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FIFTH
SECTION
CASE OF KULISH v. UKRAINE
(Application
no. 35093/07)
JUDGMENT
STRASBOURG
21 June
2012
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Kulish v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Dean Spielmann,
President,
Elisabet
Fura,
Boštjan
M. Zupančič,
Ann
Power-Forde,
Ganna
Yudkivska,
Angelika
Nußberger,
André
Potocki, judges,
and Claudia
Westerdiek, Section Registrar,
Having
deliberated in private on 22 May 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 35093/07) 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 Sergey Nikolayevich
Kulish (“the applicant”), on 18 July 2007.
- The
applicant was represented by Mr A.A. Kristenko, a lawyer practising
in Kharkiv. The Ukrainian Government (“the Government”)
were represented by their Agent, Mrs V. Lutkovska, from the Ministry
of Justice.
- The
applicant alleged that he had been ill-treated by the police and that
his allegation had not been properly investigated.
- On
28 April 2011 the application was communicated to the Government. It
was also decided to rule on the admissibility and merits of the
application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1947 and lives in Kharkiv.
A. The applicant’s alleged ill-treatment by the
police
1. The applicant’s version of the events of 6
December 2004
- On
6 December 2004 the applicant met with Ms Ch., who tried to bribe
him. When the applicant refused to take the bribe, Ms Ch. threw a
package of money into his car and retreated. Following this,
strangers in plain clothes (who later turned out to be police
officers) got into the applicant’s car and without any
introduction started wrenching his arms behind his back. One of the
officers sat behind the applicant and started strangling him. Two
others punched the applicant in the lower back. Then the applicant
was handcuffed. One of the officers stretched the applicant out,
hooked his finger in the applicant’s mouth and started pulling
on his cheek. In acute pain, the applicant bit the officer’s
finger. The officer concerned punched the applicant four times in the
head, while another officer punched the applicant in the jaw. Then
they pulled the applicant out of his car, threw him to the ground and
started kicking him in the kidney area. This scene was witnessed by
the applicant’s wife.
- The
police officers placed the applicant in the car with his cuffed hands
between his legs and his head on the seat of the car. The officer who
had been bitten by the applicant covered the applicant’s head
with the hood of his jacket and sat on it. The applicant started
suffocating and lost consciousness.
- The
applicant was then taken to Kharkiv Regional Police Department, where
the investigator explained to him that he had been arrested for
taking a bribe. The investigator suggested to the applicant that they
might “come to an agreement” and ignored his complaints
of violence on the part of the police officers. The applicant also
complained of an acute headache and dizziness during the questioning,
which lasted for five hours. Then the applicant was taken to the
prosecutor’s office, where the prosecutors questioned him about
the events of that day. Following this, the applicant was released
under a written undertaking not to abscond.
2. The Government’s version of the events of 6
December 2004
- On
6 December 2004 the applicant was apprehended by the police in the
street and taken to the Kharkiv Regional Police Station for
questioning on suspicion of swindling and instigation to bribery. The
same day the applicant gave a written obligation not to abscond.
B. Investigation into the applicant’s allegations
of ill-treatment
- At
about 11.30 p.m. on the same day the applicant complained to
Dzerzhinsky District Police Department of having been ill-treated by
police officers during his arrest. He received a hospital referral
for a medical examination. The police also questioned two
eyewitnesses and one testifying witness, who had been present at the
time of the applicant’s arrest.
- On
7 December 2004 the applicant underwent a medical examination.
According to the certificate of Kharkiv Emergency Hospital No. 4 of 9
December 2004, the applicant’s injuries included the following:
closed head trauma, bruises, brain injury, and soft tissue injuries
to the chest and lower back. These injuries were classified as being
of “medium severity”.
- On
8 December 2004 criminal proceedings were instituted against the
applicant for swindling and instigation to bribery. These proceedings
were terminated on 22 June 2006 for lack of proof.
- On
9 December 2004 the applicant lodged a complaint with the Kharkiv
Regional Prosecutor’s Office against the police officers who
had ill-treated him.
- Between
9 and 31 December 2004 the applicant underwent in-patient treatment
and between 1 and 10 January he also received out-patient treatment
for his injuries.
- On 10 December 2004 the Kharkiv Regional Prosecutor’s
Office received the applicant’s above-mentioned complaint.
- On
15 December 2004 the Kharkiv City Prosecutor’s Office received
the complaint.
- On
24 December 2004 the Kharkiv City Prosecutor’s Office refused
to institute criminal proceedings for lack of corpus delicti in the
actions of the police officers. The decision mentioned that three
police officers, who had arrested the applicant, had been questioned
and had testified that during the arrest the applicant had behaved
violently, shouted at them and then fallen on the ground where he had
started hitting himself against the ground in an attempt to cause
himself bodily injuries. It further indicated that there were
testimonies of other witnesses to the incident. It lastly mentioned
that the applicant was in hospital, but that this could be considered
an attempt to avoid liability for the crime he had committed.
- On
5 January 2005 the Kharkiv Regional Office for Forensic and Medical
Examination drew up an expert opinion on the applicant’s
injuries. The opinion noted that the injuries had been caused by hard
objects and could have been caused in the circumstances described by
the applicant.
- On
31 January 2005, upon a complaint by the applicant, the Kharkiv
Regional Prosecutor’s Office quashed the decision of 24
December 2004 on the ground that the applicant’s allegations
had not been verified in full. It referred the case to the Kharkiv
City Prosecutor’s Office for further inquiries.
- On
3 February 2005 the Kharkiv City Prosecutor’s Office received
the applicant’s criminal complaint, together with a copy of the
expert opinion of 5 January 2005.
- On
26 April 2005 the Kharkiv City Prosecutor’s Office refused to
institute criminal proceedings against the police officers for lack
of corpus delicti in their actions. The reasoning of the decision was
similar to that of 24 December 2004.
- On
6 May 2005 the Kharkiv City Prosecutor’s Office instituted
criminal proceedings in connection with the infliction of bodily harm
of medium severity on the applicant.
- On
4 June 2005 the criminal proceedings were transferred to the Kharkiv
Dzerzhinsky District Police Department, which had territorial
jurisdiction. The police investigator questioned the applicant, his
wife and son and the police officers who had arrested the applicant.
According to the Government, the investigator held confrontations
between the applicant and the police officers. According to the
applicant, the confrontations were ordered but not conducted.
- On
5 June 2005 the Kharkiv Regional Office for Forensic and Medical
Examination drew up an expert opinion classifying the applicant’s
injuries as being of medium severity.
- According
to the Government, on 18 January 2006 the investigator conducted an
on-site reconstruction of events with the applicant’s
participation. According to the applicant, he did not participate in
the reconstruction.
- On
19 August 2006 the criminal proceedings were suspended due to the
failure to establish a perpetrator.
- On
26 September 2006, upon a complaint by the applicant, the Kharkiv
Regional Prosecutor’s Office quashed the decision of 19 August
2006 and remitted the case to the District Police Department for
further investigation.
- On
8 October 2006 the criminal proceedings were resumed. The
investigator conducted an on-site reconstruction of events with all
those involved in the incident. The investigator also seized all the
medical documentation concerning the applicant’s treatment
after the accident.
- On
4 November 2006 the investigator ordered a comprehensive medical
report to be drawn up by the Kharkiv Regional Office for Forensic and
Medical Examination.
- On
19 December 2006 the case was referred to the Central Office for
Forensic and Medical Examination, as the Kharkiv Regional Office
could not provide comprehensive answers to the investigator’s
questions and the applicant had expressed a lack of confidence in the
specialists of the Kharkiv Regional Office.
- On
10 July 2007, at the applicant’s request, the case was
transferred to the Poltava Regional Office for Forensic and Medical
Examination, as the waiting time for an expert examination in the
Central Office exceeded two years.
- On 1 April 2011 the Central Office for Forensic and
Medical Examination issued its opinion, in which it concluded that
the applicant had only sustained some of the injuries indicated in
the previous report and that those injuries should be classified as
minor bodily injuries, which could have been inflicted under the
circumstances described by the applicant or by himself. As to the
other injuries, the experts questioned them as having been diagnosed
on the basis of subjective factors not confirmed by objective
information.
- On
29 August 2011 the investigator terminated the criminal proceedings
for lack of proof of a crime. The decision mentioned for the first
time the testimonies of the applicant’s wife and son, who had
confirmed his version of events. The investigator further mentioned
that, in the light of the forensic expert opinion of 1 April 2011,
the applicant’s injuries should be classified as minor and
therefore the criminal proceedings concerning infliction of injuries
of medium severity on the applicant should be terminated.
- The
applicant challenged that decision before the prosecutor and the
court.
- On
30 August 2011 the Kharkiv Dzerzhinsky District Prosecutor’s
Office quashed the decision of 29 August 2011 on the ground that it
had been premature and the investigator had not taken all the actions
necessary for a comprehensive investigation of the circumstances of
the case. It also gave a number of instructions to the police
investigator.
- On
9 September 2011 the Kharkiv Regional Prosecutor’s Office
decided to change the jurisdiction in the case and transfer it for
further investigation from the police to the prosecution service. The
case was accordingly handed over to the Kharkiv City Prosecutor’s
Office. The proceedings are pending.
- By
letter of 19 September 2011, the Kharkiv Dzerzhinskiy District Court
informed the applicant that the examination of his appeal against the
investigator’s decision of 29 August 2011 was scheduled for 5
October 2011.
II. RELEVANT DOMESTIC LAW
-
The relevant domestic law is summarised in the judgment of
Oleksiy Mykhaylovych Zakharkin v. Ukraine (no. 1727/04,
§§ 38-41 and 45 46, 24 June 2010).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained that he had been ill-treated by the police and
that his allegations had not been investigated properly. He referred
to Articles 3 and 13 of the Convention. The Court, which is master of
the characterisation to be given in law to the facts of the case,
will examine these complaints under Article 3 of the Convention,
which is the relevant provision, and which provides as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Admissibility
1. Non-exhaustion of domestic remedies
- The
Government noted that the investigation into the applicant’s
allegations of ill-treatment was pending and that the effectiveness
of that investigation had never been examined by the domestic
judicial authorities. They referred to the case of Misiak v.
Poland, in which the Court had rejected the applicant’s
complaint about degrading treatment by the police as being premature,
since the relevant domestic proceedings had been pending (Misiak
v. Poland, no. 43837/06, § 32, 3 June 2008). They further
referred to two admissibility decisions concerning Ukraine, in which
the applicants’ complaints under Article 3 had been rejected
for non-exhaustion of domestic remedies (Aliev v. Ukraine
(dec.), no. 33617/02, 14 October 2008, and Vinokurov v. Ukraine
and Russian (dec.), 16 October 2007).
- The
applicant disagreed. He considered that there were two remedies
available to him under domestic law: a complaint to the prosecutor
and an appeal to the court. He had applied to the prosecutor’s
office, which had quashed the decision to terminate the criminal
proceedings of 29 August 2011 on 30 August 2011. Nevertheless, the
applicant had also challenged the impugned decision before the court;
however, this did not serve any purpose given that the contested
decision had been already quashed by the prosecutor.
- The
Court observes that in the cases of Aliev and Vinokurov,
referred to by the Government, the applicants failed to raise their
complaints before any domestic authority, and in the case of Misiak,
the applicant did not allege before the Court that the domestic
investigation into his allegation of ill-treatment had proved
ineffective. In the present case, however, the applicant successfully
challenged the termination of the criminal proceedings on several
occasions and, therefore, can be said to have taken sufficient steps
at the domestic level prior to raising his complaint about the
ongoing criminal proceedings in connection with his allegations of
ill treatment before this Court (see, mutatis mutandis,
Bocharov v. Ukraine, no. 21037/05,
§ 59, 17 March 2011).
- The
Court therefore rejects the Government’s objection concerning
non-exhaustion of domestic remedies.
2. Otherwise as to admissibility
- The
Court notes that the 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. Alleged ill-treatment by the police
- The
applicant maintained that he had been ill-treated by the police
during his arrest and that the police had used excessive force
against him without any reason and had continued beating him even
when he was already handcuffed. He submitted that his ill-treatment
was confirmed by numerous medical documents and by the fact of his
arrest, as well as a lack of any plausible alternative explanation
for his injuries.
- The
Government made no observations on the merits.
- As
the Court has stated on many occasions, Article 3 enshrines one of
the most fundamental values of democratic societies. Even in the most
difficult circumstances, such as the fight against terrorism and
organised crime, the Convention prohibits in absolute terms torture
and inhuman or degrading treatment or punishment (see Selmouni v.
France [GC], no. 25803/94, § 95, ECHR 1999 V, and
Assenov and Others v. Bulgaria, 28 October 1998, § 93,
Reports of Judgments and Decisions 1998-VIII). In determining
whether a particular form of ill-treatment should be classified as
torture, consideration must be given to the distinction, embodied in
Article 3, between this notion and that of inhuman or degrading
treatment. As noted in previous cases, it appears that it was the
intention that the Convention should, by means of such a distinction,
attach a special stigma to deliberate inhuman treatment causing very
serious and cruel suffering (see Ireland v. the United Kingdom,
18 January 1978, § 167, Series A no. 25). In addition to
the severity of the treatment, there is a purposive element to
torture, as recognised in the United Nations Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment:
Article 1
“1. For the purposes of this
Convention, the term ‘torture’ means any act by which
severe pain or suffering, whether physical or mental, is
intentionally inflicted on a person for such purposes as obtaining
from him or a third person information or a confession, punishing him
for an act he or a third person has committed or is suspected of
having committed, or intimidating or coercing him or a third person,
or for any reason based on discrimination of any kind, when such pain
or suffering is inflicted by or at the instigation of or with the
consent or acquiescence of a public official or other person acting
in an official capacity. ...”
In
the Selmouni judgment, cited above, the Court took the view
that the increasingly high standard being required in the area of the
protection of human rights and fundamental liberties correspondingly
and inevitably required greater firmness in assessing breaches of the
fundamental values of democratic societies (§ 101).
- In
assessing evidence, the Court has generally applied the standard of
proof “beyond reasonable doubt” (see Ireland
v. the United Kingdom, 18 January 1978, § 161,
Series A no. 25). However, such proof may follow from the coexistence
of sufficiently strong, clear and concordant inferences or of similar
unrebutted presumptions of fact (see Salman
v. Turkey [GC], no. 21986/93, § 100, ECHR
2000-VII).
- Turning
to the circumstances of the present case, the Court notes that the
parties do not dispute the fact of the applicant’s arrest by
the police on 6 December 2004. It was not suggested at any point
that prior to his arrest the applicant had been involved in any
conflict or had demonstrated any violent behaviour that could have
resulted in injuries. It is also observed that no plausible
alternative version as to the cause of the applicant’s injuries
was advanced by the domestic authorities at any stage. Therefore, it
can be assumed that the injuries sustained by the applicant were
caused during his arrest by the police.
- The
Court further notes that the applicant was examined the day after the
incident and underwent in-patient treatment for more than twenty
days. The degree of bodily harm established by the medical
examination carried out on the applicant shortly after his release
(see paragraph 11 above) suggests strongly that the applicant’s
injuries were sufficiently serious to amount to ill-treatment
contrary to Article 3.
- As
to the additional forensic examination that questioned some of the
findings of the initial medical examinations (see paragraph 18 and 32
above), it should be noted that the existence of some of the
applicant’s injuries was not called into question. Furthermore,
the additional examination was conducted much later and did not
overturn the previous findings but rather questioned their
reliability given possible alternative explanations for the
applicant’s health complaints. Nonetheless, the initial
findings, apart from being based on a direct examination of the
applicant, as opposed to the later examination which was based on
documents, were corroborated by the applicant’s consistent
allegations of ill-treatment and the circumstances of his arrest by
the police on 6 December 2004. Furthermore, it does not appear from
the parties’ submissions and the documents provided that any of
the medical staff who examined the applicant on 7 December 2004 were
ever questioned by the investigator.
- In
those circumstances, and given the burden on the State to provide a
plausible explanation for injuries sustained by a person under the
control of the police, the Court concludes that the Government have
not satisfactorily established that the use of force against the
applicant was lawful and absolutely necessary.
- In
the light of the above, it must be considered that the applicant
sustained the injuries as a result of treatment for which the
Government must bear Convention responsibility. Having regard to the
severity of the ill-treatment suffered by the applicant and the
surrounding circumstances, in particular the facts that the beating
took place in front of his wife and continued even after the
applicant was handcuffed, the Court finds that he was a victim of
very serious and cruel suffering that amounts to torture.
- The
Court concludes that there has been a breach of Article 3 of the
Convention in this regard.
2. Alleged failure to carry out an effective
investigation
- The
applicant maintained that despite the fact that he had lodged his
criminal complaint on the very same day his ill-treatment had taken
place, the investigation had gone on for more than six years. He
further submitted that the criminal proceedings were only instituted
five months after the incident. He complained that the investigation
lacked independence, as most of the time his criminal complaints
against the police officers had been investigated by the police
themselves. He noted that the investigator ordered several forensic
medical examinations, one of which took more than four years to draw
up. He also pointed out that on several occasions the domestic
authorities had discontinued the criminal proceedings, but every time
they had been resumed after his appeals.
- The
Government made no observations on the merits.
- The
Court reiterates that where an individual makes a credible assertion
that he has suffered treatment infringing Article 3 at the hands of
the police or other agents of the State, that provision, read in
conjunction with the State’s general duty under Article 1 of
the Convention to “secure to everyone within their jurisdiction
the rights and freedoms defined in ... [the] Convention”,
requires by implication that there should be an effective official
investigation. As with an investigation under Article 2, 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, among other authorities, Labita v. Italy
[GC], no. 26772/95, § 131, ECHR 2000-IV).
- The
investigation into serious allegations of ill-treatment must be
thorough. That 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 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 to secure the evidence concerning the incident,
including, inter alia, eyewitness testimony and forensic
evidence (see Tanrıkulu v. Turkey [GC],
no. 23763/94, §§ 104 et seq., ECHR 1999-IV, and Gül
v. Turkey, no. 22676/93, § 89, 14 December 2000).
Any deficiency in the investigation which undermines its ability to
establish the cause of injuries or the identity of those responsible
will risk falling foul of this standard.
- In
the circumstances of the present case, the Court notes that the
delays in furthering the course of the investigation, as indicated by
the applicant, compromised the effectiveness of the investigation.
The Court further notes that despite the clarity of the applicant’s
diagnosis, which ought to have played a key role in the investigative
process, it does not appear from the case file that any of the
medical staff who examined the applicant on 7 December 2004 were
ever questioned. Moreover, some of the shortcomings in the
investigation were acknowledged by the domestic authorities, who
remitted the case for further investigation (see paragraphs 19 and 34
above).
- The
Court also notes that for almost five years (September 2006 –
September 2011) the criminal case was investigated by the District
Police Department, which in the Court’s opinion could not have
conducted an independent investigation into the actions of their
superiors from the Regional Police Department.
- In the light of the serious deficiencies referred to
above, the Court considers that the domestic authorities did not
fulfil their obligation to investigate the applicant’s
complaints of ill-treatment. As the Court has held in its judgment
concerning the case of Kaverzin v. Ukraine,
this situation stems from systematic problems at the national level
allowing for agents of the State responsible for such ill-treatment
go unpunished (no. 23893/03, 15 May 2012, §§ 169-182,
not yet final). Accordingly, there has also been a violation of
Article 3 of the Convention under this head.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention
provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 100,000 euros (EUR) in respect of non-pecuniary
damage and 4,000 Ukrainian hryvnias (UAH), which is the equivalent of
EUR 363, in respect of pecuniary damage.
- The
Government considered these claims premature given that the
investigation was still pending.
-
In the light of the documents in its possession the Court awards the
applicant EUR 17 in respect of pecuniary damage and, ruling on an
equitable basis, EUR 30,000 in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed UAH 2,000 (equivalent to EUR 184.21) for the
costs and expenses incurred before the domestic courts and
UAH 37,375.80 (equivalent to EUR 3,442.45) for those incurred
before the Court, as well as UAH 700 (equivalent to EUR 64.47) for
postal and travel expenses.
- The
Government contested these claims. They noted that the travel
expenses and costs incurred in the domestic proceedings were
unsubstantiated and irrelevant to the circumstances of the case. They
further contested the reasonableness of some of the legal services
provided to the applicant and some receipts which could not be
identified as pertinent to the present application.
- 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
rejects the claim for costs and expenses in the domestic proceedings
and travel expenses and considers it reasonable to award the sum of
EUR 3,460 for the proceedings before the Court and for postal
expenses.
C. Default interest
- 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
- Rejects the Government’s objection
concerning non-exhaustion of domestic remedies;
- Declares the application admissible;
- Holds that there has been a violation of Article
3 of the Convention as regards the applicant’s torture;
- Holds that there has been a violation of Article
3 of the Convention as regards the absence of an effective
investigation into the applicant’s allegations of
ill-treatment;
- Holds
(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 Ukrainian hryvnias at the rate
applicable at the date of settlement:
(i) EUR
17 (seventeen euros), plus any tax that may be chargeable, in respect
of pecuniary damage;
(ii) EUR
30,000 (thirty thousand euros), plus any tax that may be chargeable,
in respect of non-pecuniary damage;
(iii) EUR
3,460 (three thousand four hundred and sixty 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;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 21 June 2012, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia
Westerdiek Dean Spielmann Registrar President
