first forensic medical examination, it appeared impossible to make more specific findings.

On 22 April 2009 the Ordzhonikidze Court quashed the prosecutor ’ s decision of 12 December 2008. This ruling was set aside by the Court of Appeal on 7 May 2009.

On 5 June 2009 the Ordzhonikidze Court once again quashed the said prosecutor ’ s decision. On 25 June 2009 this ruling was quashed by the appellate court too.

On 18 November 2009 the applicant and Ms L. identified the officers who had ill-treated them on the photographs presented by the investigator.

On 4 February 2010 the investigator however closed the criminal case against the police officers for the lack of proof of their guilt.

On 30 September 2010 the Ordzhonikidze Court upheld this decision.

On 15 November 2010 the Court of Appeal quashed the ruling of the first-instance court and remitted the case back to it for fresh examination.

On 21 December 2010 the Ordzhonikidze Court allowed the applicant ’ s complaint and quashed the investigator ’ s decision of 4 February 2010.

On 13 January 2011 the Court of Appeal upheld this ruling.

In March and May 2011 the applicant enquired about the investigation progress. Her enquiries remained without answer.

COMPLAINTS

The applicant complains under Articles 3 and 13 of the Convention that she was tortured by the police and that there was no effective domestic investigation into her complaints to that regard.

QUESTIONS TO THE PARTIES

1. Was the applicant subjected to torture, inhuman or degrading treatment or punishment in police custody on 8 November 2008 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?

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 related documents .