FIFTH SECTION

Application no. 13837/09 A.N. against Ukraine lodged on 15 February 2009

STATEMENT OF FACTS

The applicant is a Ukrainian national, who was born in 1980 and is currently serving his sentence in prison.

A. The circumstances of the case

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

On 15 November 2004 a man was murdered at a bus stop in the town of Dymytriv , Donetsk Region. A criminal investigation was opened.

According to the applicant, on 12 December 2004 he was brought by the police to the police station and for the next two days he had been tortured with the purpose of extracting a confession to the crime. Allegedly, the police officers shackled the applicant ’ s hands and legs and placed a gas mask over his head so that he lost his consciousness. When the applicant came around, the officers hung him over with his head pointing downwards. After that they attached naked electricity wires throughout the applicant ’ s body, including the genitals and administered electric shocks to him many times. Further, one of the police officers inserted a truncheon into the applicant ’ s anus. The applicant agreed to admit the guilt.

On 14 December 2004 the applicant was formally arrested on suspicion of having committed the murder. When questioned in the presence of a lawyer, the applicant admitted that he had committed the crime.

On 15 December 2004 he was examined by a doctor who reported no injuries on the applicant. According to the applicant, the doctor examined him superficially and the applicant was not required to undress.

On an unspecified date the court placed the applicant in custody.

Following his placement in a pre-trial detention facility, the applicant started to claim that his self-incriminating statements had been given as a result of torture.

On 24 February 2005 a forensic medical expert issued a report stating that the applicant had not sustained any injuries. That report was based on the results of the medical examination of 15 December 2004.

On the same date the Dymytriv Prosecutor ’ s Office refused to open an investigation in connection with the applicant ’ s allegations of torture. That decision was quashed as unfounded by the supervising prosecutor and further “pre-investigation” enquiries were ordered.

On 4 May 2005 the Dymytriv Prosecutor ’ s Office adopted another decision refusing to open an investigation in connection with the applicant ’ s allegations of torture. That decision was also quashed by the supervising prosecutor as unsubstantiated and further “pre-investigation” enquiries were ordered. For having failed to arrange thorough “pre-investigation” enquiries in the case the local prosecutor was disciplined.

On 7 July 2005 the applicant was examined by a forensic medical expert who reported the following injuries: scars on the wrists and both sides of the chest which could have been caused from six to eighteen months before the examination; a scar on the right forearm which could have been caused more than three months before the examination. No injuries to the anus could be identified. The expert classified the scars as minor injuries.

On 11 October 2005 the Dymytriv Prosecutor ’ s Office adopted another decision refusing to open an investigation in connection with the alleged torture. The prosecutor noted that earlier the applicant had not complained of the ill-treatment; the police officers denied those allegations; the medical report of 14 December 2004 documented no injuries to the applicant while the report of 7 July 2005 stated that the applicant had some old scars which could not support the allegations of torture.

On 7 September 2005 the applicant was examined by a forensic medical expert once again. In his report of 7 November 2005 the expert stated that the applicant suffered from scars on both ears, on the left and right sides of the chest, on the forearms, on the wrists, and on the right shin. The expert classified the injuries as minor and considered that they could have been sustained six months or earlier before the date of the examination; some of the injuries could have been caused by shackles.

On 15 February 2006 a forensic medical export additionally reported that it was impossible to determine whether the injuries displayed by the applicant had been sustained before or after 15 December 2004.

On an unspecified date the investigation was completed and the case file was referred to the Dymytriv Town Court for trial. During the hearing the applicant denied his involvement in the crime. The applicant ’ s lawyer claimed that the investigation had not been complete and the evidence in support of the applicant ’ s charge had been obtained by way of torture. He therefore requested that the case be remitted to the prosecutor ’ s office for additional investigation.

On 17 April 2006 the court remitted the case for additional investigation noting that the investigator failed to establish a number of important circumstances, including the time of the victim ’ s death and the motive of the applicant to commit the crime.

The prosecutor appealed against that decision.

On 15 September 2006 the Donetsk Region Court of Appeal quashed the decision of 17 April 2006 as unfounded and remitted the case to the first-instance court for the trial.

On 29 December 2006 a forensic psychiatric expert issued a report stating that the applicant had recovered from a temporary mental disorder.

On 8 October 2007 the Dymytriv Town Court found the applicant guilty of murder and sentenced him to twelve years ’ imprisonment. The court established the applicant ’ s guilt on the basis of oral, documentary, and material evidence. It also concluded that the applicant ’ s allegations of ill-treatment had been unfounded.

The applicant appealed against that judgment claiming, inter alia , that his conviction was based on the evidence obtained by way of ill-treatment.

On 6 June 2008 the Donetsk Region Court of Appeal dismissed the applicant ’ s appeal and upheld the judgment of the first-instance court. It noted that the applicant ’ s allegations of ill-treatment had been farfetched and, in any event, they had been properly examined by the prosecutor ’ s office and the trial court.

The applicant appealed in cassation to the Supreme Court claiming, in particular, that his conviction was based on the evidence obtained by means of ill-treatment.

On 15 August 2008 the Supreme Court rejected the applicant ’ s cassation appeal as unfounded.

Following his conviction the applicant lodged an appeal against the decision of 11 October 2005, by which the prosecutor had refused to open an investigation in respect of the alleged ill-treatment.

On 9 February 2010 the Dymytriv Town Court quashed the impugned decision considering that the matter had not been examined thoroughly.

The prosecutor appealed against that decision.

On 10 March 2010 the Donetsk Region Court of Appeal quashed the decision of 9 February 2010 after finding that the prosecutor ’ s decision at stake had been relied on by the courts dealing with the applicant ’ s criminal case. As those judicial decisions had become final, the circumstances established by those decisions could not be reviewed. On these grounds the Court of Appeal remitted the case to the first-instance court for fresh consideration of the matter.

On 9 September 2010 the Dymytriv Town Court rejected the applicant ’ s complaint against the decision of 11 October 2005 as time-barred.

On 7 October 2010 and 8 April 2011 the Donetsk Region Court of Appeal and the Higher Specialised Civil and Criminal Court of Ukraine, respectively, upheld that decision.

B. Relevant domestic law

The relevant domestic law can be found in the judgment in the case of Davydov and Others v. Ukraine (nos. 17674/02 and 39081/02 , § 112, 1 July 2010) .

COMPLAINTS

1. The applicant complains under Article 3 of the Convention that he was tortured by the police officers with the purpose of making him confess to a murder. He further complains that the domestic authorities failed to carry out an effective investigation of these allegations.

2. The applicant also complains that he has not been provided with requisite medical treatment during his detention.

3. He complains under Article 3 of Protocol No. 7 that he was not compensated for the allegedly wrongful conviction.

4. The applicant complains under Article 5 that he was arrested on 12 December 2004 unlawfully.

5. The applicant complains that the length of his pre-trail detention was excessive.

6. The applicant complains under Article 6 § 1 of the Convention that the courts failed to properly assess the evidence in the case and correctly apply the law. In particular, the applicant alleges that the courts unfairly convicted him relying on the evidence obtained by ill-treatment.

7. The applicant further complains that the length of the proceedings in his case was in breach of Article 6 § 1 of the Convention.

8. The applicant complains that there have also been violations of Articles 17, 18 and 53 of the Convention.

QUESTIONS TO THE PARTIES

1. Has the applicant been subjected to ill-treatment, in breach of Article 3 of the Convention? Did the authorities provide sufficient explanation for the applicant ’ s injuries documented during his detention?

The Government are invited to provide copies of the medical documents concerning the applicant ’ s injuries as well as copies of the forensic psychiatric reports in respect of the applicant.

2. Having regard to the procedural protection from ill-treatment, was the investigation in the present case by the domestic authorities in breach of Article 3 of the Convention?

The Government are invited to provide copies of the documents concerning the domestic proceedings in respect of the applicant ’ s allegation of ill-treatment, including the decisions by which the authorities refused to open an investigation and the decisions of the supervising authorities quashing those decisions.

3. Has there been a breach of Article 3 of the Convention on account of the allegedly insufficient medical treatment afforded to the applicant during his detention?

The Government are invited to provide medical and other relevant material in support of their submissions.

4. Were the principles of fair trial under Article 6 § 1 of the Convention respected in the present case given that the courts convicted the applicant using the evidence which was obtained allegedly in breach of his privilege against self-incrimination and by means of ill-treatment?

The Government are invited to provide material from the criminal case file containing self-incriminating statements made by the applicant.