Judgment (Merits and Just Satisfaction) of Court (Fifth Section), June 18, 2015 (case CASE OF USHAKOV AND USHAKOVA v. UKRAINE)

JudgeTOKAREV G.V. ; MOTORYGINA M.G.
DefenseUKRAINE
Resolution DateJune 18, 2015
Issuing OrganizationCourt (Fifth Section)

FIFTH SECTION

CASE OF USHAKOV AND USHAKOVA v. UKRAINE

(Application no. 10705/12)

JUDGMENT

STRASBOURG

18 June 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 Ushakov and Ushakova v. Ukraine,

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

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

Having deliberated in private on 26 May 2015,

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

PROCEDURE

  1. The case originated in an application (no. 10705/12) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Ukrainian nationals, Mr Sergey Viktorovich Ushakov (“the first applicant”) and Ms Anna Mikhaylovna Ushakova (“the second applicant”), on 2 February 2012.

  2. The applicants were represented by Mr G.V. Tokarev and Ms M.G. Motorygina, lawyers practising in Kharkiv.

  3. The applicants alleged, in particular, that they had been ill-treated by the police and that there had been no effective domestic investigation into the matter. The first applicant also complained that his rights to be legally represented and not to incriminate himself had been violated.

  4. On 3 February 2014 the above complaints were communicated to the Government and the remainder of the application was declared inadmissible.

    THE FACTS

    1. THE CIRCUMSTANCES OF THE CASE

  5. The applicants are a married couple. They 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.

    1. Background facts

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

  7. 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 living conditions, provided her with various support in those proceedings.

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

    1. Events between 27 June and 2 July 2008

  9. 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.

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

  11. 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). According to the applicants, this was done under the pretext that they needed to be questioned in respect of the first applicant’s debt vis-à-vis some third persons. As submitted by the Government, the police apprehended the applicants on suspicion of the murder of Mr L.

  12. The applicants were questioned regarding their whereabouts and actions on 26 and 27 June 2008. They stated that they had been together shopping, going to the cinema, having meals and so on.

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

  14. On 28 June 2008 the first applicant underwent a forensic medical examination. According to its report, which was completed on 1 July 2008, the examination 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.

  15. According to the first applicant, he sustained the injuries discovered on 28 June 2008, having accidentally fallen a day before.

  16. The first applicant submitted the following account of the subsequent events. After the aforementioned examination, he 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.

  17. The Government maintained that the first applicant had not been subjected to any ill-treatment.

  18. According to the detention logbook of the police station, the first applicant was detained at 8.15 p.m. on 28 June 2008 as a criminal suspect.

  19. On the same date, 28 June 2008, the investigator appointed a lawyer, Mr M., for the first applicant. He maintained his initial confession during his questioning in the presence of the lawyer. According to the first applicant, he did so fearing further ill-treatment and not having the possibility to talk with the lawyer in private prior to the questioning.

  20. 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 allegedly 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.

  21. Thereafter the second applicant was taken back to the police station, where she made a statement, allegedly under coercion, that her husband had admitted to her having murdered Mr L. More specifically, the second applicant submitted that three police officers had hit her several times on the head and had pulled her by the hair.

  22. 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 confessed again to the incriminated crime. About forty minutes later he, however, retracted his confession as made under duress and complained of his ill-treatment by the police. According to the first applicant, he did so after his first confidential conversation with his lawyer, which had taken place only after the aforementioned event. His lawyer subsequently stated that he had had his first confidential meeting with the first applicant prior to the latter’s questioning on 28 June 2008 (see paragraph 65 below).

  23. 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 pre-trial detention 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 concluded that his confession had been extracted by force. Furthermore, the prosecutor noted a number of discrepancies between the confessions of the first applicant and the autopsy report in respect of the victim. The second applicant was questioned too. She submitted that she had incriminated her husband under duress.

  24. 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.

  25. 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. (see also paragraphs 68 and 83 below for additional information about this police officer), 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.

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

  27. The first applicant was taken to an office on the ground floor where he was made sit...

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