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FIFTH
SECTION
CASE OF
OLEKSIY MYKHAYLOVYCH ZAKHARKIN v. UKRAINE
(Application
no. 1727/04)
JUDGMENT
STRASBOURG
24 June
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 Oleksiy Mykhaylovych Zakharkin
v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer
Lorenzen,
President,
Renate
Jaeger,
Karel
Jungwiert,
Rait
Maruste,
Mirjana
Lazarova Trajkovska,
Zdravka
Kalaydjieva,
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 an application (no. 1727/04) 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 Oleksiy Mykhaylovych
Zakharkin (“the applicant”), on 21 November 2003.
- The
applicant, who had been granted legal aid, was represented by
Mr A.P. Bushchenko, a lawyer practising in Kharkiv. The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
- The
applicant alleged that he had been ill-treated by the police
authorities and that there had been no effective investigation of
these events. The applicant further alleged that his detention had
been unlawful and that he had not been brought promptly before a
judge after the arrest.
- On
5 February 2009 the President of the Fifth Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1979. At the material time he lived in the town
of Kalush, Ivano-Frankivsk Region.
A. Applicant’s detention and alleged
ill-treatment
- At
about 4 p.m. on 17 May 2003, when the applicant was driving from
Ivano-Frankivsk to Kalush, he was stopped by police because they had
received information that the applicant, who had previously been
convicted of theft, might have been involved in recent burglaries
committed in the neighbourhood.
- When
searching the applicant’s car, the police officers seized an
adjustable wrench, gloves, two pocket torches and some other things.
They further allegedly found in the car and the applicant’s
pocket small amounts of cannabis. According to the applicant, he had
no cannabis on him and there was none in his car.
- Following
the search, the police officers decided to formalise the applicant’s
arrest under Articles 44 and 263 of the Administrative Offences Code
for possession of illegal drugs in small amounts (administrative
offence). In the meantime they sent the seized adjustable wrench to
an expert for an opinion as to whether it might have been used to
break down the doors of the recently burgled apartments.
- During
the questioning, the applicant informed the police officers that the
cannabis did not belong to him and stated that it had been planted on
him and his car by the police officers. In response the applicant was
allegedly beaten up.
- According to the applicant, he was hung over a
horizontal crowbar when handcuffed and with his head pointing
downwards; when held in this position, he was threatened with being
killed.
- On
20 May 2003, after the expert confirmed that the adjustable wrench
had been used for a number of burglaries, the police officers took
the applicant to the investigator, who at 1 a.m. on 21 May 2003
formalised the applicant’s further detention in the status of
criminal suspect in respect of the burglaries.
- When questioned, the applicant rejected the
accusations of burglary. In response, he was allegedly beaten up by
police officers. According to the applicant, he was hung over a
horizontal crowbar when handcuffed and with his head pointing
downwards; when he was in that position his head was beaten with a
plastic bottle filled with water and his feet with a wooden bat; a
gas mask filled with liquid was placed over his head, which made it
impossible to breathe. During this treatment the applicant lost
consciousness several times and when he came round he was told he had
to confess to the crimes. Finally, he signed a confession to one
burglary. Subsequently, he signed a number of other documents given
to him by police officers.
- During
the night of 24 May 2003 the applicant, still being detained at
the police station, asked to use the toilet. When allowed to use it,
he cut his left-hand arterial vein. When the resultant bleeding was
seen he was delivered to a local public hospital. The same day,
having been provided with the requisite medical assistance, the
applicant was released. The medical examinations and treatment
provided to the applicant in connection with that injury were
documented by medical officers.
- On 26 May 2003 medical officers examined the applicant
and issued a medical report. According to the letter of the
Ivano-Frankivsk Regional Prosecutor’s Office (“the
Regional Prosecutor’s Office”) of 16 October 2003, the
report attested that the applicant had suffered (in addition to the
cut on the left arm) three abrasions to his right shoulder and arm,
three bruises to his left shoulder, three abrasions and eight
scratches to his left arm, and two abrasions to his right leg.
According to the bill of indictment of 28 December 2007 (see
also paragraph 32 below), the report, after describing the above
injuries, ended with the conclusion that they had to be qualified as
minor bodily injuries, which could have been inflicted by blunt
objects (except for the cut on the left arm), about five days before
the examination.
- On 29 May 2003 the applicant was diagnosed with a
severe and suicidal depressive disorder.
B. Official investigation of the events
- Following
his release the applicant and his mother lodged numerous complaints
with law enforcement authorities requesting that the police officers
involved be held criminally responsible.
- On
21 July 2003 the Ivano-Frankivsk Town Prosecutor’s Office
refused to institute criminal proceedings following the applicant’s
allegations, stating that there was no evidence of crime. The fact
that the applicant sustained numerous injuries was noted but
disregarded without explanation.
- The
applicant challenged that refusal before the Regional Prosecutor’s
Office which, in the course of reviewing the impugned decision, also
requested the Ivano-Frankivsk Regional Police Department, supervising
the relevant local police offices, to carry out an additional
internal inquiry concerning the facts complained of.
- On
27 October 2003 the Regional Prosecutor’s Office quashed the
decision of 21 July 2003 on the basis that the circumstances in which
the applicant had sustained the injuries had not been examined.
- On
3 November 2003 the Regional Prosecutor’s Office instituted an
investigation of the allegedly unlawful detention and ill-treatment
of the applicant.
- On
15 December 2003 the applicant applied to the General Prosecutor’s
Office asserting that the Regional Prosecutor’s Office could
not carry out an impartial investigation in respect of police
officers working in the same region. He requested therefore that the
case be referred to a prosecutor’s office of another region.
- On
16 June 2004 the applicant repeated that request as there had been no
reply to the first one. He stated that he could still remember the
events in detail and identify the policemen involved but the relevant
investigatory steps had not been taken.
- On
24 June 2004 the Kalush Town Prosecutor’s Office refused to
institute criminal proceedings against Yu. and B., two of the police
officers who, it was alleged by the applicant, had been involved in
the crimes.
- On
26 July 2004 the Regional Prosecutor’s Office itself considered
the applicant’s requests for referral of the investigation to
another prosecutor’s office and rejected them as
unsubstantiated.
- On
25 September 2004 the Regional Prosecutor’s Office refused to
institute criminal proceedings against police officers Zh., K., and
H. for lack of evidence of their involvement in the alleged crimes.
On several occasions the applicant requested a copy of that decision
in order to challenge it before a court, but to no avail.
- The
Regional Prosecutor’s Office then charged two police officers,
A. (who was the operative officer of the local police office) and M.
(who was the head of the division of the local police office dealing
with crimes against individuals and crimes committed by group of
persons), with abuse and exceeding their powers, forgery of
documents, and unlawful arrest in respect of the applicant.
- On
22 October 2004, having completed its investigation, the Regional
Prosecutor’s Office referred the case file to the
Ivano-Frankivsk Town Court (“the Town Court”) for trial.
- Between
3 November 2004 and 15 November 2006 the hearings in the case were
adjourned by the Town Court five times because of the prosecutor’s
failure to appear, seven times at the request of the prosecutor, and
once because the prosecutor was on holiday.
- On 18 July 2007 the Town Court held a hearing in the
case, in the course of which it established that the investigation
had been carried out superficially and inadequately. The Town Court
noted that the decisions to refuse to institute criminal proceedings
against the other police officers had not been substantiated. It
therefore remitted the case for further investigation and ordered
that the other police officers be brought before the applicant for
identification; that they be questioned; that a confrontation be held
between them and the applicant; that the alibi of the accused M. be
verified; that the staff of the hospital where the applicant was
provided with medical assistance be questioned; and that a detailed
reconstruction of the events be held with the participation of the
applicant, given that the latter had made contradictory statements
about how he had allegedly been hung over the crowbar.
- On 24 September 2007 the Ivano-Frankivsk Court of
Appeal upheld the decision of 18 July 2007 noting, inter alia,
that the applicant’s inconsistent statements should have been
properly verified.
- On
15 November 2007 the Regional Prosecutor’s Office commenced
additional investigations ordering that they should be terminated
within one month.
- On
28 December 2007 the Regional Prosecutor’s Office, having
completed the additional investigation, referred the case file to the
Town Court. It charged A. with abuse of powers, excess of powers,
forgery of documents, deliberately unlawful arrest. It further
charged M. with excess of powers and deliberately unlawful arrest.
All of the charges referred to the qualified corpi delicti of
the relevant crimes. The bill of indictment stated, among other
things, that M. requested the other police officers to handcuff the
applicant and to hang him over the crowbar which was placed between
two chairs; to place a gas mask over the applicant’s head and
block the air flow. It was specified that “the torture lasted
from 1 a.m. on 21 May to 9.50 a.m. on 22 May 2003”.
- According
to the bill of indictment, the other police officers were not
prosecuted as the applicant’s mother submitted that, given the
lapse of time, the applicant would not be in position to identify any
other police officer except for A. and M.; moreover, all the other
police officers denied their involvement in the crimes.
- On
25 March 2009 the Town Court found that the Regional Prosecutor’s
Office had failed to comply with the investigatory instructions
contained in the decision of 18 July 2007. The Town Court
further decided to disjoin from the case the charges against M. and
remitted this part of the case for additional investigation. As to
the charges against A., the Town Court proceeded with their
consideration.
- On 26 March 2009 the Town Court found that in the
course of the applicant’s arrest A. planted drugs on the
applicant, ill-treated him by punching and kicking him, falsified the
administrative case in his respect, and illegally detained him. The
Town Court found A. guilty of exceeding his powers, forgery of
documents and unlawful arrest, and sentenced him to three years’
imprisonment with a prohibition on occupying posts in law enforcement
bodies for the same period. It also allowed the applicant’s
civil claim for damages in part.
- On
15 September 2009 the Ivano-Frankivsk Court of Appeal upheld the
decision of 25 March 2009. It further quashed the judgment of 26
March 2009 as unsubstantiated and remitted the whole case for
additional investigation. It noted that A.’s guilt had not been
properly established either, because of the serious shortcomings of
the investigation. It also held that, given the circumstances of the
case, the Town Court had been wrong in its decision to examine the
charges against A. separately from the charges against M.
- The
investigation against A. and M. is pending.
II. RELEVANT DOMESTIC LAW
Constitution of 28 June 1996
- The
relevant provisions of the Constitution read as follows:
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
“... 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 moment of detention,
with a reasoned court decision in respect of the holding in custody.
...”
B. Criminal Code of Ukraine of 5 April 2001 (in the
wording relevant at the material time)
- Chapter
II of the Code deals with crimes against the life and health of an
individual. Article 127 of the Code which is included in that chapter
provides as follows:
“1. Torture, that is intentional causing of strong
physical pain or physical or moral suffering by way of beating,
tormenting or committing other violent acts with the purpose of
compelling the victim or any other person to commit an act against
his or her will
shall be punished by imprisonment for a period of from
three to five years.
2. The same acts, if committed repeatedly or
premeditatedly by a group of persons
shall be punished by imprisonment for a period of from
five to ten years.”
- Chapter
XVII of the Code deals with crimes committed by public servants and
other persons performing official functions. These offences include
abuse of powers (Article 364); excess of powers (Article 365);
forgery of documents (Article 366). The qualified corpi
delicti are envisaged in the event of grave consequences and
other circumstances. In particular, if the abuse of powers is
committed by a law-enforcement officer, punishment for such a crime
shall be imprisonment for a period of from five to twelve years with
the prohibition to occupy certain posts (or to carry out certain
activities) for a period of up to three years and with the
confiscation of property (Article 364 § 3). Chapter XVIII
of the Code deals with the crimes against the justice and provides,
inter alia, the crime of deliberately unlawful arrest (Article
371).
C. Code of Criminal Procedure of 28 December 1960
(as worded at the material time)
- Article 4
of the Code provides that the court, the prosecutor or the
investigator must, to the extent that it is within their power to do
so, institute criminal proceedings in every case where signs of a
crime have been discovered, take all necessary measures provided by
law to establish whether a crime has been committed and the identity
of the perpetrators and punish them.
- Article
99 of the Code provides that if there are no grounds to institute
criminal proceedings, the prosecutor, the investigator, the body of
inquiry, or the court shall take a decision refusing to institute
criminal proceedings and give relevant notices to the interested
persons, companies, institutions and organisations.
- The
relevant parts of Article 106 of the Code read as follows:
“The body of inquiry shall be entitled to arrest
a person suspected of a criminal offence for which a penalty in the
form of deprivation of liberty may be imposed only on one of the
following grounds:
1. if the person is discovered whilst or immediately
after committing an offence;
2. if eyewitnesses, including victims, directly identify
this person as the one who committed the offence;
3. if clear traces of the offence are found either on
the body of the suspect, or on his clothing, or with him, or in his
home.
If there is other information giving grounds to suspect
a person of a criminal offence, a body of inquiry may arrest such a
person if the latter attempts to flee, or does not have a permanent
place of residence, or the identity of that person has not been
established.
For each case of detention of a criminal suspect, the
body of inquiry shall be required to draw up a minutes outlining the
grounds, the motives, the day, time, year and month, the place of
detention, the explanations of the person detained and the time when
it was recorded that the suspect had been informed of his right to
have a meeting with defence counsel as from the moment of his arrest,
in accordance with the procedure provided for in paragraph 2 of
Article 21 of the present Code. The minutes of detention shall be
signed by the person who drew it up and by the detainee.
A copy of the minutes with a list of his rights and
obligations shall immediately be handed to the detainee and sent to
the prosecutor. At the request of the prosecutor, the material which
served as a ground for detention shall be sent to him as well. ...
Within seventy-two hours of the arrest the body of
inquiry shall:
(1) release the detainee if the suspicion
that he committed the crime has not been confirmed, if the term of
detention established by law has expired or if the arrest has been
effected in violation of the requirements of paragraphs 1 and 2 of
the present Article;
(2) release the detainee and select a
non-custodial preventive measure;
(3) bring the detainee before a judge with a
request to impose a custodial preventive measure on him or her. ...
Detention of a criminal suspect shall not last for more
than seventy-two hours.
If, within the terms established by law, the ruling of
the judge on the application of a custodial preventive measure or on
the release of the detainee has not arrived at the pre-trial
detention facility, the head of the pre-trial detention facility
shall release the person concerned, drawing up the minutes to that
effect, and shall inform the official or body that carried out the
arrest accordingly.”
- Article 217 of the Code provides, inter alia,
that after the completion of the investigation in the case, which has
to be referred to the court for trial, the investigator gives
relevant notices to the victim and his representative, civil
plaintiff, civil defendant, or their representatives, and explains to
them their right to familiarise themselves with the materials of the
case file.
D. Administrative Offences Code of 7 December 1984
- Article
44 of the Code prohibits the fabrication, purchase, storage,
transport, or dispatch of drugs or psychotropic substances in small
quantities without the purpose of their trafficking.
- Article
263 of the Code provides, inter alia, that anyone who violates
the rules on circulation of drugs may be arrested and detained for up
to three hours in order for a report on the administrative offence to
be drawn up. However, in order to identify the perpetrator of the
offence, subject him to a medical examination, clarify the
circumstances of purchase of the drugs or psychotropic substances and
examine them, the detention may be extended by up to three days. In
such cases the prosecutor shall be informed of the extension in
writing within twenty-four hours. If the arrested person does not
have identity documents the detention may be extended by up to ten
days subject to the prosecutor’s approval.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained that he had been tortured by police officers and
that there had been no effective investigation of his complaints. He
relied on 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 maintained that the application had been inadmissible for
non-exhaustion reasons, contending that the relevant criminal
proceedings had been pending at the national level.
- The
applicant argued that the domestic criminal proceedings had proved
ineffective and that he had been dispensed from the obligation to
pursue that remedy.
- The
Court notes that the Government’s objection is closely linked
to the applicant’s complaint under Article 3 of the Convention.
In these circumstances, it joins the objection to the merits of the
applicant’s complaint.
- The
Court further notes that these complaints are not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It also notes that they are not inadmissible on any other
grounds. They must therefore be declared admissible.
B. Merits
1. The parties’ submissions
- The
applicant, referring to his account of facts, maintained that he had
been ill-treated by police officers and that such ill-treatment
amounted to torture. As to the procedural limb of Article 3 of the
Convention, he insisted that the investigation of his ill-treatment
had not been effective. In particular, he emphasised that the
criminal proceedings had been instituted only on 3 November 2003,
that is more than five months after the events complained of. This
delay brought to the loss of evidence and seriously reduced the
chances of establishing all the relevant facts and charging all the
policemen involved. He further pointed out that the bill of
indictment, referred to the trial court on 28 December 2007, clearly
indicated that the other officers had participated in the applicant’s
ill-treatment, but those were never charged.
- The
Government maintained that the criminal proceeding had not been
completed yet and it was therefore too early to make any conclusions
as to the credibility of the applicant’s allegations of
ill-treatment. They further submitted that domestic authorities
complied with procedural obligations under Article 3 of the
Convention, contending that the investigation in question was being
carried out thoroughly and comprehensively.
2. The Court’s assessment
a. Substantive limb of Article 3 of the
Convention
- The
Court reiterates that Article 3 of the Convention prohibits in
absolute terms torture and inhuman or degrading treatment.
Ill-treatment must attain a minimum level of severity if it is to
fall within the scope of Article 3. The assessment of this minimum is
relative: it depends on all the circumstances of the case, such as
the duration of the treatment, its physical and mental effects and,
in some cases, the sex, age and state of health of the victim. In
respect of a person deprived of his liberty, recourse to physical
force which has not been made strictly necessary by his own conduct
diminishes human dignity and is in principle an infringement of the
right set forth in Article 3 (see Labita v. Italy [GC], no.
26772/95, §§ 119-120, ECHR 2000 IV).
- In
assessing evidence, the Court has generally applied the standard of
proof “beyond reasonable doubt” (see Ireland v. the
United Kingdom, judgment of 18 January 1978, Series A no. 25, pp.
64-65, § 161). However, 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 under 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 lying with the authorities to provide a
satisfactory and convincing explanation (see Ribitsch v. Austria,
judgment of 4 December 1995, Series A no. 336, § 34,
and Salman v. Turkey [GC], no. 21986/93, § 100,
ECHR 2000-VII).
- In
the present case the applicant made detailed submissions as to the
methods of ill-treatment employed by police officers against him (see
paragraphs 10 and 12 above) and insisted that such treatment had to
be qualified as torture.
-
While the fact that the applicant seriously injured himself at the
end of his detention could be to some extent an indirect indication
of the applicant’s account of torture, it will not suffice to
make definite inferences in this regard, especially in view of the
fact that the applicant was diagnosed with high depressive suicidal
disorder at the relevant time (see paragraph 15 above). There is no
detailed medical opinion as to the manner in which the injuries
displayed by the applicant after the release could have been
inflicted. The Court is further hindered from making affirmative
conclusions as to the applicant’s allegations of tortures given
that those statements turned out to be inconsistent at the domestic
level (see paragraphs 29 and 30 above). In sum, there is insufficient
material to give preference to the applicant’s description of
ill-treatment as opposed to the other possible versions, including
the one of the trial court suggesting that the applicant had been
ill-treated by being punched and kicked (see paragraph 35 above).
- The
Court therefore cannot establish “beyond reasonable doubt”
that the methods of ill-treatment described by the applicant had been
used against him by police officers (see, by contrast, Mikheyev v.
Russia, no. 77617/01, §§ 127-136, 26 January 2006,
in which the Court established that the applicant had been subjected
to torture, having regard to his attempted suicide and the evidence
in the file).
- Rejecting the applicant’s allegations of
torture, the Court still finds that there is sufficient evidence to
conclude that the applicant sustained numerous injuries (see, in
particular, paragraph 14 above) which were serious enough to amount
to ill-treatment falling within the scope of Article 3 of the
Convention. It remains to be established whether the State
authorities should be held responsible under that Article of the
Convention for having inflicted those injuries.
- The
Court notes that on 26 May 2003 the medical officers concluded that
the injuries revealed on the applicant could have been sustained by
him about five days before the examination, that is on 21 May 2003.
That date falls squarely within the period when the applicant was
under the control of police officers.
- The
Court further finds no possible indication in the case file that the
injuries could have been inflicted on the applicant before his arrest
or after his release. Moreover, to date the investigatory authorities
have not offered any version suggesting that the police officers were
not implicated in ill-treating the applicant. The Government in their
observations refrained from any comments in this regard and did not
expressly object to the applicant’s statement that the injuries
had been inflicted on him during detention.
- In
these circumstances the Court establishes that the injuries in
question had been sustained by the applicant while under the control
of the domestic authorities and considers that the State, having
failed to provide any justifying explanation, should be held
responsible for them.
- There
has been therefore a violation of a substantive limb of Article 3
of the Convention.
b. Procedural limb of Article 3 of the
Convention
- The
Court reiterates that where an individual raises an arguable claim
that he has been ill-treated by the State authorities in breach of
Article 3, that provision, read in conjunction with the State’s
general duty under Article 1 of the Convention, requires by
implication that there should be an effective official investigation.
For the investigation to be regarded as “effective”, it
should in principle be capable of leading to the establishment of the
facts of the case and to the identification and punishment of those
responsible. This is not an obligation of result, but one of means.
The authorities must have taken the reasonable steps available to
them to secure the evidence concerning the incident, including, inter
alia, eyewitness testimony, forensic evidence, and so on. Any
deficiency in the investigation which undermines its ability to
establish the cause of injuries or the identity of the persons
responsible will risk falling foul of this standard, and a
requirement of promptness and reasonable expedition is implicit in
this context (see, among many authorities, Mikheyev, cited
above, § 107 et seq., and Assenov and Others
v. Bulgaria, judgment of 28 October 1998, Reports
1998-VIII, §§ 102 et seq.).
- In cases under Articles 2 and 3 of the Convention
where the effectiveness of the official investigation has been at
issue, the Court has often assessed whether the authorities reacted
promptly to the complaints at the relevant time (see Labita, cited
above, §§ 133 et seq.). Consideration has been
given to the opening of investigations, delays in taking statements
(see Timurtaş v. Turkey, no. 23531/94, § 89,
ECHR 2000-VI, and Tekin v. Turkey, 9 June 1998, §
67, Reports 1998-IV) and to the length of time taken for the
initial investigation (see Indelicato v. Italy,
no. 31143/96, § 37, 18 October 2001).
- For
an investigation to be effective, the persons responsible for and
carrying out the investigation must be independent and impartial, in
law and in practice. This means not only a lack of hierarchical or
institutional connection with those implicated in the events but also
a practical independence (see Kolevi v.
Bulgaria, no. 1108/02, § 193, 5
November 2009).
- The
Court recalls that the notion of an effective remedy in respect of
allegation of ill-treatment entails also effective access for the
complainant to the investigation procedure (see Assenov and
Others, cited above, § 117). There must be a sufficient
element of public scrutiny of the investigation or its results to
secure accountability in practice, maintain public confidence in the
authorities’ adherence to the rule of law and prevent any
appearance of collusion in or tolerance of unlawful acts (see Kolevi,
cited above, § 194).
- Turning
to the present case, the Court has serious doubts that the initial
inquiries of the applicant’s allegations had been through. In
this regard it refers to the decision of 21 July 2003, by which
the authorities refused to institute criminal proceedings without,
however, making any attempt to explain the origin of the injuries
revealed on the applicant following his release from the police
station.
- The
Court further agrees with the applicant that the effectiveness of the
whole investigation was seriously undermined because of the initial
five-month delay in the institution of criminal proceedings. Indeed,
the most precious time for collecting the evidence had been wasted
and this protraction significantly diminished the prospect of success
of any further proceedings.
- The
Court next observes that on two occasions the applicant requested the
General Prosecutor’s Office to reassign the case to the other
investigative authority, contending that the Regional Prosecutor’s
Office could not impartially investigate the case against local
police officers. However, those requests had been considered by the
Regional Prosecutor’s Office itself. It follows that the
applicant had not been offered independent scrutiny of those requests
which, given the circumstances of the case, did not appear manifestly
unreasonable.
- The
Court further cannot overlook the difficulties the applicant
experienced in gaining access to the procedural documents at the
pre-trial stages of the proceedings. It observes that the Code of
Criminal Procedure provides for victims’ right of access to the
case file after the completion of the investigation (see paragraph 44
above) but does not duly address the issue of such access by the
victim or other interested person at the earlier stages.
- The
restrictions on the access to the case file at the stages of
instituting criminal proceedings, inquiry and investigation may be
admittedly justified by, among other things, the necessity to
preserve the secrecy of the data possessed by the authorities and to
protect the rights of the other persons. However, a fair balance
should be struck between the above-mentioned interests, on the one
hand, and the claimant’s right of effective participation in
the proceedings on the other.
- In
view of the fact that domestic law does not envisage a special
procedure of granting access to the case file at the above-mentioned
pre-trial stages and does not specify, in particular, the grounds for
refusing and granting the access, the extent to which a claimant may
be given access, the time-limits for consideration of the relevant
requests and providing the access, the Court considers that the
applicant’s opportunities for effective participation in the
proceedings had obviously been impaired during the period in
question.
- In
this context the Court also notes that the applicant’s requests
for a copy of the decision of 25 September 2004 refusing to
institute criminal proceedings against police officers Zh., K., and
H. were rejected. There is nothing to show that the refusal of those
requests was justified by any legitimate aim. It holds therefore that
such a restriction of the applicant’s right of access to the
case file, which was made possible due to the lack of relevant
safeguards in the domestic legal framework, had been disproportionate
and had not met the requirement of effective access to the
proceedings for the purpose of Article 3 of the Convention.
- Lastly,
the Court observes that on two occasions the domestic courts remitted
the case against A. and M. to the Regional Prosecutor’s Office,
finding that the investigation had been conducted with serious
shortcomings. The domestic courts ordered a number of elementary
investigatory actions including those with respect to the other
police officers whose participation in the alleged crimes had not
been properly scrutinised. The Court considers that the repetition of
such remittals, ordered after a considerable lapse of time (for
example, the first remittal was ordered more than four years after
the events complained of), discloses a serious deficiency of the
domestic criminal proceedings which are pending till now.
- In view of the above the Court concludes that criminal
proceedings conducted by the domestic authorities in respect of the
applicant’s allegations of ill-treatment did not prove to be
effective. It therefore dismisses the Government’s objection as
to the non-exhaustion of domestic remedies and holds that there has
been a violation of procedural limb of Article 3 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 5 §§ 1 (c)
and 3 OF THE CONVENTION
- The
applicant complained that his detention had been unlawful and that he
had not been brought promptly before a judge after the arrest. The
applicant relied on Article 5 §§ 1 (c) and 3 of
the Convention which provides as follows:
“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:
(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...
3. Everyone arrested or detained in
accordance with the provisions of paragraph 1 (c) of this
Article shall be ... entitled to trial within a reasonable time or to
release pending trial. Release may be conditioned by guarantees to
appear for trial.”
A. Admissibility
- The
Government maintained that these complaints had been inadmissible for
non-exhaustion reasons, stating that the criminal proceedings, where
the relevant facts would be established, had been pending.
- The
applicant argued that the remedy invoked by the Government had not
been effective.
- The
Court, having regard to its conclusion that this remedy was not
effective in respect of the complaints under Article 3 of the
Convention (see paragraph 76 above), rejects the Government’s
objection under this head also.
- The
Court notes that these complaints are not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. It also
notes that they are not inadmissible on any other grounds. They must
therefore be declared admissible.
B. Merits
1. The parties’ submissions
- The
applicant insisted that he had been detained in breach of domestic
law. He argued that irrespective of the different formalisations of
some intervals of his detention by the domestic authorities, the
whole period of his detention had to be regarded as effected for the
purpose of bringing him to criminal liability for the burglaries. The
applicant further asserted that his detention, which lasted for more
than six days, had not been subject to any judicial authorisation in
violation of domestic law and the invoked provisions of the
Convention. Even accepting the approach of the domestic authorities,
there had been in any event gross procedural violations concerning
his arrest and detention both under the Administrative Offences Code
and the Code of Criminal Procedure.
- The
Government did not make any submissions as to the merits of the
complaints, maintaining that the relevant facts had not been
established by the domestic authorities.
2. The Court’s assessment
a. Article 5 § 1 (c) of the
Convention
- The
Court reiterates that the expressions “lawful” and “in
accordance with a procedure prescribed by law” in Article 5 §
1 essentially refer back to national law and lay down an obligation
to conform to the substantive and procedural rules thereof. While it
is for the national authorities, notably the courts, to interpret and
apply domestic law, the Court may review whether national law has
been observed for the purposes of this Convention provision. However,
the “lawfulness” of detention under domestic law is the
primary, but not always the decisive element. The Court must, in
addition, be satisfied that the detention, during the period under
consideration, was compatible with the purpose of Article 5 §
1 of the Convention, which is to prevent persons from being
deprived of their liberty in an arbitrary manner (see Yeloyev v.
Ukraine, no. 17283/02, §§ 41-42, 6 November 2008).
- As
to the present case, the Court notes that on 17 May 2003 the
authorities decided to arrest the applicant because they had received
certain information indicating that he might have committed
burglaries in the neighbourhood. During his arrest the authorities
seized evidence attributable to the alleged burglaries. It follows
that the applicant’s arrest was effected with the aim of
bringing him before the competent legal authority on suspicion of
having committed burglaries.
- Meanwhile,
following the arrest the authorities formalised the first three days
of the applicant’s detention under the Administrative Offences
Code. It was only the subsequent period of detention which was
documented under the Code of Criminal Procedure. However, it appears
that during the whole period of detention the authorities had been
collecting evidence in respect of the burglaries and had questioned
the applicant in this connection. Therefore, the Court concludes that
the applicant’s administrative detention was in reality also a
part of the longer uninterrupted period of the applicant’s
detention as a criminal suspect in respect of burglaries.
- The
Court next notes that the applicant’s detention as a criminal
suspect, which started on 17 May 2003 and ended on 24 May
2003, lasted more than six days but no judicial authorisation had
been obtained within seventy-two hours, which was contrary to
domestic law. It further concludes that in the circumstances of this
case the administrative detention turned out to be the means of
extending the applicant’s deprivation of liberty without
judicial authorisation.
- That
being so, the Court considers that the authorities acted in bad faith
and deceitfully in respect of the applicant and did not make an
attempt to apply domestic legislation properly so that the
applicant’s procedural rights connected with his status as a
criminal suspect were duly ensured. The above conduct of the domestic
authorities runs counter to the principles of legal certainty and
protection from arbitrariness enshrined in Article 5 § 1
of the Convention (see, mutatis mutandis, Doronin
v. Ukraine, no. 16505/02, §
56, 19 February 2009). It follows that there has been a violation of
Article 5 § 1 of the Convention.
b. Article 5 § 3 of the
Convention
- The
Court reiterates that Article 5 § 3 of the Convention
provides persons arrested or detained on suspicion of having
committed a criminal offence with a guarantee against any arbitrary
or unjustified deprivation of liberty. It is structurally concerned
with two separate matters: the early stages following an arrest when
an individual is taken into the power of the authorities and the
period pending eventual trial before a criminal court during which
the suspect may be detained or released with or without conditions.
These two limbs confer distinct rights and are not, it is apparent,
logically or temporally linked (see, for example, Stephens
v. Malta (no. 2), no. 33740/06, § 52,
21 April 2009).
- The
present case raises the issue of availability of initial automatic
review of the applicant’s arrest and detention. The Court has
established under Article 5 § 1 (c) of the Convention
that the applicant was detained as a criminal suspect for more than
six days without being brought before a judge.
- Having
regard to the relevant case-law (see Brogan and Others v. the
United Kingdom, 29 November 1988, § 62, Series A no. 145 B
and Salov v. Ukraine, no. 65518/01, §§ 59 and
60, ECHR 2005 VIII (extracts)), the Court considers that the
applicant’s detention for such a long period without judicial
intervention fell outside the strict time constraints of Article 5 §
3 of the Convention. It concludes therefore that there has been
a violation of that provision.
III. 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
- The
applicant claimed 30,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government considered that this claim was unsubstantiated.
- Making
its assessment on an equitable basis, as required by Article 41 of
the Convention, the Court awards the applicant EUR 10,000 in respect
of non-pecuniary damage.
B. Costs and expenses
- The applicant 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
- Joins to the merits the Government’s
objections as to the exhaustion of domestic remedies and dismisses
them after an examination on the merits;
- Declares the application admissible;
- Holds that there has been a violation of Article
3 of the Convention under its substantive limb;
- Holds that there has been a violation of Article
3 of the Convention under its procedural limb;
- Holds that there has been a violation of Article
5 § 1 (c) of the Convention;
- Holds that there has been a violation of Article
5 § 3 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months of
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 10,000 (ten
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 on 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;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 24 June 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the separate opinion of Judge
Kalaydjieva is annexed to this judgment.
P.L.
C.W.
CONCURRING OPINION OF JUDGE KALAYDJIEVA
I
join the findings of the majority that the circumstances of the
present case disclose violations of the applicant rights under
Articles 3 and 5 of the Convention. The majority’s conclusions
concerning the severity of the sustained treatment are based on the
evidence before the Court and standard of proof “beyond
reasonable doubt”, which the applicant failed to meet –
he provided no evidence that he was subjected to the alleged acts of
torture and succeeded in substantiating only the claim of
ill-treatment, which was indicated by remaining traces of injuries.
The applicant could not obtain copies of certain investigation
documents and the respondent Government did not submit them.
In
the present case the respondent Government objected that the
applicant’s complaints concerning sustained torture and
ill-treatment were the subject of proceedings before the national
authorities, which have been pending for seven years. They
furthermore maintained that a premature finding of the Court in these
complaints might infringe the fairness of the future trial against
two senior police officers. In the absence of such accusations
against any officer possibly involved in the alleged treatment, I
would see no such danger.
The
question remains, however, whether in the face of the clearly
ineffective domestic investigation of the applicant’s
complaints, which may be seen as amounting to a refusal to
investigate, the Court may find itself in a situation, where –
based on the absence of evidence resulting from this refusal –
it may be prevented from subjecting such grave complaints to any
scrutiny or even be required to exonerate alleged acts of torture as
a result the national authorities’ failure to investigate into
them.
It is
shocking that – despite the explicit indication of the
prosecution authorities that the investigation found that “M.
requested the other police officers to handcuff the applicant and to
hang him over the crowbar which was placed between two chairs; to
place a gas mask over the applicant’s head and block the air
flow” and that this “torture lasted from 1 a.m. on 21 May
to 9.50 a.m. on 22 May 2003’” (see paragraph 32), officer
M. was not charged with having those orders himself, nor were any of
the officers who, according to the indictment, carried out this
order, ever investigated or charged with the crime of torture
envisaged by Article 27 of the Criminal Code. The national courts
which were confronted with this indictment were not competent to
instruct the prosecution authorities to bring charges or to
investigate those police officers who had acted under the order to
torture, nor could they require the reclassification of this
officer’s acts as an “excess of authority with no
elements of torture present”. Seven years after the events this
might no longer be possible. A year after the events – in
June 2004 – the applicant stated that he could identify
the policemen involved, but the relevant investigatory steps had not
been taken (see paragraph 22) and according to the indictment, “the
other police officers were not prosecuted as the applicant’s
mother submitted that, given the lapse of time [until 28 December
2007], the applicant would not be in position to identify any other
police officer except for A. and M.” (see paragraph 33) The
attempted suicide after seven days of detention and interrogation in
the police premises was explained with his diagnosis as having a
“high depressive suicidal disorder” without further
scrutiny whether the applicant suffered such a condition before his
arrest or whether it was possibly related to the allegedly sustained
treatment. In these circumstances I remain unconvinced that the
domestic investigation was intended to “lead to the
identification and punishment of those responsible” (see §
102, Assenov and Others, judgment of 28 October 1998, Reports
1998-VIII, with further reference to McCann and Others v. the
United Kingdom judgment of 27 September 1995, Series A no. 324,
p. 49, § 161, the Kaya v. Turkey judgment of 19 February
1998, Reports 1998-I, p. 324, § 86, and the Yaşa v.
Turkey judgment of 2 September 1998, Reports 1998 VI, p.
2438, § 98).
The
absence of any plausible explanation for the reasons of failure to
collect key evidence at the time when this was possible should, in my
view, be treated with particular vigilance. In fact the period of
seven years of demonstrated, if not deliberate systematic refusals
and failures to undertake timely and adequate investigation and to
follow the instructions of the national courts by taking further
necessary steps to investigate arguable allegations of torture seems
to make it possible for at least some of the agents of the State to
benefit from virtual impunity as a result of the lapse of time.
In
such circumstances a victim of alleged torture will be further
humiliated by the fact that the open denial of an investigation
successfully prevented the Court’s scrutiny and limited its
role to witnessing acts, which appear to be better qualified as
“collusion in or tolerance of unlawful acts”.
