BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FIFTH
SECTION
CASE OF KLISHYN v. UKRAINE
(Application
no. 30671/04)
JUDGMENT
STRASBOURG
23
February 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 Klishyn 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 17 January 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 30671/04)
against Ukraine lodged with the Court under Article 34
of the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a Ukrainian
national, Mr Sergey Gennadyevich Klishyn (“the applicant”),
on 7 August 2004.
2. The
applicant was represented by Mr Belyavskiy, a lawyer practising in
Konotop, Ukraine. The Ukrainian Government
(“the Government”) were represented by their Agent, Mr Y.
Zaytsev, of the Ministry of Justice of Ukraine.
3. The
applicant alleged, in particular, that he had been ill-treated by the
police and that the investigation carried out following his
complaints had been ineffective. He also raised a number of
complaints under Article 5 of the Convention.
- On
8 March 2010 the President of the
Fifth Section decided to give notice of the application to the
Government. It was also decided to rule on the
admissibility and merits of the application at the same time (Article
29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1985 and lives in the
town of Konotop, Ukraine.
- On
22 November 2003, at around 10 p.m., the applicant, who was drunk,
together with P. and R., had a quarrel with seven other persons (M.,
S., Pv., Ps., Z., Kh. and D.). According to the applicant’s own
account, D. hit him in the left eye and the applicant hit D. in the
jaw. Afterwards they were separated by others. However, according to
the court’s findings in the criminal case against the applicant
(see paragraph 40), after an attempt to have a fight with Pv., the
applicant stabbed D. with a knife. D. brought this to the attention
of the traffic police officers Ku. and G., who happened to be
passing.
A. Alleged ill-treatment and subsequent investigation
- At
about 11 p.m. on the same day, the applicant, together with P. and
R., was arrested by the traffic police officers, handcuffed and taken
to the traffic police station. According to the entries in the
traffic police station register, the applicant remained in the
traffic police station from 11.30 p.m. until 12.15 a.m. the next day.
- According
to the applicant, in the traffic police station he was beaten by two
officers. One of them hit the applicant about five times on the head.
Another one hit him in the face, twice or three times hit him in the
chest, and with a truncheon on the left ear, the kidneys and on the
legs.
- The
applicant was subsequently taken to an ambulance station to check
whether he was drunk. According to a medical report, the applicant
was examined by a doctor at a municipal ambulance station at 11.45
p.m. on 22 November 2003. The applicant was drunk but had no
visible injuries. After that the applicant was handed over to the
ordinary police.
- The
applicant was taken to the police station at about 1 a.m. on
23 November 2003. There he was examined by a police officer,
Ma., in the presence of two witnesses. It was noted that the
applicant had no bodily injuries and had no complaints about the
police officers. A report drafted by a police officer was signed by
two witnesses and by the applicant. The applicant also signed a
statement that he had no complaints about his arrest and that no
physical force or special restraining equipment had been used on him.
- Later,
according to the applicant, he was tortured and ill-treated and was
forced to make self-incriminating statements. In particular,
according to the accounts given by the applicant on an unidentified
date, in the police station he had his head banged against the wall
and table, and was hit in the kidneys.
- According
to the police officers, the applicant was released at about 2-3 a.m.
on 23 November 2003. The applicant, however, states that he was
released at 8 a.m.
- At
9 a.m. the applicant caught a bus. According to the bus driver, Kt.,
the applicant had bruises on his left ear and left eye and said that
he had been beaten by the police.
- According
to the testimony of the applicant’s sister and mother, given by
them later during the investigation into the applicant’s
complaints of ill-treatment, on 23 November 2003 the applicant was at
home. An ambulance was allegedly called for him which did not come.
The applicant’s mother had arrived at home late at night on 23
November 2003 and, as the applicant was feeling bad and had fallen to
the floor after getting up from the bed, she called him an ambulance.
The ambulance arrived at 4.58 a.m. on 24 November 2003. The applicant
was diagnosed with concussion and head injury, and taken to hospital.
- On
24 November 2003 the applicant’s mother complained to the
prosecutor’s office that the applicant had been ill-treated.
- The
applicant stayed in Konotop Central District Hospital from
24 November to 8 December 2003. He was diagnosed with
concussion, bruises to the neck and left ear and acute bronchitis.
The applicant told doctors that he had fallen.
- According
to the conclusions of the Konotop traffic police internal
investigation of 18 December 2003, two traffic police officers, Ku.
and G., were approached by D., who said that he had been stabbed in a
bar. Ku. and G. arrested the applicant, handcuffed him and took him
to the traffic police station. Later they took the applicant to the
ambulance station, where he was tested for alcohol. The test was
positive and the applicant was then taken back to the traffic police
station and handed over to the police. The applicant’s injuries
had been inflicted during the fight in which D. was stabbed.
- During
a forensic medical examination carried out between 25 November
and 24 December 2003 the applicant stated that he had been beaten by
the traffic police officers after fighting with D. According to the
applicant, he was punched about three times on the head and chest and
hit in the ear. He also had a helmet put on his head and was hit
twice with a truncheon on the head. It was revealed that the
applicant had bruises on his left ear and scratches on his left arm.
The scratches had been caused by handcuffs. These injuries could have
occurred on 22-23 November 2003 in the circumstances described
by the applicant. The expert concluded that there were no marks
indicating truncheon blows.
- According
to the conclusion of a report dated 24 December 2003, signed by the
head of the Konotop traffic police unit, the use of handcuffs on the
applicant had been justified. When Ku. and G. had arrived at the bar,
there had been around twenty-five persons there. People started to
run away and a window was broken. The applicant, P., and R. were
recognised by Z.; however, as they were drunk, they refused to enter
the police car, and they swore and resisted.
- On
24 December 2003, following complaints by the applicant’s
mother, the Konotop Town Prosecutor’s Office refused to
institute criminal proceedings. Two traffic police officers, Ts. and
T., testified that they had seen the applicant upon his arrival at
the traffic police station and he had had no bodily injuries. Nobody
had ill-treated the applicant. This was further confirmed by four
other traffic police officers, D., and the doctor who had examined
the applicant. Further, the prosecutor referred to the report of the
police officer Ma. It was concluded that the police officers had not
ill-treated the applicant.
- On
2 March 2004 the Sumy Regional Prosecutor’s Office quashed the
decision of 24 December 2003 and remitted the case for additional
investigation. It was noted that when Kt. had been driving the
applicant home at 9 a.m. on 23 November 2003, the latter had said
that he had been beaten by police officers. The police officers
testified that the applicant had been released at 2 a.m. The
prosecutor noted that these, as well as other relevant circumstances,
had not been verified and the quashed decision had been based on the
testimony of the persons involved. Moreover, the cause of the
applicant’s injuries had not been established.
- On
19 March 2004 the Konotop Town Prosecutor’s Office again
refused to institute criminal proceedings. It was found that, on the
day of the incident, two young people, one having a stab wound, had
asked the traffic police officers for help. The applicant, together
with two other persons, had been taken to the traffic police station.
Because they resisted arrest, they had been handcuffed. The applicant
did not have any bodily injuries and that had been confirmed by a
medical examination. A doctor, K., had been questioned and confirmed
that, during the examination in the ambulance station on the night of
22 November 2003, the applicant had had no bodily injuries. Police
officers had stated that the applicant had been questioned and
released at about 2 a.m. on 23 November 2003. He had not had any
injuries and they had not ill-treated him. Although R., who had been
arrested together with the applicant, had testified that he had seen
the applicant being beaten by the traffic police officers, it was
concluded that his testimony, as well as the applicant’s
statements, were not confirmed by the medical conclusions, and, in
particular, that there had been no marks from truncheon blows on the
applicant’s body (see paragraph 18).
- On
3 December 2004 the Konotop Local Court quashed the decision of 19
March 2004 and remitted the case for further investigation. The court
held that the cause of the applicant’s injuries had not been
established and the testimony of Kt. had not been verified.
- On
24 December 2004 the Konotop Prosecutor’s Office again rejected
the applicant’s request to institute criminal proceedings. It
was concluded that the applicant’s version of events was not
confirmed by “the medical conclusion of 24 November 2003”.
Furthermore it had been impossible to establish where the applicant
had been between 3 and 9 a.m. on 23 November 2003.
- On
26 May 2005 the Konotop Local Court quashed the decision of
24 December 2004 because the prosecutor had made a reference to
the wrong provision of the Code of Criminal Procedure when rejecting
the applicant’s complaints.
- On
14 June 2005 the Konotop Town Prosecutor’s Office rejected a
request by the applicant for the institution of criminal proceedings.
The prosecutor found that the applicant’s description of events
was not confirmed by the findings of the forensic medical examination
which had been completed on 24 December 2003.
- On
20 July 2005 the Sumy Regional Prosecutor’s Office quashed the
decision of 14 June 2005 and remitted the case for further
investigation. It was noted that the hospital doctors who had
examined the applicant on 24 November 2005 had not been
questioned. An additional medical examination of the applicant needed
to be carried out, taking into consideration material from the
hospital medical file. Moreover, it was unclear when exactly the
applicant had been released.
- During
additional investigations in 2005 the majority of the witnesses
(ambulance doctors, police officers, relatives of the applicant)
stated that as the events of 22-24 November 2003 had happened long
ago, they did not clearly remember them. Witness Kt. was not
questioned since he had moved abroad. The records of the ambulance
visit to the applicant of 24 November 2003 and the police station
register had already been destroyed as their keeping period (one year
for the police station register) had expired.
- On
12 December 2005 the forensic medical examination concluded that the
applicant had a scar on his right wrist. According to medical
documents, on 22 November 2003 the applicant had sustained light
bodily injuries. Such injuries could have been inflicted in the
circumstances described by the applicant. It was unlikely that they
had been inflicted by the applicant’s falling down.
- On
23 December 2005 the Konotop Town Prosecutor’s Office again
refused to institute criminal proceedings into the applicant’s
complaint of ill-treatment. It was found that the applicant had been
hospitalised on 24 November 2003 complaining of headache, nausea
and a left ear injury. The applicant had not told the doctors that he
had been beaten by the police. The applicant’s sister had
testified that the applicant had come home during the morning of 23
November 2003 feeling ill and had told her that he had been beaten by
the police. The prosecutor, however, referred to the findings of the
courts in the criminal case against the applicant and decided that
there were no grounds to institute criminal proceedings against the
police officers. This decision was not appealed against.
B. Criminal proceedings against the applicant and his
pre-trial detention
- On
11 December 2003 criminal proceedings were instituted against the
applicant for hooliganism.
- On
28 December 2003 the applicant was charged with hooliganism and the
use of an offensive weapon. He signed an undertaking not to abscond.
- On
31 January 2004 the applicant’s representative, B., was refused
permission to represent the applicant in the criminal proceedings
because B. did not hold an advocate’s certificate. B.’s
appeals against that decision were unsuccessful. The applicant was
represented in the criminal proceedings by his mother and by the
advocates T. and S.
- Between
9 February and 17 March 2004 the criminal proceedings were stayed
because the applicant was ill.
- On
17 March 2004 the criminal proceedings were resumed and the applicant
was arrested.
- On
19 March 2004 the Konotop Town Court authorised the applicant’s
pre-trial detention. In doing so the court stated that “the
materials of the case presented before the court confirmed the
investigating officer’s conviction that the applicant might
abscond or interfere with the course of justice”.
- On
13 April 2004 the Sumy Regional Court of Appeal quashed the decision
of 19 March 2004 because, by a Decree of the President of Ukraine
which had entered into force on 19 March 2004, the Konotop Town Court
had been dissolved. Therefore, the decision appealed against had been
adopted by a court which no longer existed in law. The case was
transferred to the newly created Konotop Local Court for fresh
consideration.
- On
28 April 2004 the Konotop Local Court authorised the applicant to be
placed in pre-trial detention. In particular, the court held that the
applicant had been accused of committing a serious crime to which he
had not confessed. The court further noted that it was “the
investigating officer’s right to decide on the tactics for the
investigation and it was his right to decide to change the preventive
measure [from an obligation not to abscond to pre-trial detention]”.
- The
applicant appealed against that decision. According to the
Government, this appeal was received by the court on 5 May 2004.
- On
18 May 2004 the Konotop Local Court found the applicant guilty of
hooliganism and sentenced him to two years’ imprisonment. In
particular, the court found that the applicant, P., and R., had
followed M., S., Pv., Ps., Z., Kh. and D. onto the street. The
applicant had asked M. why he had not stayed in the bar. The
applicant then started to swear and tried to have a fight with Pv.
When M., D. and Z. had tried to calm the applicant down he had struck
D. with a knife.
- In
the court hearing the applicant stated that he had had a quarrel with
D. but had not struck him with a knife. The court listened to the
testimony of Ps., Kh. and S. The two latter witnesses withdrew the
testimony they had given at the pre-trial stage and stated that the
applicant had not in any way committed an offence against them. None
of the other persons present during the incident attended the hearing
because they were out of town. The court took into consideration the
testimony they had given during the pre-trial investigation. The
court also relied on various pieces of evidence and the conclusions
of the forensic examinations.
- On
1 June 2004 the Sumy Regional Court of Appeal rejected an appeal by
the applicant against the decision of 28 April 2004, because the
applicant had already been sentenced to imprisonment.
- On
3 August 2004 the Sumy Regional Court of Appeal upheld the judgment
of 18 May 2004. It also rejected as unsubstantiated the applicant’s
complaints that he had been ill-treated. No particular reasoning was
given for this conclusion as the court referred to certain undated
decisions not to institute criminal proceedings following the
applicant’s complaints.
- By
a decision of 14 April 2005 the Konotop Local Court rejected a
request by the applicant to have his sentence commuted.
- On
10 May 2005 the Supreme Court of Ukraine rejected an appeal in
cassation by the applicant against his conviction.
- On
23 June 2005 the Sumy Court of Appeal quashed the decision of 14
April 2005 and remitted the case for fresh consideration.
- On
8 July 2005, by a decision of the Konotop Local Court, the applicant
was granted an amnesty.
- The
applicant’s representative, B., asked the courts and the
prosecutor’s office to provide him with copies of documents
necessary for lodging a complaint before this Court. All his requests
were rejected, mainly on the ground that he had not presented a valid
power of authority and because he had requested documents other than
those required in connection with the lodging of his complaints
before the Court.
II. RELEVANT DOMESTIC LAW
The Law of Ukraine “On the Procedure for the Compensation of
Damage caused to Citizens by the Unlawful Actions of Bodies in charge
of Operational Enquiries, Pre-trial Investigation Authorities,
Prosecutors or Courts” (“the Compensation Act”)”
- Articles
1 and 2 (as worded before the amendments of 1 December 2005) can be
found in the following judgments respectively: Kobtsev v. Ukraine,
no. 7324/02, § 35, 4 April 2006, and Afanasyev v. Ukraine,
no. 38722/02, § 52, 5 April 2005).
- Following
the amendments to the Compensation Act of 1 December 2005, the range
of cases where the right to compensation would arise was expanded to
include those in the following category:
“(1-1) where ... unlawfulness of remand and
holding in custody ... has been established by a conviction or other
judgment of a court (save for rulings on the remittal of cases for
additional investigation)”.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained that he had been
ill-treated by traffic police officers and by police officers, and
that the authorities had failed to punish those responsible for his
ill-treatment. He relied 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. Admissibility
- The
Government submitted that the applicant had been properly informed
about the decision of 23 December 2005; however, he had not appealed
against it. Therefore, the applicant had consented to its findings
and could no longer be considered a victim.
- The
applicant did not submit any observations in reply within the
prescribed time-limit.
- The
Court notes that the Government’s objection is closely linked
to the applicant’s complaint under the procedural limb of
Article 3 of the Convention. In these circumstances, it joins the
objection to the merits of the applicant’s complaint (see,
Lotarev v. Ukraine, no. 29447/04, § 74, 8 April
2010).
- The
Court notes that these complaints are not manifestly ill-founded
within the meaning of Article 35 § 3 (a) of the Convention. It
further notes that they are not inadmissible on any other grounds.
They must therefore be declared admissible.
B. Merits
- The
applicant failed to submit any comments on the
Government’s observations. He did inform the Court, however,
that he wished to maintain his application. The Court will therefore
proceed with examination of the case as it stands.
- The
Government stated that the national authorities had conducted a
thorough investigation into the applicant’s complaints. Since
there was no evidence that the police had ill-treated the applicant,
a decision not to institute criminal proceedings had been adopted.
1. Alleged ill-treatment by the police
- The
Court has stated on many occasions 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).
- To fall under Article 3 of the Convention,
ill-treatment must attain a minimum level of severity. The assessment
of this level is relative; it depends on all the circumstances of the
case, such as the duration of the treatment, its physical and mental
effects and, in some cases, the gender, age and state of health of
the victim (see Valašinas v. Lithuania, no. 44558/98,
§§ 100-01, ECHR 2001-VIII). The Court has considered
treatment to be “inhuman” because, inter alia, it
was premeditated, was applied for hours at a stretch and caused
either actual bodily injury or intense physical and mental suffering.
It has deemed treatment to be “degrading” because it was
such as to arouse in the victims feelings of fear, anguish and
inferiority capable of humiliating and debasing them (see Kudła
v. Poland [GC], no. 30210/96, § 92, ECHR 2000 XI).
- The Court is sensitive to the subsidiary nature of its
role and recognises that it must be cautious in taking on the role of
a first-instance tribunal of fact where this is not rendered
unavoidable by the circumstances of a particular case (see, for
example, McKerr v. the United Kingdom (dec.), no. 28883/95, 4
April 2000). Nonetheless, where 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)).
- The
Court reiterates its jurisprudence confirming that the standard of
proof applied in its assessment of evidence is that of “beyond
reasonable doubt” (see Avşar v. Turkey, cited
above, § 282). Such proof may follow from the coexistence of
sufficiently strong, clear and concordant inferences or of similar
unrebutted presumptions of fact.
- In the present case, the applicant alleges, inter
alia, that he was hit on the head (see paragraphs 8 and 11). He
was later diagnosed with concussion, and medical examinations
revealed bruises on his neck and left ear. The Court notes that there
is sufficient medical evidence that the applicant sustained injuries
which were sufficiently serious to amount to ill-treatment within the
meaning of Article 3. It remains to be considered whether the State
authorities should be held responsible under Article 3 for the
infliction of those injuries.
- 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, cited above, p. 26, § 34).
- It
was confirmed by the witnesses’ testimony (see paragraph 20)
that the applicant had no injuries upon his arrival at the traffic
police station. Although an internal traffic police investigation
stated that the applicant had injuries from the fight with D., there
is no evidence that such fight took place and resulted in the
applicant’s injuries except for the applicant’s statement
that he had a swollen left eye after being hit once by D.
- Further,
an ambulance doctor, when examining the applicant, found no visible
injuries. However, it is unclear when exactly this examination took
place since, according to official records, it coincided with the
time when the applicant was detained in the traffic police station
(see paragraphs 7 and 9). Also, according to the applicant, he
was beaten and then taken to the ambulance station. Thus it is
unclear whether any head injuries, being very recent, would already
have been visible at the time of this examination or at the time of
his arrival at the police station.
- The
Court considers that the applicant might have been intimidated into
signing the statement that he had no complaints about his arrest and
that no physical force and special restraining equipment had been
used on him. In particular, his statement that no special restraining
equipment was used on him turned out to be untrue since it was
expressly acknowledged by the traffic police that he had been
handcuffed. It is further unclear whether these statements concerned
the traffic police or the ordinary police. Therefore, the Court
cannot rely definitively on the above pieces of evidence.
- Even
assuming that the applicant had no injuries on his arrival at the
ordinary police station, the Court notes that although his complaints
mainly concerned his ill-treatment by the traffic police officers,
the applicant’s explanations about being further ill-treated by
the ordinary police officers (see paragraph 11) have been never
examined.
- The
Court further notes that the time of the applicant’s release
from the police station on 23 November 2003 is unclear. The
Government failed to produce any evidence in support of the statement
that the applicant had been released at 2-3 a.m. in the morning. The
Court thus adheres to the applicant’s explanations that he was
released at 8 a.m.
- In
such circumstances, it appears that the applicant had had no head
injury when arrested but was suffering from concussion and head
injury upon his release. In the absence of any plausible explanation
as to the cause of these injuries, the Court is not convinced by the
findings of the official investigation that the State authorities
were not responsible for the applicant’s injuries.
- The
Court, thus, concludes that the applicant was subjected to inhuman
treatment by State agents. There has accordingly been a violation of
the substantive limb of Article 3 of the
Convention.
2. Adequacy of the investigation
- The Court reiterates that where an individual raises
an arguable claim that he has been seriously 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. Such an investigation should be
capable of leading to the identification and punishment of those
responsible. Otherwise, the general legal prohibition of torture and
inhuman and degrading treatment and punishment would, despite its
fundamental importance, be ineffective in practice and it would be
possible in some cases for agents of the State to abuse the rights of
those within their control with virtual impunity (see Assenov and
Others v. Bulgaria, 28 October 1998, § 102,
Reports of Judgments and Decisions 1998 VIII, and Labita,
cited above, § 131).
- The
investigation into arguable allegations of ill-treatment must also be
thorough. This means that the authorities must always make a serious
attempt to find out what happened and should not rely on hasty or
ill-founded conclusions in order to close their investigation or as
the basis of their decisions (see Assenov and Others, cited
above, §§ 103 et seq.). They must take all reasonable steps
available to them to obtain evidence concerning the incident,
including, inter alia, eyewitness testimony and forensic
evidence (see Tanrıkulu v. Turkey [GC], no. 23763/94,
ECHR 1999-IV, §§ 104 et seq., and Gül v.
Turkey, no. 22676/93, § 89, 14 December 2000).
- In
the present case, the investigation into the applicant’s
complaints lasted for two years. During this period the applicant’s
requests for the institution of criminal proceedings against the
police officers were rejected on five occasions. Four of these
refusals were subsequently quashed by a court or by a higher
prosecutor for various shortcomings and the case was referred back
for additional investigation.
- In
the last decision, on 23 December 2005, the prosecutor again rejected
the applicant’s request for the institution of criminal
proceedings. One of the two main reasons for this refusal was the
fact that the applicant had not told the hospital doctors that he had
been beaten by the police. However, the medical conclusion of 12
December 2005 had expressly mentioned that the applicant’s
injuries could not have been caused by his falling down as he had
told the doctors. Further, the decision of 23 December 2005
referred to the court findings in the applicant’s criminal
case. However, in its decision of 3 August 2004 the Sumy Regional
Court of Appeal had not provided any particular reasoning for
rejecting the applicant’s complaints but had simply referred to
some undated decisions not to institute criminal proceedings. The
Court thus considers that the decision of 23 December 2005 was not a
satisfactory response to the applicant’s allegations.
- Given
that the investigation lasted two years, was marked by numerous
shortcomings recognised by the national authorities, and failed to
provide a plausible explanation as to the cause of the applicant’s
injuries, the Court considers that the investigation following the
applicant’s complaints was ineffective.
- The
Court further notes that the witnesses submitted that after two years
they did not remember the circumstances of the events of November
2003, and that some crucial written evidence had already been
destroyed. In such circumstances, the Court considers that the
applicant cannot be reproached for not repeatedly seeking the
reopening of an investigation which has been found to be ineffective
(see, Lotarev v. Ukraine, cited above, § 93). It
accordingly dismisses the Government’s objection (see paragraph
52).
- The
Court thus concludes that in the present case there was a violation
of the procedural limb of Article 3 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
- The
applicant complained, under Article 5 §§ 1, 4 and 5 of the
Convention, that his arrest on 17 March 2004 and his subsequent
detention had been unlawful. He also complained, referring to Article
6 § 1 of the Convention, that the review of the decision of 29
April 2004 had been lengthy.
- The
Court considers that the applicant’s complaints should be
examined under Article 5 of the Convention, which, in so far as
relevant, reads as follows:
“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;
...
4. Everyone who is deprived of his liberty by
arrest or detention shall be entitled to take proceedings by which
the lawfulness of his detention shall be decided speedily by a court
and his release ordered if the detention is not lawful.
5. Everyone who has been the victim of arrest
or detention in contravention of the provisions of this Article shall
have an enforceable right to compensation.”.
A. Admissibility
- The
parties did not submit any observations on the admissibility of the
applicant’s complaints.
1. Article 5 § 4 of the Convention
- The
Court reiterates that Article 5 § 4 of the Convention, in
guaranteeing to detained persons a right to institute proceedings to
challenge the lawfulness of their deprivation of liberty, also
proclaims their right, following the institution of such proceedings,
to a speedy judicial decision concerning the lawfulness of the
detention and ordering its termination if it proves unlawful. In
order to determine whether the requirement that a decision be given
“speedily” has been complied with, it is necessary to
effect an overall assessment where the proceedings were conducted at
more than one level of jurisdiction. The question whether the right
to a speedy decision has been respected must – as is the case
for the “reasonable time” stipulation in Articles 5 §
3 and 6 § 1 of the Convention – be determined in the light
of the circumstances of each case, including the complexity of the
proceedings, the conduct of the domestic authorities, the conduct of
the applicant and what was at stake for the latter (for
recapitulation of the applicable principles, see Mooren v. Germany
[GC], no. 11364/03, § 106, ECHR 2009-...).
- The
Court notes that the applicant’s appeal against the decision of
28 April 2004, by which the court authorised his detention, was
received by the court on 5 May 2004 and was rejected on 1 June 2004.
However, on 18 May 2004 the applicant had already been sentenced
to imprisonment.
- It
appears that after the applicant’s conviction the court, when
examining his appeal against the decision to place him in pre-trial
detention, already had no power to release him. Therefore, the Court
considers that Article 5 § 4 of the Convention is not applicable
to the proceedings after 18 May 2004.
- As
to the period before 18 May 2004, the Court notes that thirteen days
passed between the date of receipt of the applicant’s appeal
and the date of his sentence. It considers that there are no special
circumstances leading to a conclusion that this period was already
too long or that the review of the applicant’s detention did
not comply with the requirement of “speediness” (see and
compare Herz v. Germany, no. 44672/98, § 73,
12 June 2003 and Shannon v. Latvia, no. 32214/03, §
74, 24 November 2009, in which the periods of eleven and fourteen
days respectively were found to be in compliance with the requirement
of “speediness”). It follows that the applicant’s
complaint in this respect must be rejected as manifestly ill-founded
in accordance with Article 35 §§ 3 (a) and 4 of the
Convention.
2. Remainder of the applicant’s complaints
- The
Court notes that these complaints are not manifestly ill-founded
within the meaning of Article 35 § 3 (a) of the Convention. It
further notes that they are not inadmissible on any other grounds.
They must therefore be declared admissible.
B. Merits
- The
applicant failed to submit any observations in
time. He did, however, inform the Court that he wished to maintain
his application.
- The
Government submitted that the decision of 19 March 2004 to detain the
applicant had been taken after the applicant had failed to appear
before the investigation officer on 29 January 2004. Therefore, the
decision on the applicant’s detention had been lawful. The
applicant was suspected of having committed a crime and his arrest
had been effected for the purpose of bringing him before the
competent legal authority.
1. General principles
- The
Court emphasises that Article 5 of the Convention guarantees the
fundamental right to liberty and security, which 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).
All persons are entitled to the protection of that right, that is to
say, not to be deprived, or to continue to be deprived, of their
liberty save in accordance with the conditions specified in Article 5
§ 1 (see Weeks v. the United Kingdom, 2 March
1987, § 40, Series A no. 114). The list of exceptions set out in
the aforementioned provision 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 Labita v. Italy [GC], cited above, §
170).
- In
order for deprivation of liberty to be considered free from such
arbitrariness, it does not suffice that this measure is executed in
conformity with national law; it must also be necessary in the
circumstances (see Nešťák v. Slovakia, no.
65559/01, § 74, 27 February 2007).
2. Court’s assessment
(a) Lawfulness
of the applicant’s arrest and detention
- The
Court notes that the applicant was arrested on 17 March 2004 after,
as the Government stated, failing to appear before the investigation
officer on 29 January 2004. However, it can be seen from the
case-file materials that between 9 February and 17 March 2004
proceedings against the applicant were stayed because he was ill.
Therefore, it appears that after 29 January 2004 the authorities
were aware of the applicant’s situation and whereabouts.
Moreover, in the subsequent court decision of 19 March 2004 on the
applicant’s pre-trial detention there is no reference to the
applicant’s failure to appear before the investigation officer
on any particular dates. The reasons given by the court are limited
to a general statement that “the materials of the case
presented before the court confirmed the investigating officer’s
conviction that the applicant might abscond and interfere with the
course of justice”. In such circumstances, the Court considers
that the applicant’s arrest on 17 March 2004 and his subsequent
detention in accordance with the decision of 19 March 2004 were
unlawful.
- The
Court notes that the court decision of 19 March 2004 to place the
applicant in pre-trial detention was quashed on 13 April 2004 by the
Sumy Regional Court of Appeal for formal reasons as it had been taken
by a court not constituted in accordance with the law. However, the
Court of Appeal did not rule on the applicant’s pre-trial
detention but remitted the case for fresh consideration. The
Government did not explain what the legal basis for the applicant’s
detention after 13 April 2004 was.
- The
applicant’s detention was finally authorised by the court
decision of 28 April 2004, that is, more than a month after his
arrest. In doing so the court referred to the applicant’s
unwillingness to confess to having committed a serious crime and
stated that it was the investigation officer’s right to request
the applicant’s pre-trial detention. The Court notes that the
refusal to confess could hardly be considered a reason to detain the
applicant pending trial.
- In
the absence of any other reasons for placing the applicant in
pre-trial detention, the Court considers that the applicant’s
arrest on 17 March 2004 and subsequent detention until 18 May 2004
were unlawful in breach of Article 5 § 1 of the Convention.
(b) Right to compensation
- The
Government stated that the applicant had no right to compensation
under Article 5 § 5 of the Convention since there was no
violation of any other provisions of this Article.
- The
Court reiterates that Article 5 § 5 guarantees an enforceable
right to compensation to those who have been the victims of arrest or
detention in contravention of the other provisions of Article 5 (see
Steel and Others v. the United Kingdom, 23 September 1998,
§ 81, Reports 1998 VII).
- In
the present case the Court has found a violation of Article 5 §
1, in conjunction with which the present complaint is to be examined.
It follows that Article 5 § 5 of the Convention is applicable.
The Court must therefore establish whether Ukrainian law afforded the
applicant an enforceable right to compensation for the breaches of
Article 5 § 1 of the Convention in his case.
- The
Court notes that the issue of compensation for unlawful detention is
regulated in Ukraine by the Compensation Act. Before the amendments
to it of 1 December 2005, it provided for compensation for unlawful
detention only in case of the ultimate acquittal of the detainee or
termination of the criminal proceedings against him/her on
exonerative grounds. Following those amendments, the right to such
compensation also arose where the unlawfulness of the detention had
been established by a judicial decision.
- Thus,
in the applicant’s case the Compensation Act did not provide
for an enforceable right to compensation at the material time.
Moreover, it does not appear that such a right was or is secured
under any other provision of the Ukrainian legislation, given the
absence of any legally envisaged procedure for bringing proceedings
to seek compensation for the deprivation of liberty found to be in
breach of one of the other paragraphs by the Strasbourg Court (see
Nechiporuk and Yonkalo v. Ukraine, no. 42310/04,
§§ 229-234, 21 April 2011).
- The
Court concludes that the applicant did not have an enforceable right
to compensation for his unlawful detention, as required by Article 5
§ 5 of the Convention. There has, therefore, been a
violation of that provision.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant complained under Article 5 § 1 of the Convention that
his arrest on 22 November 2003 had been unlawful.
- The
applicant further complained, under Article 6 of the Convention, that
the criminal proceedings against him had been instituted unlawfully
and that his representative, B., had not been allowed to represent
him. The applicant also complained, under Article 6 § 3 (d) of
the Convention, that his requests to call witnesses and for the
ordering of forensic examinations had been rejected by the court.
- The
applicant also complained under Article 6 of the Convention that the
court had failed to release him on 14 April 2005 and that those court
proceedings had been unfair.
- The
applicant also complained, under Article 13 of the Convention, that
the State authorities had prevented his representative, B., from
receiving copies of documents necessary for lodging an application
with this Court.
- Finally,
the applicant invoked Articles 1 and 7 of the Convention.
- The
Court considers that, in the light of all the material in its
possession and in so far as the matters complained of are within its
competence, they do not disclose any appearance of a violation of the
rights and freedoms set out in the Convention or its Protocols.
- It
follows that this part of the application must be rejected as being
manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and
4 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
- The
applicant did not submit a claim for just
satisfaction in time. Accordingly, the Court considers that there is
no call to award him any sum on that account.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaints
under Article 3 of the Convention and under Article 5 §§ 1
and 5 of the Convention (concerning the applicant’s arrest on
17 March 2004 and his detention between 17 March and 18 May 2004)
admissible and the remainder of the application
inadmissible;
- Holds that there has been a
violation of Article 3 of the Convention under its substantive limb;
- Holds that there has been a violation of Article
3 of the Convention under its procedural limb;
- Holds that there has been a
violation of Article 5 § 1 of the Convention;
- Holds that there has been a
violation of Article 5 § 5 of the Convention.
Done in English, and notified in writing on 23 February 2012,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Dean Spielmann
Registrar President
