BELOUSOV v. UKRAINE - 4494/07 - Chamber Judgment [2013] ECHR 1104 (07 November 2013)

In the case of Belousov v. Ukraine,

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

          Mark Villiger, President,
          Angelika Nußberger,
          Boštjan M. Zupančič,
          André Potocki,
          Paul Lemmens,
          Aleš Pejchal, judges,
          Stanislav Shevchuk, ad hoc judge,
and Claudia Westerdiek, Section Registrar,

Having deliberated in private on 15 October 2013,

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

PROCEDURE

1. The case originated in an application (no. 4494/07) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Vyacheslav Nikolayevich Belousov (“the applicant”), on 7 December 2006.

2. The applicant was represented by Mr A.P. Bushchenko, a lawyer practising in Kharkiv. The Ukrainian Government (“the Government”) were represented successively by their Agents, Mrs V. Lutkovska and Mr N. Kulchytskyy.

3. The applicant alleged that the police had unlawfully detained him, tortured him and searched his home, that he had not been brought promptly before a judge for the lawfulness of his arrest to be examined, and that the investigation of his complaint concerning torture was ineffective.

4. On 21 March 2011 the application was communicated to the Government.

5. 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

6. The applicant was born in 1979 and lives in Kharkiv.

A. Criminal proceedings against the applicant, his arrest and detention

7. At about 11 a.m. on 18 July 2005 several police officers in civilian clothes came to the hostel where the applicant lived, and invited him to come with them to their office. The applicant followed the officers, who took him to the Kominternivskyy District police station (hereafter “the police station”).

8. On arrival the applicant was notified that the police had received complaints from two mothers implicating him in sexual abuse of their minor daughters, and was questioned on this matter.

9. At about 5 p.m. on the same day the applicant confessed to the offence and signed permission for the police to inspect his home.

10. At about 6 p.m. seven or eight police officers, including those who had questioned the applicant, took him back to the hostel, examined his room, seized a bed cover, a rug and some of the applicant’s personal belongings, and brought the applicant back to the police station. No documentary record of his arrest was drawn up at that stage.

11. At about 7 p.m. on 19 July 2005 the applicant, who was still at the police station, had a first meeting with a lawyer, hired for him by his relatives.

12. At about 8.40 p.m. on the same date the police investigator B. drew up an arrest report, stating that the applicant had been arrested at that hour as a crime suspect on the basis of Article 115 of the Code of Criminal Procedure.

13. On 22 July 2005 the applicant was brought before a judge of the Kominternivskyy District Court of Kharkiv (“the District Court”), who remanded him in custody for ten days pending gathering of personal information to determine feasibility of his further detention.

14. On 29 July 2005 the applicant was released subject to an undertaking not to abscond.

15. In September 2005 one of the two mothers who had made the complaint of sexual abuse of their daughters withdrew her complaint against the applicant, stating that it had been lodged under pressure from the police.

16. The parties did not inform the Court of any outcome of the criminal proceedings against the applicant.

B. Investigation of the applicant’s complaints concerning his detention, the search of his home and torture

17. During the evening of 18 July 2005 the concierge of the applicant’s hostel and three of his neighbours informed the Kharkiv Human Rights Group (a non-profit organisation), that they had seen the applicant leaving the hostel with the police officers at about 11 a.m. that day. They noted that at that time the applicant had been sober, neatly dressed and in good health. They had also seen him some seven hours later, when the police had brought him back for his room to be searched. They had noticed that the applicant was limping, stooping, and had bruises and swellings on his face, and that his clothes were dirty and wrinkled. Some neighbours also mentioned that the applicant had arrived handcuffed and that the police officers had prevented him from explaining to the neighbours what was going on.

18. At about 10 p.m. on the same date an unidentified person telephoned the police hotline, demanding an investigation of the applicant’s arrest and detention.

19. At about 10.30 p.m. on the same date M.K., the Kominternivskyy District Police Deputy Chief Officer, arrived to investigate the complaint received via the hotline, and interviewed the applicant, who complained that he had been ill-treated by the police. The Deputy Chief Officer also questioned the police officers, who stated that the applicant had injured himself.

20. At about 10 a.m. on 19 July 2005 the applicant was examined by a forensic expert, who certified that the applicant was suffering from minor bodily injuries, including soft tissue swelling, numerous bruises and scratches on various parts of his body, in particular the face and groin area. The expert next concluded that these injuries had been inflicted by blunt objects within the past one to three days, and recorded that according to the applicant these injuries had been inflicted by the police, while according to the police they were self-inflicted.

21. On 20 July 2005 the applicant, represented by his lawyer, lodged a formal complaint, requesting the Kominternivskyy District Prosecutor (“the District Prosecutor”) to institute criminal proceedings in respect of his unrecorded detention until 8.40 p.m. on 19 July 2005 and his ill-treatment. The applicant maintained that he had been tortured by a number of police officers, including S.B., A.O. and V.M., and noted that he could identify other officers if he saw them. Subsequently the applicant supplemented his initial submissions, additionally complaining that on 18 July 2005 his home had been unlawfully searched.

22. On 1 August 2005 the District Prosecutor’s Office instituted criminal proceedings in respect of the applicant’s complaints.

23. On 6 August 2005 the applicant was questioned as a witness in connection with those proceedings. He submitted that upon his arrival at the police station, at about noon on 18 July 2005, three officers, S.B., A.O. and V.M., had urged him to confess to the crime of which he was suspected, under threat of torture. As the applicant had insisted that he was innocent, the officers had cleared the desk of all objects, covered it with a blanket and placed him on it with his hands handcuffed behind his back. Then they had painfully twisted his arms, started punching him in various parts of his body and squeezing his genitals. Subsequently three additional officers, whose names had not been communicated to the applicant, had joined them and had taken turns to apply various techniques to cause him pain, beat and strangle him. Unable to withstand the torture, by 5 p.m. on the same date the applicant had confessed to the crime, which he had never committed.

24. On various dates the prosecutor’s office summoned officers S.B., A.O. and V.M. as witnesses for questioning in connection with the above proceedings. According to the applicant, the first such questioning took place on 9 August 2005. The officers maintained that the applicant had made statements of confession of his own accord and had then become very agitated. He had started banging his head against the desk and the wall, attempted to leave the room without authorisation, and had sustained several injuries when the officers had tried to stop him. In view of this inappropriate conduct the officers had had to handcuff him to calm him down. The accounts by the police officers varied, in particular, as to the sequence of events and their individual roles in the incident.

25. On 6 September 2005 the applicant complained to the District Prosecutor that the investigation of his complaints was not progressing. He noted, in particular, that the investigator should have summoned the three police officers identified by him as defendants rather than witnesses, and that an arrangement should have been made for him to identify the other officers who had ill-treated him.

26. On 7 November 2005 the applicant was again questioned as a witness in the above case.

27. On 11 November 2005 the applicant was accorded the status of an injured party in connection with the above proceedings.

28. On 13 January 2006 the applicant took part in the reconstruction of the crime scene.

29. In February 2006 the applicant had confrontations with the police officers implicated by him in the ill-treatment.

30. On two occasions (3 May 2006 and 15 August 2007) the proceedings were stayed on the ground that the perpetrator of the crime could not be identified. On 10 July 2006 and 19 October 2007 respectively the proceedings were renewed following findings by the supervising prosecutorial authority that further investigative actions could have been taken.

31. On 26 December 2007 the District Prosecutor’s office discontinued the proceedings for want of evidence that a crime had been committed.

32. On 6 February 2008 the Kharkiv Regional Prosecutor’s Office quashed that decision as insufficiently substantiated and remitted the case for further investigation.

33. On several occasions following this date the proceedings were again stayed (19 March 2008 and 21 May 2009) and renewed (4 June 2008 and 10 August 2009).

34. On 28 December 2009 the District Prosecutor’s Office discontinued the proceedings. It acknowledged that on 18 July 2005 the applicant had been brought to the police station in connection with a criminal complaint lodged against him. That is, de facto he had been arrested on that date as a crime suspect on the basis of Article 115 of the Code of Criminal Procedure. Nevertheless, the applicant’s arrest had been documented only in the evening of 19 July 2005. Such an administrative delay in regularising the applicant’s arrest could possibly give rise to disciplinary proceedings against the officers responsible for it, but could not qualify as a criminal offence. The District Prosecutor’s Office also found that there was insufficient evidence that the applicant had been tortured. Finally, it noted that the visit of the police to the applicant’s home qualified not as a search, but as an inspection of the crime scene, which had been conducted lawfully, since the applicant had given his consent to such an inspection.

35. On 7 April 2010 the District Court quashed the above-mentioned decision and remitted the case for additional investigation.

36. The investigator questioned several witnesses, who stated that they could no longer remember the details of the events of 18-19 July 2005.

37. On 15 July 2010 the District Prosecutor’s Office discontinued the criminal proceedings for want of evidence that a crime had been committed.

38. On 30 November 2010 the District Court quashed this decision and remitted the case for further investigation.

39. On 18 May 2011 the proceedings were stayed because the perpetrator of the crime could not be identified.

40. According to the submissions by the parties, on 21 November 2011 this decision was quashed and the investigation was renewed. The parties did not inform the Court of any further steps in the proceedings.

II. RELEVANT DOMESTIC LAW

A. Constitution of Ukraine of 1996

41. Article 29 of the Constitution of Ukraine reads as follows:

Article 29

“Every person has the right to freedom and personal inviolability.

No one shall be arrested or held in custody other than pursuant to a reasoned court decision and only on the grounds and in accordance with a procedure established by law.

In the event of an urgent necessity to prevent or stop a crime, bodies authorised by law may hold a person in custody as a temporary preventive measure, the reasonable grounds for which shall be verified by a court within seventy-two hours. The detained person shall be released immediately if he or she has not been provided, within seventy-two hours of the moment of detention, with a reasoned court decision in respect of their holding in custody.

Everyone who has been arrested or detained shall be informed without delay of the reasons for his or her arrest or detention, apprised of his or her rights, and from the moment of detention shall be given the opportunity to personally defend himself or herself, or to have the legal assistance of defence counsel.

Everyone who has been detained has the right to challenge his or her detention in court at any time.

Relatives of an arrested or detained person shall be informed immediately of his or her arrest or detention.”

B. Code of Criminal Procedure of Ukraine of 1960 (repealed with effect on 19 November 2012)

42. Relevant provisions of the Code of Criminal Procedure of Ukraine of 1960, in force at the material time, read as follows:

Article 106. Arrest of a suspect by the body of inquiry

“The body of inquiry shall be entitled to arrest a person suspected of a criminal offence for which a penalty in the form of deprivation of liberty may be imposed only on one of the following grounds:

(1) if the person is discovered whilst or immediately after committing an offence;

(2) if eyewitnesses, including victims, directly identify this person as the one who committed the offence;

(3) if clear traces of the offence are found either on the body of the suspect, or on his clothing, or with him, or in his home.

If there is other information giving ground to suspect a person of a criminal offence, an inquiry officer may arrest the person if he or she has attempted to flee, or does not have a permanent place of residence, or the identity of that person has not been established.

For each case of a suspect’s arrest, the inquiry officer shall draw up an arrest report (протокол затримання) outlining the grounds, the motives, the day, time, year and month, the place of arrest, the explanations given by the person detained and the time when it was recorded that the suspect had been informed of his right to have a meeting with defence counsel as from the moment of his arrest, in accordance with the procedure provided for in paragraph 2 of Article 21 of the present Code. The arrest order shall be signed by the person who drew it up and by the detainee.

A copy of the arrest report with a list of his rights and obligations shall immediately be handed to the detainee and sent to the prosecutor. At the request of the prosecutor, the material which served as a ground for the arrest shall be sent to him as well. ...

Within seventy-two hours of the arrest, the body of inquiry shall:

(1) release the detainee if the suspicion that he or she committed the crime has not been confirmed, if the statutory term of the preliminary detention has expired or if the arrest has been effected in violation of the requirements of paragraphs 1 and 2 of the present Article;

(2) release the detainee and select a non-custodial preventive measure;

(3) bring the detainee before a judge with a request to impose a custodial preventive measure on him or her. ...

Preliminary detention of a suspect shall not last for more than seventy-two hours. ...”

Article 115. Arrest of a suspect by an investigator

“An investigator may arrest and question a person suspected of a crime according to procedure envisaged by Articles 106, 106-1, and 107 of the Code.”

Article 190. Conduct of inspections

“...Inspection of a dwelling or another possession of an individual shall be carried out only upon a reasoned decision of a judge ... .

In urgent cases connected with the saving of human lives and property or with direct pursuit of individuals who are suspected of having committed a crime, and also with the written consent of the proprietor, inspection of a dwelling or another possession of an individual may be carried out without a judicial order.”

43. Other relevant domestic and international materials may be found in the text of the Court’s judgment in the case of Kaverzin v. Ukraine (no. 3893/03, §§ 44-45, 49-50, 55-64, 67 and 69-79, 15 May 2012).

THE LAW

I. ALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE CONVENTION

44. The applicant complained that he had been tortured by the police during his time in custody, in breach of Article 3 of the Convention. He also complained under Article 13 of the Convention that his allegations of torture had not been duly examined.

45. The Court is of the opinion that it is appropriate to examine the applicant’s complaint of an inadequate investigation of his allegations of torture under Article 3 of the Convention (see Kozinets v. Ukraine, no. 75520/01, § 44, 6 December 2007). The provision at issue reads as follows:

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

A. Admissibility

46. The Government submitted that the applicant’s complaint that he had been tortured was premature, as the domestic investigation of that complaint was pending.

47. The applicant submitted that the investigation to which the Government referred was ineffective, and that he was therefore absolved of the requirement to await its outcome. He requested the Court to examine the Government’s objection jointly with the merits of the relevant complaint.

48. The Court considers that in the present case it is impossible to establish whether or not the applicant was under an obligation to await the results of the investigation of his complaint concerning torture before an examination of the merits of his complaint concerning the alleged ineffectiveness of the investigation in question.

49. The Court therefore joins the Government’s objection to the merits of the applicant’s complaint under the procedural limb of Article 3 of the Convention (see, as a recent authority, Savin v. Ukraine, no. 34725/08, § 57, 16 February 2012).

50. The Court further notes that the above complaints are not otherwise manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, and are not inadmissible on any other grounds. They must therefore be declared admissible.

B. Merits

1. The submissions by the parties

51. The applicant submitted that his injuries, attested to by his neighbours and recorded by the medical expert on 19 July 2005, had resulted from acts of torture by the police. He noted that these injuries had been inflicted when he had been held in police custody without procedural guarantees, and that during this period he had signed self-incriminating statements, which he had retracted soon afterwards. These factors were consonant with his submissions that he had been subjected to unlawful pressure. By contrast, the alternative version, according to which the applicant had voluntarily confessed to the offence and subsequently inflicted injuries upon himself, was untrue. The accounts provided by the police officers contained factual discrepancies. Furthermore, if, as suggested by the police, the applicant had been restrained with handcuffs to prevent him from self-harming, the police authorities would have been obliged in law to report this. They had failed to do so.

52. The applicant further alleged that the investigation of his complaints of ill-treatment did not meet the minimum standards of effectiveness. The investigation was not sufficiently independent, was directed at exonerating the police rather than at establishing the objective facts, and featured numerous delays. For instance, although the authorities were notified of the applicant’s injuries within twenty-four hours of their infliction, they took ten days to initiate a formal investigation (on 1 August 2005) and ten more days to question the officers implicated in the ill-treatment in question (on 9 August 2005). This delay could have been used by the officers to coordinate their statements and destroy evidence. Furthermore, it was only in November 2005 (nearly four months after the events complained about) that the applicant was granted the status of an injured party in connection with the investigation of his complaint of ill-treatment. The first attempt to reconstruct the events leading to the applicant’s injuries was made only in January 2006 (some six months after the events complained about) and the first confrontation between the applicant and the police officers was held only in February 2006 (seven months after the events in question). Notwithstanding that there was sufficient evidence to give rise to a reasonable suspicion that the police officers identified had committed a crime of violence, they were not summoned as defendants or even as suspects, but were always questioned only as witnesses. No procedure by which the applicant could have identified the other concerned officers, whose names he did not know, was ever set up.

53. The Government did not submit any comments on the merits of these complaints.

2. The Court’s assessment

54. The Court, having regard to its decision to join the objection of non-exhaustion of domestic remedies to the merits of the applicant’s complaint that the investigation of his allegations of torture had been ineffective (see paragraph 49 above), considers that it is appropriate to start with the examination of this complaint.

a. Alleged ineffectiveness of the investigation

55. According to the Court’s established case-law, when an individual makes a credible assertion that he has suffered treatment infringing Article 3 of the Convention at the hands of agents of the State, it is the duty of the national authorities to carry out “an effective official investigation” capable of leading to the establishment of the facts of the case and, if the allegations prove to be true, to the identification and punishment of those responsible (see, among other authorities, Dedovskiy and Others v. Russia, no. 7178/03, § 87, ECHR 2008 (extracts)). The minimum standards of effectiveness defined by the Court’s case-law include the requirements that the investigation must be thorough, independent, impartial and subject to public scrutiny, and that the competent authorities must act with exemplary diligence and promptness (see, for example, Aleksakhin v. Ukraine, no. 31939/06, § 55, 19 July 2012).

56. Turning to the facts of the present case, the Court takes note of the numerous delays, periods of inactivity, suspensions and discontinuations of the investigation, as well as repeated remittals of the case for additional inquiries. It also observes that more than eight years have passed since the events giving rise to the present complaint. As time elapses it is inevitable that material and other evidence becomes difficult or impossible to collect and the witnesses may no longer remember all the details (see, in particular, paragraph 36 above). Although according to the case-file materials the investigation at issue seems to be still pending, the Court does not have a reason to believe that yet another round of inquiries following the quashing of the last decision to discontinue the proceedings would redress the earlier shortcomings and render the investigation effective.

57. The Court further refers to its judgment in the case of Kaverzin v. Ukraine, where it noted that similar patterns of investigation were recurrent in Ukraine, that they stemmed from systemic problems at the national level, which allowed for agents of the State who ill-treat crime suspects in order to obtain confessions to go unpunished (see Kaverzin v. Ukraine, no. 23893/03, §§ 172-182, 15 May 2012). In view of the circumstances of the present case and its earlier case-law, the Court concludes that in the present case, too, no serious effort has been made to investigate the allegations of ill-treatment made by the applicant.

58. It follows that the Government’s objection (see paragraph 46 above) must be dismissed and that there has been a violation of Article 3 of the Convention under its procedural limb.

b. Alleged torture by the police

59. The Court reiterates that where an individual, when taken into police custody, is 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 how those injuries were caused, failing which a clear issue arises under Article 3 of the Convention (Selmouni v. France [GC], no. 25803/94, § 87, ECHR 1999-V).

60. In assessing evidence of ill-treatment, 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 those 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 Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII).

61. On the basis of the case-file materials, including the medical evidence and the statements by the applicant’s neighbours, the Court considers it established that the applicant sustained bruises, abrasions, soft tissue swellings and other bodily injuries on 18 July 2005, during his questioning in the police station.

62. The Court is confronted with two alternative versions of how the applicant has sustained the injuries at issue. According to the first version, which is offered by the applicant, the police officers handcuffed him, punched him in various parts of his body, strangled him, squeezed his genitals and painfully twisted his arms urging to confess to having sexually abused two minors. He maintains that this treatment lasted for several hours, until he signed self-incriminating statements. According to the second version, supported by the police, the applicant, invited to the police station for questioning, volunteered a confession that he had committed a crime. Afterwards he engaged in self-injurious conduct, which the police officers restrained.

63. In the Court’s view, the applicant’s version is sufficiently coherent and detailed. The very fact that he confessed to the crime during his undocumented detention in a setting lacking procedural guarantees, such as the availability of a lawyer, and retracted his confession soon afterwards, creates an appearance that his confession may not have been given freely. Corroborated by the medical and other evidence concerning physical injuries, this fact gives rise to a strong presumption that the police officers resorted to physical ill-treatment as a means of breaking the applicant’s psychological resistance and using his vulnerable state to obtain self-incriminating statements. By way of an alternative version, the police officers provided several accounts, inconsistently describing the sequence of events leading to the applicant’s injuries and the officers’ individual roles in them (see paragraph 24 above). For instance, it is not apparent from these accounts why the applicant had engaged in self-injurious conduct after volunteering a confession or why the police officers had to restrain him by force to prevent him from leaving the police station, regard being had to their own submissions that the applicant had not been under arrest. The Government in their observations likewise fail to provide any plausible alternative explanation as to how the applicant’s injuries have been inflicted.

64. In light of these considerations, the Court considers that the injuries at issue were inflicted as a result of ill-treatment by the police. This finding is sufficient for the Court to find a breach of Article 3 of the Convention.

65. However, in the light of the applicant’s allegations, the Court must further examine whether or not the injuries complained about are indicative of torture.

66. In determining whether a particular form of ill-treatment should be classified as torture, consideration must be given to the distinction, embodied in Article 3, between this notion and that of inhuman or degrading treatment. By means of this distinction, the Convention attaches a special stigma to deliberate inhuman treatment causing very serious and cruel suffering (see Ireland v. the United Kingdom, cited above, § 167, and Selmouni, cited above, § 96). In addition to the severity of the treatment, there is a purposive element to torture, as recognised in the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Article 1 of which defines torture in terms of the intentional infliction of severe pain or suffering with the aim, inter alia, of obtaining information, inflicting punishment or intimidating (see Akkoç v. Turkey, nos. 22947/93 and 22948/93, § 115, ECHR 2000-X and Aleksakhin, cited above, § 50). In the Selmouni judgment, cited above, the Court took the view that the increasingly high standard being required in the area of the protection of human rights correspondingly and inevitably required greater firmness in assessing breaches of the fundamental values of democratic societies (§ 101). In the light of this approach, the Court held that certain acts which were classified in the past as “inhuman and degrading treatment” as opposed to “torture” could be classified differently in future (ibid.).

67. The Court next notes that the applicant’s injuries (soft tissue swelling, numerous bruises and scratches on various parts of his body, in particular, face and groin area), even though classified as “minor” by the domestic forensic expert, attest to the severity of the ill-treatment he suffered (see and compare with Teslenko v. Ukraine, no. 55528/08, § 101, 20 December 2011). This treatment was administered behind closed doors by a number of police officers whose violence the applicant had no means of resisting. In these circumstances the applicant’s physical pain associated with the above injuries must have been exacerbated by feelings of helplessness, acute stress and anxiety. It is also relevant for the assessment of the seriousness of the ill-treatment suffered by the applicant that this treatment was intentional, lasted for several hours in a row and was aimed at extracting from him a confession that he had committed the offence of which he was suspected.

68. In these circumstances, the Court concludes that, taken as a whole and having regard to its purpose, duration and severity, the ill-treatment at issue amounted to torture within the meaning of Article 3 of the Convention.

69. Accordingly, there has been a violation of Article 3 of the Convention under its substantive limb.

II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION

70. The applicant complained that his unrecorded detention on 18 and 19 July 2005 had been devoid of a legal basis. He also complained that his arrest in the evening of 19 July 2005 effected without a court order was in breach of applicable domestic law. He referred, in particular, to Article 5 § 1 (c) of the Convention in respect of these complaints, 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 ...”

A. Admissibility

71. The Government submitted that the first aspect of the above complaint, namely the applicant’s purported detention on 18-19 July 2005, similarly to the complaint about torture, was premature, since the relevant domestic investigation was pending. They did not lodge any objections concerning the admissibility of the second aspect of the applicant’s complaint, which concerned the lawfulness of his arrest on 19 July 2005 without a court decision.

72. The applicant contested the Government’s objection. He reiterated that the investigation to which the Government referred was ineffective and he could not therefore be required to await its results.

73. The Court refers to its findings in paragraphs 56-58 above, where it found that the investigation referred to by the Government was ineffective for the purposes of investigating the applicant’s complaint concerning torture. It considers that the same arguments are equally pertinent to the present aspect of the case, and finds that the applicant can be absolved from awaiting the results of the investigation at issue. It further notes that, in the absence of any submissions of the Government concerning the availability of any other domestic remedy (such as a civil or administrative action), it must consider that the applicant has exhausted the remedies available to him in respect of both aspects of his complaint.

74. The Court notes that the applicant’s 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. The submissions by the parties

75. The applicant submitted that although his arrest was recorded only from 8.40 p.m. on 19 July 2005, he was in fact deprived of his liberty from about 11 a.m. on 18 July 2005. While officially he was not “summoned”, but “invited” by police officers to follow them to the police station at that time, the very manner of the “invitation”, and the fact that there were several police officers involved, clearly indicated that the “invitation” could not be declined. Furthermore, as soon as the applicant arrived in the police station, the officers started questioning and treating him as a suspect. Subsequently the applicant was handcuffed. He remained handcuffed and was accompanied by a number of police officers when brought back to the hostel for his room to be inspected. He was also transported in the “detainees’ compartment” of a police car to and from the hostel.

76. As regards the lawfulness of his detention from 19 to 22 July 2005, on the basis of the arrest report made by the police at 8.40 p.m. on 19 July 2005, the applicant submitted that it was contrary to Article 29 of the Constitution of Ukraine. In particular, according to this provision, a court decision was necessary for an arrest at all times, unless there was an urgent necessity to prevent or stop a crime. This provision was further interpreted in Articles 106 and 115 of the Code of Criminal Procedure of 1960, which provided an exhaustive list of the police’s powers to arrest an individual. None of these provisions applied in the applicant’s case.

77. The Government submitted that in the absence of a final outcome of the relevant domestic investigation, it was impossible to conclude whether the applicant’s encounters with the police on 18 July and until 8.40 p.m. on 19 July 2005 could qualify as deprivation of liberty. They were therefore not in a position to submit observations concerning the relevant aspect of the applicant’s complaint.

78. The Government further stated that the applicant’s detention between 8.40 p.m. on 19 July 2005 and 22 July 2005 (when a court order to remand him in custody was issued) was lawful. In particular, the arrest was based on a reasonable suspicion that the applicant had committed a crime and was effected to ensure that he did not abscond from the investigation. This arrest was justified under the provisions of Articles 106 and 115 of the Code of Criminal Procedure of 1960, in particular, since the applicant had been identified as an offender by the victims of the crime.

2. The Court’s assessment

a. General principles

79. According to the Court’s case-law, in order to determine whether there has been a deprivation of liberty, the starting point must be the specific situation of the individual concerned, and account must be taken of a whole range of factors arising in a particular case, such as the type, duration, effects and manner of implementation of the measure in question (see Guzzardi v. Italy, judgment of 6 November 1980, Series A no. 39, p. 33, § 92). The Court must look beyond the appearances and concentrate on the realities of the situation complained of (see Van Droogenbroeck v. Belgium, judgment of 24 June 1982, Series A no. 50, p. 20, § 38). The Court has repeatedly pointed out that the right to liberty is too important in a democratic society for a person to lose the benefit of the protection of the Convention for the single reason that he gives himself up to be taken into custody. Detention may violate Article 5 even when the person concerned has agreed to it (see De Wilde, Ooms and Versyp v. Belgium, 18 June 1971, § 65, Series A no. 12, and Osypenko v. Ukraine, no. 4634/04, § 49, 9 November 2010).

80. The Court further reiterates that the unacknowledged detention of an individual is a complete negation of the fundamentally important guarantees contained in Article 5 of the Convention, and discloses a most grave violation of that provision. Failure to make a record of such matters as the date, time and location of detention, the name of the detainee, the reasons for the detention, and the name of the person carrying it out must be seen as incompatible with the requirement of lawfulness and with the very purpose of Article 5 of the Convention (see, for example, Menesheva v. Russia, no. 59261/00, § 87, ECHR 2006-III, with further references).

81. The Court has ruled in a number of cases that where deprivation of liberty is concerned it is particularly important that the general principle of legal certainty be satisfied. It is therefore essential that the conditions for deprivation of liberty under domestic law be clearly defined and that the law itself be foreseeable in its application, so that it meets the standard of “lawfulness” set by the Convention, a standard which requires that all law be sufficiently precise to allow the person - if need be, with appropriate advice - to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (see Baranowski v. Poland, no. 28358/95, § 52, ECHR 2000-III).

82. The word “lawful” in Article 5 § 1 (c) essentially refers back to national law, and lays down an obligation to conform to the substantive and procedural rules thereof. The Court may review whether national law has been observed for the purposes of this Convention provision; however, it is in the first place for the national authorities, notably the courts, to interpret and apply domestic law (see Oleksiy Mykhaylovych Zakharkin v. Ukraine, no. 1727/04, § 84, 24 June 2010). “Lawfulness” of detention under domestic law is the primary, but not always the decisive element. The Court must, in addition, be satisfied that the detention, during the period under consideration, was compatible with the purpose of Article 5 § 1 of the Convention, which is to prevent persons from being deprived of their liberty in an arbitrary manner (see Yeloyev v. Ukraine, no. 17283/02, §§ 41-42, 6 November 2008, and Korneykova v. Ukraine, no. 39884/05, § 33, 19 January 2012).

b. Application of the general principles to the present case

83. In so far as the applicant complains that he was deprived of his liberty from 18 July 2005 until 8.40 p.m. on 19 July 2005, the Court notes that, as appears from the police officers’ testimonies, the prosecutor’s office’s findings and other case-file materials (see paragraphs 17, 24 and 34 above), the applicant was brought to the police station in the morning on 18 July 2005 in connection with criminal complaints lodged against him. As from that moment, he was treated as a suspect and remained under the effective control of the police officers at the police station as well as during the short visits to the hostel and to the medical expert and was not allowed to leave the premises of the police station at will. The Court considers that the aforementioned materials are sufficient to conclude that during the period under examination, the applicant was deprived of his liberty, and more specifically detained within the meaning of Article 5 § 1 (c) of the Convention (compare Osypenko v. Ukraine, cited above, §§ 46-49 and Grinenko v. Ukraine, no. 33627/06, § 75, 15 November 2012).

84. The Court next notes that, as transpires from the case-file materials, on 18 July 2005 the police authorities made no record of the applicant’s arrest and drafted the relevant arrest report only at about 8.40 p.m. on 19 July 2005.

85. The Court has already found violations in cases where formalisation of an applicant’s status as an arrested crime suspect was delayed without a reasonable explanation (see, for instance, Smolik v. Ukraine, no. 11778/05, §§ 46-48, 19 January 2012 and Grinenko, cited above, §§ 77-78). It finds that the present case constitutes another regrettable example of this administrative practice.

86. Insofar as the applicant complains that notwithstanding the drafting of the arrest report on 19 July 2005 his police custody remained unlawful until a court order to detain him was taken on 22 July 2005, the Court notes that it has not been provided with a copy of the relevant arrest report the Court notes that it has not been provided with a copy of the relevant arrest report. It can therefore not examine the applicant’s arguments concerning the lawfulness of his detention during this period on the basis of the reasons contained in the report (see and compare with Korneykova, cited above, § 34 and Grinenko, cited above, §§ 83-84). It considers, however, that in the present case it can and should examine the applicant’s complaint about this period of detention in the context of the circumstances of his detention during the preceding period of his unrecorded deprivation of liberty.

87. As appears from the parties’ submissions, the disputed police arrest report indicated that the applicant had been arrested at 8.40 p.m. on 19 July 2005. It did not take any account of the fact that the applicant had already been in police custody for over thirty hours before the report was drafted. Above all, this fact affected the calculation of the seventy-two-hour statutory period failing which the police was obliged to release the applicant, unless a relevant court order to hold him in custody had been obtained (see paragraphs 41-42 above). As mentioned above, the court order was obtained only on 22 July 2005, that is, after the lapse of the aforementioned period of detention. The applicant’s police custody during the period under examination was therefore not lawful.

88. Accordingly, there has been a violation of Article 5 § 1 of the Convention in respect of the applicant’s detention by the police from 18 until 22 July 2005.

III. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION

89. The applicant further complained that he had not been brought promptly before a judge following his arrest. He referred to Article 5 § 3 of the Convention in this respect, which, in so far as relevant, reads as follows:

“3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power ...”

A. Admissibility

90. The Government submitted that this complaint was premature. In particular, since the domestic investigation into the applicant’s complaint of unlawful deprivation of liberty was incomplete, it was not possible to determine whether the applicant had been deprived of his liberty before 8.40 p.m. on 19 July 2005. The Government were therefore precluded from commenting on whether the applicant had been promptly brought before a judge.

91. The applicant submitted that his detention had started to run from about 11 a.m. on 18 July 2005.

92. The Court reiterates its findings in paragraph 83 above that the applicant was deprived of his liberty starting from the morning of 18 July 2005. It further considers that the present complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

93. The parties did not provide any observations on the merits of this aspect of the case.

94. The Court reiterates that prompt judicial control is an essential feature of the guarantee embodied in Article 5 § 3, which is intended to minimise the risk of arbitrariness and to secure the rule of law, one of the fundamental principles of a democratic society (see Brogan and Others v. the United Kingdom, 29 November 1988, § 58, Series A no. 145-B). While promptness has to be assessed in each case according to its special features (see, among other authorities, Aquilina v. Malta [GC], no. 25642/94, § 48, ECHR 1999-III), the strict time constraint imposed by this requirement of Article 5 § 3 leaves little flexibility in interpretation, otherwise there would be a serious weakening of a procedural guarantee, to the detriment of the individual and at risk of impairing the very essence of the right protected by this provision (see, for example, McKay v. the United Kingdom [GC], no. 543/03, § 33, ECHR 2006-X, and Nechiporuk and Yonkalo v. Ukraine, no. 42310/04, § 214, 21 April 2011).

95. In the present case the Court considers in the light of its findings in paragraph 83 above, that the applicant’s detention within the meaning of Article 5 § 1 (c) of the Convention commenced during the morning of 18 July 2005. It was not subjected to any judicial review until 22 July 2005. The Court considers such a period of four days without appearance before a judge to be incompatible with the requirement of expedition contained in Article 5 § 3 of the Convention. It recalls that during the aforementioned period the applicant was detained in an unlawful and arbitrary manner and suffered serious ill-treatment at the hands of the police. Prompt judicial control might have prevented all that from happening.

96. The Court therefore finds a violation of Article 5 § 3 of the Convention in respect of the applicant’s right to “be brought promptly before a judge”.

IV. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

97. Lastly, the applicant complained that on 18 July 2005 the police had unlawfully searched his home. He referred to Article 8 of the Convention in this respect, which reads as follows:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

A. Admissibility

98. The parties provided no comments concerning the admissibility of this aspect of the case.

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

B. Merits

100. The applicant argued that on 18 July 2005 the police had conducted an unlawful search of his home without first obtaining a court order. He submitted that the relevant domestic law lacked clarity and foreseeability with respect to the meaning of the term “search”, as opposed to the term “inspection”. The law was also unclear in defining the scope of police powers to examine a residence on the basis of the resident’s consent.

101. In the alternative, the applicant submitted that the legal provisions allowing inspection of a dwelling on the basis of the resident’s consent (that is, without a court order) were applied arbitrarily in his situation, since he had been coerced under torture to sign a document authorising the police to examine his dwelling.

102. The Government submitted that the applicant’s dwelling was “inspected” rather than “searched”. This action was governed by Article 190 of the Code of Criminal Procedure of 1960, which allowed the police to enter and inspect a dwelling on the basis of its resident’s consent. The inspection in the present case was lawful, as prior written consent had been received from the applicant, and pursued the legitimate aim of investigating a crime. Regard being had to the suspicions that the applicant had engaged in sexual activity with minors in the venue at issue, this inspection was justified in the interests of public safety and did not constitute a disproportionate interference with the applicant’s rights.

103. The Court observes that it is common ground between the parties that the examination of the applicant’s residence, regardless of its classification under domestic law, constituted an interference with the applicant’s rights guaranteed by Article 8 of the Convention.

104. The Court reiterates that any interference under the paragraph one of Article 8 must be justified in terms of the paragraph two as being “in accordance with the law” and “necessary in a democratic society” for one or more of the legitimate aims listed therein (see, among many other authorities, Silver and Others v. the United Kingdom, 25 March 1983, Series A no. 61, p. 32, § 84, and Saviny v. Ukraine, no. 39948/06, § 47, 18 December 2008). The wording “in accordance with the law” requires the impugned measure both to have some basis in domestic law and to be compatible with the rule of law (S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, § 95, ECHR 2008). The essential object of Article 8 is to protect the individual against arbitrary interference by public authorities (see among many other authorities Kroon and Others v. the Netherlands, 27 October 1994, § 31, Series A no. 297-C).

105. Turning to the facts of the present case, the Court takes note of the Government’s argument that the interference complained of was “in accordance with the law”, as it was based on Article 190 of the Code of Criminal Procedure of 1960 in force at the material time, which governed, in particular, the procedure by which the authorities investigating crimes could inspect residential premises. The Court further notes that this provision obliged the authorities to obtain a court authorisation or the owner’s written consent as a precondition for inspecting residential premises, except in limited urgent cases where these requirements could be dispensed with (see the relevant provisions of Article 190 of the Code of Criminal Procedure of 1960 in paragraph 42 above). In the context of the present case the inspection was carried out on the basis of a written authorisation given by the applicant to the police officers.

106. The Court next observes that according to the available materials, the above authorisation was signed by the applicant in the afternoon of 18 July 2005. As established above, during that period the applicant was held in unacknowledged police custody and was subjected to ill-treatment by the police. It also appears that the applicant was brought to his home for participating in its examination under close supervision of the same police officers, who were implicated by him in his ill-treatment, and that he remained handcuffed throughout the procedure (see paragraphs 9-10, 17, 75 and 83 above). It follows that the police officers obtained the applicant’s authorisation to inspect his residence in a setting in which he lacked any procedural guarantees protecting his ability to express his true will. In these circumstances, the Court finds it credible that the applicant felt coerced to give the authorisation in issue. It follows that the disputed inspection was not carried out on the basis of the applicant’s true consent and that therefore one of the conditions for the application of Article 190 of the Code of Criminal Procedure of 1960 was manifestly not met.

107. This finding is sufficient to conclude that the inspection of the applicant’s residence by police officers on 18 July 2005 was not in accordance with the law.

108. There has therefore been a breach of Article 8 of the Convention.

V. APPLICATION OF ARTICLE 41 OF THE CONVENTION

109. 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

110. The applicant claimed 50,000 euros (EUR) in respect of non-pecuniary damage.

111. The Government submitted that this amount was exorbitant and unsubstantiated.

112. The Court considers that the applicant suffered considerable anguish and distress on account of the facts giving rise to the finding of the violations of the Convention in the present case. Ruling on an equitable basis, the Court awards the applicant EUR 25,000, plus any tax that may be chargeable thereon, in respect of non-pecuniary damage.

B. Costs and expenses

113. The applicant further claimed EUR 6,048 for costs and expenses incurred before the Court, to be transferred to his representative’s account directly. In support of this claim he submitted a copy of the contract signed by himself and Mr A.P. Bushchenko for his representation in the proceedings before the Court, dated 4 September 2005. It stipulated that the applicant was to pay Mr Bushchenko, after the completion of the proceedings, EUR 100 per hour of work, and additional sums of 8 % and 4 % for administrative and postage expenses respectively, with the total amount, however, not exceeding the Court’s award for costs and expenses. The applicant submitted four time sheets completed by Mr Bushchenko in respect of the work done over the period 2005-11. According to them, Mr Bushchenko worked on the case for fifty-four hours, for sixteen of which he was consulting the applicant and V.Sh., his representative in domestic proceedings, on the exhaustion procedures and the Court’s case-law.

114. The Government considered that the amount claimed was exorbitant and that the claim should be rejected in part.

115. The Court notes that although the applicant has not yet paid the legal fees, he is bound to pay them pursuant to a contractual obligation. As can be seen from the case-file materials, Mr Bushchenko represented the applicant throughout the proceedings before the Court, and is therefore entitled to seek payment of his fees under the contract. Accordingly, the Court considers those fees to have been “actually incurred” (see Savin, cited above, § 97).

116. The Court notes that it has already ruled in some cases that awards in relation to costs and expenses can be paid directly into the accounts of the applicants’ representatives (see, for example, Toğcu v. Turkey, no. 27601/95, § 158, 31 May 2005; Nachova and Others v. Bulgaria [GC], nos 43577/98 and 43579/98, § 175, ECHR 2005-VII; Imakayeva v. Russia, no. 7615/02, ECHR 2006-XIII (extracts) and Carabulea v. Romania, no. 45661/99, § 180, 13 July 2010).

117. However, the Court considers that the claim is excessive and awards it in part, in the amount of EUR 3,500 plus any tax that may be chargeable to the applicant. The net award is to be paid into the bank account of the applicant’s lawyer, Mr Bushchenko, as indicated by the applicant.

C. Default interest rate

118. 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. Decides to join to the merits the Government’s objection of non-exhaustion of domestic remedies in respect of the applicant’s complaint that the investigation into his allegation of torture by the police had been ineffective and dismisses it;

2. Declares the application admissible;

3. Holds that there has been a violation of Article 3 of the Convention on account of the lack of an effective investigation into the applicant’s allegation of torture by the police;

4. Holds that the applicant has been subjected to torture in violation of Article 3 of the Convention;

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

6. Holds that there has been a violation of Article 5 § 3 of the Convention;

7. Holds that there has been a violation of Article 8 of the Convention;

8. Holds

(a) that the respondent State is to pay the applicant, within three months of 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 25,000 (twenty-five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 3,500 (three thousand five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be transferred directly to the account of the applicant’s lawyer Mr A.P. 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;

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

Done in English, and notified in writing on 7 November 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Claudia Westerdiek Mark Villiger
Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> BELOUSOV v. UKRAINE - 4494/07 - Chamber Judgment [2013] ECHR 1104 (07 November 2013) URL: http://www.bailii.org/eu/cases/ECHR/2013/1104.html Cite as: [2013] ECHR 1104