Judgment (Merits and Just Satisfaction) of Court (Fifth Section), April 02, 2015 (case CASE OF KIRPICHENKO v. UKRAINE)

JudgeBUSHCHENKO A.P.
DefenseUKRAINE
Resolution DateApril 02, 2015
Issuing OrganizationCourt (Fifth Section)

FIFTH SECTION

CASE OF KIRPICHENKO v. UKRAINE

(Application no. 38833/03)

JUDGMENT

STRASBOURG

2 April 2015

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Kirpichenko v. Ukraine,

The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:

             Mark Villiger, President,              Angelika Nußberger,              Boštjan M. Zupančič,              Ganna Yudkivska,              Vincent A. De Gaetano,              Helena Jäderblom,              Aleš Pejchal, judges,and Claudia Westerdiek, Section Registrar,

Having deliberated in private on 10 March 2015,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

  1. The case originated in an application (no. 38833/03) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Sergey Anatolyevich Kirpichenko (“the applicant”), on 24 October 2003.

  2. The applicant, who had been granted legal aid, was represented by Mr A.P. Bushchenko, a lawyer practising in Kyiv. The Ukrainian Government (“the Government”) were represented by their Agents, then Mr Y. Zaytsev and Mr N. Kulchytskyy.

  3. The applicant alleged, in particular, that he had been ill-treated in custody and that the investigation into his complaints had been ineffective.

  4. On 2 October 2006 the application was communicated to the Government.

  5. The applicant having died on 29 October 2012, his mother, Mrs Svetlana Semyonovna Savich, informed the Court of her wish to pursue the application.

    THE FACTS

    1. THE CIRCUMSTANCES OF THE CASE

  6. The applicant was born in 1963 and lived in Donetsk.

  7. On 28 January 2003 the applicant sustained two knife cuts. According to him, they were inflicted by two strangers, who attacked him on a deserted street.

  8. At about 2 p.m. on 29 January 2003 the applicant was arrested at his home by three police officers and taken to the Proletarskiy District Police Station in Donetsk (“District Police Station”) for questioning in connection with a murder of L.S., an adolescent girl. Later on the same day he was also taken for questioning to the Proletarskiy District Prosecutor’s Office (“District Prosecutor’s Office”).

  9. On the same date O. was appointed as the applicant’s legal-aid lawyer. According to the applicant, she saw him briefly, advised him to remain silent and left him alone during the actual questioning.

  10. As follows from the report of the applicant’s questioning dated 29 January 2003 and countersigned by him and by his lawyer, he provided detailed information on his life and personal details, but refused to make any statement concerning the offence of which he was suspected.

  11. In the evening of 29 January 2003 an ambulance team was called to provide the applicant with medical assistance for his cuts. Upon its arrival at 7:30 p.m., the team recorded that the applicant had two cuts on his body and a flushed red face (лицо гиперемировано), that he was conscious, had normal blood pressure (120/80), was breathing freely, and that his general state was satisfactory. Having provided the applicant with first aid for his wounds, the ambulance team left at 7:55 p.m.

  12. On 30 January 2003 the applicant complained to the District Prosecutor’s Office of having been tortured by the police officers before and after having been brought to the police station. He noted, in particular, that the three police officers who had arrested him had severely beaten him all over his body, including in the groin area, notwithstanding that he was unable to resist his arrest in any event as he was suffering from two cuts sustained the previous day. Upon his arrival at the police station at about 3 p.m., several police officers had started torturing him with a view to extracting a confession from him. In particular, they had put plastic bags filled with cigarette smoke over his head, twisted his fingers, stepped on his hands with their feet, beaten him, punched him while pressing a book against his body and suspended him handcuffed face down between two desks. As a result, he had started to lose consciousness and had felt so unwell that an ambulance had to be called. However, according to the applicant, the ambulance team had not taken his complaints seriously and had omitted to record a number of injuries. Following the departure of the ambulance team, the applicant’s ill-treatment, according to him, continued until the morning of 30 January 2003.

  13. At about 3:30 p.m. on 30 January 2003 the applicant was examined by a forensic expert who had been asked to assess his injuries, to comment on their timing and the manner in which they had been inflicted, and to assess whether they could have been inflicted by the applicant’s own hand. The expert noted in his report that the applicant had suffered two cuts and some twelve surface injuries (scratches, abrasions, bruises, etc.) on the face and other parts of his body. He further noted that the applicant’s injuries cumulatively qualified as “minor”, that they had been inflicted as a result of the impact of blunt and sharpened objects within one to two days before the assessment and that their location was within the reach of the applicant’s own hand.

  14. On 31 January 2003 the Proletarskiy District Court (“District Court”) ordered the applicant’s detention for ten days pending the investigation against him. The applicant did not appeal against this decision.

  15. On 3 February 2003 the District Prosecutor’s Office refused to institute criminal proceedings regarding the applicant’s allegations of ill‑treatment by the police. It noted that according to the statements of the police officers who had been involved in his arrest and the police investigator in whose office he had been questioned, neither they, nor anyone else in their presence had beaten or otherwise ill-treated the applicant.

  16. On 7 February 2003 the applicant’s legal-aid lawyer O. was replaced by legal-aid lawyer K.

  17. On 7 February 2003 the District Court remanded the applicant in custody. The applicant, represented by lawyer K., did not appeal against this decision.

  18. On 8 February 2003 the applicant was placed in detention at the Donetsk pre-trial detention centre (SIZO).

  19. On numerous occasions the applicant complained to various authorities that for several days prior to his transfer to the SIZO he had been held in a cell with an inmate suffering from tuberculosis and that the decision of 3 February 2003 not to institute criminal proceedings regarding his ill-treatment on 29 January 2003 had been unfair. He also alleged that not all of his injuries had been recorded following the expert examination on 30 January 2003 and that on 4 March 2003 he had been groundlessly beaten by a convoy officer.

  20. In March 2003 investigator A.D. of the District Prosecutor’s Office, who was investigating L.S.’s murder and the theft from her flat organised confrontations between the applicant and several police officers implicated by him in his ill-treatment. During these confrontations, the officers denied that any ill-treatment had taken place. The applicant refused to comment claiming that A.D. had been rude, biased and insulting towards him.

  21. On 18 March 2003 the District Prosecutor’s Office again refused to institute criminal proceedings regarding the applicant’s allegations of ill‑treatment in January 2003. It noted that no evidence of ill-treatment had been discovered during the questioning of the officers involved and the confrontations between the parties. It further noted that according to the detention facility’s log book, the applicant had been detained alone and not with a sick inmate, as he had claimed.

  22. The applicant appealed against the aforementioned decision to the Donetsk Regional Prosecutor’s Office (“Regional Prosecutor’s Office”) and to other authorities, complaining, in particular, that the confrontations had been organised with a view to obtain self-incriminating evidence from him, rather than to verify his allegations of ill-treatment. He also complained that as a result of having been beaten by the police, he could no longer move his left leg properly.

  23. In March 2003 A.D. ordered a further forensic assessment of the applicant’s injuries, asking the expert, in particular, to comment on whether these injuries could have been inflicted by L.S. in the course of self-defence and whether any of the applicant’s injuries could be characteristic of an attempt to strangle or suffocate him. According to the results of this assessment, which was carried out on 15 and 16 April 2003, it was found possible that the injuries recorded on 30 January 2003 had been inflicted by L.S. in the course of self-defence. No injuries characteristic of strangling or suffocation could be identified.

  24. On 4 April 2003 the SIZO neurologist diagnosed the applicant as suffering from post-traumatic neuritis of the peroneal nerve.

  25. In April 2003 A.D. ordered a further expert assessment, requesting an opinion as to whether the applicant had indeed been suffering from post-traumatic neuritis, and, if so, when and as a result of which trauma it had developed. In particular, the expert was asked to comment on whether this condition could be connected to the injuries recorded on 30 January 2003.

  26. On 22 April 2003 the same expert who had conducted the previous assessments confirmed that the applicant was suffering from neuritis of the peroneal nerve, but that it was not possible to determine when and how it had developed.

  27. On the same date the District Prosecutor’s Office again refused to institute criminal proceedings regarding the applicant’s allegations of ill‑treatment by the police. It referred to the same arguments as in the previous refusals and to the findings of the expert assessment, according to which no probable connection between the...

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