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FIFTH SECTION
CASE OF LOPATIN
AND MEDVEDSKIY v. UKRAINE
(Applications nos. 2278/03 and
6222/03)
JUDGMENT
STRASBOURG
20 May 2010
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 Lopatin and Medvedskiy v.
Ukraine,
The European Court of Human Rights
(Fifth Section), sitting as a Chamber composed of:
Peer Lorenzen, President,
Karel
Jungwiert,
Rait Maruste,
Mark
Villiger,
Isabelle Berro-Lefèvre,
Mirjana
Lazarova Trajkovska, judges,
Mykhaylo Buromenskiy, ad
hoc judge,
and Claudia
Westerdiek, Section
Registrar,
Having deliberated in private on 27
April 2010,
Delivers the following judgment, which
was adopted on that date:
PROCEDURE
- The case originated in
two applications (nos. 2278/03 and 6222/03) against Ukraine lodged
with the Court under Article 34 of the Convention for the Protection
of Human Rights and Fundamental Freedoms (“the Convention”)
by two Ukrainian nationals, Mr Sergey Yuryevich Lopatin and Mr
Aleksandr Georgiyevich Medvedskiy (“the applicants”), on
21 December 2002 and 3 February 2003 respectively.
- Mr Lopatin, who had been
granted legal aid, was represented by Mr N. K. Kozyrev. The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev, of the Ministry of Justice.
- On 17 February 2009 the
Court declared the applications partly inadmissible and decided to
communicate to the Government the complaint concerning unreported
detention, ill-treatment by the police and lack of effective
investigation into these allegations, as well as the complaint about
the length of the criminal proceedings in their case. It also decided
to join them and to examine the merits of the applications at the
same time as their admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicants were born
in 1975 and 1976 respectively.
- On 10 July 1999 the
applicants were apprehended by the police and taken to Torez Town
Police Station. According to the applicants, at the station the
police officers ill-treated them in order to extract confessions to
the attempted robbery and murder of a Mr L.
- On 12 July 1999 the
applicants were identified by witnesses S. and Gn. and the victim Mr
L.
- The applicants’
detention at the police station was not recorded until 13 July 1999,
when they were formally arrested. According to the Government, on
this day Mr Lopatin resisted while being placed in his cell and had
refused to give up items prohibited in detention facilities – a
belt and shoe laces. Mr Lopatin objected to this latter assertion,
stating that he had been detained for three days already at that time
and could not possibly have had any prohibited items on him.
- On 15 July 1999 both
applicants were examined by a forensic medical expert, who drew up
reports on the same date. The expert found that Mr Medvedskiy
had bruises and scratches on his face, wrists, left elbow, legs,
buttocks, hips and back. The expert concluded that the bruises could
have been caused by blows with hard objects and could be classified
as light bodily injuries. In particular, the bruises on the buttocks
and hips could have been caused between 10 and 12 July 1999 by blows
with a truncheon. He further concluded that the scratches on the
applicant’s wrists could have been caused between 10 and 12
July 1999 by the use of handcuffs. With respect to Mr Lopatin, the
expert found that he had bruises and scratches on his forehead, neck,
wrists, shoulders, back, legs and hips. The expert concluded that the
bruises could have been caused by blows with hard objects and could
be classified as light bodily injuries. He further concluded that the
scratches on the wrists could have been caused between 10 and 12 July
1999 by the use of handcuffs.
- On 6 August 1999 the
Torez Prosecutor’s Office refused to institute criminal
proceedings into the applicants’ allegations of ill-treatment
by the police. The decision mentioned that although the applicants
had been identified by witnesses on 12 July 1999 they had only been
arrested on 13 July 1999. The investigator further noted that,
according to the police, Mr Lopatin had resisted when being placed in
his cell and that lawful force had been used against him. As to Mr
Medvedskiy, the investigator noted that, according to the police, he
had had a fight with G., a cellmate. The investigator concluded that
there was no evidence that the police had inflicted any bodily harm
on the applicants.
- By a letter of 24
November 1999, the Head of the Torez Police Department informed the
Torez Prosecutor that the applicants had been taken to the police
station on 10 July 1999. As they had made contradictory statements
and referred to witnesses who could prove their alibi, their
statements had to be verified by the police officers and this took
until 13 July 1999.
- On 7 December 1999 the
prosecutor severed the materials concerning the applicants’
detention between 10 and 13 July 1999 from the criminal case file in
order to conduct an additional inquiry into the alleged unlawful
detention.
- The investigation into
the criminal case against the applicants was completed on 9 February
2000. On the same day the case was sent to the Donetsk Regional Court
for examination.
- On 17 March 2000 the
criminal case was remitted to the Donetsk Regional Prosecutor’s
Office for additional investigation.
- On 4 May 2000 the
criminal case against the applicants was referred to court.
- Four court hearings in
the case took place between May and September 2000.
- According to the
Government, the proceedings were adjourned between 14 September 2000
and 10 December 2001 because Mr Lopatin’s lawyer was ill.
According to Mr Lopatin, his lawyer requested an adjournment of the
proceedings due to illness for one month only - in February 2001.
- Between December 2001
and June 2002 five court hearings took place and one forensic
examination was conducted.
- On 7 June 2002 the
Donetsk Court of Appeal, acting as a first instance court, sentenced
Mr Lopatin to nine years’ imprisonment for robbery and Mr
Medvedskiy to fifteen years’ imprisonment for robbery and
murder. In a separate ruling the court requested the Torez Prosecutor
Office to examine the lawfulness of the applicants’ detention
at the Torez Police Station between 10 and 13 July 1999 and their
allegations of ill-treatment.
- On 14 November 2002 the
Supreme Court of Ukraine upheld the decision of the Donetsk Court of
Appeal.
- On 23 September 2003 the
prosecutor questioned the police officers concerned.
- On 25 September 2003 the
Torez Court quashed the decision refusing to institute criminal
proceedings concerning the allegations of ill-treatment dated
6 August 1999 in respect of both applicants and sent the case
file for further investigation. The court noted that there were
documents confirming the applicants’ detention and bodily harm
and that the investigator’s conclusion contradicted the
established facts.
- On 3 October 2003 the
Torez Prosecutor’s Office, after having questioned the forensic
expert on whether the applicants’ injuries could have been
inflicted on 13 or 14 July 1999 and received an affirmative reply,
refused to institute criminal proceedings. In the decision it was
noted that the applicants had been taken to the police station on 10
July and that the investigators had taken until 13 July to check
their testimonies and interview them, but that no data had been found
on the unlawful detention of the applicants at Torez Police Station.
- On 15 March 2004 the
Torez Court refused an appeal by Mr Lopatin against the prosecutor’s
decision of 3 October 2003.
- On 27 July 2004 the
Donetsk Court of Appeal quashed the decision of 15 March 2004
and remitted the case for fresh consideration.
- On 20 September 2004 the
Torez Court quashed the decision of 3 October 2003 in respect of
Mr Lopatin on account of insufficient additional investigation and
remitted the case for further investigation. In particular, the court
instructed the investigator to question additional witnesses who had
been in contact with Mr Lopatin at the time of the alleged offence.
- On 15 October 2004 after
questioning the police officers, the prosecutor refused to institute
criminal proceedings into Mr Lopatin’s allegations of
ill-treatment. He concluded that the bodily harm caused to the
applicant by the police officers had been lawful as he had been
refusing to hand over prohibited items on his arrest.
- On 15 December 2004 the
Torez Court quashed the decision of 3 October 2003 in respect of
Mr Medvedskiy on account of insufficient additional investigation and
remitted the case for further investigation. The court instructed the
investigator in particular to question additional witnesses who had
been in contact with Mr Medvedskiy at the time of the alleged
offence.
- On 2 February 2005 the
prosecutor questioned the police officers.
- On 4 February 2005 the
Torez Prosecutor’s Office refused to institute criminal
proceedings into the applicants’ allegations. In its decision
the investigator relied on previously obtained material and on the
testimonies of police officers who could not recollect the details of
the applicants’ case.
- On 17 February 2005 the
decision of 4 February 2005 was quashed by the Donetsk Regional
Prosecutor’s Office on account of the incompleteness of the
investigation. The prosecutor noted in particular that the
investigator had not questioned the doctors who had examined the
applicants, the police officers of the detention facility, or the
cell-mate G., who had allegedly inflicted bodily harm on Mr
Medvedskiy.
- On 18 March 2005 the
prosecutor questioned the doctor who had examined the applicants.
- On 20 March 2005 the
Torez Prosecutor’s Office refused to institute criminal
proceedings into the applicants’ allegations. On 31 March 2005
this decision was quashed by the Donetsk Regional Prosecutor’s
Office on account of the incompleteness of the investigation.
- On 14 April 2005 the
Torez Prosecutor’s Office requested the Torez Police Department
to conduct an internal inquiry into the applicants’ allegations
of ill-treatment and unlawful detention between 10 and 13 July 1999.
- On 15 April 2005 the
acting head of the Torez Police Department replied that it was not
possible to conduct the requested inquiry since all the records
relating to the period when the alleged violations had happened had
been destroyed after the expiry of the three-year time-limit.
- On 15 April 2005 the
Torez Prosecutor’s Office refused to institute criminal
proceedings. It was decided that the bodily harm sustained by
Mr Lopatin was the result of lawful use of force by the police
and that the bodily harm sustained by Mr Medvedskiy was the result of
a fight with his cellmate. It was further established that the
applicants had been unlawfully detained at Torez Police Station
between 10 and 13 July 2005, but the officials of the above police
station could not be found criminally liable for an abuse of power
because their prosecution was time-barred. The applicants did not
appeal against that decision.
- By a letter of 29
December 2005, the Prosecutor of the Donetsk Region informed Mr
Medvedskiy’s mother that they would no longer reply to her
complaints about the refusal to institute criminal proceedings into
the allegations of unlawful detention and ill-treatment.
II. RELEVANT DOMESTIC LAW
A. Constitution of Ukraine
- The relevant provisions
of the Constitution of Ukraine provide:
Article 28
“Everyone has the right to respect for his or her
dignity.
No one shall be subjected to torture, cruel, inhuman or
degrading treatment or punishment that violates his or her dignity.
...”
Article 29
“Every person has the right to freedom and
personal inviolability.
No one shall be arrested or held in custody other than
pursuant to a reasoned court decision and only on grounds of and in
accordance with a procedure established by law.
In the event of an urgent necessity to prevent or stop a
crime, bodies authorised by law may hold a person in custody as a
temporary preventive measure, the reasonable grounds for which shall
be verified by a court within seventy-two hours. The detained person
shall be released immediately if he or she has not been provided,
within seventy-two hours of the time of detention, with a reasoned
court decision in respect of the holding in custody.
Everyone who has been arrested or detained shall be
informed without delay of the reasons for his or her arrest or
detention, apprised of his or her rights, and from the time of
detention shall be given the opportunity to personally defend himself
or herself, or to have the legal assistance of defence counsel.
Everyone who has been detained has the right to
challenge his or her detention in court at any time.
The relatives of an arrested or detained person shall be
informed immediately of his or her arrest or detention.”
B. Code of Criminal Procedure, 1960
- Article 4 of the
Code provides that the court, prosecutor or investigator shall,
within the scope of their competence, institute criminal proceedings
in any case where signs of a crime have been discovered, take all
necessary measures provided by law to establish the commission of the
crime and the identity of the offenders and to punish them.
- Article 22 of the
Code prohibits extracting confessions from an accused or any other
participant in the proceedings through violence, threats or other
illegal means.
- Article 28 of the
Code provides that the person who has sustained material damage as
the result of a crime shall be entitled to lodge a civil claim
against the accused person or the persons who bear material liability
for the actions of the accused.
C. Civil Code, 2003
- The relevant provision
of the Code provides:
Article 1167
Grounds of Responsibility for Non-Pecuniary Damage
“...2. Non-pecuniary damage shall be indemnified
irrespective of the guilt of the government, governmental body of the
Autonomous Republic of Crimea, local self-government, physical or
legal person that inflicted it:
...
2) if damage to a physical person has
resulted from his or her illegal imprisonment...”
D. The Act “on the procedure for the compensation of damage
caused to a citizen by the unlawful actions of bodies of inquiry,
pre-trial investigative authorities, prosecutors or courts” of
1 December 1994 (with amendments)
- The relevant provisions
of the Act provide:
Section 1
“Under the provisions of this Law a citizen is
entitled to compensation for damage caused by:
(1) unlawful conviction, unlawful indictment, unlawful
arrest and detention, unlawful conduct of a search, seizure of
property during the investigation and trial, unlawful removal from
work (office) or other procedural actions that interfere with a
citizens’ rights;
(2) the unlawful imposition of administrative arrest or
correctional labour, unlawful confiscation of property, the unlawful
imposition of a fine;
(3) the unlawful conduct of search and seizure
activities provided for by the Laws of Ukraine on “Search and
Seizure Activities”, “the Organisational Legal Basis for
Combating Organised Crime”, and other legal acts.
In the cases indicated in part 1 of this section, the
damage sustained shall be compensated in full irrespective of the
guilt of the officials of the bodies of inquiry, the pre-trial
investigative authorities, prosecutors or courts.”
Section 2
“The right to compensation for damage in the
amount, and in accordance with the procedure, established by this Law
shall arise in cases of:
(1) acquittal by a court;
(2) the termination of a criminal case on grounds of
the absence of proof of the commission of a crime, the absence of
corpus delicti, or a lack of evidence of the accused’s
participation in the commission of the crime;
(3) the refusal to initiate criminal proceedings or the
termination of criminal proceedings on the grounds stipulated in
paragraph 2 of part 1 of this section;
(4) the termination of proceedings for an administrative
offence.
The right to compensation for damage caused by the
search and seizure activities indicated in section 1 of this Law,
conducted prior to the institution of criminal proceedings, arises in
the cases set out in paragraph 1(1) of part 1 of section 1, or in
cases in which no decision was taken on instituting criminal
proceedings within six months of the conduct of such activities, as a
result of which such activities ... were cancelled.”
Section 3
“In the cases referred to in section 1 of this Law
the applicant shall be compensated for ...
(5) non-pecuniary damage.”
Section 4
“... Compensation for non-pecuniary damage shall
be awarded in cases in which unlawful actions by bodies of inquiry,
pre-trial investigative authorities, prosecutors or courts have
caused non-pecuniary losses to a citizen or led to the disruption or
the need for additional effort in the organisation of his or her
life.
Non-pecuniary damage shall be defined as the suffering
caused to a citizen due to physical or psychological influence
resulting in a deterioration or deprivation of his or her ability to
act in accordance with his or her usual habits and wishes, a
deterioration in his or her relations with the people around him or
her, or other adverse effects of a non-pecuniary nature.”
- In December 2005 Section
2 of the Act was supplemented by a new item which reads as follows:
“(1-1) the finding in a judgment by a court or
other decision by a court (except a ruling or decision of a court on
remittal of the case for further investigation or for retrial) of the
fact of unlawful indictment, unlawful arrest and detention, the
unlawful conduct of a search, seizure of property during the
investigation and trial, unlawful removal from work (office), other
procedural actions that interfere with citizens’ rights, or the
unlawful conduct of search and seizure activities;”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The applicants
complained that they had been ill-treated by the police and that the
investigation into these allegations had been ineffective. They
referred to Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Admissibility
- The Government
considered that the applicants had not exhausted all remedies
available to them under domestic law as they had failed to appeal
against the decision of 15 April 2005 to a higher prosecutor or
court.
- Mr Lopatin submitted
that over six years more than thirty complaints had been sent to
different State authorities, including prosecutors and courts, but to
no avail.
- Mr Medvedskiy made no
further comments.
- The Court finds that the
Government’s contentions concerning non-exhaustion are so
closely linked to the merits of the applicants’ complaints
under Articles 3 and 13 of the Convention that they should be joined
to them and considered together with them.
- The Court notes that
this complaint is not manifestly ill-founded within the meaning of
Article 35 § 3 of the Convention. It further notes that it is
not inadmissible on any other grounds. It must therefore be declared
admissible.
B. Merits
1. Alleged ill-treatment by the police
- Mr Lopatin maintained
that the domestic authorities had failed to give plausible
explanations for the cause of the bodily injuries inflicted on him.
He considered that the version of the events accepted by the
investigation had serious flaws. Notably, the applicant could not
have been placed in detention or have had prohibited items in his
possession on 13 July 1999 as by that time he had already spent
three days in detention and any prohibited items would have been
seized from him on the day of his actual arrest, that is, on 10 July
1999. Furthermore, after a certain period of time had elapsed the
investigation could no longer find any documents concerning the
circumstances of the applicant’s detention between 10 and 13
July 1999 as they had been destroyed after three years.
- Mr Medvedskiy made no
further comments.
- The Government
maintained that the applicants had not been subjected to
ill-treatment by the police. They referred to the conclusions of the
investigation: that Mr Lopatin had sustained bodily injuries as a
result of a lawful application of force by the police, and Mr
Medvedskiy as a result of a fight with his cellmate G.
- . The
Court reiterates that “where an individual is taken into police
custody in good health but is found to be injured at the time of
release, it is incumbent on the State to provide a plausible
explanation of how those injuries were caused, failing which a clear
issue arises under Article 3 of the Convention” (see Tomasi
v. France, 27 August 1992, §§ 108-11, Series A no.
241-A, and Selmouni v. France [GC], no. 25803/94, § 87,
ECHR 1999-V).
- In assessing evidence,
the Court has generally applied the standard of proof “beyond
reasonable doubt” (see Ireland v. the United Kingdom,
18 January 1978, § 161, Series A no. 25). However, such
proof may follow from the coexistence of sufficiently strong, clear
and concordant inferences or of similar unrebutted presumptions of
fact. Where the events in issue lie wholly, or in large part, within
the exclusive knowledge of the authorities, as in the case of persons
within their control in custody, strong presumptions of fact will
arise in respect of injuries occurring during such detention. Indeed,
the burden of proof may be regarded as resting on the authorities to
provide a satisfactory and convincing explanation (see Ribitsch v.
Austria, 4 December 1995, § 34, Series A no. 336, and Salman
v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII).
- Turning to the
circumstances of the present case, the Court notes that it is not in
dispute between the parties that the bodily injuries recorded by the
forensic expert on 15 July 1999 (see paragraph 8 above), were
inflicted on the applicants while they were in detention. It should
be further noted that the domestic authorities did advance an
explanation as to the cause of the applicants’ injuries.
However, in the Court’s opinion such an explanation cannot be
considered satisfactory and convincing for the following reasons.
- The Government, relying
on the results of the investigation, maintained that Mr Lopatin had
sustained bodily injuries (bruises and scratches on his forehead,
neck, wrists, shoulders, back, legs and hips) as a result of a lawful
application of force by the police on 13 July 1999 when he had
resisted while being placed in his cell and had refused to give up
his belt and shoe laces that were items prohibited in detention
facilities (see paragraph 7 above). The Court reiterates that
recourse to physical force against a person which has not
been made strictly necessary by his or her own conduct diminishes
human dignity and is in principle an infringement of the right set
forth in Article 3. Such a “strict proportionality”
approach has also been taken by the Court in respect of a situation
where an individual is already under the full control of the police
(see, among others, Klaas v. Germany, 22 September
1993, § 30, Series A no. 269; Rehbock v. Slovenia,
no. 29462/95, §§ 68-78, ECHR 2000-XII; and Milan
c. France, no.7549/03, 24 January 2008, § 68).
In this connection, the Court notes that according to the case file
material the version of events advanced by the police had never been
thoroughly checked from the viewpoint of proportionality and the
absolute necessity of the application of force. Furthermore, as
submitted by the applicant, such a version of events did not match
the ultimate findings of the domestic authorities as to the date of
his arrest. Accepting the fact of the applicant’s arrest on 10
July 1999, the domestic authorities failed to explain why the
withdrawal of items prohibited in detention facilities, which would
normally be made upon a detainee’s arrival, had been conducted
in respect of Mr Lopatin only three days later.
- As to the authorities’
version of events with respect to Mr Medvedskiy’s injuries
(bruises and scratches on his face, wrists, left elbow, legs,
buttocks, hips and back), the Court notes that this account, apart
from having been denied by the applicant himself, rested solely on
the testimonies of the police. The investigation did not question the
alleged perpetrator G., who, as according to the police, had had a
fight with the applicant. Nor did the investigation explain the
nature of the injuries on the applicant’s wrists and hips,
which, according to the forensic report, could have been caused by
handcuffs and a truncheon respectively, which hardly corresponds to
the explanation of a fight between cellmates.
- The Court notes that the
materials in the case file enable the conclusion that the applicants
were the victims of violence during their detention. While the
applicants did not present and indeed were not in a position to
present any direct independent evidence capable of confirming their
allegation that their injuries were caused by police officers, the
Court considers that, viewed cumulatively, the medical evidence, the
applicants’ testimonies, the fact of their detention at the
police station and the lack of any plausible alternative explanation
as to the origin of the applicants’ injuries, give rise to a
reasonable suspicion that the injuries may have been caused by the
police.
- The Court reiterates
that a State is responsible for the welfare of persons in detention
and that the authorities have a duty to protect such persons. Bearing
in mind the authorities’ obligation to account for injuries
caused to persons under their control, the Court considers that
failure to find and prosecute persons guilty of a crime of violence
against a detainee, as in the instant case, cannot absolve the State
of its responsibility under the Convention (see, mutatis mutandis,
Esen v. Turkey, no. 29484/95, § 28; Yaz
v. Turkey, no. 29485/95, § 30; Ayşe Tepe
v. Turkey, no. 29422/95, 22 July 2003).
- In the light of the
above, and in the absence of any plausible explanation of the
Government as to the origin of the applicants’ injuries, it
must be considered that the applicants sustained the injuries as a
result of inhuman and degrading treatment for which the Government
must bear Convention responsibility.
- The Court concludes that
there has been a breach of Article 3 of the Convention in this
regard.
2. Alleged failure to carry out an effective
investigation
- Mr Lopatin considered
that despite the instructions of the courts, the prosecutors had
never conducted a thorough investigation of his complaints and had
not taken all necessary investigative measures.
- Mr Medvedskiy made no
further comments.
- The Government
maintained that the investigation into the applicants’
allegations of ill-treatment had been effective. They noted that the
investigator had interviewed police officers, a forensic expert and a
doctor on several occasions. They concluded that the prosecutor had
taken all necessary measures for the investigation of the applicants’
allegations.
- . The
Court considers, first of all, that the medical evidence and the
applicants’ complaints and testimony together gave rise to a
reasonable suspicion that their injuries could have been caused by
the police.
66. Where
an individual raises an arguable claim that he or she has been
seriously ill-treated by the police in breach of Article 3, that
provision, read in conjunction with the State’s general duty
under Article 1 to “secure to everyone within their
jurisdiction the rights and freedoms defined in ... [the]
Convention”, requires by implication that there should be an
effective official investigation. This investigation should be
capable of leading to the identification and punishment of those
responsible (see Assenov and Others v. Bulgaria, 28 October
1998, § 102, Reports 1998-VIII, and Labita v. Italy
[GC], no. 26772/95, § 131, ECHR 2000-IV). The minimum standards
of effectiveness defined by the Court’s case-law also include
the requirements that the investigation must be independent,
impartial and subject to public scrutiny, and that the competent
authorities must act with exemplary diligence and promptness (see,
for example, Isayeva and Others v. Russia, nos. 57947/00,
57948/00 and 57949/00, §§ 208-13, 24 February 2005).
- The Court notes that,
following the applicants’ complaints, the State authorities
conducted a perfunctory investigation and only questioned the alleged
offenders (see paragraph 9 above). They took the denial of the police
officers at face-value, accepted the version of events given by the
police and refused to institute criminal proceedings, despite the
applicants’ statements and their undisputed bodily injuries.
Further investigation was mainly limited to requestioning the same
police officers, who could no longer recall the circumstances of the
applicants’ case (see paragraph 29 above).
- As to the questioning of
medical experts referred to by the Government, it was limited to the
question whether the injuries could have been inflicted on the
applicants not during the period of their unreported detention
between 10 and 12 July 1999, as indicated in the original expert
forensic report, but at a later date. Such questioning seems to be
directed more towards supporting the version of events given by the
police than to investigating the applicants’ allegations (see
paragraph 22 above).
- Furthermore, despite the
applicants’ numerous complaints and appeals and the
instructions of the domestic courts, the investigation failed to
question the cell-mate G. and the other persons who had been in
contact with the applicants during the relevant period, such as the
witnesses who had identified the applicants on 12 July 1999 (see
paragraph 6 above). The Court also reiterates its findings as to the
inconsistencies in the versions given by the investigation (see
paragraphs 56-57 above) and the failure of the investigation to
address them.
- In view of these
considerations, the Court considers that the applicants took
sufficient steps to bring their allegations of ill-treatment to the
attention of the domestic authorities, and that the eventual
ineffectiveness of the investigation dispensed them from lodging
further appeals at the domestic level (see paragraphs 9, 21, 23, 24,
25, 27, 30 above). The Court therefore dismisses the Government’s
objections as to the admissibility of this complaint and finds that
there has been a violation of Article 3 of the Convention on account
of the lack of an effective investigation into the applicants’
allegations of ill-treatment.
II. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
- The applicants
complained that they had been detained unlawfully between 10 and 13
July 1999 and that the domestic authorities had failed to effectively
investigate the alleged unlawful deprivation of their liberty, in
breach of Article 5 § 1 of the Convention, which reads as
relevant:
“1. Everyone has the right to liberty
and security of person. No one shall be deprived of his liberty save
in the following cases and in accordance with a procedure prescribed
by law:
(a) the lawful detention of a person after
conviction by a competent court;
(b) the lawful arrest or detention of a
person for non- compliance with the lawful order of a court or in
order to secure the fulfilment of any obligation prescribed by law;
(c) the lawful arrest or detention of a
person effected for the purpose of bringing him before the competent
legal authority on reasonable suspicion of having committed an
offence or when it is reasonably considered necessary to prevent his
committing an offence or fleeing after having done so...”
A. Admissibility
- The Government
maintained that the domestic authorities had acknowledged the
unlawfulness of the applicant’s detention at the police station
between 10 and 13 July 1999. Therefore, the applicants could no
longer claim to be victims. Furthermore, such acknowledgment provided
the applicants with an opportunity to claim compensation for damages,
which they failed to take advantage of. In their opinion, it was for
the applicants to demonstrate that the remedies available could have
not been effective in their case
- Mr Lopatin maintained
that the special Act “on the procedure for the compensation of
damage caused to a citizen by the unlawful actions of bodies of
inquiry, pre-trial investigative authorities, prosecutors or courts”
required a court decision. He doubted the authenticity of the
decision of 15 April 2005 and its evidential force in claiming
damages for unlawful detention. He submitted that had he lodged a
claim for compensation with a domestic court, the likelihood of the
fact of his unlawful detention being established before the domestic
courts was negligible.
- Mr Medvedskiy made no
comment.
- As to the Government’s
argument that the applicants lost their victim status following the
acknowledgement of their unlawful detention, the police admitted the
fact of the applicants’ detention between 10 and 12 July 1999
as early as November 1999 (see paragraph 10 above), but it took the
investigator almost four years to recognise the detention, and
another one and a half years to acknowledge its unlawfulness. The
Government failed to explain the reasons for such a delay, which
eventually barred prosecution of those responsible for the
applicants’ unlawful detention (see paragraph 35 above) and led
to the loss of the prison records relating to the period in question
(see paragraph 34 above). Recalling that justice delayed is often
justice denied, the Court considers that such a belated
acknowledgment of the violation did not deprive the applicants of
their victim status. Furthermore, acknowledgment of a violation is
not sufficient, since the applicants should have the possibility of
obtaining redress at the domestic level.
- The Government
considered that the provisions of the Civil Code of 2003 provided the
applicants with such a possibility but they had failed to use it.
- The Court notes that the
Government’s objections are of a general nature and do not
address several important issues. They do not argue and do not
demonstrate that the provisions of the Code could apply retroactively
to the events that took place four years prior to the entry into
force of the Code. Nor do they explain why the Civil Code and not the
special law on compensation referred to by Mr Lopatin should apply in
the instant case. Finally, the above-mentioned law was amended in
December 2005 to introduce the right to compensation for unlawful
detention regardless of whether or not the person concerned has been
acquitted. In such circumstances, the Court is not persuaded by the
Government’s arguments that the remedy advanced by them was
effective and had to be exhausted by the applicant.
- The Court therefore
rejects the Government’s objections.
- The Court further notes
that this complaint is not manifestly ill-founded within the meaning
of Article 35 § 3 of the Convention. It further notes that it is
not inadmissible on any other grounds. It must therefore be declared
admissible.
B. Merits
- Mr Lopatin maintained
that his detention between 10 and 13 July 1999 had been
unlawful.
- Mr Medvedskiy made no
further comment.
- The Government
reiterated that the unlawfulness of the applicants’ initial
detention had been acknowledged at the domestic level.
- The Court reiterates
that the list of exceptions to the right to liberty secured in
Article 5 § 1 is an exhaustive one and only a narrow
interpretation of those exceptions is consistent with the aim of that
provision, namely to ensure that no one is arbitrarily deprived of
his liberty (see, inter alia, Giulia Manzoni v. Italy,
1 July 1997, § 25, Reports 1997-IV).
- In this connection, the
Court observes that the absence of an arrest record must in itself be
considered a serious failing, as it has been the Court’s
constant view that unrecorded detention of an individual is a
complete negation of the fundamentally important guarantees contained
in Article 5 of the Convention and discloses a grave violation of
that provision. The absence of a record of such matters as the date,
time and location of detention, the name of the detainee, the reasons
for the detention and the name of the person effecting it must be
seen as incompatible with the requirement of lawfulness and with the
very purpose of Article 5 of the Convention (see Fedotov v.
Russia, no. 5140/02, § 78, 25 October 2005;
Menesheva v. Russia, no. 59261/00, § 87, ECHR
2006; and Kurt v. Turkey, 25 May 1998, § 125, Reports
1998-III).
- In the instant case, it
is no longer disputed that the applicants remained in custody for
three days without any records and the unlawfulness of their
detention had been acknowledged by the domestic authorities (see
paragraph 35 above). These authorities, however, failed to
investigate this violation with sufficient efficiency (see paragraph
75 above). The Court therefore considers that there has been a
violation of Article 5 § 1 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- Mr Lopatin further
complained that he had no effective remedy for his complaints of
ill-treatment and unlawful deprivation of liberty. He relied on
Article 13 of the Convention:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
A. Admissibility
- The Court notes that
this complaint is not manifestly ill-founded within the meaning of
Article 35 § 3 of the Convention. It further notes that it is
not inadmissible on any other grounds. It must therefore be declared
admissible.
B. Merits
- The applicant maintained
that he had no effective remedy for his complaints under Articles 3
and 5 of the Convention complaints.
- The Government
considered that the applicant had effective remedies. They reiterated
their position on the effectiveness of the investigation in respect
both of the alleged ill-treatment and the alleged unreported
detention. They also maintained that there were further domestic
remedies for the applicant’s complaints under Article 5 which
he had failed to use.
- Having regard to its
finding under Articles 3 and 5 of the Convention about deficiency of
the investigation, the Court considers that it is not necessary to
examine whether, in this case, there has been a violation of Article
13.
IV. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The applicants
complained that the criminal proceedings against them had been
unreasonably long. They relied on Article 6 § 1 of the
Convention, which provides, in so far as relevant, as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal ...”
- The Government contested
that argument. They maintained that the proceedings had been
relatively complex. Furthermore, in the proceedings before the
first-instance court a significant delay had been caused by the
failure of Mr Lopatin’s lawyer to appear.
- Mr Lopatin disagreed. He
submitted that the delay caused by his lawyer’s illness
constituted only one month. He further maintained that in replies to
his queries the authorities had informed him that the delays were
caused by the large number of cases and the unsatisfactory work of
the units responsible for escorting the accused to the courts.
- Mr Medvedskiy made no
further comments.
- The period to be taken
into consideration began on 4 July 1999 and ended on 14 November
2002. It thus lasted three years, four months and twelve days for two
levels of jurisdiction.
- The Court reiterates
that, in assessing the reasonableness of the length of the
proceedings in question, it is necessary to have regard to the
particular circumstances of the case and the criteria laid down in
the Court’s case-law, in particular the complexity of the case
and the conduct of the applicants and of the relevant authorities,
and what was at stake for the applicants (see, for instance, Kudla
v. Poland [GC], no. 30210/96, § 124, ECHR 2000-XI).
- The Court notes that
although the overall length of the proceedings could be considered
justified given the complexity of the case, there was a period of
inactivity of more than a year between September 2000 and December
2001 (see paragraph 16 above) while the case was pending before the
first-instance court. The Court notes that the
Government failed to substantiate with the documentary evidence their
submissions that the period in question had been attributable to the
applicant and his lawyer, and no other plausible explanations could
be found in the case-file material. In the Court’s opinion,
such a long period of inactivity in circumstances where special
diligence was required because the applicants had been detained is
sufficient to find that there has been a violation of Article 6 §
1 of the Convention.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the
Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- Mr Lopatin claimed
30,000 euros (EUR) in respect of non-pecuniary damage. He further
maintained that he had suffered some pecuniary damage, but did not
provide any details or supporting documents.
- Mr Medvedskiy submitted
no claims.
- The Government
considered Mr Lopatin’s claim unsubstantiated and unreasonable.
They further contended that the applicant’s representative was
not authorised to lodge such claim.
- The Court notes that
the applicant did authorise Mr Kozyrev to represent him before the
Court and that the Government were duly informed of this by letter on
30 April 2009. Therefore, it considers that Mr Kozyrev had
powers to lodge just satisfaction claims on behalf of the applicant.
The Court further considers that it does not discern any causal link
between the violation found and the pecuniary damage alleged; it
therefore rejects this claim. On the other hand, making its
assessment on an equitable basis, it awards Mr Lopatin EUR 8,000 in
respect of non-pecuniary damage.
B. Costs and expenses
- The applicants did not
submit any claim under this head. The Court therefore makes no award.
C. Default interest
- The Court considers it
appropriate that the default interest should be based on the marginal
lending rate of the European Central Bank, to which should be added
three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Joins
to the merits the Government’s contentions
concerning the exhaustion of domestic remedies in respect of
the applicants’ complaints under Articles 3 and 13 of the
Convention; and rejects them after an examination on the merits;
2. Declares
the remainder of the applications admissible;
3. Holds
that there has been a violation of Article 3 of the Convention as
regards the applicants’ ill-treatment;
4. Holds
that there has been a violation of Article 3 of the Convention as
regards the absence of an effective investigation into the
applicants’ allegations of ill-treatment;
5. Holds
that there has been a violation of Article 5 § 1 of the
Convention in respect of the applicants’ unreported detention
between 10 and 13 July 1999;
6. Holds
that there is no need to examine the complaints under Article 13 of
the Convention;
7. Holds
that there has been a violation of Article 6 § 1 of the
Convention as regards the length of criminal proceedings against the
applicants;
- Holds
(a) that the respondent
State is to pay Mr Lopatin, within three months from the date on
which the judgment becomes final in accordance with Article 44 § 2
of the Convention, EUR 8,000 (eight thousand euros), plus any tax
that may be chargeable, in respect of non-pecuniary damage, to be
converted into Ukrainian hryvnias at the rate applicable at the date
of settlement;
(b) that from the expiry of
the above-mentioned three months until settlement simple interest
shall be payable on the above amount at a rate equal to the marginal
lending rate of the European Central Bank during the default period
plus three percentage points;
9. Dismisses
the remainder of the applicant’s claim for just satisfaction.
Done in English,
and notified in writing on 20 May 2010, pursuant to Rule 77 §§
2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
