DOLGANIN v. UKRAINE - 18404/07 (Judgment (Merits and Just Satisfaction) : Court (Fifth Section Committee)) [2017] ECHR 179 (16 February 2017)

In the case of Dolganin v. Ukraine,

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

          Faris Vehabović, President,
          Ganna Yudkivska,
          Carlo Ranzoni, judges,
and Anne-Marie Dougin, Acting Deputy Section Registrar,

Having deliberated in private on 24 January 2017,

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

PROCEDURE

1. The case originated in an application (no. 18404/07) 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 Valeriy Nikolayevich Dolganin (“the applicant”), on 5 April 2007.

2. The applicant, who had been granted legal aid, was represented by Ms L.G. Ibadova, a lawyer practising in Kharkiv. The Ukrainian Government (“the Government”) were represented by their acting Agent, most recently Mr I. Lishchyna, from the Ministry of Justice.

3. On 3 June 2013 the complaints under Articles 3 and 5 of the Convention concerning the alleged ill-treatment of the applicant, lack of effective investigation, lack of adequate medical assistance and unlawfulness of detention were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4. The applicant was born in 1972 and lives in Kharkiv.

A. The applicant’s arrest, his alleged ill-treatment and related events

5. According to the applicant, at 2 p.m. on 3 May 2005 he was arrested at his home, without any reason being given, and taken to the Ordzhonikidzevskyy district police station (Орджонікідзевський районний відділ Харківського міського управління Міністерства внутрішніх справ України в Харківській області), where he was handcuffed to a radiator. At around 10 p.m. he was brought before an investigator. There he was put on the floor with his hands handcuffed behind his back and was beaten by five or six police officers in his stomach and his liver. The officers then put on a gas mask on him with the air passage blocked and cigarette smoke was blown into it. The officers demanded that he confess “to crimes he had committed”. This treatment continued for one hour and the applicant was then placed in a cell. The next morning, the applicant experienced severe abdominal pain and requested medical assistance (see paragraph 8 below).

6. The Government denied all allegations of ill-treatment. However, they could not provide any factual information as to whether the applicant had been present at the police station on the date in question as the time-limit for keeping the relevant documents had expired and the admissions register of the police station had been destroyed.

7. On 4 May 2005 criminal proceedings were instituted against the applicant and two other persons for a robbery which had taken place on 12 April 2005.

8. On the same date the applicant complained to the duty officer that he was experiencing acute abdominal pain. At 10 p.m. an ambulance was called and he was transferred to Kharkiv City Hospital no. 17 (“hospital no. 17”). Upon admission, the applicant stated that he had fallen onto a concrete floor on 3 May 2005. His state of health had been classified as being of medium gravity. His initial medical examination revealed no visible bodily injuries. The applicant had an abdominal distention, felt moderate pain in the left part of his midabdomen and kidney region (“positive” Pasternatsky symptom) and had “negative” peritoneal signs. He was transferred to the surgical ward in order to verify if he had an abdominal trauma and retroperitoneal hematoma (тупа травма живота та позачеревна гематома). The applicant underwent ultrasound and X-ray examinations as well as urine and blood tests. No pathology had been revealed apart from intestinal pneumatosis which, according to the medical report, could have been an indirect indication of a possible retroperitoneal trauma. The relevant treatment was prescribed to the applicant.

9. On 5 May 2005, according to the medical records, the applicant had no longer experienced pain and his health ameliorated. He was discharged from hospital in a satisfactory condition, after being given the relevant recommendations as to further medical treatment. The applicant alleged that the police forced the hospital officials to discharge him despite his poor state of health.

10. On the same date the applicant, having waived his right to legal assistance, confessed to the crime in question and was arrested. The relevant parts of the arrest reports read as follows:

“Investigator ... K., on 5.05.2005 at 18:00 in accordance with Article 115 of the Criminal Procedure Code of Ukraine detained, on suspicion of the commission of a crime: Dolganin Valeriy Nikolayevich ...

Brought before the investigator ... or actually arrested: on 5.05.2005 ...”

11. He was taken for a forensic medical examination, which was conducted in the presence of a police officer. The relevant report suggests that no bodily injuries were noted by the forensic expert and no complaint was raised by the applicant. According to the applicant, the examination was only superficial and he was forced by the police to keep silent about his ill-treatment.

12. Later on the same day the applicant was questioned as a suspect and confirmed his earlier statements, having again waived his right to legal assistance.

13. On 6 May 2005 the applicant was charged with robbery and questioned in the absence of a lawyer. He confirmed the statements he had given earlier.

14. On the same date, the applicant complained about nausea, abdominal pain, bloating, fatigue and a dry throat and was transferred to Kharkiv City Hospital no. 2 (“hospital no. 2”), where he underwent a full-scale medical examination. During the examination, the applicant again stated that on 3 May 2005 he had fallen onto a concrete floor. He was diagnosed with a twisted sigmoid colon and acute intestinal obstruction requiring surgery. On 7 May 2005 the surgery was performed and on 13 May 2005 the applicant was discharged from hospital in a satisfactory condition.

15. On 13 June 2005, in the presence of witnesses, the applicant refused to participate in a reconstruction of the crime for health reasons, referring to testimony he had given earlier.

16. On 13 April 2007 the Ordzhonikidzevskyy District Court sentenced the applicant to seven years’ imprisonment on one count of robbery. The operative part of the judgment provided that the term of the applicant’s imprisonment should be calculated from 3 May 2005, the day of his actual arrest.

17. On 12 February 2009 the Kharkiv Regional Court of Appeal upheld this decision.

18. On 9 June and 29 July 2009 the Supreme Court of Ukraine rejected the applicant’s request for leave to lodge an appeal on points of law.

B. The applicant’s medical treatment in the Kharkiv pre-trial detention centre (“the Kharkiv SIZO”).

19. From 16 May 2005 to 19 June 2009 the applicant was detained in the Kharkiv SIZO. On 19 June 2009 he was transferred to another pre-trial detention facility and, later on, to a prison. The applicant’s complaint about inadequate medical treatment raised before the Court concerns the Kharkiv SIZO only.

1. The applicant’s account

20. According to the applicant, the medical care provided to him during his detention in the Kharkiv SIZO was inadequate and resulted in a deterioration of his health.

2. The Government’s account

21. The Government’s submitted that the applicant’s intestinal problems had a long history and were of a chronic nature. The applicant’s medical file suggests that in 2003, while serving a prison sentence for another conviction, the applicant was recognised as falling into the second category of disability because of his intestinal problems and the need for appropriate surgery was stressed by physicians.

22. On 16 May 2005 upon his arrival at the Kharkiv SIZO the applicant underwent a medical examination and was prescribed post-surgical medical treatment. His name was put on the list for regular medical check-ups.

23. On 3 June 2005 the SIZO generalist doctor advised that the previously prescribed treatment should be continued.

24. On 6 June 2005 the applicant underwent an X-ray examination and was diagnosed with post-tuberculosis residual effect. The applicant was prescribed anti-relapse medical treatment, a special diet and regular medical check-ups.

25. On 23 August 2005 the generalist doctor diagnosed the applicant as having peritoneal adhesions and prescribed him the relevant treatment.

26. On 28 November 2005 the applicant’s chest was X-rayed and found to be healthy.

27. On 18 May 2006 the applicant was examined by a surgeon and diagnosed with a post-laparotomy condition.

28. On 17 August 2006 a generalist confirmed that the applicant was suffering from peritoneal adhesions and prescribed him the relevant treatment.

29. On 17 October 2006 the applicant complained to the medical unit about stomach problems. The relevant treatment was prescribed to him.

30. On 8 December 2006, following further complaints about his health, the applicant was diagnosed with angioneurosis and prescribed the respective treatment.

31. On 26 February 2007 the applicant was diagnosed with bronchitis. The appropriate treatment was prescribed and the applicant was further recommended to consult a tuberculotherapist, which he did on 28 February 2007. No signs of active tuberculosis were found.

32. On 1 and 7 March 2007 follow-up examinations were conducted. The applicant’s health was found to be improving. Thereafter and until his transfer to another detention facility on 19 June 2009, the applicant did not again consult the medical unit of the Kharkiv SIZO.

33. On 23 June 2009 and 12 October 2010 because of his intestinal problems, the applicant was recognised as falling into the second category of disability for a one-year period and the third category of disability for the remaining imprisonment term, respectively.

34. On 5 January 2012 the applicant was granted early release.

C. Investigation of the applicant’s complaints of ill-treatment

35. On 20 February 2006 the applicant complained to a prosecutor about his ill-treatment by the police on 3 May 2005. He provided a detailed account of events and asked for the admissions register of the police station to be produced as evidence.

36. On 2 March 2006 the Ordzhonikidzevskyy district prosecutor’s office (“the district prosecutor’s office”) refused to institute criminal proceedings against the police officers for the lack of corpus delicti. In doing so, the prosecutor relied on the results of the forensic medical examination of 5 May 2005, the diagnosis made at hospitals nos. 2 and 17, and the fact that the investigator in charge of the applicant’s criminal case denied all allegations of ill-treatment.

37. On 8 August 2006 and 5 September 2006 the applicant’s mother and the applicant, respectively, again complained to the district prosecutor’s office about the applicant’s ill-treatment by the police on 3 May 2005. In letters dated 18 September 2006 the prosecutor informed the applicant and his mother that a similar complaint from the applicant had already been examined and declared ill-founded on 2 March 2006.

38. On 14 September 2006 the Kharkiv regional prosecutor’s office (“the regional prosecutor’s office”) set aside the aforementioned decision of 2 March 2006 on the grounds that the inquiry had been incomplete and ordered an additional investigation.

39. On 11 and 28 September 2006 and on 20 October 2006 the district prosecutor’s office again refused to institute criminal proceedings, giving similar reasoning to that given in respect of its decision of 2 March 2006.

40. On 28 April 2007 the regional prosecutor’s office overruled the decision of 20 October 2006 on the grounds that the inquiry had been incomplete. The prosecutor expressly indicated the measures to be taken in the course of the additional inquiry. It was noted that the applicant and the police officers needed to be questioned in detail about the circumstances in which the alleged ill-treatment had taken place, including the exact place and time of the ill-treatment, the persons involved and their individual role in the alleged incident. Moreover, possible witnesses who could confirm or disprove the fact of the ill-treatment needed to be identified, and medical specialists who had examined the applicant had to be questioned and the relevant medical documents demanded and obtained.

41. On 24 May 2007 the prosecutor again refused to institute criminal proceedings against the police officers.

42. On 25 May 2007 the above decision was dismissed as premature by the regional prosecutor’s office and the relevant instruction to conduct a further inquiry was given once again.

43. On 1 June 2007 the prosecutor’s office again refused to institute criminal proceedings in response to the applicant’s complaint as there was no medical or other evidence to support the applicant’s allegations.

44. On an unspecified date the above decision was again overruled by a higher prosecutor and an additional investigation ordered. The parties did not inform the Court as to the outcome of that additional investigation.

45. During the trial in his criminal case the applicant complained that his confession had been obtained from him by the police under duress. In the judgment of 13 April 2007, by which the applicant was convicted, his ill-treatment complaint was dismissed as unsubstantiated mainly on the basis of the forensic medical report of 5 May 2005 and the results of the inquiries conducted by prosecutors in respect of the applicant’s complaints. The court also observed that during the whole pre-trial investigation the applicant had acknowledged his guilt and had never complained about any ill-treatment, and that he had not retracted his statements until the trial (which the court considered that he did simply as part of his defence strategy). In the appeals against his conviction before the Kharkiv Regional Court of Appeal and the Supreme Court, the applicant referred to a medical certificate issued by hospital no. 17 in which it was noted that he had sustained an abdominal injury. He stated, in particular, that this evidence of his ill-treatment had been completely disregarded by the trial court. In their judgments, the higher courts dismissed the applicant’s allegation of ill-treatment on the same grounds as the first-instance court.

II. RELEVANT DOMESTIC LAW

46. The provisions of the Code of Criminal Procedure of 1960 concerning pre-investigation enquiries can be found in the judgment in Kaverzin v. Ukraine (no. 23893/03, § 45, 15 May 2012).

47. The Code of Criminal Procedure of 28 December 1960 was repealed with effect from 19 November 2012, when the new Code of Criminal Procedure of 2012 came into force. The new Code abolished the stage of pre-investigation enquiries. The relevant provisions of the new Code can be found in the decision in Nagorskiy v. Ukraine (no. 37794/14, § 38, 4 February 2016).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF THE ALLEGED ILL-TREATMENT

48. The applicant complained that he had been ill-treated by the police on 3 May 2005 and that there had been no effective investigation of his complaint in this respect. He relied on Article 3 of the Convention, which reads:

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

A. The Parties’ submissions

49. The Government denied any allegation of ill-treatment by the police and submitted that the applicant’s complaint in this respect had been limited to vague statements not supported by medical or any other evidence. They stated that the applicant’s transfer to hospital on 4 May 2005 had been prompted by his abdominal and intestinal problems, which were of a chronic nature and for which he had already undergone surgery in 2003. They also referred to the applicant’s own statements that he had fallen onto a concrete floor. In the light of these considerations, the Government maintained that the applicant’s complaint under the substantive limb of Article 3 was manifestly ill-founded.

50. Concerning the procedural limb of Article 3, the Government submitted that the investigations into the complaints of the applicant’s ill-treatment had been timely and effective and that there had been no violation of this aspect of Article 3. They submitted in particular that the prosecutors had conducted enquiries into the applicant’s allegations, in the course of which they had taken into account the results of the medical forensic examination of 5 May 2005 and the applicant’s medical file, and had interviewed the police officers concerned. No medical or other evidence of the alleged ill-treatment had been discovered.

51. The applicant maintained his complaints. He argued that his statements were well-founded and supported by medical evidence. He did not deny the chronic nature of his abdominal and intestinal problems but denied the allegation that he had undergone surgery in this respect before his arrest. The applicant considered that the Government’s failure to provide details as to his whereabouts on 3 May 2005 and to explain why the need for surgery had become urgent while he was in the hands of the police constituted sufficient evidence in support of his allegations of ill-treatment.

52. He further submitted that he had been forced by the police to provide a false explanation for his abdominal pain but that the likely veracity of the version provided by him had never been examined by the authorities because no effective investigation had ever been conducted into his complaints about ill-treatment by the police.

B. The Court’s assessment

1. Procedural aspect of Article 3 of the Convention

(a) Admissibility

53. The Government did not raise any objections concerning the admissibility of this complaint. 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

54. The Court reiterates that where an individual makes 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 as to results to be achieved but as to means to be employed. The authorities must have taken the steps reasonably available to them to secure the evidence concerning the incident, including 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, Assenov and Others v. Bulgaria, 28 October 1998, § 102, Reports of Judgments and Decisions 1998-VIII, and Mikheyev v. Russia, no. 77617/01, §§ 107 - 110, 26 January 2006).

55. As to the present case, the Court observes that while no visible bodily injuries appear to have been noted at the time of the applicant’s admission to hospital no. 17 on 4 May 2005, the relevant medical documents suggested that there were indirect evidence that the applicant could have sustained an abdominal trauma (see paragraph 8 above). The Court therefore considers that the applicant’s complaint of ill-treatment before the domestic authorities was not devoid of any basis and thus triggered their procedural obligation under Article 3 of the Convention to carry out an effective investigation of the allegation.

56. The applicant waited until 20 February 2006, that is to say for more than nine months after the event, before complaining that he had sustained injuries while in police custody. The Court does not rule out that such a delay could in principle have had a negative impact on the efficiency of the investigation. However, in the Court’s opinion, it should not have affected the thoroughness of the investigation which the authorities were obliged to ensure (see Strogan v. Ukraine, no. 30198/11, § 55, 6 October 2016).

57. The Court notes that the applicant’s allegation was examined by means of a pre-investigation inquiry, without a full-scale investigation being opened. The Court has found on a number of previous occasions that this procedure did not comply with the principles of an effective remedy (see Davydov and Others v. Ukraine, nos. 17674/02 and 39081/02, §§ 310-312, and Savitskyy v. Ukraine, no. 38773/05, § 105, 26 July 2012).

58. The Court observes that after the applicant had raised his complaint, the authorities took at least six decisions not to institute criminal proceedings, four of which were overruled as premature. The Court has held on numerous previous occasions that the repetition of such decisions usually discloses a serious deficiency in the proceedings (see, for instance, Drozd v. Ukraine, no. 12174/03, § 66, 30 July 2009).

59. Moreover, in overruling the decision not to institute criminal proceedings on 28 April 2007, the regional prosecutor identified a number of additional avenues of inquiry which should have been pursued (see paragraph 40 above). It does not appear, however, that the investigating authorities followed those instructions, since subsequent decisions not to institute criminal proceedings of 24 May 2007 and 1 June 2007 were also overruled.

60. Moreover, it is apparent that no measures were taken to establish whether or not the applicant had indeed been present at the police station on 3 May 2005, when the alleged ill-treatment took place, and whether he had sustained any injury before being detained. The prosecutors did not once refer to the fact that the results of the applicant’s medical examination at hospital no. 17 suggested that the applicant could have suffered from an abdominal injury. They did not investigate on this assumption in order to establish whether the injury did exist, what were the possible date and circumstances in which it had been sustained (ill-treatment, falling onto a concrete floor, etc.). Furthermore, the statements by the police officers involved in the alleged ill-treatment were accepted at face value, and it does not appear that any further steps to scrutinise the applicant’s allegations were taken.

61. During the trial in the applicant’s criminal case, his allegation of ill-treatment was examined solely in the context of the legal argument concerning the admissibility of evidence at the trial. This examination was limited in scope as it involved only references to the case-file material. Furthermore, the trial court remained silent as to the applicant’s specific argument concerning his suffering from the abdominal injury (see paragraph 45 above).

62. In the above circumstances, the Court concludes that the authorities failed to carry out a thorough investigation of the applicant’s allegation of ill-treatment at the police station. There has therefore been a violation of the procedural limb of Article 3 of the Convention.

2. Substantive aspect of Article 3 of the Convention

(a) Admissibility

63. The Court notes that the complaint of ill-treatment raises serious issues requiring an examination on the merits. Therefore, contrary to the Government’s submissions, the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention (see Serikov v. Ukraine, no. 42164/09, § 53, 23 July 2015). It is not inadmissible on any other grounds. It must therefore be declared admissible.

(b) Merits

64. The Court reiterates that 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], no. 26772/95, § 119, ECHR 2000-IV).

65. 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, mutatis mutandis, 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)).

66. 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.

67. In the present case, there is no direct evidence suggesting that the applicant had been ill-treated by the police as alleged. No visible bodily injuries had been recorded on him upon his admission to hospital no. 17 on 4 May 2005 or following his medical examinations afterwards. It is true that it was not excluded by the results of the applicant’s medical examination of 4 May 2005 that he could have sustained an abdominal trauma. However, no further details had been given in this respect. Likewise, no information is available before the Court as to whether the existence of this injury was eventually medically confirmed.

68. 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). In the present case, in the absence of any strong conclusive evidence as to whether an abdominal injury was the cause of the applicant’s problems for which he had been transferred to and treated at the hospital and, if so, as to the exact nature of the injury, its time of infliction and its possible cause, the Court finds it impossible to establish “beyond reasonable doubt” whether any ill-treatment occurred at the police station as alleged by the applicant

69. It emphasises, however, that it was the authorities’ failure to carry out an effective investigation into the applicant’s complaints that allowed the crucial issues of the case to remain unclear.

70. Lastly, the Court is mindful of the fact that the Government failed to provide information as to whether the applicant was in the hands of the police on 3 May 2005. It considers however that the fact of unrecorded detention alone is not sufficient to support a finding that the applicant was ill-treated (see, mutatis mutandis, Kapustyak v. Ukraine, no. 26230/11, § 69, 3 March 2016).

71. It follows that there has been no violation of the substantive limb of Article 3 of the Convention in this respect either.

II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF INADEQUATE MEDICAL ASSISTANCE IN DETENTION

72. The applicant complained that he had been denied timely and adequate medical assistance both while in the hands of police and during his pre-trial detention in the Kharkiv SIZO. He relied in this respect 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. The parties’ submissions

73. In his initial application the applicant complained that he was denied medical assistance on 5 and 6 May 2005 and that no adequate medical assistance had been provided to him in the Kharkiv SIZO. On 19 November 2013, in his comments on the Government’s observations, the applicant further complained about the lack of medical assistance on 3 and 4 May and between 13 and 16 May 2005. He also alleged that the surgery performed on him on 7 May 2005 had been of poor quality and that he had had to wait for an entire day in acute pain before being operated on, even though the relevant medical regulations provided that the waiting time should not have exceeded a few hours. With reference to the same regulations, he finally submitted that he should have been kept in hospital at least until 18 May 2005.

74. The Government noted that the applicant was already suffering from intestinal problems long before his detention. Having submitted extensive information on the medical treatment provided to the applicant from the very beginning of his detention and until his release, they argued that the assistance provided to him had been timely and adequate. All the applicant’s complaints had been addressed and there had been no evidence that the applicant’s state of health had significantly deteriorated in detention or that the problems he had experienced had been caused by a lack of adequate medical assistance rather than by the nature of his chronic disease.

B. The Court’s assessment

1. Alleged denial of medical assistance between 5 and 7 May 2005

75. The Court observes that the source of the applicant’s complaints were specific events which occurred on identifiable dates. The complaints cannot therefore be construed as referring to a continuing situation.

76. It further notes that it has found on a number of occasions that no effective, accessible remedy for the purposes of Article 35 § 1 of the Convention existed in Ukraine for dealing with complaints concerning a lack of adequate medical assistance in detention (see Melnik v. Ukraine, no. 72286/01, §§ 69, 28 March 2006; Yakovenko v. Ukraine, no. 15825/06, § 75, 25 October 2007; and Buglov v. Ukraine, no. 28825/02, § 74, 10 July 2014). In any event, there is no evidence in the case file suggesting that the applicant tried to pursue any remedy in respect of his complaints regarding the events at issue.

77. Taking into account its case-law concerning the application of the six-month rule (see, for example, Dennis and Others v. the United Kingdom (dec.), no. 76573/01, 2 July 2002; Koval v. Ukraine (dec.), no. 65550/01, 30 March 2004; Ananyev and others v. Russia, nos. 42525/07 and 60800/08, § 72, 10 January 2012), the Court observes that the events complained of by the applicant took place more than six months before the relevant complaints were lodged with the Court (5 April 2007 and 19 November 2013 respectively). It therefore finds that this part of the application must be rejected, in accordance with Article 35 §§ 1 and 4 of the Convention, as being introduced out of time.

2. Alleged lack of adequate medical assistance in the Kharkiv SIZO

78. The Court observes that the applicant’s initial complaint is confined to a general statement that the medical assistance provided to him in the Kharkiv SIZO had been inadequate, with no details given. The applicant did not take the opportunity to develop this complaint after the case had been communicated to the Government.

79. Moreover, in his reply to the Government’s observations, the applicant did not contest the accuracy of the medical records provided by the Government and did not raise particular comments in respect of the Government’s statements. The only argument he raised was that the Government had advanced no evidence that any consideration had been given to the applicant’s specific nutritional needs in view of his gastric problems.

80. As far as the latter argument is concerned, the Court notes that it is apparent from the Government’s submission that a special diet was prescribed for the applicant (see paragraph 24 above). If the applicant’s statement is to be understood as an allegation that no special diet had in fact been provided for him, the Court notes that he has failed to offer any evidence that this alleged shortcoming on its own was so harsh as to reach the threshold of severity required to bring it within the ambit of Article 3 of the Convention. In fact, the applicant provided no information whatsoever regarding any damage which the alleged violation had caused to his health. Nor was there anything in the case file to suggest that the applicant had even brought this matter to the attention of the governor of the Kharkiv SIZO.

81. In view of the aforementioned considerations, the Court finds that the applicant’s complaint about inadequate medical assistance in the Kharkiv SIZO must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

III. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

82. The applicant complained that he was held in unrecorded detention between 3 and 5 May 2005. He relied on Article 5 § 1 of the Convention, which reads in so far as relevant:

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

...

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;”

A. Admissibility

83. The Government raised no objection as to the admissibility of this part of the application.

84. The applicant maintained his complaints.

85. The Court notes that this part of application 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

1. The submissions by the parties

86. The applicant stated that his detention had been recorded on 5 May 2005 whereas, in fact, he had been deprived of his liberty at 2 p.m. on 3 May 2005. To support his allegations, he provided a written statement made by his accomplice, Mr Kvashko, who was allegedly detained at the police station on 3 May 2005 and had witnessed the applicant’s detention and ill-treatment. He also provided an extract from his medical record and a certificate issued by the prison in which he served his sentence, both referring to 3 May 2005 as the start-date for calculating his prison term.

87. The Government was unable to comment regarding the alleged detention of the applicant on 3 May 2005 as the register of the police district in question had been destroyed (see paragraph 6 above). As regards the lawfulness of the applicant’s detention from 4 to 5 May 2005, they further submitted that the applicant’s arrest report had not been drawn up until 5 May 2005, because it had not been possible to do it on 4 May 2005 due to the applicant’s urgent transfer to hospital, where he stayed until the next day.

2. The Court’s assessment

88. Article 5 of the Convention guarantees the fundamental right to liberty and security. That right is of primary importance in a “democratic society” within the meaning of the Convention (see De Wilde, Ooms and Versyp v. Belgium, 18 June 1971, § 65, Series A no. 12, and Winterwerp v. the Netherlands, 24 October 1979, § 37, Series A no. 33). The list of exceptions set out in Article 5 § 1 is an exhaustive one and only a narrow interpretation of those exceptions is consistent with the aim of that provision, namely to ensure that no one is arbitrarily deprived of his or her liberty (see Engel and Others v. the Netherlands, 8 June 1976, § 58, Series A no. 22; Amuur v. France, 25 June 1996, § 42, Reports 1996-III and Creangă v. Romania [GC], no. 29226/03, § 84, 23 February 2012).

89. The Court reiterates that the unacknowledged detention of an individual is a complete negation of the fundamentally important guarantees contained in Article 5 of the Convention, and discloses a most grave violation of that provision. Failure to record such matters as the date, time and location of detention, the name of the detainee, the reasons for the detention, and the name of the person carrying it out must be seen as incompatible with the requirement of lawfulness and the very purpose of Article 5 of the Convention (see Lopatin and Medvedskiy v. Ukraine, nos. 2278/03 and 6222/03, § 84, 20 May 2010, with further references).

90. The Court notes at the outset that the fact of the applicant’s detention at the police station on 3 May 2005 has not been admitted by the Government as no evidence allegedly existed that could have confirmed or disproved the applicant’s allegations in that regard. No comments whatsoever have been provided by the Government as to the evidence submitted by the applicant.

91. The Court notes that it appears from the judgment of the Ordzhonikidzevskyy District Court of 13 April 2007, by which the applicant was convicted, that the authorities acknowledged the fact that the applicant had been in detention since 3 May 2005 (see paragraph 16 above).

92. It is also apparent from the Court’s judgment in the case of Kvashko v. Ukraine (no. 40939/05, § 64, 26 September 2013) that the fact that the witness referred to by the applicant in his submissions was detained at the police station on 3 May 2005 was not disputed by the Government.

93. In the absence of any evidence or comments to the contrary on the part of the Government, the Court finds no grounds to doubt the course of events on 3 May 2005 as presented by the applicant.

94. The Court further notes that the Government has acknowledged that on 4 May 2005 the applicant was in the hands of police as a suspect in criminal proceedings but that the arrest report was not drawn up until 5 May 2005. Even assuming that, as suggested by the Government, there were valid reasons justifying the delay in formalising the applicant’s detention, the Court observes that the arrest report still referred to 5 May 2005 as the day of the applicant’s arrest.

95. Having regard to the above considerations, the Court finds that the applicant’s detention between 3 and 5 May 2005 was incompatible with the requirements of Article 5 § 1 of the Convention. There has therefore been a violation of Article 5 § 1.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

96. 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

97. The applicant claimed 80,000 euros (EUR) in respect of compensation for non-pecuniary damage.

98. The Government argued that the claim should be rejected as there had been no violation of the applicant’s rights in the present case.

99. The Court considers that the applicant must have suffered distress and anxiety on account of the violations it has found. Ruling on an equitable basis, it awards the applicant EUR 6,000 in respect of non-pecuniary damage.

B. Costs and expenses

100. The applicant also claimed EUR 750 in respect of his lawyer’s legal fees incurred before the Court.

101. The Government submitted that the claim should be dismissed as legal aid had been granted to the applicant by the Court.

102. 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, given that the applicant provided no documents to substantiate the amount claimed, the Court rejects the claim for costs and expenses.

C. Default interest

103. 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, UNANIMOUSLY,

1. Declares admissible the complaints under Article 3 of the Convention concerning the ill-treatment by the police and the lack of effective investigation in this respect, and also the complaint under Article 5 of the Convention concerning the unlawfulness of the applicant’s detention between 3 and 5 May 2005, and declares the remainder of the application inadmissible;

2. Holds that there has been no violation of Article 3 of the Convention under its substantive limb;

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

4. Holds that there has been a violation of Article 5 § 1 of the Convention;

5. Holds

(a) that the respondent State is to pay the applicant, within three months, EUR 6,000 (six thousand euros) to be converted into the currency of the respondent State at the rate applicable at the date of settlement in respect of non-pecuniary damage;

(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;

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

Done in English, and notified in writing on 16 February 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Anne-Marie Dougin Faris Vehabović
Acting Deputy Registrar President

	[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> DOLGANIN v. UKRAINE - 18404/07 (Judgment (Merits and Just Satisfaction) : Court (Fifth Section Committee)) [2017] ECHR 179 (16 February 2017) URL: http://www.bailii.org/eu/cases/ECHR/2017/179.html Cite as: [2017] ECHR 179