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FIFTH
SECTION
CASE OF DUSHKA v. UKRAINE
(Application
no. 29175/04)
JUDGMENT
STRASBOURG
3 February
2011
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 Dushka v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Karel
Jungwiert,
Mark Villiger,
Isabelle
Berro-Lefèvre,
Mirjana Lazarova Trajkovska,
Ganna
Yudkivska,
Julia Laffranque, judges,
and Claudia
Westerdiek, Section
Registrar,
Having
deliberated in private on 11 January 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 29175/04) 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 Yuriy Nikolayevich
Dushka (“the applicant”), on 26 July
2004.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
- The
applicant alleged, in particular, that he had been tortured in police
custody to obtain confession of a crime and that the investigation
into his complaint had been ineffective.
- The
applicant having died on 4 March 2005, his mother, Mrs
Tatyana Ivanovna Dushka, informed the Court of her wish to
pursue the application.
- On
9 December 2009 the President of the Fifth Section decided to give
notice of the application to the Government. It was also decided to
rule on the admissibility and merits of the application at the same
time (Article 29 §
1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1985 and lived in Bilgorod-Dnistrovsky.
A. Proceedings against the applicant
- In
the early morning on 18 November 2002, responding to P.’s
complaint about having been robbed, the police arrived in a bar and
arrested the applicant, a minor at the material time, and V., his
acquaintance, and took them to the police station for questioning.
The applicant explained that he knew nothing about the robbery and
left the police station. It is unclear whether he was officially
released.
- At
about noon on 18 November 2002 the applicant was arrested when
walking down a street. According to the applicant, he was seized by
force by two policemen dressed in civilian clothes, without any
explanations. According to the police officers, they invited him for
questioning concerning P.’s robbery and he swore at them and
attempted to escape, making it necessary to arrest him by force.
- On
the same date the applicant was charged with refusal to comply with
the lawful demands of the police officers, presented before the
Bilgorod-Dnistrovsky Court without his parents being informed or a
lawyer being appointed, and sentenced to seven days’
administrative detention.
- On
19 November 2002 the police formally initiated criminal proceedings
concerning P.’s robbery.
- On
21 November 2002 the Bilgorod-Dnistrovsky Court reviewed the
applicant’s sentence after an objection from the
Bilgorod-Dnistrovsky Prosecutor, reduced it to three days’
detention and ordered the applicant’s release. Subsequently (on
4 January 2003) the President of the Odessa Regional Court of Appeal
quashed the decisions of 18 and 21 November 2002 by way of
supervisory review, having found that the applicant should not have
been subjected to administrative detention as he was a minor. He did
find, however, that the applicant’s malicious insubordination
rendered him liable to a fine of 136 hryvnias (UAH).
- Before
his release on 21 November 2002, the applicant was questioned
concerning P.’s robbery, in the presence of his mother and a
lawyer appointed by the police, and confessed to having participated
in the robbery.
- Following
his release, the applicant hired a new lawyer and retracted his
confessions. He alleged that he had neither participated in, nor
witnessed P.’s alleged robbery and that his previous
confessions had been made under duress. He further explained that on
21 November 2002 he had confirmed his confession in presence of his
mother and the advocate because the police had threatened that
otherwise he would not be released from detention.
- In
December 2003 the applicant was committed for trial on charges of
robbery. On 3 May 2005 the Bilgorod-Dnistrovsky Court remitted his
case for additional investigation. The parties did not provide any
further information concerning the outcome of the criminal
proceedings.
B. The applicant’s alleged ill-treatment and the
investigation into his ill-treatment complaint
- According
to the applicant, while he was serving his administrative detention
sentence he was severely ill-treated by police officers, who tried to
make him confess to participating in P.’s robbery. In
particular, he was handcuffed to a radiator and beaten on the head
and body with a plastic water bottle. On several occasions the
applicant lost consciousness. As a result of the ill-treatment, on 18
and 19 November 2002 the applicant, who had not been given access to
either a lawyer or his parents, wrote self-incriminating statements,
dictated by the police. By way of evidence that he was so questioned,
the applicant presented copies of his confession statements dated 18
and 19 November 2002. These documents contained his and the
law-enforcement officers’ signatures only (no signatures of an
advocate or a minor’s legal representative) and a seal of the
Bilgorod Dnistrovsky Prosecutor’s
Office.
- According
to the Government, no investigative actions in the applicant’s
respect took place during his administrative detention.
- According
to the applicant, on 22 November 2002 he complained to the
Bilgorod-Dnistrovsky and Odessa Regional Prosecutors’ Offices
that he had been ill-treated by the police, but he was denied
referral to a forensic expert to assess his injuries.
- On
23 November 2002 the Internal Security Service of the Ministry of the
Interior agreed to provide the applicant with the necessary referral.
On the same day the applicant underwent a forensic examination and
was found to have minor bodily injuries. In particular, the expert
found that the applicant suffered from abrasions and bruises on
different parts of his body, a haematoma, situational neurosis,
cephalalgia and a possible kidney contusion, which could have been
sustained on 18 November 2002.
- Between
26 November and 20 December 2002 the applicant received in-patient
treatment for his injuries and stress in the Bilgorod Dnistrovsky
District Hospital. Subsequently (in 2003-2004) the applicant also
underwent medical treatment for depression and chronic
pyelonephritis, conditions which, according to him, were caused by
head and kidney injuries sustained at the hands of the police and
related stress.
- On
various dates between 22 November 2002 and 1 April 2003 the
applicant’s mother complained about his ill-treatment to
various authorities, including the ombudsman and the President of
Ukraine, in various informal ways. However, it appears that no formal
action followed.
- On
1 April 2003 the applicant lodged an official request with the
Bilgorod-Dnistrovsky Inter-District Prosecutor’s Office to
institute criminal proceedings in respect of his ill-treatment.
- On
11 April 2003 the prosecutor’s office refused to initiate the
criminal proceedings, having found that there was no evidence of
ill treatment. It noted, in particular, that on the morning of
18 November 2002 the applicant had left the police station without
authorisation and that at noon on the same day he had refused to
follow the police officers who invited him to report for questioning,
had sworn at them, pushed them and attempted to escape. His arrest
and the bringing of insubordination charges had therefore been
justified. Moreover, during his detention the applicant had never
requested medical assistance and upon his release he had signed a
document stating that he had no claims against the police. No
investigative measures in the applicant’s respect had been
taken during the period of his detention.
- On
15 April 2003 the Deputy Head of the Bilgorod-Dnistrovsky Department
of the Ministry of the Interior conducted an internal investigation
and concluded that there was no ill-treatment case to answer. In
particular, the only force applied to the applicant had been during
his arrest and in response to his attempt to escape. He further noted
that during the applicant’s detention no investigative action
had been taken in his respect. On 18 September 2003 and 1
April 2004 two other internal
investigations were carried out and similar conclusions were reached.
- On
10 January 2004 the Bilgorod-Dnistrovsky Prosecutor’s Office
took a fresh decision refusing to initiate criminal proceedings
concerning the applicant’s ill-treatment complaint. It noted
that the applicant had fallen to the ground on several occasions
while trying to escape. It made no conclusions, however, as to
whether or not these falls were the cause of the applicant’s
injuries. On the same date that decision was quashed by the Odessa
Regional Prosecutor’s Office and the case was remitted for
additional investigation.
- In
the meantime, having been notified of the decision of 11 April 2003
in October 2003, the applicant appealed against it before the
Bilgorod Dnistrovsky Court. He noted,
in particular, that the prosecutor’s office had not questioned
him, his relatives or any witnesses to his arrest concerning the
events in question. It also failed to respond to his allegation that
there was no legal basis for the demand to appear for questioning and
his ensuing arrest at noon on 18 November 2002. If the police
officers had wanted to question him about P.’s robbery,
according to the applicable law they should have issued a summons and
informed his parents. This procedure had not been complied with; the
police had unlawfully demanded that he follow them, so he should not
have been convicted of insubordination. Further, the prosecutor’s
office had not reacted to the fact that the applicant’s
administrative detention had been unlawful as he had been a minor at
the material time. In addition, the authorities had wrongly stated
that no investigative action involving the applicant had been taken
during his detention. In particular, on 18 and 19 November 2002 he
had made self-incriminating statements.
- On
15 January 2004 the Bilgorod-Dnistrovsky City Court annulled the
decision of 11 April 2003. It stated, in particular, that the
investigation had been perfunctory and that the prosecution had
failed to establish the cause of the applicant’s injuries. It
further noted that the allegation that the applicant had not been
questioned concerning P.’s robbery during his detention
contradicted the factual evidence contained in the case-file
materials.
- On
9 February and 2 March 2004 the Bilgorod-Dnistrovsky Prosecutor’s
Office again refused to institute criminal proceedings into the
applicant’s ill-treatment allegations, relying on essentially
the same arguments as above.
- On
20 February and 6 March 2004 respectively those decisions were set
aside by the Odessa Regional Prosecutor’s Office and the
General Prosecutor’s Office, and the case was remitted for
further investigation. The General Prosecutor’s Office noted,
in particular, that the investigation had not determined what legal
basis there had been for the police officers’ initial demand of
18 November 2002 that the applicant report for questioning, or
whether the applicant’s reaction vis-à-vis the police
necessitated his arrest and the use of force against him. Further,
the authorities had not questioned the applicant or the medical
expert who had examined his injuries and had not verified the police
officers’ version that the applicant had fallen several times
while trying to escape.
- On
22 March 2004 the Odessa Regional Prosecutor’s Office also
addressed a letter to the Bilgorod-Dnistrovsky Prosecutor, alerting
him that the investigation was perfunctory and one-sided. In
particular, it was largely based on the explanations given by the
police officers, without any other measures being taken to establish
the real facts. It further invited the Bilgorod-Dnistrovsky
Prosecutor to facilitate “a proper and professional
investigation”.
- On
5 April 2004 the Bilgorod-Dnistrovsky Prosecutor’s Office took
a fresh decision not to institute criminal proceedings, which was set
aside by the Odessa Regional Prosecutor’s Office on 15 November
2004 and followed by a new refusal on 14 December 2004.
- On
27 January 2005 the Odessa Regional Forensic Experts Bureau
re-assessed the applicant’s injuries as being of ‘intermediate
gravity’. In particular, it concluded that his depressive
disorders and pyelonephritis could be connected to a traumatic
experience in November 2002. It further concluded that, in view of
their number and location, the injuries concerned could not have been
sustained as a result of a single fall. It was likely that the
injuries at issue had been caused by multiple impacts with blunt
objects, such as a fist, a foot or the like.
- Following
this assessment, on 5 September 2005 the Bilgorod Dnistrovsky
District Court set aside the decision of 2 March 2004 refusing to
initiate criminal proceedings (which had already been annulled by the
General Prosecutor’s Office on 6 March 2004) and ordered
further investigation.
- On
23 March 2006 the Bilgorod-Dnistrovsky Prosecutor’s Office
refused to comply with the court’s instructions, finding that
further to the annulment of the decision of 2 March 2004 by the
General Prosecutor’s Office, it had already carried out
additional investigations, and its last decision of 14 December 2004
was valid.
- On
26 May 2006 the Odessa Regional Prosecutor’s Office annulled
that decision and ordered further investigation.
- On
5 June 2006 the Bilgorod-Dnistrovsky Prosecutor’s Office took a
fresh decision not to institute criminal proceedings, relying
essentially on the same arguments as in its previous refusals.
II. RELEVANT DOMESTIC LAW
- The
relevant domestic law can be found in the judgment in the case of
Kozinets v. Ukraine (no. 75520/01,
§§ 39-42, 6
December 2007).
THE LAW
I. PRELIMINARY OBSERVATION
- The
applicant
died on 4 March 2005, while the
case was pending before the Court (see paragraph 4 above).
- The
Government submitted that the applicant’s mother can pursue the
proceedings after the applicant’s death as his close relative.
She, however, cannot be considered the victim of violations of the
Convention in his respect.
- The Court finds that while the
applicant’s mother has not been directly affected by the
violations of the Convention complained about by the applicant,
following his death she has standing to pursue the present
proceedings on his behalf (see
Toteva
v. Bulgaria,
no. 42027/98,
§ 45,
19 May 2004, and Yakovenko v.
Ukraine, no.
15825/06, §
65, 25 October 2007).
However, reference will still be made to the applicant throughout the
ensuing text.
II. ALLEGED ILL-TREATMENT AND INEFFECTIVE INVESTIGTION OF
THE ILL-TREATMENT COMPLAINT
- The
applicant complained that he had been ill-treated by police officers
whilst in custody in November 2002, to
obtain his confession that he had participated in P.’s robbery.
He further complained that there had been no effective investigation
into his complaint of ill-treatment. The applicant relied on Articles
3 and 13 of the Convention.
- The relevant Articles of the Convention read as
follows:
Article 3
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
Article 13
“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
Government submitted that the applicant’s complaint of
ill treatment was inadmissible for
non-exhaustion of domestic remedies, as the applicant’s mother
had never appealed against the prosecutor’s office’s
refusal of 5 June 2006 to institute criminal proceedings into his
ill-treatment complaint.
- The
applicant insisted that between November 2002 and June 2006 he had
lodged numerous complaints with various competent authorities, all to
no avail, as the prosecutor’s office was plainly unwilling to
conduct a real investigation. The investigation had therefore been
ineffective and it was futile to appeal against a further refusal to
investigate his complaint.
- The
Court considers that the Government’s objection raises an issue
which falls to be examined under Article 3 of the Convention together
with the complaint about the ineffectiveness of the investigation,
and accordingly joins it to the merits of the applicant’s
complaint.
B. Merits
1. Submissions of the parties
- The
applicant alleged that he had sustained permanent health damage as a
result of his ill-treatment by the police. In particular, he suffered
from chronic pyelonephritis and the after-effects of a head injury,
including depression and suicidal thoughts. He maintained that his
injuries had been inflicted on him by the police when they questioned
him on 18 and 19 November 2002 in the absence of his parents or
a lawyer. The applicant further submitted that under duress he had
first made a self-incriminating statement on 18 November 2002, and
that he had confirmed it on 21 November 2002
in the presence of his mother and a lawyer, because the police had
threatened not to release him otherwise. After recovering from the
stress and hiring a new lawyer upon his release, the applicant had
retracted his confession.
- The
applicant further submitted that immediately upon his release he had
notified various authorities, including the local prosecutor’s
office, of the unlawful conduct of the police officers in his
respect. The prosecutor’s office, however, had refused to take
note of his complaint or even to refer him for a forensic examination
of his injuries. It was only a day later (23 November
2002) that he managed to obtain such a referral from the Internal
Security department of the local police, which was not competent to
investigate his complaint. He further alleged that the prosecutor’s
office was unwilling to investigate the real circumstances in which
he had sustained his injuries. This fact was witnessed by the
numerous refusals to institute criminal proceedings, which relied
primarily on mere statements by the police officers involved denying
any ill-treatment, without the reason for the injuries being
established. The applicant also alleged that the prosecutor’s
office had regularly delayed in informing him of its decisions
rejecting his complaints, making it hard for him to appeal against
them.
- The
Government objected to these arguments. They stated, in particular,
that the applicant had not been questioned concerning the robbery
during his stay in custody. He had confessed to the robbery in the
presence of his mother and a lawyer. Upon his placement in the
detention centre, the applicant had been medically examined and found
to have no injuries. The injuries complained of could have been
sustained under various circumstances, after his release, including
falls to the ground or blows from blunt objects, for example. It was
not until 1 April 2003 that the applicant had lodged a formal request
to initiate criminal proceedings against the police officers.
Notwithstanding the lapse of time, the prosecutor’s office had
taken all necessary measures to investigate the possible
ill-treatment and dismissed the applicant’s complaint for want
of evidence. As the applicant’s heirs had failed to appeal
against the decision of 5 June 2006, further investigation had not
been possible.
2. The Court’s
assessment
(a) Concerning the alleged ill-treatment
- Viewing
facts of the present case in light of the general principles
determined in its case-law (see, for example, Tomasi v.
France, 27 August 1992, §§ 108-111, Series A no. 241 A;
Ribitsch v. Austria, 4 December 1995, § 34, Series A no.
336 and Vergelskyy v. Ukraine, no. 19312/06, § 106,
12 March 2009), the Court notes that according to expert findings of
23 November 2002 and 27 January 2005, which the parties did not
challenge, the applicant sustained bruises, abrasions and other
injuries on various parts of his body, which could have been
inflicted on 18 November 2002 (the day of his placement in custody)
by multiple impacts with blunt objects (see paragraphs 18 and 31
above). The applicant’s account of the circumstances, in which
he suffered these injuries, namely, application of force by the
police officers during his interrogations, is sufficiently detailed
and consistent with the expert findings. The Government has failed to
provide any coherent and substantiated alternative account of the
relevant events, in spite of several years of investigations. In
these circumstances the Court finds that the State is responsible for
the above injuries, which amounted to the applicant’s
ill-treatment.
- At the same time, the Court finds noteworthy the
circumstances surrounding the applicant’s arrest, his placement
in custody and his questioning about the robbery. First of all it
recalls that the applicant’s three day placement in
administrative detention was officially declared unlawful by the
domestic judicial authorities (see paragraph 11 above).
- It further notes that neither the refusals of the
prosecuting authorities to initiate criminal proceedings, nor the
Government’s observations, contain any response to the
applicant’s allegations that his initial forced delivery to the
police at noon on 18 November 2002 was not based on any legal ground.
In particular, it appears that when the police stopped him on a
public street, the applicant had not been engaged in any criminal
activity capable of justifying his arrest, nor had he been ordered to
report to the police on the basis of an official summons, either as a
suspect or as a witness. Moreover, it was not until 19 November 2002
that criminal proceedings were instituted in respect of P.’s
robbery complaint. Although the applicant was a minor at the material
time, neither his parents nor a lawyer were informed of his arrest
and the applicant lacked any representation before the court that
sentenced him to administrative detention.
- Finally, although the Government and the prosecutor’s
office alleged that the applicant was not questioned about the
robbery during his custodial sentence, the applicant provided copies
of his confessions and self incriminating explanations dated 18
and 19 November 2002 signed by the applicant and the law-enforcement
officers (no signature of a lawyer or a minor’s legal
representative present – see paragraph 15 above). Likewise, on
15 January 2004 the Bilgorod-Dnistrovsky Court noted that the
prosecutor’s office’s conclusion that the applicant had
not been questioned during his detention was in contradiction with
other case-file materials.
- The fact that the applicant, a minor at the material
time, first confessed to the robbery during his administrative
detention in a setting lacking procedural guarantees, such as
availability of a lawyer, and retracted his confession upon his
release, points to the conclusion that his confession may not have
been given freely. This, in conjunction with the ambiguous
circumstances surrounding the applicant’s arrest and the
unlawfulness of his administrative detention, gives rise to a strong
suspicion that regardless of whether the police resorted to physical
violence (see paragraph 48 above), they arrested the applicant and
placed him in detention as a means of breaking his moral resistance
and using his vulnerable emotional state to obtain self-incriminating
statements.
- The Court finds that such practice is contrary to
Article 3 of the Convention (see, mutatis mutandis, Jalloh
v. Germany [GC], no. 54810/00, § 82, ECHR 2006 IX,
and Gäfgen v. Germany, cited above, § 131) and,
especially given the applicant’s vulnerable age, qualifies as
inhuman and degrading treatment.
- In the light of the above, the Court concludes that
there has been a breach of Article 3 of the Convention in respect of
the applicant’s ill-treatment in custody.
(b) Concerning
the effectiveness of the investigation
- The
Court reiterates that where an individual raises an arguable claim
that he has been seriously ill-treated by 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 (see Assenov and Others v. Bulgaria,
judgment of 28 October 1998, Reports of Judgments and Decisions
1998 VIII, p. 3290, § 102).
- As
regards the circumstances of the present case, the Court notes that
the applicant promptly informed the law-enforcement authorities of
his alleged ill-treatment. The investigation, which lasted more than
three years, did not establish the circumstances surrounding his
complaint and did not identify the person or persons (if any)
responsible for his injuries.
- The
Court further notes that the investigation was closed on a number of
occasions, as the prosecutor’s office was not able to detect
evidence of ill-treatment. At various times the decisions to close
the investigation were set aside by administrative or court orders,
as the prosecutor’s office had failed to employ all the means
available to it to establish the circumstances surrounding the
applicant’s complaint.
- The
prosecuting authorities largely repeated the same conclusions in all
of their refusals. In spite of the instructions issued by the courts
and supervising prosecutorial authorities (see paragraphs 26, 28 and
29 above), the investigation provided no specific answers to the
particular allegations raised by the applicant in his complaints. In
particular, it did not find any plausible explanation as to the
reason for his injuries, or provide a substantiated response to his
arguments concerning the unlawfulness of his arrest and detention or
his allegations that he had been questioned about P.’s robbery
in violation of procedural guarantees enshrined in the Code of
Criminal Procedure. The Court specifically recalls that on 15 January
2004 the Bilgorod-Dnistrovsky Court found that the prosecutor’s
office’s allegation that the applicant had not been questioned
about the robbery during his term in custody contradicted the
evidence in the case file. Notwithstanding that finding, the
subsequent refusals to initiate criminal proceedings reiterated the
same conclusion, without further reasoning.
- In
these circumstances, the Court does not have reason to believe that
yet another appeal by the deceased applicant’s heirs would
redress the earlier shortcomings and render the investigation
effective.
- The
Court finds that the factual circumstances surrounding the
investigation of the applicant’s complaint of ill-treatment in
the present case are similar to the situations in which it has found
violations in a number of recent cases (see, inter alia,
Mikheyev v. Russia, no. 77617/01, §§ 112-113 and
120-121, 26 January 2006; Kobets v. Ukraine, no. 16437/04, §§
53-56, 14 February 2008; and Vergelskyy
v. Ukraine, no. 19312/06, §
102, 12 March 2009).
61. In
the light of the circumstances of the present case and its settled
case-law, the Court concludes that there has been a
violation of Article 3 of the Convention on account of the
ineffective investigation of the applicant’s complaint of
ill-treatment whilst in custody. It follows that the Government’s
objection concerning non-exhaustion (see paragraph 42 above) must be
dismissed.
- Having
regard to its finding under Article 3, the Court considers that it is
not necessary to examine whether there has also been a violation of
Article 13 of the Convention in respect of the effectiveness of the
investigation.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- In
addition, the applicant complained that his arrest on 18 November
2002 had been unlawful, that the court hearing concerning charges of
insubordination towards the police officers had been unfair and the
resulting conviction arbitrary, and that he had lacked effective
domestic remedies in respect of these complaints. He relied on
Articles 5, 6 § 1, 7 and 13 of the Convention with respect to
these complaints.
- Having
considered the applicant’s submissions in the light of all the
material in its possession, the Court finds that, in so far as the
matters complained of are within its competence, they do not disclose
any appearance of a violation of the rights and freedoms set out in
the Convention.
- It
follows that this part of the application must be declared
inadmissible as being manifestly ill-founded, pursuant to Article 35
§§ 3 (a) and 4 of the Convention.
IV. 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 800,000 euros (EUR) in his name and EUR 150,000
euros in his mother’s name in respect of non-pecuniary damage
allegedly sustained on account of violations of all the provisions of
the Convention invoked in his application.
- The
Government submitted that these claims were exorbitant and
unsubstantiated. Moreover, Mrs Dushka had no right to claim any
award in her name. They also contended that should the Court make any
award in the applicant’s name, it should be deposited for the
benefit of all his lawful heirs.
- The
Court recalls that it has found violations only of Article 3 of the
Convention in respect of the applicant’s rights. Ruling on an
equitable basis, it awards the applicant EUR 18,000 in respect
of non-pecuniary damage, to be paid to the applicant’s estate.
B. Costs and expenses
- The
applicant also claimed UAH 436 in local transportation costs,
UAH 2,781 for his and his mother’s medical costs; UAH
6,900 for his and his mother’s spa treatment costs; and UAH
1,528.54 in postal and copying expenses. He provided relevant
receipts for medical, copying and postal expenses.
- The
Government submitted that these claims were without merit.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, regard being had to
the documents in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 150 covering costs
for postal and copying expenses and dismisses the remainder of the
claims.
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
- Holds that the applicant’s mother, Mrs
Tatyana Ivanovna Dushka, has standing to continue the present
proceedings in the applicant’s stead;
- Decides to join to the merits the
Government’s objection as to the exhaustion of domestic
remedies in respect of the applicant’s complaint under Article
3 of the Convention concerning his alleged ill-treatment in police
custody and dismisses it after having examined the merits of that
complaint;
- Declares the complaints concerning ill-treatment
in police custody and the ineffective investigation into the
applicant’s alleged ill-treatment admissible and the remainder
of the application inadmissible;
- Holds that there has been a violation of
Article 3 of the Convention on account of the inhuman and
degrading treatment suffered by the applicant at the hands of the
police;
- Holds that there has been a violation of Article
3 of the Convention on account of the ineffective investigation of
the applicant’s complaint of ill treatment at the hands of
the police;
- Holds that there is no need to examine the
complaint under Article 13 of the Convention concerning the
ineffectiveness of the investigation;
- Holds
(a) that
the respondent State is to pay to the applicant’s estate,
within three months from the date on which the judgment becomes final
in accordance with Article 44 § 2 of the Convention, EUR 18,000
(eighteen thousand euros) in respect of non-pecuniary damage plus any
tax that may be chargeable on the above amount and to Mrs Tatyana
Ivanovna Dushka EUR 150 (one hundred and fifty euros) in costs and
expenses plus any tax that may be chargeable to her on the above
amount, to be converted into the national currency of Ukraine 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 amounts 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 claim for just
satisfaction.
Done in English, and notified in writing on 3 February 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
