ZHYZITSKYY v. UKRAINE - 57980/11 - Chamber Judgment [2015] ECHR 199 (19 February 2015)

In the case of Zhyzitskyy 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,
          Helena Jäderblom,
          Aleš Pejchal, judges,

and Claudia Westerdiek, Section Registrar,

Having deliberated in private on 20 January 2015,

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

PROCEDURE

1. The case originated in an application (no. 57980/11) 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 Valentyn Tsezarovych Zhyzitskyy (“the applicant”), on 8 September 2011.

2. The applicant was represented by Ms M. Chukhas, a lawyer practising in Gorodok, Khmelnytskyy region. The Ukrainian Government (“the Government”) were represented by their then Agent, Mr Nazar Kulchytskyy.

3. The applicant alleged, in particular, that he had been ill-treated by the police and that there had been no effective domestic investigation into the matter. He also complained that his self-incrimination under duress and in the absence of legal assistance had rendered his trial unfair.

4. On 28 November 2012 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1971. He is currently serving a prison sentence.

6. On 1 May 2007, at about 1 a.m., the corpse of Ms Kh., the applicant’s wife, from whom he was separated, was discovered with multiple stab wounds.

7. Later on 1 May 2007, at about 3 a.m., the police apprehended and questioned the applicant. His questioning was documented as that of a witness. The applicant confessed to the murder of Ms Kh.

8. The applicant described the circumstances in which that confession was given as follows. He had been taken to Gorodok Town Police Station, where the police had threatened him with a view to extracting a confession. As the applicant had refused to confess, they had handcuffed his hands behind his back, pulled a black cap over his head, covering his eyes, and had taken him somewhere downstairs. The applicant had been made to sit on a chair and his feet had been tied to the chair legs. The applicant had felt something touching his head behind the ears and something being pressed against his temples, and as his body started to shake and jerk realised that electric shocks were being administered to him. This had been repeated several times. The applicant had fallen off the chair. Thereafter a police officer had unzipped the applicant’s trousers and attached electric wires to his genitals. After several electric shocks had been administered to his genitals, the applicant had agreed to confess to the incriminated murder. After saying that he could not remember certain details, more electric shocks had been administered to him. One of the police officers involved in the ill-treatment had complained to the applicant that the latter had ruined his birthday celebration and had expressed his determination to obtain a confession from him.

9. According to the Government’s account of the events, the applicant had not suffered any ill-treatment and had confessed to the murder of his own free will.

10. On the evening of 1 May 2007 the applicant’s “voluntary surrender to the police” was documented, and he was questioned again, this time as a suspect. He signed a report confirming that his right to legal assistance had been explained to him. As noted in the questioning report, at first the applicant had expressed the wish to be represented by a lawyer, but had later decided to waive his right to legal assistance. He stated during the questioning that his waiver had not resulted from any ill-treatment.

11. On the same day an expert from the Yarmolyntsi Town Forensic Expert Examination Bureau examined the applicant on the investigator’s instruction with a view to establishing whether he had any injuries, if so, what their location and nature were, and finally whether those injuries could have been caused by a struggle with the victim.

12. With effect from 2 May 2007, the applicant was represented by lawyer B., who had been contracted by his sister. He was questioned as a suspect in the presence of his lawyer and maintained his confession. He further maintained it during the reconstruction of the crime conducted on the same day with the participation of his lawyer.

13. On 3 May 2007 the expert who had examined the applicant on 1 May 2007 completed the examination report. It documented a bruise on the applicant’s left shoulder blade, a bruise on the left side of his torso, a bruise beneath the right shoulder blade, a bruise on the left shoulder and another bruise in the upper part of the left forearm, a bruise on the left wrist, a bruise on the back of the right hand and on the right wrist, and an abrasion and a bruise on the left ear. The injuries in question were assessed as having originated one or two days prior to the examination from blows inflicted by blunt objects with a limited surface, and by falling against a blunt surface. They were assessed as insignificant. In addition, the expert reported two abrasions behind the applicant’s right ear, which could have originated from blunt hard objects with a limited surface and a slightly sharp edge (such as nails). The age of these sores was assessed as one day prior to the examination. Some older bruises (three to five days old) were also discovered.

14. On 4 May 2007 the applicant was again questioned in the presence of his lawyer. He maintained his confession. As regards his injuries, he explained that he had sustained them while working on a construction site and during his fight with Ms Kh. The applicant stated that the police had not ill-treated him.

15. On the same day the Gorodok Town Court remanded the applicant in custody pending trial. During the hearing he repeated his confession and did not lodge any complaints.

16. Still on that date, 4 May 2007, the applicant was examined by a panel of doctors in the Gorodok Central City Hospital. They found him to be in good health.

17. With effect from 8 May 2007 the applicant was represented by lawyer T. instead of lawyer B. He immediately retracted his confession and complained of his ill-treatment to the Gorodok town prosecutor’s office. The applicant submitted that he had incriminated himself as a result of coercion and that he had not committed the crime in question. He alleged that he had sustained electric shocks at the hands of the police and stated that no other ill-treatment had been used on him. As to his bruises, the applicant noted that they could have been caused by his falling to the floor whilst tied to a chair. He further explained that even when represented by lawyer B., he had been afraid to tell the truth and had repeated his confession as the lawyer had recommended.

18. On 10 May 2007 the applicant was questioned in the presence of his lawyer T. While maintaining the complaint concerning his ill-treatment, he submitted that his ear had been injured earlier, prior to his encounter with the police.

19. On 7 June 2007 an additional forensic medical examination report was delivered in respect of the applicant. The question before the expert was whether the applicant had any injuries demonstrating that electric shocks had been administered to him on 1 May 2007. According to the report, the applicant had three superficial wounds to his genitals, which had been inflicted at least two weeks before the examination. The expert found it impossible to establish whether those wounds had originated from electric shocks. However, he stated that it was equally impossible to exclude that possibility.

20. On 14 November 2007 the prosecutor questioned the forensic medical expert who had examined the applicant on 1 May and 7 June 2007 (see paragraphs 11, 13 and 19 above). She submitted, in particular, that the bruises discovered on his wrists on 1 May 2007 could have been caused by handcuffs. The expert also noted that the applicant had not complained before 7 June 2007 that electric shocks had been administered to him. It was not possible to state with precision when the wounds on his genitals could have been inflicted. Their healing time could vary significantly depending on individual characteristics. Overall, the expert considered it improbable that the applicant might have sustained those injuries on 1 May 2007 and in the circumstances described by him.

21. On the same day the prosecutor also questioned the dermatologist who had participated in the examination of the applicant on 4 May 2007 (see paragraph 16 above). The doctor stated that she had examined the applicant’s genitals and that no wounds or other signs of ill-treatment had been discovered. She also noted that the applicant had not raised any complaints.

22. During the period between May 2007 and January 2008 the prosecution authorities refused on six occasions to institute criminal proceedings against the police officers involved in the alleged ill-treatment of the applicant. Five of those rulings were quashed for the incompleteness and superficiality of the investigation. As to the sixth ruling, of 29 January 2008, it is not clear whether it was eventually quashed. The report of 7 June 2007 was mentioned in only one ruling, that of 16 November 2007. The prosecutor, however, concluded that it could not be regarded as sufficient evidence that electric shocks had been administered to the applicant.

23. On 27 February 2008 the Dunayivtsi Town Court found the applicant guilty of the premeditated murder of Ms Kh. and sentenced him to thirteen years’ imprisonment. It relied, in particular, on the applicant’s “surrender to the police” and subsequent self-incriminating statements. As to his allegation of ill-treatment by the police, it was dismissed as unsubstantiated.

24. The applicant appealed. He submitted that he had incriminated himself under duress and pointed out certain discrepancies in the evidence.

25. On 14 May 2008 the Khmelnytskyy Regional Court of Appeal (“the Khmelnytskyy Regional Court”) upheld the first-instance court’s judgment.

26. The applicant lodged an appeal on points of law, in which he maintained the arguments advanced earlier in his appeal.

27. On 14 April 2009 the Supreme Court quashed the ruling of 14 May 2008 and remitted the case for fresh examination by the appellate court. It stated that the Khmelnytskyy Regional Court had not sufficiently addressed the applicant’s arguments. The Supreme Court also criticised the lower courts for formalistic examination of the applicant’s allegations of ill-treatment. It stated that no evaluation had been made of the medical evidence in the case file, according to which it could not be ruled out that his injuries had been sustained in the circumstances as described by him.

28. On 27 July 2009 the Khmelnytskyy Regional Court quashed the judgment of 27 February 2008 and remitted the case to the Gorodok Prosecutor for additional investigation. It referred to the issues pointed out by the Supreme Court.

29. On 17 March 2010 the Dunayivtsi Court pronounced a new verdict, the operative part of which was identical to that of 27 February 2008. As before, the court relied on the applicant’s initial confessions, including that of 1 May 2007, which was documented as his “voluntary surrender to the police”. The court dismissed all the defence arguments, considering them to be nothing more than the applicant’s attempts to avoid criminal liability. As to his motives for the murder, the court considered them to have been his jealousy and his wish to reunite with Ms Kh. Allegations of aggressive behaviour towards the victim in the past had been confirmed by several witnesses. Lastly, the applicant’s allegation about having suffered electric shocks was rejected as unsubstantiated. The court noted in that regard that the applicant had made his confessions in the presence of his lawyer B.

30. The applicant submitted an appeal, and later an appeal on points of law, reiterating his earlier argumentation.

31. The Khmelnytskyy Regional Court and the Supreme Court upheld the judgment of 17 March 2010 on 26 May 2010 and 24 March 2011 respectively.

II. RELEVANT DOMESTIC LAW AND PRACTICE

32. Relevant provisions of the Constitution of Ukraine, the Criminal Code and the Code of Criminal Procedure can be found, in particular, in the Court’s judgment in the case of Nechiporuk and Yonkalo v. Ukraine (no. 42310/04, §§ 121-123, 131, 134 and 138, with further references, 21 April 2011).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

33. The applicant complained that he had been ill-treated by the police following his arrest on 1 May 2007 and that there had been no effective domestic investigation into the matter. He relied on Article 3 of the Convention, which reads:

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

A. Admissibility

34. 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. Alleged ill-treatment of the applicant

(a) The parties’ submissions

35. The applicant alleged that he had been subjected to torture by electric shocks while in police custody. Referring, in particular, to the medical report of 7 June 2007, he emphasised that it was an established fact that he had sustained injuries while in the hands of the police. The applicant further submitted that although the authorities had denied that electric shocks had been administered to him, they had failed to advance any plausible explanation regarding the origin of his injuries.

36. The Government contended that the applicant had not proven the veracity of the allegation of his ill-treatment beyond reasonable doubt. They noted that he had sustained some injuries before his apprehension by the police, and that no liability of the State had been engaged.

37. The Government further observed that the applicant had explicitly stated during his questioning in the presence of his lawyer on 4 May 2007 that he had not been ill-treated by the police.

(b) The Court’s assessment

38. As the Court has stated on many occasions, Article 3 of the Convention enshrines one of the core values of democratic societies (see, among many other references, Selmouni v. France [GC], no. 25803/94, § 95, ECHR 1999-V). Where allegations are made under this provision, the Court must conduct a particularly thorough scrutiny and will do so on the basis of all the evidential material submitted by the parties (see Matyar v. Turkey, no. 23423/94, § 109, 21 February 2002, and Ülkü Ekinci v. Turkey, no. 27602/95, § 136, 16 July 2002).

39. In assessing evidence, the Court adopts the standard of proof “beyond reasonable doubt”. Such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see, as a classic authority, Ireland v. the United Kingdom, 18 January 1978, § 161, Series A no. 25). Where the events in issue lie wholly, or largely, within the exclusive knowledge of the authorities, as in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries occurring during such detention. The burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII).

40. Turning to the present case, the Court observes that two forensic medical examinations, of 1 May (the respective report dated 3 May 2007) and 7 June 2007, revealed injuries on the applicant’s body.

41. The Court notes that the injuries which were documented by the first examination consisted of a number of bruises and sores and could have originated both before and during the applicant’s detention (see paragraph 13 above).

42. The Court next notes that the second forensic medical examination of the applicant, which was conducted on 7 June 2007, revealed three wounds on his genitals, which were assessed as having originated between two and four weeks before that examination (see paragraphs 19 and 20 above). Given that the applicant was arrested on 1 May 2007, this means that he must have sustained the aforementioned wounds while in police custody. His explanation that they had resulted from the administration of electric shocks to him remained unrefuted by the expert findings. Thus, the expert stated at first that it was impossible to exclude that possibility, and later expressed the view that it was improbable. However, no alternative explanation of the origin of the wounds in question was ever advanced. In these circumstances the Court considers that the applicant’s allegation about the administration of electric shocks to him has a sufficient evidential basis.

43. As to the seriousness of the ill-treatment in question, the Court notes that it has already held in its case-law that subjecting a person to electric shocks is a particularly serious form of ill-treatment capable of provoking severe pain and cruel suffering and therefore falling to be treated as torture, even if it does not result in any long-term health damage (see Polonskiy v. Russia, no. 30033/05, § 124, 19 March 2009; Buzilov v. Moldova, no. 28653/05, § 32, 23 June 2009; and Nechiporuk and Yonkalo v. Ukraine, cited above, §§ 157 and 159). Moreover, it appears that the use of force against the applicant in the present case was aimed at debasing him, driving him into submission and making him confess to a serious criminal offence.

44. The Court therefore concludes that the applicant suffered ill-treatment serious enough to be considered as torture.

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

2. Effectiveness of the investigation

(a) The parties’ submissions

46. The applicant contended that there had been no effective domestic investigation into his allegation of torture by the police. He noted that the prosecution authorities had refused to institute criminal proceedings against the police officers concerned many times, and that most of those refusals had eventually been quashed for inadequacy of the investigation undertaken. The applicant also observed that he had indicated to the prosecution that the birthday of one of the officers who had ill-treated him fell on 1 May, but that information had never been followed up.

47. The Government submitted that the applicant’s complaint of ill-treatment had been duly investigated by the domestic authorities and had rightly been dismissed as unfounded.

(b) The Court’s assessment

48. The Court emphasises that where an individual raises an arguable claim that he has been seriously ill-treated in breach of Article 3, that provision, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention”, requires by implication that there should be an effective official investigation (see, among other authorities, Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000-IV). Thus the authorities must always make a serious attempt to find out what happened and should not rely on hasty or ill-founded conclusions to close their investigation or as the basis for their decisions (see Assenov and Others v. Bulgaria, 28 October 1998, § 103 et seq., Reports of Judgments and Decisions 1998-VIII).

49. In the present case the Court has found that the respondent State was responsible under Article 3 for the applicant’s torture (see paragraphs 44 and 45 above). The authorities therefore had an obligation to investigate it in accordance with the aforementioned effectiveness standards.

50. The Court notes that the applicant complained to the prosecuting authorities about ill-treatment on 8 May 2007. His allegations were partly supported by the forensic medical examination report of 7 June 2007. Nevertheless, the prosecution authorities refused on six occasions to instigate a criminal case regarding this matter. Although five of the aforementioned decisions were quashed for not being based on proper investigation, another such decision followed (see paragraph 22 above). The domestic authorities do not seem to have made any meaningful efforts to establish the origin of the injuries on the applicant’s genitals sustained during his police custody. Furthermore, the applicant was never assigned victim status and was never questioned in that capacity.

51. The Court has already found that reluctance on the part of the authorities to ensure that a prompt and thorough investigation of the ill-treatment complaints by the criminal suspects was carried out constituted a systemic problem within the meaning of Article 46 of the Convention (see Kaverzin v. Ukraine, no. 23893/03, §§ 173-180, 15 May 2012).

52. The Court considers that the circumstances of the present case reveal the aforementioned problem once again.

53. There has therefore also been a violation of Article 3 of the Convention under its procedural limb too.

II. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (c) OF THE CONVENTION

54. The applicant also complained that he had not had a fair trial on account of his self-incrimination under duress and in the absence of legal assistance. He relied on under Article 6 §§ 1 and 3 (c), which read as follows in their relevant parts:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...

3. Everyone charged with a criminal offence has the following minimum rights:

... (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require.”

A. Admissibility

1. Early absence of legal assistance

55. The Government submitted that the applicant had complained neither in his appeal nor in his appeal on points of law of the early restriction of access to a lawyer. They therefore contended that he had not exhausted the domestic remedies as required by Article 35 § 1 of the Convention.

56. The applicant did not comment on this submission, but insisted that he had complained about his ill-treatment in the course of his trial.

57. The Court reiterates that, in accordance with Article 35 § 1 of the Convention, it may only deal with an issue after all domestic remedies have been exhausted. The purpose of Article 35 is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court (see, for example, Civet v. France [GC], no. 29340/95, § 41, ECHR 1999-VI). Thus, the complaint submitted to the Court must first have been lodged with the appropriate national courts, at least in substance, in accordance with the formal requirements of domestic law and within the prescribed time-limits (see, among other authorities, Cardot v. France, 19 March 1991, § 34, Series A no. 200, and Elçi and Others v. Turkey, nos. 23145/93 and 25091/94, §§ 604 and 605, 13 November 2003). Nevertheless, the obligation to exhaust domestic remedies requires only that an applicant make normal use of remedies which are effective, sufficient and accessible in respect of his Convention grievances (see Balogh v. Hungary, no. 47940/99, § 30, 20 July 2004).

58. The Court has held that an appeal on points of law to the Supreme Court in Ukraine is considered an effective remedy for complaints concerning various aspects of the fairness of criminal proceedings guaranteed by Article 6 §§ 1 and 3 of the Convention (see, for example, Arkhipov v. Ukraine (dec.), no. 25660/02, 18 May 2004, and Oleg Kolesnik v. Ukraine, no. 17551/02, § 28, 19 November 2009). The same applies as regards an ordinary appeal to the next judicial level.

59. The Court further notes that in its judgment on the case of Buglov v. Ukraine it held that the applicant had not exhausted the domestic remedies in respect of his complaint about the early restriction of his right of access to a lawyer because his complaint concerning the violation of his right to defence before the domestic courts had been based on arguments that were different from those advanced before this Court (no. 28825/02, § 110, 10 July 2014).

60. Turning to the present case, the Court observes that the applicant did not mention, in any of his appeals or appeals on points of law, the issue of the early absence of legal representation. The Court therefore considers that this part of the application should be rejected under Article 35 § 1 of the Convention for the applicant’s failure to exhaust the domestic remedies.

2. Alleged self-incrimination under duress

61. 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. The parties’ submissions

62. The applicant maintained that he had been coerced into confessing to the murder of his wife and that the courts had relied on that confession in securing his conviction, disregarding the evidence in the file indicating that he had been ill-treated by the police.

63. The Government submitted that courts had had no reason to exclude the applicant’s initial confession from the evidence, since his ill-treatment complaint had been dismissed as unsubstantiated. The Government further observed that there was other evidence against the applicant in the case file. They also noted that the applicant had maintained his confessions once represented by lawyer B.

2. The Court’s assessment

64. The Court notes that although the admissibility of evidence is, as a matter of principle, a prerogative of domestic courts and the role of this Court is limited to assessing the overall fairness of the proceedings, particular criteria apply concerning evidence obtained by a measure found to violate Article 3 of the Convention. Thus, according to the Court’s case-law, the admission of statements obtained through torture as evidence for the purpose of establishing the relevant facts in criminal proceedings renders the proceedings as a whole unfair, irrespective of its probative value and whether its use was decisive in securing the defendant’s conviction (see Gäfgen v. Germany [GC], no. 22978/05, § 166, ECHR 2010, with further references).

65. The Court has found in the present case that the applicant’s initial confession was extracted from him by ill-treatment amounting to torture within the meaning of Article 3 of the Convention (see paragraphs 44 and 45 above). It also notes that the domestic courts admitted those confessions as evidence in his trial (see paragraph 29 above). In the light of the principles of its case-law as outlined above, the Court considers that this extinguished the very essence of the applicant’s right to the privilege against self-incrimination, irrespective of the weight of the impugned confession in the evidential basis for his conviction, and regardless of the fact that he confessed several times over during the investigation.

66. This consideration is sufficient for the Court to find a violation of Article 6 § 1 of the Convention on account of the breach of the applicant’s right to the privilege against self-incrimination.

III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

67. The applicant also complained that he had been convicted of a crime that he had not committed, that his right to the presumption of innocence had been breached, that he had not had sufficient time or facilities for the preparation of his defence, and that the criminal proceedings against him had been too lengthy.

68. In the light of all the material in its possession, and in so far as the matters complained of are within its competence and do not overlap with those already examined above, the Court finds that 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 manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

69. 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

70. The applicant claimed 500,000 euros (EUR) in respect of non-pecuniary damage.

71. The Government contested this claim.

72. The Court has no doubt that the applicant suffered pain and distress on account of his ill-treatment at the hands of the police. Given the seriousness of the violations found, and ruling on an equitable basis, the Court awards the applicant EUR 20,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.

73. The Court notes that where an individual, as in the instant case, has been convicted by a court in proceedings which did not meet the Convention requirement of fairness, a retrial, a reopening or a review of the case, if requested, represents in principle an appropriate way of redressing the violation (see, for example, Lutsenko v. Ukraine, no. 30663/04, § 60, 18 December 2008).

B. Costs and expenses

74. The applicant also claimed EUR 400 in respect of his legal representation in the proceedings before the Court. By way of substantiation, he submitted a payment voucher of 21 May 2013 for that amount signed by him and by Ms Chukhas. Furthermore, the applicant claimed 212.45 Ukrainian hryvnias (UAH) and 78 US Dollars (USD) in respect of postal expenses. He supported this claim with the post office receipts.

75. The Government contested the above claims, apart from that for UAH 212.45, as exorbitant and unsubstantiated.

76. 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 the applicant EUR 400 for his representation in the proceedings before the Court and EUR 80 for the postal expenses.

C. Default interest

77. 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 complaints concerning the applicant’s ill-treatment by the police and the lack of an effective investigation into that allegation, as well as his complaint of a violation of his right to privilege against self-incrimination, admissible and the remainder of the application inadmissible;

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

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 there has been a violation of Article 6 § 1 of the Convention on account of the applicant’s self-incrimination under duress;

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 20,000 (twenty thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 480 (four hundred eighty euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

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

Done in English, and notified in writing on 19 February 2015, 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 >> ZHYZITSKYY v. UKRAINE - 57980/11 - Chamber Judgment [2015] ECHR 199 (19 February 2015) URL: http://www.bailii.org/eu/cases/ECHR/2015/199.html Cite as: [2015] ECHR 199