ZAMFERESKO v. UKRAINE - 30075/06 - HEJUD [2012] ECHR 1943 (15 November 2012)

In the case of Zamferesko v. Ukraine,

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

          Dean Spielmann, President,
          Mark Villiger,
          Karel Jungwiert,
          Boštjan M. Zupančič,
          Angelika Nußberger,
          Paul Lemmens, judges,
          Stanislav Shevchuk, ad hoc judge,
and Claudia Westerdiek, Section Registrar,

Having deliberated in private on 16 October 2012,

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

PROCEDURE

The case originated in an application (no. 30075/06) 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 Viktor Borysovych Zamferesko (“the applicant”), on 10 July 2006.

The applicant, who had been granted legal aid, was represented by Ms K.O. Bilevych, a lawyer practising in Lviv. The Ukrainian Government (“the Government”) were represented by their Agent, Mr. N. Kulchytskyy.

The applicant alleged, in particular, that he had been subjected to ill-treatment at a police station in order to force him to confess to certain crimes and that his right to a lawyer and a fair trial had been infringed. The applicant further complained that he had been ill-treated by a group of special prison officers during his post-conviction detention.

On 23 November 2010 the Court communicated the above complaints to the Government and declared the remainder of the application inadmissible. Mrs G. Yudkivska, the judge elected in respect of Ukraine, was unable to sit in the case (Rule 28 of the Rules of Court). The President of the Chamber decided to appoint Mr S. Shevchuk to sit as an ad hoc judge (Rule 29 § 1(b)).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1982 and is currently serving a life sentence in prison.

In 1995 the applicant was identified as suffering from schizophrenia and between 2001 and 2004 he underwent various types of compulsory medical treatment on account of his illness.

A. Criminal proceedings against the applicant

In January 2005 the applicant and his friend were charged with robbery. The applicant remained at liberty during the pre-trial investigation of the case.

On 7 April 2005 the police instituted criminal proceedings in respect of the murder of two women which had been committed the day before.

On the evening of 9 April 2005 the applicant was arrested on suspicion of having committed the murders. According to his submission, after the applicant was brought to the police station the officers started pressuring him to confess to the murders. His requests to be provided with a lawyer were ignored. The officers showed him a gun and hinted that they could easily shoot him and then fabricate a story that he had attempted to escape. In view of his poor mental health they claimed, nobody would doubt their version of events. They then punched him and started hitting him with a bat. He started to parry the blows with his arms, but then soon gave up and agreed to write a confession dictated to him by the police officers.

On 10 April 2005 the police officers formally questioned the applicant as a suspect and carried out a reconstruction of the events at the scene of the crime in the presence of a legal-aid lawyer, G. The applicant then confessed to the murders.

On 11 April 2005 the applicant was examined by a medical expert. Following the medical examination the expert issued a report which determined that the applicant was suffering from bruising to both arms and an abrasion to his right arm which had been inflicted by blunt objects and could have been sustained on 9 April 2005. The expert also stated that the applicant had an injury on his right hand which could have been inflicted on 6 April 2005.

On 13 April 2005 the applicant again confessed to the murders and denied that any physical or psychological pressure had been put on him when he had written his initial confession. The questioning was held in the presence of his lawyer.

Later, the applicant changed his lawyer during the pre-trial investigation, but he subsequently reappointed G as his lawyer. When he was questioned on 14 June 2005, in the presence of the new lawyer, he denied any involvement in the murders while acknowledging his guilt in the robbery.

On 14 June 2005 the investigator refused to institute criminal proceedings in connection with the applicant’s injuries as documented by the medical expert on 11 April 2005, for lack of evidence that any crime had been committed. The investigator concluded that the injuries had been self- inflicted. That decision was taken by the investigator on his own initiative, without the applicant’s formal complaint of ill-treatment.

On 24 June 2005 the investigation was completed. After the parties examined the case file, it was referred to the Lviv Regional Court of Appeal where the applicant was to be tried.

During the trial the applicant raised the issue of his alleged ill-treatment. He admitted that he had committed a robbery, but denied any involvement in the murders. He insisted that the police officers had illegally compelled him to confess to the murders.

On 23 September 2005 the Lviv Regional Court of Appeal found the applicant guilty of the murders as well as the robbery and sentenced him to life imprisonment. The court based its conclusions, inter alia, on the applicant’s confession made on 9 April 2005. After assessing the opinions submitted by experts the court concluded that the applicant was mentally sound.

The court also examined the applicant’s allegations of ill-treatment. It called all the police officers dealing with the applicant and questioned them in the presence of the applicant and his lawyer, also taking into consideration the other evidence available in the case file. The court concluded that the allegations of ill-treatment were unsubstantiated, pointing out, in particular, that there had been no eyewitnesses other than the police officers who denied having used any duress in respect of the applicant and that, moreover, subsequently during the investigation, the applicant had again confessed to having committed the murders.

The applicant appealed, claiming, inter alia, that he had confessed to the murders under duress and as a result of ill-treatment by the police officers and that he had not been provided with a lawyer immediately after his arrest.

On 10 January 2006 the Supreme Court upheld the conviction of the applicant, finding that his guilt had been well established by various pieces of evidence including his confession of 9 April 2005. The allegations of ill-treatment had been rejected as unsubstantiated. The applicant was still represented by G.

On 18 December 2009, at the request of the applicant’s mother, the Kyiv Scientific and Research Institute of Forensic Examination issued a report which claimed that the confession of 9 April 2005 had been written by the applicant with the active assistance of another person.

B. Post-conviction detention issues

Following his conviction, the applicant was transferred to Sokal Prison no. 47 to serve his life sentence.

On 17 November 2007 preventive searches were carried out in the prison cells.

According to the applicant, on that day a group of hooded prison officers burst into cell no. 16, in which the applicant was held together with other prisoners, and started beating them. The officers ordered the applicant and the other prisoners to undress down to their underwear. They then ordered them to squat down thirty times and then to go out into the prison yard. Despite the fact that the temperature was -6 degrees Celsius, the applicant was made to stay in the prison yard for two hours in only his underwear.

According to the applicant, on the same day he applied for medical assistance to the prison medical department but was not examined by a doctor. A few days later the applicant contacted his lawyer and described what had happened. No complaint to the domestic authorities from the applicant or his lawyer followed.

On 20 November 2007 five prisoners from cell no. 9 of the same prison complained to the prosecutor’s office, claiming that on 17 November 2007 a group of special prison officers had beaten them up and some of their personal belongings had disappeared.

On 23 and 24 November 2007 the same five prisoners were examined by doctors, following which it was reported that one of them had sustained a bruise on his left leg.

On 26 November 2007 the prosecutor’s office refused to open an investigation in respect of the five prisoners’ allegations after finding that those allegations had been unsubstantiated.

It appears that another prisoner from cell no. 9 also complained of ill-treatment which allegedly occurred on 17 November 2007. Later on that prisoner did not maintain his allegations, however. The applicant submitted a copy of that prisoner’s submission to the Court.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Code of Criminal Procedure of 28 December 1960

The relevant provisions of the Code can be found in the judgment in the case of Davydov and Others v. Ukraine (nos. 17674/02 and 39081/02, § 112, 1 July 2010).

B. Relevant Domestic Practice

The material concerning domestic practice with regard to the rights of persons detained by police can be found in the judgment in the case of Kaverzin v. Ukraine (no. 23893/03, §§ 55-60, 15 May 2012).

III. RELEVANT INTERNATIONAL MATERIAL

32. The relevant international material concerning the observance of detainees’ rights by Ukrainian law-enforcement authorities can be found in the judgment in the case of Kaverzin (ibid. §§ 63, 64, 67, 74-79).

THE LAW

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

The applicant complained that he had been psychologically and physically ill-treated by police in order to obtain his confession to the murders. He relied on Article 3 of the Convention, which reads as follows:

Article 3 (prohibition of torture)

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

A. Admissibility

1. The parties’ submissions

The Government submitted that the complaint was inadmissible on the grounds of non-exhaustion of domestic remedies. They specified that the applicant had not raised the issue of ill-treatment before the prosecutor’s office and the investigator had used his own initiative to carry out an inquiry in connection with the applicant’s injuries as documented by the medical expert. They further maintained that the applicant had not challenged the decision of 14 June 2005 (by which the investigator had refused to open criminal proceedings in connection with the applicant’s injuries) under Article 236-1 of the Code of Criminal Procedure.

In the alternative, the Government maintained that the applicant had missed the six-month time-limit given that the decision not to investigate the alleged ill-treatment had been taken on 14 June 2005 and the application to the Court had been submitted on 10 July 2006.

The Government further contended that the allegations of ill-treatment were manifestly ill-founded. In their opinion, the applicant’s submissions had been inconsistent. Moreover, the allegations had not been supported by appropriate evidence: the expert’s report of 11 April 2005 documented small injuries which could have been sustained by the applicant before his arrest. In their opinion, the report describing the way in which the applicant had made his confession in writing did not support his allegations of ill-treatment.

The applicant contended that the complaint was admissible. He claimed that owing to his health problems and inadequate legal assistance he had not been in a position to challenge the decision of 14 June 2005 in accordance with Article 236-1 of the Code of Criminal Procedure. Nevertheless, he had raised the issue of ill-treatment before the domestic courts trying his criminal case. The applicant also insisted that there were no grounds to reject the complaint under the six-month rule as he had been waiting for the outcome of his criminal case.

The applicant further argued that the psychological and physical ill-treatment he had complained of had been supported by appropriate evidence. Accordingly, the complaint could not be rejected as manifestly ill-founded.

2. The Court’s assessment

As regards the Government’s contention that the applicant had failed to exhaust domestic remedies, the Court considers that the applicant cannot be reproached for not having lodged a formal complaint of ill-treatment with the authorities. Such matters are too important to be left to the initiative of the victims of alleged ill-treatment and once the authorities become aware of circumstances which arguably show that an individual has been subjected to treatment contrary to Article 3 of the Convention, they should take the necessary steps for an effective investigation of the matter. In the present case the investigator used his own initiative exactly because he was aware of such circumstances.

As to the fact that the applicant failed to challenge the decision of 14 June 2005 under Article 236-1 of the Code of Criminal Procedure, the Court has dealt with a similar objection in the case of Kaverzin, (cited above), and concluded that the remedy indicated by the Government had not been proved to be capable of providing adequate redress in respect of complaints of ill-treatment by the police and ineffective investigations (ibid., §§ 93-98). The Court does not find any reason to hold otherwise in the present case and notes that the applicant was not obliged to use the appeal procedure in question.

The Court further notes that the domestic authorities were sufficiently aware of the possible ill-treatment of the applicant. After the inquiry carried out by the investigator on his own initiative, the issue was raised by the applicant before the domestic courts dealing with his criminal case. Accordingly, the authorities were provided with appropriate opportunities to deal with the alleged ill-treatment at the domestic level. Therefore, the complaint cannot be rejected on the grounds of non-exhaustion of domestic remedies. Neither can the applicant be reproached for having missed the six-month time-limit as it could be argued that he waited, reasonably, for those issues to be determined in the course of the criminal proceedings against him (ibid., § 99).

For the above reasons the Government’s objections based on the rule of exhaustion of domestic remedies and the six-month rule should be dismissed.

The Court further 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. It is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. Establishment of facts

(a) The relevant principles

The Court reiterates that allegations of ill-treatment must be supported by appropriate evidence. In assessing evidence, the Court has adopted the standard of proof “beyond reasonable doubt”. However, it has never been its purpose to borrow the approach of the national legal systems which use that standard. Its role is not to rule on criminal guilt or civil liability but on the responsibility of the Contracting States under the Convention. The specificity of its task under Article 19 of the Convention - to ensure the observance by the Contracting States of their engagement to secure the fundamental rights enshrined in the Convention - conditions its approach to the issues of evidence and proof. In the proceedings before the Court, there are no procedural barriers to the admissibility of evidence or pre-determined formulae for its assessment. It adopts conclusions that are, in its view, supported by the free evaluation of all evidence, including such inferences as may flow from the facts and the parties’ submissions. According to its established case-law, proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Moreover, the level of persuasion necessary for reaching a particular conclusion and, in this connection, the distribution of the burden of proof are intrinsically linked to the specificity of the facts, the nature of the allegation made and the Convention right at stake (see, among others, Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 147, ECHR 2005-VII; Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, § 26, ECHR 2004-VII; Akdivar and Others v. Turkey, 16 September 1996, § 168, Reports of Judgments and Decisions 1996-IV; and Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, § 121, 10 January 2012).

Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries occurring during such detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Ribitsch v. Austria, 4 December 1995, § 34, Series A no. 336, and Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII).

(b) Application of these principles in the present case

The applicant has submitted that on 9 April 2005 he was arrested by police officers on suspicion of having committed two murders, following which the police officers started to threaten him with being killed if he did not confess to the crimes and proceeded to beat him up with the same intention. The Government claimed that the allegations of ill-treatment had not been supported by any appropriate evidence and that the domestic authorities had declared those allegations unfounded.

In determining how the burden of proof should be distributed in the present case, the Court must pay attention to the nature of the applicant’s allegations and the individual circumstances of the case. In particular, the psychological and physical ill-treatment complained of is alleged to have occurred in private at a police station in the absence of any eyewitnesses. Accordingly, the privacy in which the events took place, whether arranged by the police officers deliberately or not, narrowed, even further, the opportunities of establishing the truth. Similarly, it should not be overlooked that the applicant was a person with a long history of mental illness and his arrest and detention without any access to a doctor and lawyer on that evening must have placed him in a particularly vulnerable position. The Court therefore concludes that in the circumstances of the present case it was for the domestic authorities to refute the applicant’s allegations of psychological and physical ill-treatment.

The Court notes that according to the medical report of 11 April 2005, the applicant suffered, inter alia, bruising on both arms and an abrasion to his right arm, which injuries had been inflicted by blunt objects and could have been sustained on 9 April 2005. This is the date of the applicant’s arrest and his first confession. The forensic examination report of 18 December 2009 states that the confession of 9 April 2005 was written by the applicant with the active assistance of another person. Unlike the Government, the Court considers that this evidence, which should be assessed in the general context of the poor observance of detainees’ rights by Ukrainian police (see the relevant material as referred to in paragraphs 31 and 32 above), does support the applicant’s allegations of psychological and physical ill-treatment by police officers.

However, the above evidence was never assessed by the domestic authorities in the context of examination of the applicant’s allegations of physical ill-treatment. No serious attempt to examine the alleged facts of psychological ill-treatment was made either. The conclusions of the domestic authorities on these issues were essentially based on the statements of the police officers concerned. In the Court’s opinion, the findings of the domestic authorities in this respect are superficial and unconvincing.

Accordingly, having regard to the available evidence, supporting the applicant’s version of the events, and to the authorities’ failure to provide a convincing explanation for the origin of the applicant’s injuries and to refute his allegations of psychological ill-treatment, the Court accepts that the alleged physical and psychological ill-treatment in the police station took place.

2. Classification of ill-treatment

(a) The relevant principles

In order for ill-treatment to fall within the scope of Article 3 it must attain a minimum level of severity. The assessment of this minimum depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (see Jalloh v. Germany [GC], no. 54810/00, § 67, ECHR 2006-IX). Further factors include the purpose for which the treatment was inflicted together with the intention or motivation behind it (compare, inter alia, Aksoy v. Turkey, 18 December 1996, § 64, Reports 1996-VI; Egmez v. Cyprus, no. 30873/96, § 78, ECHR 2000-XII; and Krastanov v. Bulgaria, no. 50222/99, § 53, 30 September 2004), as well as its context, such as an atmosphere of heightened tension and emotions (compare, for instance, Selmouni v. France [GC], no. 25803/94, § 104, ECHR 1999-V, and Egmez, loc. cit.).

A threat of conduct prohibited by Article 3, provided it is sufficiently real and immediate, may fall foul of that provision. Thus, to threaten an individual with torture may constitute at least inhuman treatment (see Gäfgen v. Germany [GC], no. 22978/05, §§ 91 and 108, ECHR 2010).

(b) Application of these principles in the present case

In the present case the applicant was threatened with being killed. The threats were accompanied by the applicant being beaten, causing him physical pain. This psychological and physical pressure was designed to force him to confess to the crimes. Taking an overall view of the situation, the Court considers that the treatment to which he was subjected qualifies as inhuman and degrading within the meaning of Article 3 of the Convention.

For the above reasons the Court finds that there has been a violation of Article 3 of the Convention in its substantive limb.

II. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (c) OF THE CONVENTION ON ACCOUNT OF THE ABSENCE OF LEGAL ASSISTANCE

The applicant complained under Article 6 of the Convention that he had not been provided with access to a lawyer when he was first questioned by the police.

The Court shall examine the complaint under Article 6 §§ 1 and 3 (c) of the Convention, which provides, in so far as relevant, as follows:

“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

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

B. Merits

1. The parties’ submissions

The applicant contended that he should have been provided with a lawyer from the moment he had been brought to the police station - which would have best fitted the requirements of Article 6 of the Convention and would have effectively prevented his ill-treatment and the extraction of his confession under duress on 9 November 2005.

The Government submitted that the applicant had had access to a lawyer from the time he was first questioned as a suspect - which in the Government’s opinion, occurred on 10 April 2005 - and then throughout the criminal proceedings.

2. The Court’s assessment

The Court reiterates that Article 6 § 1 requires that, as a rule, access to a lawyer should be provided from the first time a suspect is questioned 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. Even where compelling reasons may exceptionally justify denial of access to a lawyer, such a restriction - whatever its justification - must not unduly prejudice the rights of the accused under Article 6. The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during questioning by police without access to a lawyer are used for a conviction (see Salduz v. Turkey [GC], no. 36391/02, § 55, 27 November 2008).

It has not been disputed by either of the parties that on 9 April 2005 the police brought the applicant to a police station because they suspected him of having committed the murders. The Court, for its part, does not find any indication that the authorities did not treat him as a suspect.

The Court next observes that while the formal questioning of the applicant was carried out on the next day, 10 April 2005, it was actually on the evening of 9 April 2005 that the police authorities extracted a confession from the applicant.

It is therefore established that on 9 April 2005 the applicant was first questioned as a suspect in respect of the murders. However, there is no evidence that he was provided with access to a lawyer on that day.

The question therefore is whether the absence of a lawyer was justified by a compelling reason. However, on the facts the Court does not find any compelling reason for the failure to respect the applicant’s right to a lawyer during the first occasion on which he was questioned as a suspect. The Court further notes that the applicant’s initial confession, obtained without a lawyer being present, was used by the courts as supporting evidence of the applicant’s guilt (see paragraphs 17 and 20 above). In these circumstances the applicant’s defence rights were prejudiced irretrievably.

There has therefore been a violation of Article 6 §§ 1 and 3 (c) of the Convention in this respect.

III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF USE OF EVIDENCE OBTAINED BY ILL-TREATMENT

The applicant further complained under Article 6 § 1 of the Convention that his right to a fair trial had been violated because the courts had convicted him on the basis of self-incriminatory statements which were obtained under duress and as a result of ill-treatment.

A. Admissibility

B. Merits

1. The parties’ submissions

The applicant contended that his self-incriminating statements had been the direct consequence of his ill-treatment on 9 April 2005 combined with his poor mental health. His subsequent retraction of those statements had not been properly taken into account.

The Government reiterated their position that the allegations of ill-treatment had been unfounded and the domestic authorities had not found any evidence of ill-treatment. Moreover, during the investigation, the applicant had continued to incriminate himself while in the presence of a lawyer. There was no reason to believe that his subsequent self-incriminating statements had been given under duress.

2. The Court’s assessment

The Court has held that the admission of statements, obtained as a result of torture or other ill-treatment in breach of Article 3, as evidence to establish the relevant facts in criminal proceedings renders the proceedings, as a whole, unfair. This finding applies irrespective of the probative value of the statements and irrespective of whether their use was decisive in securing the defendant’s conviction (see Gäfgen, cited above, § 166, with further references).

In the present case, the Court, having regard to its findings above (see paragraphs 53 and 54), notes that the confession of 9 April 2005 was made by the applicant as a result of ill-treatment prohibited by Article 3 of the Convention. Accordingly, the use of this confession to obtain the applicant’s conviction automatically rendered the whole criminal proceedings against him unfair.

The Court thus holds that there has been a violation of Article 6 § 1 of the Convention in this respect also.

IV. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION DURING THE APPLICANT’S POST-CONVICTION DETENTION

The applicant complained that on 17 November 2007 he was subjected to ill-treatment by a group of special prison officers. He relied on Article 3 of the Convention.

Admissibility

1. The parties’ submissions

The Government submitted that the applicant had not exhausted domestic remedies in respect of this complaint. They emphasised that he had never raised the complaint before any domestic authority.

They further noted that certain prisoners from a different cell had complained to the domestic authorities on account of the preventive searches of 17 November 2007. Those prisoners had been medically examined and the prosecutor’s office had taken all the necessary measures to investigate the matter. As regards the applicant’s particular case, his allegations had not been supported by any evidence and were therefore wholly unsubstantiated. The Government submitted prison medical records showing that the applicant had not applied for medical assistance either on 17 November 2007 or on the following days. They further submitted statements from the applicant’s cellmates which did not support his allegations. The Government contended therefore that the complaint was manifestly ill-founded.

The applicant contested the Government’s submissions. He insisted that on 17 November 2007 he had applied to the medical department but had been refused an examination. He further stated that he did not complain to the domestic authorities on account of his ill-treatment because he had been afraid of retaliation on the part of the prison officers. Moreover, the complaints of the prisoners from the other cell had not been examined properly.

2. The Court’s assessment

The factual issues raised in the present complaint fall within the knowledge of the domestic authorities. Accordingly, it could be accepted that the applicant experienced certain difficulties in procuring evidence to substantiate his allegations. Nevertheless, in such cases applicants may well be expected to submit at least a detailed account of the facts complained of and provide - to the greatest possible extent - some evidence in support of their complaints (see, mutatis mutandis, Visloguzov v. Ukraine, no. 32362/02, § 45, 20 May 2010).

However, the applicant’s complaint is essentially based on his own description of the events, which is rather short. The complaints about the preventive searches of the other prisoners, who were being held in a different cell, were limited to their individual circumstances and did not contain any references to the applicant and his possible ill-treatment. Meanwhile, the statements of the applicant’s cellmates submitted by the Government do not support his allegations.

In these circumstances the Court, having regard to the available material, considers that the present complaint has not been properly substantiated by the applicant. Therefore it should be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

V. 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 1,881 euros (EUR) and 5,600 Ukrainian hryvnias (UAH) (approximately EUR 486) in respect of pecuniary damage. He also claimed EUR 200,000 in respect of non-pecuniary damage.

The Government considered those claims unsubstantiated and excessive.

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, deciding on an equitable basis, it awards the applicant EUR 11,000 in respect of non-pecuniary damage.

The Court further refers to its settled case-law to the effect that when an applicant has suffered an infringement of his rights guaranteed by Article 6 of the Convention, he should, as far as possible, be put in the position in which he would have been had the requirements of that provision not been disregarded, and that the most appropriate form of redress would, in principle, be the reopening of the proceedings, if requested (see, mutatis mutandis, Öcalan v. Turkey [GC], no. 46221/99, § 210 in fine, ECHR 2005-IV, and Popov v. Russia, no. 26853/04, § 264, 13 July 2006). The Court notes, in this connection, that domestic law provides a basis for the reopening of the proceedings if the Court finds a violation of the Convention.

B. Costs and expenses

The applicant also claimed UAH 2 913 (about EUR 253) for costs and expenses incurred before the domestic authorities and the Court. The amount claimed consisted of the postal expenses (EUR 32) and the costs for the forensic examination report of 18 December 2009 (EUR 221).

The Government considered that only the amount of EUR 32 had been incurred in connection with the present proceedings.

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 awards the amount claimed in full.

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

1. Declares the complaint under Article 3 of the Convention (concerning the alleged ill-treatment at the police station) and the complaints under Article 6 of the Convention admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 3 of the Convention on account of ill-treatment at the police station;

3. Holds that there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention on account of the absence of legal assistance as from the first questioning;

4. Holds that there has been a violation of Article 6 § 1 of the Convention on account of the use of evidence obtained through ill-treatment for the applicant’s conviction;

5. 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 the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 11,000 (eleven thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 253 (two hundred and fifty- three 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;

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

Done in English, and notified in writing on 15 November 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Claudia Westerdiek Dean Spielmann
Registrar President

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