CEDH · CASELAW;COMMUNICATEDCASES;ENG — 1 juin 2015

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sA36B60A1 { font-family:Arial; font-style:italic } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s76CF415B { page-break-before:always; clear:both } .s2D57E2E { font-family:Arial; font-weight:bold; text-decoration:underline; text-transform:uppercase } .sDD7CB8CD { margin-top:36pt; margin-bottom:12pt; text-align:center; font-size:7pt }     Communicated on 1 June 2015   FIFTH SECTION Application no. 28610/13 Natalya Olegivna PANCHENKO against Ukraine lodged on 19 April 2013 STATEMENT OF FACTS The applicant, Ms Natalya Olegivna Panchenko, is a Ukrainian national, who was born in 1986 and lives in Druzhkivka. She is represented before the Court by Mr O.V. Levytskyy, a lawyer practising in Kyiv. The facts of the case, as submitted by the applicant, may be summarised as follows. At about 2 p.m. on 12 December 2008 the applicant was taken into custody by police officers of an anti-drug unit. According to the applicant, at the time of her arrest the officers slapped her and threatened her with a   gun seeking information about the whereabouts of a sum of money they believed the applicant had stolen from another person suspected of drug-trafficking. At 9 p.m. on 12 December 2008 the police drew up an administrative offence report charging the applicant with the offence of avoiding medical examination for persons suffering from drug addiction and an administrative arrest report. From 12 to 16 December 2008 the applicant was kept in detention at various police stations in Kyiv. According to the police records, at 11 a.m. on 14 December 2008 the applicant left the police station number four of the Kyiv Shevchenkivskyy District Police Department under police guard and arrived at police station number two of the same Police Department at 3.15 p.m. on the same day. According to the applicant, in the period between 11 a.m. and 3.15 p.m. that day she was brought to yet another police station where she was ill-treated by the police officers who sought to make her reveal the whereabouts of the money they believed she had stolen. According to the applicant, the police officers handcuffed her, hit her on the face and head, hit and kicked her on the legs, back and torso. They suffocated her by covering up her mouth and by putting a gas mask on her and cutting off the air supply. She was threatened with a gun and various acts of violence against her and her parents. On 15 December 2008 the applicant was charged with acquisition and storage of illegal drugs and the investigating authority drew up an arrest report documenting her arrest in connection with this charge. Questioned on the same day, the applicant stated that she had acquired and stored heroin for her personal use. On 16 December 2008 the applicant was placed in a police temporary detention facility. According to subsequent findings of the prosecutor’s office (see below), on her admission she was examined by a medical assistant who reportedly observed no injuries on her. No copy of the relevant medical documentation has been provided to the Court. On 18 December 2008 the Shevchenkivskyy District Court of Kyiv (“the District Court”) extended the applicant’s detention till 25 December 2008. On 19 December 2008 the applicant’s mother sent a telegram to the Kyiv City Prosecutor alleging that on 18 December 2008 the applicant had been seen in court with unspecified signs of violence on her body and demanding that the applicant be examined by a forensic expert without delay. According to subsequent findings of the prosecutor’s office (see below), on 20 December 2008 the applicant was examined by doctors of an emergency medicine hospital who found that she suffered from no acute pathology requiring surgery and detected no injuries of internal organs. On 24 December 2008 the applicant’s parents instructed a lawyer to represent her and the lawyer saw her in detention. On the same day he addressed complaints to the prosecutor’s office and the Minister of the Interior complaining that he had seen unspecified signs of torture on the applicant. On 25 December 2008, questioned in the presence of her lawyer, the applicant recanted her previous testimony alleging that it had been given under duress. On the same day the District Court rejected the investigating authority’s request to place the applicant in pre-trial detention and released the applicant under an undertaking not to abscond. On 29 December 2008 the applicant was examined by a forensic medical expert. The expert recorded that the applicant had hematomas on the back of her left shoulder, on the back of her left forearm and on her shins. According to the expert’s report, the applicant stated that she had been ill-treated by the police on 14 December 2008. The expert took the opinion that the injuries had been caused by blunt objects and could have been inflicted at the time indicated by the applicant. On 10 February 2009 the Shevchenkivskyy District Prosecutor’s Office (“the SDPO”) refused to institute criminal proceedings against the police officers for lack of corpus delicti in their actions. The applicant appealed. On 29 April 2009 the District Court quashed the decision of 10   February   2009 and remitted the materials to the SDPO for further examination. The court noted, in particular, that the SDPO’s inquiry had failed to explain the origin of the applicant’s injuries documented on 29   December 2008. On 12 June 2009 the SDPO again refused to institute criminal proceedings. It referred to additional written explanations of the police officers who denied any wrongdoing. The applicant appealed. On 29 July 2009 the District Court quashed the decision of 12 June 2009 and remitted the materials to the SDPO for further examination. It pointed out that the SDPO had failed to explain the findings of the medical examination of 29 December 2008, had failed to question the staff of the police holding facility and had failed to question the applicant as to how she had acquired the documented injuries. The court went on to note that the inquiry had failed to establish the applicant’s whereabouts between 11 a.m. and 3 p.m. on 14 December 2008. On 2 October 2009 the SDPO refused to institute criminal proceedings. It   noted that as part of the latest round of pre-investigative enquiries the police officers had again been interviewed and had denied any wrongdoing. The applicant appealed. On 4 November 2009 the District Court quashed the decision of 2   October 2009 and remitted the materials to the SDPO for further examination. The court found that the latest round of pre-investigative enquiries had been characterised by the same omissions as those indicated in the court’s ruling of 29 July 2009. On 22 December 2009 the SDPO refused to institute criminal proceedings on the grounds similar to those given in its earlier decisions. The applicant appealed. On 8 February 2010 the District Court quashed the decision of 22   December 2009 and remitted the materials for further examination. The court held, in particular, that the SDPO had failed to comply with its rulings of 29 April, 29 July and 4 November 2009 and had failed to question the applicant’s cell-mates from the detention facility. On 12 May 2010 the SDPO refused to institute criminal proceedings, noting in particular that the applicant’s cell-mates could not be found. The SDPO also stated that according to the information from the police detention facility the applicant had been examined by a medical assistant at the time of her placement there on 16 December 2008 and no injuries had been documented on that occasion. The SDPO also referred to the results of the applicant’s medical examination on 20 December 2008. On 5 September 2011 the SDPO, in response to the applicant’s lawyer’s request about the progress of investigation, informed him of the decision of 12 May 2010. He appealed. On 21 October 2011 the District Court quashed the decision of 12   May   2010 holding that in conducting a new round of pre-investigation enquiries the SDPO needed to comply with the previous rulings of the court. On 7 February 2012 the SDPO refused to institute criminal proceedings against the police officers. On 21 August 2012 the police authorities discontinued criminal proceedings against the applicant due to the lack of corpus delicti in her actions. On 6 November 2012 the SDPO, in response to a new complaint from the applicant’s lawyer concerning the applicant’s alleged ill-treatment on 14   December 2008, refused to institute criminal proceedings against the police officers. COMPLAINTS The applicant complains under Article 3 of the Convention that she has been tortured and that the investigation into her complaint in this respect has been ineffective.       QUESTIONS TO THE PARTIES 1.     Has the applicant been subjected to torture, inhuman or degrading treatment or punishment in police custody 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?