FIFTH SECTION
CASE OF
SERGEY SAVENKO v. UKRAINE
(Application no.
59731/09)
JUDGMENT
STRASBOURG
24 October 2013
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 Sergey Savenko v. Ukraine,
The European Court of Human
Rights (Fifth Section), sitting as a Chamber composed of:
Mark Villiger,
President,
Angelika Nußberger,
Boštjan M. Zupančič,
Ganna Yudkivska,
André Potocki,
Paul Lemmens,
Aleš Pejchal, judges,
and Claudia Westerdiek, Section Registrar,
Having deliberated in private on 1 October 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
59731/09) 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 Aleksandrovich Savenko (“the
applicant”), on 29 October 2009.
The applicant was represented by Mr A. Bushchenko,
a lawyer practising in Kharkiv. The Ukrainian Government (“the Government”)
were represented by their Agent, Mr N. Kulchytskyy.
The applicant alleged under Article 3 of the
Convention that he had been ill-treated by a prison officer and that there had
not been an effective investigation of the incident. He also complained under
Article 13 of the Convention that he had not had effective remedies, including a
civil remedy, at his disposal in respect of his allegations of ill-treatment.
On 12 March 2012 the application was communicated
to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1975. When lodging his
application, the applicant was serving a prison sentence in Temnivka no. 100
Prison, in the Kharkiv Region.
On 10 July 2008 the applicant was placed in a
disciplinary cell as punishment for a disciplinary offence committed in the prison.
Another prisoner was also placed in the same cell for a disciplinary offence.
According to the applicant, on 11 July 2008 the
first deputy governor of the prison took the applicant to a storage room and
asked him for certain information about alleged unlawful activities on the part
of other prisoners. When the applicant refused to give any information, the
deputy governor cuffed the applicant’s hands behind his back, pushed him onto a
mattress and put a plastic bag over his head. When the applicant chewed a hole
in the bag, the deputy governor threw several mattresses on top of him and,
presumably, jumped on them. The applicant lost consciousness. When he regained
consciousness, he noticed injuries on his forearms caused by the handcuffs.
On 14 July 2008, during a meeting with his lawyer,
the applicant wrote a complaint of ill-treatment on 11 July 2008 and described
the circumstances as noted above.
On 15 July 2008 the applicant’s lawyer submitted
the complaint to the Prosecutor of Kharkiv Region. On the same date the
applicant was examined by a doctor, who noted that the applicant had suffered injuries
on his forearms. The applicant explained to the doctor that the injuries had
been caused to him by the handcuffs used on him on 11 July 2008.
On 18 July 2008 the applicant was examined by a
medical expert, who had about one year of experience. During the medical
examination, the applicant explained that he had caused the injuries himself
using coarse yarn. The expert reported abrasions to both forearms and opined
that the injuries could have been sustained at the time indicated by the
applicant, namely on 11 July 2008, and could have been caused by either metal
handcuffs or coarse yarn. The expert classified the injuries as light.
On 19 July 2008 the applicant wrote a statement that
he had inflicted the injuries himself with the use of coarse yarn which he had detached
from a floor cloth. His cellmate stated that the applicant had inflicted the
injuries himself using a rope he made out of a floor cloth. His cellmate also stated
that the applicant had rubbed salt into the skin of his forearms to deepen the
injuries. The first deputy governor of the prison asserted that no physical or
psychological pressure had been applied to the applicant.
On 21 July 2008 the applicant wrote a statement
that the events he had described in his complaint of 14 July 2008 were
fictitious and that he himself had inflicted the injuries on his forearms with
the purpose of framing the prison administration.
On 25 July 2008, following pre-investigation
enquiries, the prosecutor’s office responsible for supervising the lawfulness
of the enforcement of sentences adopted a decision refusing to open an
investigation into the applicant’s allegations of ill-treatment, finding that
there had been no corpus delicti. The prosecutor noted that the
applicant had withdrawn his initial allegations of ill-treatment and had submitted
that the injuries had been self-inflicted, and the applicant’s cellmate had confirmed
that the applicant had inflicted the injuries himself using yarn detached from a
floor cloth; the medical report had suggested that the injuries might have been
inflicted by either metal handcuffs or coarse yarn, as was maintained by the
applicant. The allegations of ill-treatment were therefore unsubstantiated.
On 28 July 2008 the applicant explained in
writing to his lawyer that the prison staff had exerted psychological pressure
on him, as a result of which he had stated that his injuries had been
self-inflicted.
The applicant’s lawyer challenged the decision
of 25 July 2008 before the Kharkiv Regional Prosecutor’s Office, arguing that
the applicant had retracted his compliant involuntarily and that the evidence
supporting the decision was unreliable.
By letter of 15 January 2009 the Kharkiv
Regional Prosecutor’s Office informed the applicant’s lawyer that his complaint
against the decision of 25 July 2008 was rejected as unfounded.
On 26 January 2009 the applicant’s lawyer
challenged the decision of 25 July 2008 before the Kyivskyy District Court of
Kharkiv. The lawyer claimed that the prosecutor’s office had failed to examine
the reasons for the applicant’s change in his statements and had not scrutinised
whether that change had been voluntary. He noted in that regard that the
applicant was under the control of the individual against whom he had made his
initial complaint. The lawyer stated that following the impugned decision the
applicant had confirmed his initial allegation of ill-treatment and referred in
this regard to the applicant’s statement of 28 July 2008. Furthermore, the
applicant’s cellmate had not been questioned in detail about the incident and
the medical examination had not been comprehensive.
On 23 March 2009, in response to a request made
by the applicant’s lawyer, a medical expert, whose experience exceeded
thirty-seven years, examined the medical documentation in respect of the
applicant’s injuries. The expert issued a report in which he concluded that the
applicant’s injuries could not have been inflicted by yarn or rope; there was
no indication that salt had been applied to the affected areas of skin; and the
applicant’s initial statements that the injuries had been caused by metal
handcuffs corresponded to the objective medical information.
On 12 May 2009 the court upheld the decision of
25 July 2008 as lawful and substantiated. It noted that: in the course of
pre-investigation enquiries the applicant had denied his initial allegation of
ill-treatment; his statement that his injuries had been self-inflicted was consistent
with the other evidence in the file which could not be disproved by the medical
report of 23 March 2009; and the applicant’s explanation that he had had the aim
of framing the prison administration by injuring himself refuted the arguments advanced
by the lawyer. The claim that the applicant had been vulnerable during the
pre-investigation enquiries was considered groundless, unsubstantiated and
farfetched. The applicant’s lawyer appealed.
On 4 June 2009 the Kharkiv Regional Court of
Appeal rejected the appeal as unfounded. It noted that the allegation of
ill-treatment had been subsequently withdrawn by the applicant and had been
refuted by the other evidence in the file. It concluded that the prosecutor’s
office had correctly refused to open an investigation and the first-instance
court had taken a lawful and substantiated decision.
On 14 December 2009 the Supreme Court rejected
the applicant’s lawyer’s cassation appeal as unfounded.
II. RELEVANT DOMESTIC LAW
The relevant provisions of the Code of Criminal
Procedure of 1960 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).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE
CONVENTION
The applicant complained that he had been ill-treated
by a prison officer and that there had not been an effective investigation of
the incident. 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 Court notes that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that it is not inadmissible on any other grounds.
It must therefore be declared admissible.
B. Merits
1. Procedural obligations under Article 3 of the
Convention
(a) The parties’ submissions
The Government contended that the domestic
authorities had taken all reasonable steps in order to discharge their
procedural obligations under Article 3 of the Convention. They specified that the examination of the applicant’s complaint had been carried
out with the requisite expediency and thoroughness; the requirement for
independent investigation had been complied with.
The applicant disagreed and argued that the
State had failed to investigate his allegations of ill-treatment effectively.
(b) The Court’s assessment
The Court reiterates that where an individual makes
an arguable claim that he has been ill-treated by the State authorities in
breach of Article 3, that provision, read in conjunction with the State’s
general duty under Article 1 of the Convention, requires by implication that
there should be an effective official investigation. For the investigation to
be regarded as “effective”, it should in principle be capable of leading to the
establishment of the facts of the case and to the identification and punishment
of those responsible. This is not an obligation of result, but one of means.
The authorities must have taken the reasonable steps available to them to
secure the evidence concerning the incident, including, inter alia,
eyewitness testimony, forensic evidence, and so on. Any deficiency in the
investigation which undermines its ability to establish the cause of injuries
or the identity of the persons responsible will risk falling foul of this
standard, and a requirement of promptness and reasonable expedition is implicit
in this context (see, among many authorities, Assenov and Others v. Bulgaria,
28 October 1998, §§ 102 et seq., Reports of Judgments and Decisions 1998-VIII,
and Mikheyev v. Russia, no. 77617/01, § 107 et seq., 26 January
2006).
As to the present case, the Court considers that
the applicant made an arguable complaint of ill-treatment before the domestic
authorities which triggered their procedural obligation under Article 3 of the
Convention to carry out an effective investigation of the allegation. The Court
further notes that the applicant’s allegation was examined by means of
pre-investigation enquiries without a full-scale investigation being opened. However,
the Court has previously held in various contexts that this investigative
procedure does not comply with the principles of an effective remedy for the
following reasons: the enquiring officer can take only a limited number of procedural
steps within that procedure; the victims have no formal status, with the result
that their effective participation in the procedure is excluded; any other remedy available to the victims, including a claim
for damages, had limited chances of success and could be considered as
theoretical and illusory (see Davydov and Others, cited above, §§
310-312; Golovan v. Ukraine, no. 41716/06, § 75, 5 July 2012; and Savitskyy v. Ukraine, no. 38773/05, § 105, 26 July 2012).
The Court next notes that, in refusing to open an
investigation, the prosecutor’s office relied on the retraction by the
applicant of his complaint of ill-treatment. The Court has held that persons in
detention may be vulnerable to pressure (see, mutatis mutandis, Shanin
v. Russia, no. 24460/04, § 67,
27 January 2011). This consideration is pertinent to the present case
which originated from the complaint of a prisoner that he had been ill-treated
by a deputy governor of the prison and the latter continued to perform his
functions throughout the examination of the matter. The Court considers that the
domestic authorities should have carefully scrutinised the reasons for the applicant’s
change of mind and clearly established that the retraction of the initial
complaint had been made voluntarily. It is notable that the authorities were expressly
informed of the applicant’s subsequent statement that the retraction had been made
due to psychological pressure having been exerted on him. Nevertheless, it
appears that the authorities relied on the intervening retraction of the ill-treatment
complaint without properly examining the circumstances in which that complaint
was withdrawn.
Similarly, the Court considers that the
authorities should have taken additional steps in order to clarify the medical
opinions concerning the cause of the applicant’s injuries in so far as the
medical reports of 18 July 2008 and 23 March 2009 did not give a concordant
answer to this question. No special diligence was shown in terms of establishing
specific circumstances of the alleged ill-treatment of the applicant by the
deputy prison governor.
In these circumstances, the Court considers that
the State has failed to take the necessary steps aimed at effective
investigation of the allegation of ill-treatment. There has therefore been a
violation of Article 3 of the Convention in its procedural limb.
2. Alleged ill-treatment
(a) The parties’ submissions
The Government contended that the applicant’s
allegation of ill-treatment had not been supported by appropriate evidence and
therefore the facts as alleged by the applicant could not be established beyond
reasonable doubt. In contrast, the conclusions of the domestic authorities
suggesting that the applicant’s injuries had been self-inflicted had been
properly reasoned and substantiated by the relevant evidence.
The applicant disagreed and asserted that the
evidence used by the authorities to reject his allegation of ill-treatment had
been unreliable. In particular, the applicant and his cellmate had been in
vulnerable positions when they submitted that the injuries had been
self-inflicted. While the medical report of 18 July 2008 had suggested that the
injuries on his forearms could have been caused by either metal handcuffs or coarse
yarn, another report of 23 March 2009 had expressly suggested that the injuries
had been caused by metal handcuffs and had therefore supported his version of
events.
(b) The Court’s assessment
The Court reiterates that Article 3 of the
Convention prohibits in absolute terms torture and inhuman or degrading
treatment. Ill-treatment must attain a minimum level of severity if it is to
fall within the scope of Article 3. The assessment of this minimum 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 sex, age and
state of health of the victim. In respect of a person deprived of his liberty,
recourse to physical force that has not been made strictly necessary by his own
conduct diminishes human dignity and is in principle an infringement of the
right set forth in Article 3 (see Labita v. Italy [GC], no. 26772/95, §§
119-20, ECHR 2000-IV).
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,
proof may follow from the coexistence of sufficiently strong, clear and
concordant inferences or of similar unrebutted presumptions of fact. Where the
events in issue lie wholly, or in large part, within the exclusive knowledge of
the authorities, as in the case of persons under 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 lying with 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).
In the present case the applicant made fairly
detailed submissions as to the methods of ill-treatment allegedly employed by
the deputy prison governor against him. His version of events, which involved
the prison official using force and special means of restraint (in particular,
handcuffs and a plastic bag) to exert physical and psychological pressure on
him, indicates that the ill-treatment, if it indeed occurred, was serious
enough to fall within the ambit of Article 3 of the Convention.
Given that the alleged ill-treatment took place
in respect of a person who was under the control of the authorities in prison,
the Court considers that the State was obliged under
Article 3 of the Convention to provide a satisfactory and convincing
explanation of the alleged events. Accordingly, the State’s failure to
discharge this burden of proof may prompt the Court to accept the applicant’s
account of the facts.
In this regard, the Court notes that on the
basis of the evidence available in the file the domestic authorities found that
the injuries on the applicant’s forearms had been inflicted by the applicant
himself in front of another prisoner who had also been placed in a disciplinary
cell. They further concluded that the allegation that the applicant had been
ill-treated by the prison officer was unsubstantiated.
The Court notes that the available medical
evidence suggested that at the relevant time the applicant had suffered
injuries on the forearms. According to the report of 18 July 2008, which
was based on a direct examination of the applicant, the injuries could have
been caused by either metal handcuffs or coarse yarn. It follows that this
report equally supported the authorities’ and the applicant’s versions of the
events. Meanwhile, the second report of 23 March 2009, prepared at the
applicant’s lawyer’s request on the basis of the medical documentation,
excluded yarn or rope as the cause of injury, thereby disproving the version of
the authorities. In these circumstances it cannot be concluded that the medical
evidence conclusively supported the finding that the injuries were
self-inflicted by rope or yarn. On the contrary, it could be rather suggested
that this evidence was in fact in favour of the applicant’s allegation involving
the use of handcuffs.
The authorities further relied on the statements
of the applicant which he made between 18 and 21 July 2008 and on the
statements of the applicant’s cellmate. Those statements excluded the use of
handcuffs and suggested that the injuries had been self-inflicted. However, the
reliability of this evidence is doubtful for the Court because, as noted above,
the applicant and his cellmate remained under the control of the individual
against whom the allegation of ill-treatment had been made. Moreover, the
applicant subsequently withdrew those statements, arguing that they were false
and had been made under pressure.
In addition, it does not appear that the
authorities established all the relevant circumstances to explain how the
applicant had injured himself. In particular, the applicant’s and his cellmate’s
statements to this effect did not coincide in full and it had not been
clarified whether the applicant had applied salt to aggravate his injuries, as
noted by the applicant’s cellmate, and, if so, how the applicant had obtained
salt in a disciplinary cell. Likewise, the floor cloth had not been examined in
order to support or disprove the version of the events maintained by the
authorities.
In the light of the above, the Court considers
that the authorities failed to provide a plausible explanation for the causation
of the injuries found on the applicant at the relevant time and did not
satisfactorily disprove the applicant’s allegation of ill-treatment by the
prison officer. For this reason the Court holds that the State must be held
responsible for the alleged ill-treatment which should be
classified as inhuman and degrading.
There has therefore been a violation of the
substantive limb of Article 3 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE
CONVENTION
The applicant complained that he had not had
effective remedies, including a civil remedy, for the complaint of
ill-treatment under Article 3 of the Convention, as required by Article 13 of
the Convention, which provides:
“Everyone whose rights and
freedoms as set forth in [the] Convention are violated shall have an effective
remedy before a national authority notwithstanding that the violation has been
committed by persons acting in an official capacity.”
A. The submissions by the parties
The Government argued that the applicant had had
effective remedies at his disposal in respect of his complaint of
ill-treatment. Accordingly, there had been no violation of Article 13 of the
Convention.
The applicant argued that the investigation of
his complaint was ineffective and a civil claim for damages had not been
available to him.
B. The Court’s assessment
The Court notes that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It
further notes that it is not inadmissible on any other grounds. It must therefore
be declared admissible.
However, given the Court’s reasons under the
procedural limb of Article 3 of the Convention and the facts of the present
case, the complaint under Article 13 does not give rise to any separate issue. Consequently,
the Court holds that it is not necessary to examine the complaint under Article 13
of the Convention separately.
III. 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 15,000 euros (EUR) in
respect of non-pecuniary damage.
The Government submitted that this claim was
unsubstantiated.
The Court considers that the applicant must have
suffered distress and anxiety on account of the violation found. Ruling on an
equitable basis, as required by Article 41 of the Convention, it awards the
applicant EUR 7,000 in respect of non-pecuniary damage.
B. Costs and expenses
The applicant also claimed EUR 7,313.6 for costs
and expenses incurred before the domestic authorities and the Court. He asked that any award in respect of this claim be paid
directly into the bank account of his representative.
The Government submitted that this claim was
unfounded and excessive.
According to the Court’s case-law, an applicant
is entitled to the reimbursement of costs and expenses only in so far as it has
been shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to the
documents in its possession and the above criteria, the Court considers it
reasonable to award, in addition to the legal aid granted, the sum of EUR 1,000
for costs and expenses for the proceedings before the Court. The latter amount is
to be paid directly into the bank account of the applicant’s representative (see,
for example, Hristovi v. Bulgaria, no. 42697/05, § 109, 11 October 2011, and Singartiyski
and Others v. Bulgaria, no. 48284/07, §
54, 18 October 2011).
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 application admissible;
2. Holds
that there has been a violation of Article 3 of the Convention in its
substantive limb;
3. Holds
that there has been a violation of Article 3 of the Convention in its
procedural limb;
4. Holds
that there is no need to examine the complaint under Article 13 of the
Convention separately;
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
7,000 (seven thousand euros), plus any tax that may be chargeable, in respect
of non-pecuniary damage;
(ii) EUR
1,000 (one thousand euros), plus any tax that may be chargeable to the
applicant, in respect of costs and expenses, to be paid into the bank account
of the applicant’s lawyer, Mr A. Bushchenko;
(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 24 October 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia
Westerdiek Mark Villiger
Registrar President
