DZHULAY v. UKRAINE - 24439/06 - Chamber Judgment [2014] ECHR 352 (03 April 2014)

In the case of Dzhulay v. Ukraine,

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

          Mark Villiger, President,
          Angelika Nußberger,
          Boštjan M. Zupančič,
          Ann Power-Forde,
          Ganna Yudkivska,
          Helena Jäderblom,
          Aleš Pejchal, judges,
and Claudia Westerdiek, Section Registrar,

Having deliberated in private on 4 March 2014,

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

PROCEDURE

1. The case originated in an application (no. 24439/06) 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 Yevgeniy Valentinovich Dzhulay (“the applicant”), on 5 June 2006.

2. The applicant was represented by his mother, Ms A. Dzhulay. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr N. Kulchytskyy of the Ministry of Justice of Ukraine.

3. The applicant alleged, in particular, that he had been ill-treated by police officers and that the investigation conducted following his complaints had been ineffective, in breach of Article 3 of the Convention. The applicant also complained that his lawyer had been absent when an identification parade had been carried out during the investigation of the criminal case against him, contrary to the requirements of Article 6 § 3 (c) of the Convention.

4. On 6 October 2010 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1979 and resides in Kyiv.

A. Criminal proceedings against the applicant

6. At 4.00 a.m. on 3 March 2003 M.’s house in the town of Pyryatyn (in the Poltava region) was burgled by several persons. M., his mother (M.S.), his wife (M.L.) and M.G. (M.L.’s niece) were in the house at the time. M. and M.S. sustained bodily injuries. Various items of property, including jewellery, were stolen. Criminal proceedings were instituted by the police on the same day.

7. On 24 April 2003 the applicant was arrested in Kyiv. According to the applicant, he was arrested while at home. According to official records, the applicant was arrested at 6.20 p.m. for swearing in public and behaving “with insolence” (викликаюче).

8. On 25 April 2003 the Kyiv Golosiyivskyy District Court imposed on the applicant fifteen days’ administrative arrest for disorderly conduct.

9. On 7 May 2003 the applicant was transported from Kyiv to the town of Pyryatyn (about 150 kilometres). On 8 May 2003 he confessed to the above-mentioned burglary.

10. On 9 May 2003 the applicant was formally arrested on suspicion of having committed a crime.

11. On 11 May 2003 a lawyer, Ma., allegedly hired by the applicant’s family, submitted a request to the investigation officer for permission to represent the applicant in the criminal case against him. The lawyer also noted that since investigative actions planned for that day had not taken place he had returned to Kyiv. On the same day, Ma. was given leave to represent the applicant.

12. On 12 May 2003 an identification parade took place in the presence of two attesting witnesses. The victims, M., M.L. and M.G., identified the applicant as the person who had been in their house on the night of 3 March 2003. Two more persons participated in the identification parade. Their description, according to the official records, was as follows: person no. 1: 1.81 metres tall, dark hair, brown eyes, wearing dark blue jeans, a grey T-shirt and trainers; person no. 2: 1.76 metres tall, dark blond hair, green eyes, wearing grey trousers, a grey T-shirt and trainers; person no. 3 (the applicant): 1.89 metres tall, dark blond hair, grey eyes, wearing dark blue sport pants, a T-shirt and trainers.

13. M.G. stated that she had recognised the applicant by his voice, height and body type. M. stated that he had recognised the applicant by his voice, and M.L. that she had recognised the applicant by his voice and body type.

14. The identification parade was carried out in the absence of the applicant’s lawyer. The police officer who conducted the parade informed his supervisor that the applicant’s lawyer was not able to attend as he was busy in another criminal case. The applicant was offered another lawyer but refused. The record of the identification parade was signed by all those present and it was noted that the parade’s participants had “no complaints”.

15. On 14 May 2003 a lawyer, S., was given leave to represent the applicant. She represented him until at least 18 August 2005.

16. On 9 November 2004 the Pyryatynskyy District Court sentenced the applicant to nine years’ imprisonment with confiscation of his property, and two of his accomplices (D. and Zh.) to terms of imprisonment and confiscation of their property for the burglary of M.’s house and the infliction of minor bodily injuries on M. and M.S. Two other persons involved in the crime (P. and L.) had not been found. The court also granted the victims’ civil claims.

17. In the course of the trial proceedings, the applicant pleaded innocent. His testimonies at the trial could be summarised as following. In March 2003 he had been asked to drive D. in exchange for payment. Zh. and My. had been with them. They had stopped near a building. Everybody except the applicant had left the car. The applicant stated that he had slept in the car for a night and a day. Then D., Zh. and two unknown persons had driven “to the garages”. Everybody had left and he had stayed in the car. The applicant did not know where they had gone i.e. he did not know about the burglary. The applicant further stated that he had pleaded guilty because the police officers had beaten him.

18. At his court hearing Zh. pleaded partially guilty and testified that the applicant had remained in the car while M.’s house was being burgled. D. pleaded partially guilty but did not say anything regarding the applicant’s involvement in the crime.

19. M. and M.L. testified that they had seen four or five persons break into the house that night. They had tied M.L. up and had taken money. M. had been severely beaten by D. The former recognised the applicant since the applicant had been very frightened and he remembered his eyes. It was noted in the court hearing record that M. said: “I saw [the applicant], he was trembling all over, he was so stressed, I saw his eyes. I cannot be mistaken”. The aggressors had worn masks but later removed them. All of them had been shorter than D. and the applicant, who were the tallest. M.L. testified that she had seen four persons and that M.S. had seen a fifth one, who had been in the corridor.

20. M.G. testified that the applicant had been very frightened and had been trembling all over. He had been similarly frightened during the identification parade. She also recognised him because of his height and voice. She remembered that he had asked her age and whether she was married. During the identification parade all three persons had said the same sentence and she had recognised the applicant.

21. The court found that on 3 March 2003 the applicant, D., Zh., P. and L. upon prior planning had broken into the house of M., had inflicted bodily injuries to M. and M.S., and robbed the M.’s family. In this finding, the court referred to various pieces of evidence, including the record of the reconstruction of events where Zh. explained how he, D., P., L. and the applicant had committed a robbery; the record of the identification parades in which M., M.G. and M.L. had recognised the applicant; and the conclusion of the forensic examination of tyre tracks found near M.’s house, which matched the applicant’s car.

22. In respect of the applicant’s punishment, the court noted that the applicant was young, had positive character traits, and it was the first crime he had committed; however, his guilt had been aggravated by the fact that he was transporting criminals to and from the place of the crime.

23. The applicant’s lawyer appealed against that decision. In her appeal she stated that the applicant had been ill-treated and had pleaded guilty under physical pressure. The applicant had been paid by D. to drive him and the others. As the applicant had been drunk, D. had driven the car himself. The applicant had remained in the car all the time. The applicant’s dog had also been in the car as the applicant had initially been taking him to an acquaintance to have him mated. Once there, he had been asked to drive D. The applicant’s lawyer also noted that during the investigation stage the victims had given contradictory statements as to whether they had seen their aggressors. Moreover, the identification parade had been carried out in the absence of a lawyer.

24. On 18 August 2005 the Poltava Regional Court of Appeal dismissed the appeal. The court held that the applicant’s guilt was confirmed by the testimony of D. and Zh. given during the pre-trial investigation in the presence of their lawyers. The court also noted that the applicant’s complaints of ill-treatment were unsubstantiated and that the separate ruling adopted on 9 November 2004 (see paragraph 36 below) had been quashed accordingly.

25. On 23 February 2006 the Supreme Court of Ukraine rejected the applicant’s appeal in cassation. The court noted that the applicant’s complaints of ill-treatment had been properly checked and dismissed as unsubstantiated.

B. Ill-treatment and subsequent investigation

26. The applicant stated that police officers had beaten him in Kyiv and on 7 May 2003 in Pyryatyn. They had hit him with a book on the head, punched him, threatened him with murder and rape, and put a gas mask over his face and blown cigarette smoke into it. After being severely beaten he had been forced to confess.

27. On an unspecified date the applicant made a complaint about this ill-treatment.

28. The case-file materials contain references to an expert forensic medical examination performed on 12 September 2003 (the applicant stated that it was performed on 12 May 2003 following his complaint lodged on 9 May 2003). According to the references, the expert concluded that the applicant had minor bodily injuries which could have been caused by “items in his surroundings” (предмети оточуючої обстановки). However, the applicant stated that the expert had concluded that the injuries could not have been caused by “items in his surroundings”. Neither of the parties submitted a copy of the report in question.

29. On 29 October 2003 an investigative officer of the Pyryatynskyy District Prosecutor’s Office issued a decision refusing to institute criminal proceedings following the applicant’s complaints of ill-treatment. Several police officers had been questioned. They had testified that the applicant had confessed his guilt and that nobody had ill-treated him. The prosecutor also referred to the forensic medical examination report of 12 September 2003.

30. On 2 April 2004 that decision was quashed by another prosecutor of the same prosecutor’s office. It was noted that not all of the circumstances of the applicant’s complaint had been looked into. In particular, it should have been ascertained why the applicant had been arrested in Kyiv, and under what circumstances he had sustained the bodily injuries; his medical documents should have been studied and his complaints should have been carefully examined.

31. On 29 April 2004 the Pyryatynskyy District Prosecutor’s Office refused to institute criminal proceedings against the police officers. The decision was similar to the one of 29 October 2003.

32. On 10 June 2004 the Pyryatynskyy District Court quashed that decision and ordered an additional investigation. The court specified that the investigation should ascertain the cause of the applicant’s injuries, whether he had had those injuries upon his arrival at the Pyryatynskyy Police Station, and which police officers had had contact with him.

33. On 16 July 2004 the Pyryatynskyy District Prosecutor’s Office again dismissed the applicant’s complaints. In its decision it noted that the applicant had been arrested in Kyiv on 9 May 2003. Upon his arrest and transfer to the Pyryatyn Temporary Detention Centre the applicant had not complained about any ill-treatment. The rest of the decision was similar to the one of 29 October 2003.

34. On 10 September 2004 the court quashed that decision and remitted the case for additional investigation. The court raised the same points as in its decision of 10 June 2004.

35. On 9 November 2004 the Pyryatynskyy District Prosecutor’s Office adopted another refusal to institute criminal proceedings which was identical to its previous decisions. In particular, it was noted that the applicant had been arrested in Kyiv on 9 May 2003.

36. On the same date, the Pyryatynskyy District Court adopted a separate ruling by which it requested the Poltava Regional Prosecutor’s Office to examine the applicant’s complaints of ill-treatment. The court stated that the applicant had been unlawfully transported from Kyiv to Pyryatyn and that, according to the forensic medical report, he had had three bruises on his chest from being punched.

37. On 20 May 2005 the Poltava Regional Court of Appeal adopted another separate ruling in which it requested the Poltava Regional Prosecutor’s Office to examine the applicant’s complaints of ill-treatment. The court noted that according to the conclusions of the forensic medical examination of the convicted persons, they had bodily injuries which could have been inflicted on the date and under the circumstances described by them. However, the court did not indicate whether the persons concerned included the applicant. The court also noted that the applicant had made a note on the decision ordering his arrest of 9 May 2003 that he had been ill-treated on 7 May 2003. The court further noted that on 11 June 2003 the applicant had complained about ill-treatment, but the case-file contained no response to that complaint.

38. On 31 May 2005 the Poltava Regional Prosecutor’s Office quashed the decision of 9 November 2004 not to institute criminal proceedings and remitted the case for additional investigation. On the same date it requested the Kyiv City Prosecutor’s Office to ascertain the following:

- which police officers had arrested the convicted persons and on what grounds;

- who had conducted the “pre-investigation” activities (дослідчі дії) in respect of the applicant and prepared the relevant procedural documents;

- who had picked up and transported the convicted persons from the Golosiyivskyy Police Station to the Pyryatynskyy Police Station;

- whether the convicted persons had had bodily injuries upon their arrival at the Pyryatynskyy Police Station.

It further requested the Kyiv City Prosecutor’s Office to question the personnel of the Golosiyivskyy Police Station.

39. A decision not to institute criminal proceedings was adopted on 15 June 2005. It was similar to the one of 29 October 2003. It was noted that the applicant had been arrested in Kyiv on 9 May 2003. The police officers of the Pyryatyn Police Station had testified that the applicant had not been ill-treated but had confessed on his own free will. According to the forensic medical report of 12 September 2003, the applicant had had minor bodily injuries which could have been caused by “items in his surroundings”. Scratches on his wrists had been caused by handcuffs.

40. On 18 August 2005 the Poltava Regional Court of Appeal quashed the separate ruling of 9 November 2004.

II. RELEVANT DOMESTIC LAW

Code of Criminal Procedure, 1960

41. According to section 174 of Code of Criminal Procedure, in force at the material time, the individual to be identified must be shown to the identifying person together with other individuals of the same sex, whose number should be not less than three and who should not have clear differences in their outward appearance and garments. Prior to presenting an individual for identification, he is invited, in the absence of the identifying person, to take any place among the other individuals who are being presented. The identifying person must be invited to point to the individual he wishes to identify and to give his reasons for identifying the individual concerned. The identification must be conducted in the presence of at least two witnesses.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

42. The applicant complained of ill-treatment by police officers, and that the investigation of his complaints had been ineffective. He relied on Articles 3 and 13 of the Convention.

43. The Court, which is master of the characterisation to be given in law to the facts of the case, finds that these complaints fall to be examined under Article 3 of the Convention only (see, mutatis mutandis, Timur v. Turkey, no. 29100/03, §§ 35-40, 26 June 2007).

44. Article 3 of the Convention reads as follows:

Article 3

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

A. Admissibility

45. The Government submitted that the application was partly inadmissible since the applicant had failed to exhaust the effective domestic remedies in that he had not appealed against the decision of 15 June 2005 not to institute criminal proceedings against the police officers. Even assuming that that was the final decision in the applicant’s case, the applicant had missed the six-month time-limit for lodging his application as he had lodged it only on 5 June 2006.

46 The observations in reply submitted by the applicant did not clearly indicate his position on the admissibility of these complaints.

47. The Court notes that the Government’s objections are closely linked to the applicant’s complaint under the procedural limb of Article 3 of the Convention. In these circumstances, it joins the objections to the merits of that complaint (see Lotarev v. Ukraine, no. 29447/04, § 74, 8 April 2010).

48. The Court notes that the complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

B. Merits

1. Adequacy of the investigation

49. The applicant reiterated his complaint that the investigation following his complaints of ill-treatment had been ineffective.

50. The Government referred to the decisions not to institute criminal proceedings following the applicant’s complaints and submitted that the applicant’s allegations had been properly investigated in conformity with the requirements of the procedural limb of Article 3 of the Convention. The fact that the applicant’s allegations had not been confirmed did not mean that the investigation had been ineffective.

51. 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. Such an investigation should be capable of leading to the identification and punishment of those responsible. Otherwise, the general legal prohibition of torture and inhuman and degrading treatment and punishment would, despite its fundamental importance, be ineffective in practice and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity (see Assenov and Others v. Bulgaria, 28 October 1998, § 102, Reports of Judgments and Decisions 1998-VIII; and Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000-IV).

52. An investigation into arguable allegations of ill-treatment must also be thorough. This means that the authorities must always make a serious attempt to find out what happened and should not rely on hasty or ill-founded conclusions in order to close their investigation or as the basis of their decisions (see Assenov and Others, cited above, §§ 103 et seq.). They must take all reasonable steps available to them in order to obtain evidence concerning the incident, including, inter alia, eyewitness testimony and forensic evidence (see, mutatis mutandis, Tanrıkulu v. Turkey [GC], no. 23763/94, §§ 104 et seq., ECHR 1999-IV, and Gül v. Turkey, no. 22676/93, § 89, 14 December 2000).

53. In the present case, the applicant complained that he had been ill-treated by police officers (see paragraph 26 above), who had allegedly forced him to plead guilty to committing a burglary. According to the case-file materials, the applicant had several bruises which were qualified as minor bodily injuries. The Court considers that in such circumstances the applicant’s complaints necessitated investigation.

54. The Court notes that the investigation into the applicant’s complaints lasted for two years. During that period the applicant’s requests for the institution of criminal proceedings against the police officers were rejected on five occasions. Four of these refusals were subsequently quashed by a court or by a higher prosecutor owing to various shortcomings and the case was referred back for additional investigation. Moreover, during the examination of the applicant’s criminal case on the merits, the national courts also requested the prosecutor’s office to investigate the applicant’s complaints of ill-treatment.

55. The Court observes, however, that although the case was remitted on several occasions by a court or a higher prosecutor, the majority of the decisions adopted during the two years of the investigation were identical. In particular, in the last decision, of 15 June 2005, the prosecutor rejected the applicant’s request for the institution of criminal proceedings with reference to the testimony of the police officers and the expert forensic medical report in a similar way to the decision of 29 October 2003. Thus, it does not appear from the refusal decisions that the shortcomings indicated earlier by the prosecutors and the courts were in fact corrected, or that the circumstances of the applicant’s arrest and detention, crucial for his complaints of ill-treatment, were sufficiently clarified.

56. The Court further observes that the decisions not to institute criminal proceedings in respect of the applicant’s complaints were based, inter alia, on the expert’s conclusion that the applicant’s bruises had been caused by bumping into surrounding objects. However, the applicant contested that conclusion and the District Court in one of its decisions mentioned that the applicant had three bruises on his chest from being punched (see paragraph 36 above).

57. The Court notes that the parties did not submit a copy of the expert medical report, without giving any plausible reason. Moreover, the date of the expert medical report is unclear (see paragraph 28 above). While it is conceivable that the applicant could have faced difficulties in accessing the case-file materials, the Government’s failure to provide evidence in support of a statement which was contested by the other party seriously undermines the credibility of that statement (see, mutatis mutandis, Ahmet Özkan and Others v. Turkey, no. 21689/93, § 426, 6 April 2004).

58. Finally, the Court observes that the facts referred to by the prosecutor in the decision of 15 June 2005 are not corroborated by the case-file materials. For example, it was noted that the applicant had been arrested on 9 May 2003 in Kyiv. The police officers of the Pyryatyn Police Station testified that he had pleaded guilty of his own free will. The applicant’s confession is dated 8 May 2003. Thus, it is unclear how the applicant could have been arrested in Kyiv if he had pleaded guilty in Pyryatyn on the previous day. Even assuming that this was a simple typing mistake, similar conclusions also appear in some of the other decisions not to institute criminal proceedings. Such repeated negligence is liable to induce doubts as to the thoroughness of the investigation.

59. The Court therefore considers that, in the absence of a clear picture of the events supported by evidence capable of confirming or refuting the applicant’s allegations, the decision of 15 June 2005 was not a satisfactory response to the applicant’s complaints.

60. Given that the investigation lasted two years, was marked by numerous shortcomings recognised by the national authorities, and failed to provide a plausible picture of the circumstances of the applicant’s arrest and early detention, which was of crucial importance for his complaints of ill-treatment, or to provide a plausible explanation of how the applicant’s injuries were caused, the Court considers that the investigation into the applicant’s complaints was ineffective.

61. The Court will examine now the Government’s objections previously joined to the merits (see paragraph 45 above). In respect of the Government’s objection as to the exhaustion of domestic remedies, the Court reiterates that after two years of investigations, which finally proved ineffective, the decision of 15 June 2005 was nearly identical to the one of 29 October 2003. In such circumstances, the Court considers that the applicant cannot be reproached for not repeatedly seeking the reopening of an investigation which had been found to be ineffective (see, Lotarev v. Ukraine, cited above, § 93).

62. In respect of the Government’s argument that the applicant’s complaint was out of the six-month period, the Court notes that the fact that the complaints were dismissed by the prosecutor on 15 June 2005 did not prevent the domestic courts from examining them on the merits in the course of the applicant’s trial (see paragraph 25 above). In these circumstances, it was reasonable for the applicant to wait for the completion of the trial to raise the complaints before the Court, and he has accordingly complied with the six-month rule provided for in Article 35 § 1 of the Convention (see Kaverzin v. Ukraine, no. 23893/03, § 99, 15 May 2012). The Court therefore dismisses the Government’s objections.

63. The Court finally concludes that in the present case there has been a violation of the procedural limb of Article 3 of the Convention.

2. Alleged ill-treatment by the police

64. The applicant reiterated his complaint that he had been ill-treated by the police.

65. The Government stated that, according to the Court’s case-law, the allegation of ill-treatment had to be supported by appropriate evidence. They noted that in assessing such evidence, the Court adopts the standard of proof “beyond reasonable doubt” and that such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Aliev v. Ukraine, no. 41220/98, § 154, 29 April 2003).

66. The Government maintained that the applicant had not been ill-treated. The prosecutor’s office had examined the applicant’s allegations and concluded in its decision of 15 June 2005 that no force had been used against him. In particular, the police officers mentioned by the applicant had been questioned and they had denied that any force had been used against the applicant. The applicant had not raised any complaints of ill-treatment before the domestic court at the hearings of 12 and 19 May 2003 concerning his pre-trial detention. Nor had he raised any complaints upon his arrival at the Poltava Pre-Trial Detention Centre on 28 October 2003. Moreover, the prosecutor’s decision of 15 June 2005 was based on the expert report of 12 September 2003, which had concluded that the applicant had minor bodily injuries which could have been caused by items in his surroundings.

67. In view of the above, the Government considered that there had been no violation of the substantive limb of Article 3 of the Convention in the applicant’s case.

68. As the Court has stated on many occasions, Article 3 of the Convention enshrines one of the most fundamental values of a democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances or the victim’s behaviour (see, among other authorities, Labita v. Italy [GC], cited above, § 119).

69. The Court is sensitive to the subsidiary nature of its role and recognises that it must be cautious in taking on the role of a first-instance tribunal of fact where this is not rendered unavoidable by the circumstances of a particular case (see, for example, McKerr v. the United Kingdom (dec.), no. 28883/95, 4 April 2000). Nonetheless, when allegations are made under Article 3 of the Convention, the Court must apply a particularly thorough scrutiny - even if certain domestic proceedings and investigations have already taken place (see, mutatis mutandis, Ribitsch v. Austria, 4 December 1995, § 32, Series A no. 336, and Avşar v. Turkey, no. 25657/94, § 283, ECHR 2001-VII (extracts)).

70. The Court further reiterates that in assessing evidence, it has generally applied the standard of proof “beyond reasonable doubt” (see Idalov v. Russia [GC], no. 5826/03, § 95, 22 May 2012). However, such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact.

71. Turning to the facts of the present case, the Court notes that, according to the applicant, he was beaten by police officers in Kyiv and after his transfer in Pyryatyn. Although the applicant submitted no medical evidence in support of his statements, the parties agree, and this is confirmed by the available evidence (see paragraphs 28 and 36 above), that at some point the applicant sustained injuries (bruises). Assuming that those injuries were sufficiently serious to amount to ill-treatment within the meaning of Article 3 of the Convention, it remains to be considered whether the State authorities can be held responsible under Article 3 for inflicting them.

72. The Court notes that the parties’ explanations as to the cause of the applicant’s injuries differ considerably. While the applicant stated that he had been beaten by police officers, the official version, which was allegedly based on the conclusion of an export report and maintained in all the decisions taken following the applicant’s complaints, was that the bruises had been caused by “items in his surroundings”. Although the District Court in one of its decisions noted that the applicant had been punched, the exact time of infliction of the injuries is not mentioned in the available evidence.

73 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 the cause of the injury, failing which a clear issue arises under Article 3 of the Convention (see Tomasi v. France, 27 August 1992, §§ 108-111, Series A no. 241-A, and Ribitsch v. Austria, cited above, § 34, p. 26). However, in the present case, the Court, in the absence of any conclusive evidence as to the exact nature of the injuries in question, their time of infliction and their possible cause, cannot conclude that the applicant had no injuries when taken to the police station. It cannot, therefore, establish “beyond reasonable doubt” that it was indeed the police officers who inflicted the injuries on the applicant.

74. The Court would, however, like to underline that apart from the applicant’s failure to substantiate his complaint, which could be explained by difficulties in accessing his case-file, it was the authorities’ failure to carry out an effective investigation into the applicant’s complaints that kept the crucial issues of the case unclear.

75. In such circumstances, the Court cannot but conclude that there has been no violation of the substantive limb of Article 3 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 and 3 (c) OF THE CONVENTION

76. The applicant complained under Article 6 of the Convention that his conviction and trial had been unlawful. In particular, he complained that his lawyer had been absent from the identification parade.

77. Article 6 of the Convention reads, in so far as relevant, as follows:

Article 6

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ...by [a] ... tribunal...

3. Everyone charged with a criminal offence has the following minimum rights:

...

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require...”

A. Admissibility

78. The Government did not submit any observations on the admissibility of this complaint.

79. The Court notes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

80. The applicant reiterated his complaints.

81. The Government submitted that the applicant’s lawyer had been informed of the identification parade of 12 May 2003; however, he had not attended. The applicant and his family had been informed that they could appoint another lawyer; however, they had refused to do so. The identification parade had been carried out in compliance with the legal requirements and the applicant had made no complaints.

82. The Government further submitted that the court had based the applicant’s conviction on the following evidence: M., M.L. and M.G. had recognised the applicant at the identification parade because he had been trembling in a similar way to the perpetrator during the burglary. They had also recognised him by his height and voice. The burglars had been in the victims’ house for approximately two hours so the victims had had time to remember their features.

83. Thus, the Government argued, the evidence examined by the national courts in the applicant’s case had been legitimate and adequate, and the applicant had agreed to perform the identification parade in his lawyer’s absence. The Government maintained that there had been no breach of Article 6 § 3 (c) of the Convention taken together with Article 6 § 1 of the Convention in the present case.

84. The Court reiterates that, even if the primary purpose of Article 6 of the Convention, as far as criminal proceedings are concerned, is to ensure a fair trial by a “tribunal” competent to determine “any criminal charge”, it does not follow that the Article has no application to pre-trial proceedings. Thus, Article 6 - especially paragraph 3 thereof - may be relevant before a case is sent for trial if and so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with its provisions (see Imbrioscia v. Switzerland, 24 November 1993, § 36, Series A no. 275; Öcalan v. Turkey [GC], no. 46221/99, § 131, ECHR 2005-IV; Salduz v. Turkey [GC], no. 36391/02, § 50, ECHR 2008). The Court further recalls that the guarantees in paragraph 3 (c) of Article 6 are specific aspects of the right to a fair hearing set forth in paragraph 1 of this provision which must be taken into account in any assessment of the fairness of proceedings (Martin v. Estonia, no. 35985/09, § 94, 30 May 2013). In addition, the Court’s primary concern under Article 6 § 1 is to evaluate the overall fairness of the criminal proceedings (see, as recent authorities, Taxquet v. Belgium [GC], no. 926/05, § 84, ECHR 2010, with further references therein; Al-Khawaja and Tahery v. the United Kingdom [GC], nos 26766/05 and 22228/06, ECHR 2011; Martin, ibid.).

85. Turning to the present case, the Court notes that the applicant complained that his lawyer had not been present during the identification parade (see paragraph 12 above).

86. The Court observes that the applicant was represented by a lawyer, Ma., from 11 May 2003. It is unclear from the case-file materials whether the applicant’s lawyer was informed that the identification parade involving the applicant was to be held on 12 May 2003. It can be seen from the available documents that Ma. arrived at Pyryatyn from Kyiv on 11 May 2003 in order to participate in unspecified procedural activities. Since no such activities took place on that day, Ma. returned to Kyiv.

87. On the next day, the identification parade was held in the absence of the applicant’s lawyer. The Government did not make any comments as to whether it would have been possible to postpone that investigative action. The applicant, however, having refused to accept the participation of another lawyer, did not request the postponement of the identification parade and did not complain about the absence of his lawyer (see paragraph 14 above) (see, a contrario, Laska and Lika v. Albania, nos. 12315/04 and 17605/04, 20 April 2010).

88. The Court further notes that although the height difference between the applicant and the two other identification parade participants was 8 and 13 centimeters, it appears that height was not the only feature by which the applicant was identified. In particular, the victims clearly indicated both during the identification parade and at the court hearing that they had recognised the applicant by his voice and by his overall appearance.

89. Finally, the Court notes that it appears from the available documents concerning the criminal proceedings against the applicant that the lawyer, Ma., represented the applicant for three days only. From 14 May 2003 the applicant was represented by another lawyer. The applicant’s new lawyer was present at the court hearing when the victims were questioned and had the opportunity to ask them any questions regarding their identification of the applicant. The Court also notes that the applicant’s identification in the parade was neither sole, nor decisive evidence on which his conviction was based (see, a contrario, Laska and Lika v. Albania, cited above).

90. The foregoing considerations are sufficient to enable the Court to conclude that there has been no violation of Article 6 § 3 (c) taken together with Article 6 § 1 of the Convention in the present case.

III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

91. Lastly, the applicant complained under Article 5 of the Convention that his detention had been unlawful. He also complained under Article 6 § 3 (d) of the Convention that the witnesses to the identification parade had not been questioned by the court. He further cited Article 6 §§ 2 and 3 (b) of the Convention. He also complained under Article 1 of Protocol No. 1 to the Convention that car protectors confiscated by the authorities belonged to his father. He also cited Articles 4 and 5 of Protocol No. 7 to the Convention.

92. 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.

93. It follows that this part of the application must be declared inadmissible as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

94. 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

95. The applicant claimed 66,000 euros (EUR) in respect of non-pecuniary damage and EUR 36,553.51 in respect of pecuniary damage (travel expenses incurred by his relatives in order to visit him in detention, food expenses, and loss of income on account of his detention).

96. The Government considered that the sum claimed by the applicant was excessive, and that there was no causal link between the alleged violations and the damages claimed.

97. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicant EUR 7,500 in respect of non-pecuniary damage.

B. Costs and expenses

98. The applicant also claimed EUR 303.21 for costs and expenses incurred before the domestic courts and postal expenses (without indicating the precise sum) incurred before the Court.

99. The Government submitted that the applicant had not substantiated the expenses claimed in respect of the domestic proceedings. They did not object to the postal expenses claim.

100. 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 are 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 100 in respect of the proceedings before the Court.

C. Default interest

101. The Court considers it appropriate that the default interest rate 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

1. Decides unanimously to join to the merits the Government’s objections (non-exhaustion of domestic remedies and failure to comply with the six-month time-limit) in respect of the applicant’s complaints under Article 3 of the Convention and dismisses them;

2. Declares unanimously the complaints under Articles 3 and 6 §§ 1 and 3 (c) of the Convention admissible and the remainder of the application inadmissible;

3. Holds unanimously that there has been a violation of the procedural limb of Article 3 of the Convention;

4. Holds by six votes to one that there has been no violation of the substantive limb of Article 3 of the Convention;

5. Holds by six votes to one that there has been no violation of Article 6 § 1 taken together with Article 6 § 3 (c) of the Convention;

6. Holds unanimously

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 7,500 (seven thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 100 (one hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(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;

7. Dismisses unanimously the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 3 April 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Claudia Westerdiek Mark Villiger
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 A. Power-Forde is annexed to this judgment.

M.V.
C.W.

DISSENTING OPINION OF JUDGE POWER-FORDE

Unlike the majority, I take the view that the applicant has suffered a substantive violation of Article 3 of the Convention. I also consider that his right to a fair trial was breached in contravention of the provisions of Article 6.

Article 3

The instant case is marked by the respondent State’s failure to investigate properly the applicant’s allegations of ill-treatment, its failure to produce evidence to show that it discharged its obligation to have the applicant examined, medically, when he was taken into custody and its failure to provide all relevant documentation to this Court, including, actual forensic reports of such medical examinations as were carried out on the applicant -whether in May or September 2003.

In addition to this litany of serious defaults of duty on the part of the State, such evidence as is before the Court confirms that the applicant repeatedly complained of having been ill treated by the police on 7 May 2003. He was, he claims, hit on the head, punched, threatened with murder and rape, forced to wear a smoke filled gas-mask and severely beaten, after which he confessed to having committed a crime. The evidence also establishes that, contemporaneous with his time in custody, bruising was evident on his body. It is further established that a forensic expert concluded that the bruising on his chest was caused by ‘being punched’ and that this conclusion was noted by the domestic court (§ 36).

Despite the foregoing, the majority refuses to draw a legal inference of culpability on the merits of the applicant’s complaint and declines to find that the ill-treatment did, in fact, occur. It cites, in § 73, the Tomasi principle 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 upon the State to provide a plausible explanation of the cause of his injury, failing which a clear issue arises under Article 3 of the Convention.[1] Immediately thereafter, however, the majority back-tracks and blames the applicant for not convincing us that he had no injuries when taken into custody and for not establishing ‘beyond reasonable doubt’ that it was, indeed, his gaolers who inflicted the injuries he bore.

It is difficult to envisage what supplementary proof the majority expected from the applicant. Ought he to have anticipated that he was in for a hiding when transported from Kyiv on 7 May 2003? Ought he then to have requested the police to do a detour en route to Pyryatyn so that he could consult with a doctor? Ought he to have known that he would need to have available a medical certificate testifying to the absence of bodily injuries as of that date so that, afterwards, he would in a position to prove that it was, indeed, the police who had inflicted injuries upon him? Ought he to have known that a court of human rights would expect of him this level of proof while acknowledging the authorities’ utter failure to investigate his serious complaints in a proper and timely manner?

For the Court to demand of this applicant that he provide further proof of his allegations is to place upon him a burden ‘that is as impossible to meet as it is unfair to request’.[2] If a detainee raises an arguable claim that he has been seriously ill-treated by the police in breach of Article 3 then it is for the State authorities to investigate the allegations made.[3] That includes providing rebuttal evidence that any injuries sustained were already present prior to entry into custody or were the result of legitimate action which has been documented. The authorities are obliged to keep proper records concerning a person’s detention and to place themselves in the position whereby they can account, convincingly, for any injuries. In this case, no rebuttal evidence has been adduced nor has any ‘plausible explanation’ been offered. ‘Items in his surroundings’ are blamed for injuries which the State’s own forensic expert described as ‘bruises on his chest from being punched’. The explanation tendered by the Government is simply not plausible.

In circumstances where the respondent State has failed to produce any medical records confirming that this applicant was in good health when taken into custody, where its own courts take note of forensic evidence which confirms that injuries, evident whilst in custody, were caused by ‘being punched’ and where no proper or effective investigation into complaints of ill-treatment has been conducte - I cannot but conclude that a consequent inference of culpability on the part of the State must be drawn. An evidentiary rule that holds otherwise, in the circumstances of this case, provides what Judge Bonello described as ‘an injurious escape from reality’.[4] I, therefore, find a violation of the substantive limb of Article 3 of the Convention.

Article 6

As to the complaints under Article 6, the applicant complains, generally, that his conviction and trial had been unlawful (§ 76) and, specifically, about the absence of his lawyer from the identification parade. My concern is with his general complaint. Whilst I have considerable doubts about the manner in which the identification parade was conducted, my main reason for finding a violation of Article 6 in conjunction with Article 6 § 3(c) rests upon the fact that the applicant was without any legal representation from the time he was taken into custody on 24^th April 2003 until the 11^th of May 2003. His lack of access to a lawyer during this critical period raises a serious question about the overall fairness of his criminal trial.

Although not absolute, the right of everyone charged with a criminal offence to be effectively defended by a lawyer, assigned officially if need be, is one of the fundamental features of a fair trial.[5] The Court has frequently repeated that in order to determine whether the aim of Article 6 - a fair trial - has been achieved, regard must be had to the entirety of the proceedings, including, the pre-trial proceedings.[6]

That the right of access to a lawyer is ‘triggered’ as from the first interrogation of a suspect by the police is also firmly established in the Court’s case law.[7] Indeed, the concept of fairness enshrined in Article 6 “requires that the accused be given the benefit of the assistance of a lawyer already at the initial stages of police interrogation”.[8] This principle reflects the Court’s recognition of the fact that evidence obtained during the investigation stage, including confession statements, can determine the framework in which the offence charged will be considered at the trial.[9] From the moment of arrest until the handing down of sentence, criminal proceedings form an organic and interconnected whole and an event that occurs at one stage may influence and, at times, determine what transpires at another. This ‘holistic’ approach to criminal proceedings is reflected in the Grand Chamber’s finding in Salduz that neither the legal assistance provided subsequently nor the adversarial nature of the ensuing proceedings could cure the defects which had occurred during the time spent in police custody.[10] Consequently, the Court proceeded to find a violation of Article 6 in that case.

In this case, whilst in administrative detention since 24 April 2003 for alleged ‘disorderly conduct’, the applicant was, on 7 May 2003, taken from Kyiv and brought to a region some 150 kilometers. There, he claims to have been severely beaten and ill-treated by the police. It is not disputed that on the following day he confessed to the burglary (§ 9). The first time he had access to a lawyer was on 11 May 2003.

In my view, Article 6 §1 requires that, as a rule, a suspect has a right of access to a lawyer from his or her first interrogation by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right.[11] In the present case, no such reasons have been adduced.

There is, to my mind, a presumption that a trial will be unfair unless access to a lawyer has been given from a suspect’s initial interrogation by police. Legal assistance includes an array of services which are put at an accused person’s disposal so that he can defend himself, effectively, in a criminal trial. As the Court has stated in Dayanan v. Turkey

Indeed, the fairness of proceedings requires that an accused be able to obtain the whole range of services specifically associated with legal assistance. In this regard, counsel has to be able to secure without restriction the fundamental aspects of that person’s defence: discussion of the case, organisation of the defence, collection of evidence favourable to the accused, preparation for questioning, support of an accused in distress and checking of the conditions of detention.[12]

None of the above was available to the applicant prior to 11 May 2003 despite his having been in custody for 18 days. He has, to my mind, established that during this period he was ill-treated by the police and confessed. The absence of legal assistance during this critical period cannot have been cured by subsequent events. I am unconvinced that the applicant’s criminal trial was ‘fair’ within the meaning of Article 6.

[1] Tomasi v. France, 27 August 1992, Series A no. 241-A.

[2] See the partly dissenting opinion of Bonello, J. in Veznedaroğlu v. Turkey, no. 32357/96, 11 April 2000.

[3] Assenov and Others v. Bulgaria, 28 October 1998, § 102, Reports of Judgments and Decisions 1998-VIII.

[4] See dissenting opinion of Bonello, J., in Anguelova v. Bulgaria, no. 38361/97, ECHR 2002-IV.

[5] Salduz v. Turkey, [GC] no. 36391/02, §54, 27 November 2008, § 51; Poitrimol v. France, 23 November 1993, § 34, Series A no. 277-A; and Demebukov v. Bulgaria, no. 68020/01, § 50, 28 February 2008.

[6] Panovits v. Cyprus, § 64, and Imbrioscia v. Switzerland, no. 13972/88, § 38, 24 November 1993.

[12] Dayanan v Turkey, no. 7377/03, 13 October 2009.

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You are here: BAILII >> Databases >> European Court of Human Rights >> DZHULAY v. UKRAINE - 24439/06 - Chamber Judgment [2014] ECHR 352 (03 April 2014) URL: http://www.bailii.org/eu/cases/ECHR/2014/352.html Cite as: [2014] ECHR 352