POMILYAYKO v. UKRAINE - 60426/11 (Judgment (Merits and Just Satisfaction) : Court (Fifth Section)) [2016] ECHR 170 (11 February 2016)

In the case of Pomilyayko v. Ukraine,

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

          Angelika Nußberger, President,
          Ganna Yudkivska,
          Erik Møse,
          Faris Vehabović,
          Yonko Grozev,
          Síofra O’Leary,
          Mārtiņš Mits, judges,
and Claudia Westerdiek, Section Registrar,

Having deliberated in private on 19 January 2016,

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

PROCEDURE

1. The case originated in an application (no. 60426/11) 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, Ms Svitlana Mykolayivna Pomilyayko (“the applicant”), on 13 July 2011.

2. The applicant was represented by Ms N. G. Okhotnikova, a lawyer practising in Kharkiv. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr B. Babin, of the Ministry of Justice.

3. The applicant alleged that she had been subjected to serious ill-treatment amounting to torture while in police custody and that the authorities had failed to duly investigate her complaints in that regard.

4. On 3 December 2012 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1968 and lives in Kharkiv.

6. At the beginning of November 2008 some equipment was stolen from the enterprise at which the applicant worked.

7. The Kharkiv Ordzhonikidze District Police Department invited the applicant and one of her colleagues for questioning in respect of the theft.

8. On 8 November 2008, at 11.15 a.m., the applicant came to the police station.

A. The applicant’s account of the events of 8 November 2008 (on which the Government did not comment)

9. At about 11.35 a.m. on 8 November 2008 a senior detective officer, T., accompanied the applicant to the fourth floor of the police station. He asked her to wait in the corridor and entered office no. 56. Five minutes later the applicant heard a woman’s scream emanating from that office. T. opened the door and directed an officer passing by to take the applicant to his office. She was made to wait there for about twenty minutes. Then T. took her to office no. 56. He pushed her inside, twisted her arms behind her back and handcuffed her, even though she had offered no resistance.

10. T. and his colleague, S., who was also in the office, intimidated the applicant with a view to making her confess to the investigated theft. They told her that her colleague, Ms L., had already started to “crack”. The applicant noticed Ms L.’s belongings on the floor. She concluded that it was her scream that she had heard.

11. Having failed to obtain a confession from the applicant, T. and S. made her sit on a chair, put a plastic bag over her head and started to strangle her. At the same time they struck her head, face and mouth so that she could not bite through the bag. The applicant fainted several times. When she told the officers she needed to use the toilet, S. hit her in the stomach and the head. She fainted once again and urinated involuntarily. Sometime later the applicant noticed the presence of another officer, P., in the office.

12. After several hours of ill-treatment, the applicant was taken to another office where she stayed for about twenty minutes. Thereafter she was brought before a female officer, who conducted her formal questioning.

13. At about 6 p.m. the applicant signed the official report of the questioning. She was then taken to the office of the head of the search unit, who stated that she was the main suspect in the theft case and that all her colleagues had indicated her as the likely thief. The applicant complained about her ill-treatment. Her complaint was ignored.

14. She was taken again to office no. 56, where the officers threatened her and tried to pressure her into confessing. She repeatedly refused to do so and professed her innocence. The applicant was forced to write a statement that she had no complaints about the way the police had treated her.

15. At about 8 p.m. on 8 November 2008 she was released.

16. The applicant submitted to the Court five colour photographs of herself in which extensive bruising on her both arms and forearms is visible.

B. Investigation of the applicant’s complaints of ill-treatment

17. On 9 November 2008 (the day following her release) the applicant felt unwell and called an ambulance.

18. From 9 to 27 November 2008 she underwent in-patient hospital treatment for a closed head injury, concussion, soft tissue contusions on the head, upper and lower limbs, bruising of the abdominal wall, lumbar osteochondrosis and asthenia.

19. On 9 November 2008 the hospital authorities informed the Ordzhonikidze Police Department about the applicant’s injuries allegedly inflicted on her by police officers.

20. On 10 November 2008 the applicant complained to the Kharkiv Ordzhonikidze District Prosecutor’s Office (“the Ordzhonikidze Prosecutor’s Office”) about her ill-treatment. Ms L. lodged a similar complaint.

21. On 18 November 2008 the police department refused to open a criminal case following the information from the hospital administration.

22. On 12 December 2008 the Ordzhonikidze Prosecutor’s Office opened a criminal case against the police officers on suspicion of their exceeding their powers by engaging in violent and degrading treatment. As a result, on 16 December 2008 the prosecutor also quashed the ruling of 18 November 2008.

23. After her discharge from hospital, the applicant remained on sick leave until 19 December 2008.

24. On 15 January 2009 the investigator seized the trousers which the applicant had been wearing on 8 November 2008. A forensic immunological examination discovered traces of her urine on them.

25. From 27 November 2008 until 26 January 2009 a forensic medical expert evaluation was carried out with a view to establishing the applicant’s injuries and their nature. That evaluation was based on her medical file, as well as a medical examination of her. The expert considered it established that, at the time of her hospitalisation, the applicant had had bruises to both arms that had been inflicted by blunt objects a day to three days previously. The expert stated that it was impossible to establish more precisely the time at which those injuries had been inflicted. As regards the soft tissue contusions, the expert did not find it necessary to take that diagnosis into account as being based merely on a personal opinion of the doctor who had examined the applicant. The same doctor’s diagnoses of a closed head injury and concussion were considered by the expert as not sufficiently supported by “clinical data”. Lastly, the expert report stated that the applicant was suffering from neurotic asthenia, but that it was impossible to establish its origin.

26. On 9 February 2009 a forensic expert evaluation was carried out of the applicant’s handwritten statement on the official report on the questioning of 8 November 2008. The expert concluded that she had been “in an unusual state” when writing that note.

27. On the same date officer T. challenged the decision of 12 December 2008 before the Ordzhonikidze District Court (“the Ordzhonikidze Court”).

28. On 24 February 2009 the Ordzhonikidze Court rejected his complaint.

29. On 19 March 2009, however, the Kharkiv Regional Court of Appeal (“the Court of Appeal”) quashed that decision and remitted the case to the first-instance court for fresh examination.

30. Between 3 March and 2 April 2009 another forensic medical expert evaluation of the applicant’s injuries was carried out. It concluded that she had sustained numerous bruises on her arms, shoulders and thighs. These could have been inflicted at the time and in the circumstances described by her. Because of the delay before the first forensic medical examination was undertaken, it appeared impossible to reach more specific findings.

31. On 22 April 2009 the Ordzhonikidze Court quashed the prosecutor’s decision of 12 December 2008. This ruling was quashed by the Court of Appeal on 7 May 2009.

32. On 5 June 2009 the Ordzhonikidze Court once again quashed the prosecutor’s decision of 12 December 2008. On 25 June 2009 this ruling too was quashed by the Court of Appeal.

33. On 18 November 2009 the applicant and Ms L. identified the officers who had ill-treated them from photographs shown to them by the investigator.

34. On 4 February 2010, however, the investigator closed the criminal case against the police officers, citing a lack of proof of their guilt.

35. On 30 September 2010 the Ordzhonikidze Court upheld that decision.

36. On 15 November 2010 the Court of Appeal quashed the ruling of the first-instance court and remitted the case to it for fresh examination.

37. On 21 December 2010 the Ordzhonikidze Court allowed the applicant’s complaint and quashed the investigator’s decision of 4 February 2010.

38. On 13 January 2011 the Court of Appeal upheld that ruling.

39. In March and May 2011 the applicant enquired about the progress of the investigation. Her enquiries received no answer.

II. RELEVANT DOMESTIC LAW AND PRACTICE

40. The relevant provisions of the Constitution of Ukraine and the Code of Criminal Procedure (1960) can be found in the Court’s judgment in the case of Adnaralov v. Ukraine (no. 10493/12, §§ 32 and 33, 27 November 2014).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

41. The applicant complained that she had been tortured by the police and that there had been no effective domestic investigation into her complaints in that regard. Although she relied on Articles 3 and 13 of the Convention, the Court considers it appropriate to examine this complaint only under Article 3 of the Convention, which reads as follows:

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

A. Admissibility

42. The Court notes that the application 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

43. The applicant maintained her complaints.

44. The Government did not submit any observations on the merits of the application.

45. The Court reiterates that 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).

46. In assessing evidence, the Court has generally applied the standard of proof “beyond reasonable doubt” (see Ireland v. the United Kingdom, 18 January 1978, § 161, Series A no. 25). However, proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Where the events in issue lie wholly or in large part within the exclusive knowledge of the authorities, as in the case of 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 Ribitsch v. Austria, 4 December 1995, § 34, Series A no. 336, and Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII).

47. Turning to the facts of the present case, the Court notes that on the day following the alleged ill-treatment the applicant was diagnosed with numerous injuries, for which she underwent in-patient hospital treatment for eighteen days; she then remained on sick leave for another three weeks. Doctors at the hospital in which she was treated found it necessary to immediately inform the police of her injuries (see paragraphs 18 and 19 above). Those doctors considered her allegation of ill-treatment plausible. Furthermore, two forensic medical expert examination reports generally corroborated that allegation (see paragraphs 25 and 30 above). It was also indicated by an expert report that the applicant had signed the report on her official questioning on 8 November 2008 “in an unusual state” (see paragraph 26 above). Lastly, the Court does not lose sight of a later expert report, which documented that the trousers that the applicant had been wearing on the day of her questioning had traces of urine on them (see paragraph 24 above).

48. The Court further notes that the authorities did not advance any alternative explanation as to the origin of the applicant’s injuries.

49. Having regard to all the foregoing considerations and noting the Government’s silence on this matter, the Court considers it sufficiently established that the applicant suffered the ill-treatment of which she complained.

50. The Court has consistently pointed out in its case-law that, in respect of a person who is deprived of his liberty, or, more generally, is confronted with law-enforcement officers, any recourse to physical force which has not been made strictly necessary by his or her own conduct diminishes human dignity and is an infringement of the right set forth in Article 3 (see, among other authorities, Ribitsch, cited above, § 38; Mete and Others v. Turkey, no. 294/08, § 106, 4 October 2011; El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 207, ECHR 2012; and Bouyid v. Belgium ([GC], no. 23380/09, § 101, 28 September 2015).

51. The Court considers in the present case that the applicant suffered a serious violation of her physical integrity and dignity. In assessing the gravity of the ill-treatment in question, the Court attaches weight to: the applicant’s gender and the overwhelming power of the three trained male police officers who subjected her to violence; the aim of the ill-treatment, which was to extract a confession to a criminal offence; the nature of the ill-treatment, involving a plastic bag placed over the applicant’s head and attempted or simulated strangulation; the extent of the applicant’s injuries, as documented by the hospital following her release; the psychological pressure on the applicant arising from the simultaneous questioning (and, possibly, ill-treatment) of her colleague, and, lastly, the applicant’s humiliation in respect of her involuntary urination while being in a state of complete helplessness. The Court considers these considerations sufficient to conclude that the applicant suffered ill-treatment serious enough to constitute torture (see Article 1 § 1 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, cited by the Court in Selmouni, cited above, § 97, and Nechiporuk and Yonkalo v. Ukraine, no. 42310/04, § 157 in fine, 21 April 2011).

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

2. Effectiveness of the investigation

53. 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).

54. In the present case the applicant had an arguable claim that she was subjected to a treatment prohibited by Article 3. The authorities therefore had an obligation to investigate it, in accordance with the aforementioned effectiveness standards.

55. The Court notes that the prosecution authorities were informed of the applicant’s ill-treatment immediately after her release. Initially the investigation was carried out by the police department which employed the police officers who had allegedly ill-treated the applicant. It cannot therefore be regarded as being accompanied by guarantees of independence and impartiality (see Savitskyy v. Ukraine, no. 38773/05, § 103, 26 July 2012).

56. The Court further observes that the subsequent criminal investigation launched by the prosecution authorities against the police officers involved was dropped and reopened on a number of occasions. While all the evidence in the file corroborated the applicant’s allegation of ill-treatment, the prosecution authorities decided that there was no proof of the police officers’ guilt, without offering any reasoning to support this conclusion. No attempts were made to account for the origin of the applicant’s injuries. Overall, it appears that the manner in which the authorities approached the investigation of the applicant’s complaints was largely aimed at exonerating the suspected officers, rather than establishing the actual circumstances in which her injuries had been sustained.

57. The Court notes that in a number of other cases against Ukraine it has already condemned patterns of investigation similar to those of the present case (see, for example, Drozd v. Ukraine, no. 12174/03, §§ 68-71, 30 July 2009; Savitskyy, cited above, §§ 121-122; Grinenko v. Ukraine, no. 33627/06, § 62, 15 November 2012; and Zhyzitskyy v. Ukraine, no. 57980/11, §§ 49-53, 19 February 2015). Moreover, in the case of Kaverzin v. Ukraine (no. 23893/03, §§ 173-180, 15 May 2012) the Court found that the reluctance of the authorities to ensure a prompt and thorough investigation of ill-treatment complaints by criminal suspects constituted a systemic problem within the meaning of Article 46 of the Convention. In view of the circumstances of the present case and of its earlier case-law, the Court concludes that in the present case, too, no serious effort was made to investigate the allegations of ill-treatment made by the applicant.

58. It follows that there has been a violation of Article 3 of the Convention under its procedural limb in respect of the investigation of the applicant’s complaints concerning her torture by the police.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

59. 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

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

61. The Government contested this claim as exorbitant.

62. The Court considers that the applicant suffered non-pecuniary damage, which cannot be compensated for by the mere finding of a violation of her Convention rights. Having regard to the circumstances of the case and ruling on an equitable basis, as required by Article 41, the Court awards the applicant EUR 20,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.

B. Costs and expenses

63. The applicant also claimed EUR 850 in respect of the costs and expenses incurred before the Court.

64. The Government did not comment on that claim.

65. 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 allow the applicant’s claim for costs and expenses and to award her the sum of EUR 850.

C. Default interest

66. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;

2. Holds that 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

(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 850 (eight hundred and fifty 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;

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

Done in English, and notified in writing on 11 February 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Claudia Westerdiek Angelika Nußberger
Registrar President

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