KULYK v. UKRAINE - 30760/06 (Judgment (Merits and Just Satisfaction) : Court (Fifth Section)) [2016] ECHR 560 (23 June 2016)

In the case of Kulyk v. Ukraine,

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

          Angelika Nußberger, President,
          Erik Møse,
          Faris Vehabović,
          Yonko Grozev,
          Síofra O’Leary,
          Mārtiņš Mits, judges,
          Sergiy Goncharenko, ad hoc judge,
and Claudia Westerdiek, Section Registrar,

Having deliberated in private on 31 May 2016,

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

PROCEDURE

1. The case originated in an application (no. 30760/06) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”), by Mr Anatoliy Vasilyevich Kulyk (“the applicant”), on 17 July 2006.

2. The applicant was represented by Mr D. Groysman, a lawyer who was practising in Vinnytsya, Ukraine. The Ukrainian Government (“the Government”) were represented most recently by their Acting Agent, Ms O. Davydchuk of the Ministry of Justice.

3. The applicant alleged that he had been ill-treated by police officers, that there had been no effective investigation following his complaints, and that there had been an interference with his right of individual application to the Court.

4. On 17 January 2011 the application was communicated to the Government. Mrs Ganna Yudkivska, the judge elected in respect of Ukraine, was unable to sit in the case (Rule 28 of the Rules of Court). Accordingly, the President of the Fifth Section decided to appoint Mr Sergiy Goncharenko to sit as an ad hoc judge (Article 26 § 4 of the Convention and Rule 29 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1963 and lives in the town of Shargorod, Ukraine.

A. Events of 30-31 December 2002

1. The applicant’s version

6. According to the applicant, at around 1.30 p.m. on 30 December 2002, while working in the backyard of his home, he saw three young men on the premises of the nearby Shargorodskiy Food Products Factory (“the factory”). Since there had previously been thefts at the factory premises, during which scrap metal had been thrown over the fence into the applicant’s yard, the latter decided to enter the factory yard to chase after the young men. However, having climbed over the fence and realising the young men were no longer there, the applicant went to look inside the building, entering “through an opening in the wall”. The factory premises were empty but the applicant claimed to have heard adult voices. He did not want to meet anybody and so he crawled out through the same opening and quickly returned home.

7. Five to ten minutes later a police officer, L., arrived at the applicant’s house. According to the applicant, he had a gun in his hand, swore at the applicant, grabbed him by his collar and hit him on the head with the gun handle. The applicant fell to the ground and the police officer started kicking him. The applicant’s mother-in-law appeared and asked the police officer not to beat the applicant, whereupon he grabbed the applicant by the sleeve and took him to the police station. The applicant was accused of stealing aluminium sheets from the factory.

8. The applicant also submitted that, at the police station, L., in the presence of two other police officers, had kicked him in the kidneys, at which point the applicant fell to the ground. After he got up, one of the police officers gave him some water. L. then took the applicant into one of the offices, where he and another police officer, P., beat the applicant about the head and kicked him on various parts of his body for 15-20 minutes. Another police officer, G., arrived and L. and P. continued to beat the applicant, wanting him to confess to theft. After a while the applicant was placed in a cell.

9. That night the applicant complained of a headache and general sickness. He was told by the duty police officer that a doctor would come. After some time a man wearing a white coat arrived, emptied two ampules labelled “Analgin” and “Dimedrol” (diphenylhydamine) into a plastic water bottle and gave it to the applicant.

10. On the morning of 31 December 2002 the applicant was taken to court, where he was fined in administrative proceedings for disobeying a police officer’s order to stop. According to the applicant, he had wanted to show the judge his injuries but the latter refused, advising the applicant to go to a hospital and file a complaint.

11. The applicant was brought back to the police station, where he signed a paper stating that nobody had ill-treated him and that his personal belongings had been returned to him. The material in the case-file includes a note, allegedly signed by the applicant and dated 31 December 2002, stating that he had no complaints about the police officers and that no physical force had been used against him.

12. On the same day a decision not to institute criminal proceedings against the applicant for stealing aluminium was adopted. It was noted that the applicant had not had any intention of stealing the aluminium sheets and that he had entered the factory premises out of curiosity.

13. The applicant came home and told his family what had happened. The applicant’s sister-in-law, who is a nurse, gave him an injection but the applicant did not feel any better. He was suffering from headache, nausea and fever which he claimed continued for eight months.

2. The Government’s version

14. The Government did not provide a detailed description of the events of 30-31 December 2002 but it appears from their observations that they agreed with the findings of the national investigation authorities (see paragraphs 48-50 below).

B. Applicant’s stay in hospital

15. On 2 January 2003 the applicant was examined at a hospital and was hospitalised the next day. The applicant stayed in hospital until 11 February 2003. According to the applicant’s medical records, upon arrival at the hospital, his condition was of “medium seriousness”. He had bruises mostly on the left side of his body and some scratches on his back. On his left thigh there was a large bruise measuring 12 by 6 centimetres. The applicant was suffering from headache and nausea. He told the doctors that he had been beaten by police officer L.

16. In a medical certificate dated 11 February 2003, issued by the hospital, the applicant was diagnosed with multitrauma, closed brain injury, brain contusion of medium severity causing numerous neurological problems, two broken ribs, post-traumatic pneumonia and injuries to his kidneys, face and body.

C. Investigation into the events of 30 December 2002

17. On 10 February 2003 the applicant requested the Vinnytsya Regional Prosecutor that criminal proceedings be instituted against the police officers. In support of his complaint the applicant outlined his version of the events which took place on 30-31 December 2002 (see paragraphs 6-13 above).

18. On 18 February and 3 March 2003 several factory employees (F., S., Lo. - the wife of police officer L. -, V. and A.) testified before the investigation authorities that a noise had been heard in one of the factory buildings. V. had asked a police officer, L., to check the origin of this noise. All of the above persons had approached the building and had seen footprints in the snow leading to a conveyor belt opening in the wall. Two of them had stayed outside while the others, accompanied by L., had entered the building and had seen aluminium sheets from the ceiling piled on the floor and a man trying to escape through the conveyor belt opening. V., who had stayed outside, had tried to catch the man, but the latter had broken free. When jumping from the conveyor belt, the man had slipped and fallen onto the asphalt and had then run away. The police officer had chased after the man. The latter had climbed over the 2.5 metre high fence but had lost his balance and fallen onto the other side. The witnesses had heard a thud and a shriek.

19. L. gave similar testimony. He added that the applicant had also fallen when jumping over the fence of his house. L. had found the applicant in a coal bunker in the backyard of the applicant’s house and said that he had taken him to a police station.

20. On 3 March 2003 the applicant’s mother-in-law, M., testified that L. had arrived at her house and had said that he was looking for a criminal. Later she had heard a noise behind the barn and had seen L. aiming a blow with the handle of his gun at the applicant, who was lying on the ground. M. had begged L. not to beat the applicant. After that L. had taken the applicant to a police station.

21. On the same day the Vinnytsya Regional Police Department (Управління МВС України у Вінницькій області) approved the results of an internal investigation in response to the applicant’s complaint. The investigation found that on 30 December 2002 around 2 p.m. the factory employees had asked L. to check the origin of a suspicious noise that had been coming out of one of the factory’s abandoned halls. L., accompanied by five factory employees, checked the hall and found aluminium sheets, which had been torn from the ceiling and piled up on the floor. He also saw the applicant, who tried to escape. While running away, the applicant fell twice - once when climbing through a conveyor belt opening in the wall and a second time when climbing over the fence. He fell for a third time when jumping over the fence of his house. In the yard of his house the applicant hid in a coal bunker, where he was found and taken to a police station. The police officers testified that they had not ill-treated the applicant. The applicant’s mother-in-law testified that a police officer L. had aimed a blow at the applicant as he was lying on the ground but she had not seen the applicant being beaten. Although summoned by a prosecutor, the applicant did not appear for questioning and neighbours ‒ who did not want their names to be cited ‒ described him as an alcoholic inclined to involvement in scandalous conduct, theft and fraud. The internal police investigation concluded that since the submissions of the applicant, the police officers and the witnesses were contradictory, the case-file of material should be sent to a prosecutor’s office.

22. On 7 March 2003 the deputy prosecutor of the Shargorodskiy District (заступник прокурора Шаргородського району) refused to institute criminal proceedings following the applicant’s complaint. The deputy prosecutor noted that the applicant had stated that he had not intended to steal aluminium but had entered the factory premises out of curiosity and had run away out of fear of being accused of theft, that L. and P. had denied using physical force on the applicant and that the factory employees said that they had not seen L. beat the applicant. It was also noted that the applicant had not appeared for the forensic medical examination. The deputy prosecutor concluded that the applicant had sustained his injuries when trying to run away from L.

23. On 10 April 2003 this decision was quashed by a higher prosecutor since it had not been established how the applicant’s injuries had been inflicted.

24. According to a forensic medical conclusion of 12 May 2003, the applicant had sustained the following injuries: closed concussion, two broken ribs on the left and one on the right, post-traumatic pneumonia and a kidney injury. He had numerous bruises: on the chest (20x15 cm), left shoulder (3x3 cm and 4x3 cm), left hip (12x6 cm), under the right knee (2x2 cm), left shoulder blade (5x4 cm) and scratches on the back. Those injuries were of medium severity and had been inflicted by a blunt, hard object possibly on 30 December 2002.

25. Between 15 June 2003 and 27 October 2004 the Shargorodskyy District Prosecutor’s Office (прокуратура Шаргородського району) twice refused to institute criminal proceedings in response to the complaint from the applicant. Those decisions were quashed by higher prosecutors for reasons similar to those mentioned in the decision of 10 April 2003 and the case was referred for additional investigation.

26. Between 15 June 2003 and 27 October 2004 the following investigative steps were taken:

- on 30 August 2004 the applicant’s mother-in-law testified that she had seen L. kicking the applicant whilst he was lying on the ground;

- on 30 August-1 September 2004 the applicant, his wife and the factory employees were questioned;

- on 30 August 2004 a forensic expert concluded that the applicant had sustained bodily injuries of medium seriousness and that those injuries could have been inflicted by blunt objects or by several falls from different heights;

- on 6-8 September 2004 police officers P. and L. were questioned;

- on 27 September 2004 the factory premises were examined;

- according to a forensic medical report dated 6 October 2004, the applicant could have sustained his injuries between 30 December 2002 and 2 January 2003 by being beaten or by falling from a height.

27. On 27 October 2004 the Vinnytsya Regional Prosecutor’s Office (прокуратура Вінницької області) instituted criminal proceedings on suspicion of abuse of power.

28. On 30 November 2004 the applicant was questioned and he reiterated his version of events (see paragraphs 6-10 above), submitting, in particular, that in the police station ‒ in the presence of two police officers ‒ L. had struck him on the chest; P. had hit him several times on the head; P. and L. had kicked him on various parts of his body and P. had struck him on the chest and on the abdomen and had then beaten him in the presence of a police officer.

29. On 10 January 2005 the forensic medical commission confirmed the previous expert conclusions and added that the applicant had been able to move after the injuries had been inflicted.

30. Between February and June 2005 the applicant, his family members, factory employees and police officers were again questioned and a reconstruction of events was staged in the police station. The applicant’s mother-in-law testified that she had seen L. kicking the applicant as he lay on the ground. She also stated that L. had hit the applicant on the head with his gun handle. The factory employees F. and A. testified that they had seen the applicant running away and falling over on his way to the fence and again when climbing over the fence. Face-to-face confrontations between the applicant and police officers P., L. and G., and between the applicant and the factory employees were conducted.

31. On 19 April 2005 the police officers P. and L. were charged with abuse of power accompanied by violence.

32. By a letter of 5 May 2005 the Vinnytsya Regional Prosecutor’s Office informed the applicant that investigating officers K. and T. had been disciplined for delaying the investigation.

33. On 18 May 2005 P. and L. were questioned as witnesses.

34. On 26 May 2005 the Vinnytsya Regional Prosecutor’s Office asked the Head of the Internal Security Department of the Vinnytsya Region, which is part of the Ministry of the Internal Affairs of Ukraine (начальник УВБ у Вінницькій області ДВБ ГУБОЗ МВС України), to identify and question witnesses who had seen or talked to the applicant at the time of the events in question. On an unspecified date the police stated that it had not been possible to find any witnesses. Similar requests were also submitted on 16 May 2006 and 11 January 2007. The answers to those requests were also negative.

35. On 2 June 2005 the Shargorod Territorial Medical Unit (Шаргородське територіальне медичне об’єднання), in reply to a request from Vinnytsya Regional Prosecutor’s Office, submitted that on 30 and 31 December 2002 the applicant had not received any medical assistance from an ambulance team.

36. On the same day, judge Tr. was questioned. He submitted that when he had seen the applicant in court on 31 December 2002 the applicant had had no injuries to his head or hands, nor had he complained about any health problems. The applicant also did not complain that he had been beaten.

37. On 10 June 2005 the investigating officer from the Vinnytsya Regional Prosecutor’s Office terminated the proceedings against the police officers for absence of corpus delicti. On 16 August 2005 this decision was upheld by the Leninskyy District Court of Vinnytsya. On 22 September 2005 the Vinnytsya Regional Court of Appeal quashed these decisions and remitted the case for a fresh investigation. The court found that the investigating officer had failed to check whether an ambulance had been called for the applicant when he had been at the police station, and had failed to question the witnesses to the applicant’s arrest. It was also unclear whether the applicant’s injuries could have occurred as a result of his falls.

38. On 28 October 2005 the Shargorod Territorial Medical Unit again submitted that on 30 and 31 December 2002 the applicant had not received any medical assistance from an ambulance team while at the police station.

39. In November 2005 L., A. and S. were again questioned.

40. On 22 December 2005 the forensic experts concluded that the applicant’s injuries could have occurred as a result of several falls.

41. On 28 December 2005 the investigating officer of the Vinnytsya Regional Prosecutor’s Office again terminated the proceedings for absence of corpus delicti.

42. On 20 February 2006 the Leninskyy District Court of Vinnytsya quashed that decision because witnesses to the applicant’s arrest had not been sought and the hospital doctors had not been questioned. The applicant’s family members and some factory employees were to be additionally questioned and the evidential material from the administrative case-file against the applicant was to be included in the file. The case was remitted for further investigation.

43. On 13 April 2006 the Vinnytsya Regional Court of Appeal rejected the prosecutor’s appeal against the decision of 20 February 2006.

44. Between 13 April 2006 and 19 October 2008 the proceedings were terminated three times for absence of corpus delicti and re-opened, in particular, in the light of the failure to obtain the applicant’s medical file from the hospital or to conduct a reconstruction of events with the participation of L., witnesses and a forensic medical expert in order to establish where the applicant had fallen and the circumstances in which the applicant had suffered his injuries.

45. By letters of 7 July 2006 and 7 February 2007 the Shargorodskyy District Prosecutor’s Office informed the Vinnytsya Regional Prosecutor’s Office, inter alia, that the applicant’s mother-in-law, wife and sister-in-law had refused to testify, that a factory guard who had been on duty on 30 December 2002 had moved to Russia, and that “it had been impossible to question doctors at Shargorod Hospital since there was no information about any medical assistance that might have been provided to the applicant”.

46. On 14 October 2008 a reconstruction of events at the factory had been conducted with the participation of L. and a forensic medical expert. The expert had also been asked additional questions on the same day.

47. On 19 October 2008 an investigating officer of the Tomashpilskyy District Prosecutor’s Office terminated the criminal proceedings against the police officers for absence of evidence of a crime.

48. It was found that on 30 December 2002 at around 1 p.m. employees of the Shargorodskiy Food Products Factory had asked a police officer L., who had been present at that time on the factory premises, to check the origin of noises coming from inside one of the locked factory buildings. L. together with V., F., A., Lo. and S. went to the premises in question. Inside the building, L. and the factory employees found aluminium sheets torn from the ceiling and piled up against a wall. They also saw the applicant, who ran away after tripping up several times. The applicant was later apprehended at his home and taken to a police station.

49. After being questioned on 30 August and 30 November 2004 (see paragraphs 26 and 28 above), the applicant admitted that whilst running away he had heard people shouting behind him but had not paid any attention to them. The applicant also submitted that he had climbed over the fence having stepped on a manure pile on another side. However, the applicant’s neighbours testified that the manure pile was located 1.5 metres away from the wall. The prosecutor also referred to the testimonies given by the police officer L., factory workers, other police officers and a judge Tr. during the investigation. Numerous forensic medical experts concluded that the applicant’s injuries could have been caused by having fallen onto hard objects several times. The forensic medical expert who participated in the reconstruction of events testified that the applicant’s injuries had most probably been caused as a result of his having fallen down several times, bearing in mind the frozen ground, the height of the conveyor belt and the fence, and the body’s acceleration when running.

50. In view of the above the Tomashpilskyy District Prosecutor’s Office concluded that there was no evidence of any crime and, since the events in question had taken place six years earlier, that there was no possibility of finding such evidence.

D. Search of the office of the applicant’s representative

51. On 22 September 2010 the Leninskyy District Court authorised a search of premises at K. Street 54/1. This search was the result of criminal proceedings instituted the previous day following the placement of pornographic material on an Internet page which allegedly belonged to the applicant’s representative.

52. On 15 October 2010 Ya., who was using the premises at K. Street 54/3, allowed the police to inspect those premises after receiving authorisation from the owner. She confirmed that the items of property in the room at that address belonged to the applicant’s representative.

53. On the same day the police officers inspected the premises at K. Street 54/3 and seized, inter alia, three computers. According to the applicant’s representative, the office of a human rights organisation was located at that address, which was where he worked.

54. The applicant’s representative complained about the seizure to a prosecutor indicating that one of the seized computers contained part of confidential correspondence with the Court in the present case.

55. On 5 November 2010, in response to complaints by the applicant’s representative about alleged breaches of the law in the course of the search and seizure, the Vinnytsya City Prosecutor’s Office issued a decision refusing to institute criminal proceedings. According to the applicant’s representative, he appealed against that decision but to no avail.

56. According to reports in the media, in August 2013 the applicant’s representative was acquitted.

II. RELEVANT DOMESTIC LAW AND INTERNATIONAL MATERIALS

A. Joint Decree of the Ministry of Health and the Ministry of Internal Affairs of Ukraine No. 307/105 of 10 May 1993

57. The Decree provides that the heads of medical facilities must immediately inform the internal affairs authorities about any request for medical assistance in respect of injuries (firearms, knife or sustained by other means) that have allegedly resulted from a crime.

B. Report to the Ukrainian Government on the visit to Ukraine carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment from 9 to 21 October 2013

58. The relevant parts of the report provide as following:

“24. In the report on its 2009 visit, the CPT urged the Ukrainian authorities to set up an independent agency specialised in the investigation of complaints against public officials which is demonstratively separate from Internal Affairs structures and the Prosecution Service.

A “State Bureau of Investigation” (SBI) should be set up by November 2017 at the latest.

The SBI should focus on particularly serious crimes as well as criminal offences committed by public officials. However, pending the adoption of a law establishing it, the design and terms of reference of this future body has remained under discussion.

In this context and given the urgency of the matter, the CPT recommended in the report on its 2012 visit that a two-step approach be adopted: as a first step, to set up without delay a national specialised team, whose role is to carry out investigations throughout the country into cases involving alleged ill-treatment inflicted by public officials, and to provide it with its own support staff for the operational conduct of the investigations; as a second step, to examine the feasibility, in the medium term, of completely separating such a team from the Prosecution Service so as to establish a genuine independent specialised agency for investigations of this type.”

THE LAW

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

59. The applicant complained that he had been subjected to ill-treatment at the hands of police officers which amounted to torture. He further complained that no effective investigation had been carried out into his complaints. The applicant invoked Articles 3 and 13 of the Convention, which read as follows:

Article 3

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

Article 13

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

A. Admissibility

60. The Government submitted that the applicant had failed to exhaust the available effective domestic remedies in respect of his complaint about ill-treatment since he had not appealed to either a prosecutor or a court against the decision to terminate the proceedings in his case. There was no evidence of such an appeal either in the criminal case-file or among the documents submitted by the applicant to the Court. In the Government’s view such an appeal could have influenced the course of the proceedings since all of the applicant’s previous appeals had been successful.

61. The applicant submitted that he had not received a copy of the decision of the Tomashpilskyy District Prosecutor’s Office of 19 October 2008 to terminate criminal proceedings until July 2009. He had challenged that decision before the General Prosecutor’s Office but had received no reply.

62. The Court observes that the Government’s objection raises issues concerning the effectiveness of the criminal investigation in establishing the facts regarding the events of which the applicant complained and responsibility for those events. It is therefore closely linked to the substance of the applicant’s complaints under Articles 3 and 13 of the Convention and the Court joins it to the merits of the case (see Lotarev v. Ukraine, no. 29447/04, § 74, 8 April 2010).

63. The Court further considers that the applicant’s complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and they are not inadmissible on any other grounds. The complaints should therefore be declared admissible.

B. Merits

1. Alleged ill-treatment

(a) The parties’ submissions

(i) The applicant

64. The applicant contested the Government’s assertion that he had sustained the injuries referred to in the medical certificate of 11 February 2003 (see paragraph 16 above) after falling over when being chased by a police officer.

65. The applicant stated that the Government had failed to provide any evidence to show that the applicant had sustained the injuries in question before his alleged encounter with the police officer on the factory premises. Furthermore, there was no evidence showing that the applicant had sustained the injuries after being released from police custody. There were therefore two possible explanations for the origin of the applicant’s injuries: ill-treatment by police officers or falling over during the course of being chased by a police officer.

66. The applicant noted that the Government claimed that their version of events was supported by witness statements and had not been refuted by the conclusions of the forensic medical examinations. This would mean that the applicant had sustained all his injuries before being arrested, but, contrary to legal requirements, no such injuries had been documented at the time of the applicant’s arrival at the police station. Moreover, if the applicant had indeed had such injuries at the moment of his arrest, the police officers would have taken him to hospital, which did not happen.

67. The applicant argued that his claim that he had been ill-treated by police officers had not been contradicted by the results of the forensic medical examinations and was the more plausible explanation.

68. Lastly, the applicant alleged that his ill-treatment at the hands of police officers had amounted to torture in breach of Article 3 of the Convention.

(ii) The Government

69. The Government contested the applicant’s version of events, submitted that the applicant’s statements were unsubstantiated, and argued that the alternative version proposed by the national authorities is supported by the material in the case-file, including the testimonies of several impartial witnesses.

70. The Government stated that the police officers had denied allegations of ill-treating the applicant and the judge who had seen the applicant on the day following the events in question had later testified that the applicant neither had any injuries, nor complained about any health problems. Given the applicant’s doubtful version of events at the factory, the Government considered that his statements regarding events at the police station were also implausible.

71. The only witness to the applicant’s alleged ill-treatment was his mother-in-law. However, she was related to the applicant and had changed her testimony during the proceedings. Two months after the events in question she had testified that the police officer had merely aimed a blow at the applicant, whereas more than a year and a half later she had stated that the police officer had kicked him.

72. The Government noted that there had been five forensic medical examinations in the applicant’s case. It was established that the injuries in question could have been inflicted between 30 December 2002 and 2 January 2003 following blows and kicks, or as a result of multiple falls onto various hard objects. On 14 October 2008 a forensic expert had concluded that the applicant’s injuries had probably originated from the multiple falls in the circumstances described.

73. According to the Government, it had therefore been established beyond reasonable doubt that the applicant had already sustained serious bodily injuries when brought to the police station. It further stated that “even assuming that the applicant did in fact sustain injuries at the police station, given that he had fallen down before being arrested, it was impossible to establish the degree of seriousness of the injuries sustained in the police station”. Therefore, in the Government’s view, it is impossible in the present case to establish “beyond reasonable doubt” that the applicant’s injuries had been inflicted in the police station.

(b) The Court’s assessment

74. As the Court has stated on many occasions, Article 3 of the Convention enshrines one of the most fundamental values of a democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances or the victim’s behaviour (see, among other authorities, Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV).

75. The Court is sensitive to the subsidiary nature of its role and recognises that it must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case (see, for example, McKerr v. the United Kingdom (dec.), no. 28883/95, 4 April 2000). Nevertheless, when allegations are made under Article 3 of the Convention, the Court must apply a particularly thorough scrutiny, even if certain domestic proceedings and investigations have already taken place (see, Avşar v. Turkey, no. 25657/94, § 283, ECHR 2001-VII (extracts); Nechiporuk and Yonkalo v. Ukraine, no. 42310/04, § 148, 21 April 2011).

76. The Court recalls its jurisprudence confirming that the standard of proof applied when assessing evidence is that of proof “beyond reasonable doubt” (see, Avşar v. Turkey, cited above, § 282). Such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact.

77. The Court reiterates that to fall under Article 3 of the Convention, ill-treatment must attain a minimum level of severity. The assessment of this minimum level of severity is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the gender, age and state of health of the victim (see Valašinas v. Lithuania, no. 44558/98, § 101, ECHR 2001-VIII). The Court has considered treatment to be “inhuman” because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical and mental suffering. It has deemed treatment to be “degrading” because it was such as to arouse in the victims feelings of fear, anguish and inferiority capable of humiliating and debasing them (see Kudła v. Poland [GC], no. 30210/96, § 92, ECHR 2000-XI). The Court emphasizes 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 own conduct diminishes human dignity and is an infringement of the right set forth in Article 3 (see, Bouyid v. Belgium [GC], no. 23380/09, § 88, 28 September 2015).

78. Turning to the present case, the Court notes that, according to the hospital certificate and forensic medical documents, the applicant sustained several bodily injuries of medium severity (see paragraphs 16 and 24 above) including broken ribs and concussion, and was kept in hospital for nearly forty days.

79. The Court considers that, in the present case, the applicant’s injuries were sufficiently serious to fall within the ambit of Article 3 of the Convention. It remains to be determined whether the State authorities can be held responsible for having inflicted those injuries and held accountable under the above provision.

80. The Court emphasizes that where an individual is taken into police custody in good health but is found to be injured at the time of release, there is a rebuttable presumption that the injuries suffered are the result of ill-treatment. It is incumbent on the State to provide a plausible explanation of the cause of such injuries, failing which a clear issue arises under Article 3 of the Convention (see Tomasi v. France, 27 August 1992, §§ 108-111, Series A no. 241-A; Ribitsch v. Austria, 4 December 1995, § 34, Series A no. 336). Nevertherless, in order to benefit from this presumption, individuals claiming to be victims of a violation of Article 3 of the Convention must demonstrate that they display traces of ill-treatment after having been under the control of the police or a similar authority. Many of the cases with which the Court has dealt show that such persons usually provide medical certificates for that purpose, describing injuries or traces of blows, to which the Court attaches substantial evidential weight (see Bouyid v. Belgium [GC], cited above, § 92).

81. In the present case the Court notes that there is no evidence that the applicant had any injuries before his entry into the factory, which took place a maximum of one hour before he was brought to the police station. As for the events in the factory, the Court notes that the parties’ accounts differ considerably. While the applicant stated that he had left the factory quietly, according to the Government ‒ which referred to several witness statements ‒ the applicant left the factory in a hurry, running away from police officer L. and falling over several times on his way, including a fall from a two metre-high fence. Contrary to the applicant’s statement that he had climbed over the fence by stepping onto a pile of manure on the other side, according to the statements of the applicant’s neighbours, that pile was located 1.5 metres away from the wall (see paragraph 49 above). The forensic experts also repeatedly concluded that the applicant could have sustained the injuries in question by falling from various heights onto hard objects.

82. In these circumstances, the Court considers that it is not self-evident that the applicant was still in good health when taken into police custody (see Kobets v. Ukraine, no. 16437/04, §§ 46-48, 14 February 2008). Moreover, the applicant did not go to hospital until two days after the events in question. According to one of the forensic medical reports, the applicant’s injuries could have been sustained between 30 December 2002 and 2 January 2003 and he had been released from police custody on 31 December 2002. Furthermore, the Court notes that the applicant’s submissions regarding his complaint before the judge is not corroborated (see paragraph 36 above).

83. In such circumstances, given all the information in its possession and notwithstanding the principles established by the Court in the recent case of Bouyid v. Belgium [GC] (cited above), where there was compelling evidence pointing to the applicants’ ill-treatment when they were in police custody, the Court cannot conclude “beyond reasonable doubt” that the applicant’s injuries were caused by the police officers as stated by the applicant. Therefore, the Court cannot conclude that there has been a violation of the substantive limb of Article 3 of the Convention.

2. Adequacy of the investigation

(a) The parties’ submissions

(i) The applicant

84. The applicant disagreed with the Government’s submission that there existed an effective investigation mechanism in Ukraine.

85. The applicant stated at the outset that it was not his fault that his complaint about ill-treatment had been lodged more than a month after the events in question. The applicant had told the hospital doctors that he had been ill-treated by the police and the doctors had been under a legal obligation to inform the police about it. Since it was a public hospital, the applicant argued that it was the State which was to blame for the delay in initiating the investigation. In any event, in the applicant’s view, the doctors’ failure to report his ill-treatment had actually had a positive effect, since the doctors would otherwise have been forced by the police to forge his medical data.

86. The applicant also submitted that there had been no witness questioning in his case for nearly two years because proper questioning was only possible once criminal proceedings have been instituted.

87. As an example of the delays that had occurred in investigating his case, the applicant pointed out that the investigative authorities had failed to verify in good time his allegation that an ambulance had been called for him whilst in detention and later such verification had become impossible. Those authorities had also failed to investigate why the applicant had been brought back to the police station after the court hearing on 31 December 2002 and had not taken into account the fact that ultimately the applicant was not prosecuted for theft. While the Government dismissed the applicant’s version of events according to which he had entered the factory premises to fulfil his citizen’s duty and to prevent a crime, it remained unclear what police officer L. had been doing at the factory.

88. The applicant also remarked that he had not been provided in good time with copies of the decisions refusing to instigate criminal proceedings in relation to his complaints, which had caused further delays in the investigation.

89. As for the forensic medical examinations, the applicant claimed that all of them except for the first one had been limited to perfunctory studies of the applicant’s medical files. Moreover, they had all been performed by experts from the same forensic bureau. The questions for the experts had never been discussed with the applicant and he had not been informed about the results of the examinations. Nor had the applicant participated in the inspection, on 27 September 2004, of the site where the incident had occurred.

90. Lastly, the applicant argued that the investigation in his case had not been independent. The prosecutor’s office had, on numerous occasions, ordered police officers to conduct various investigative actions such as the identification of witnesses to the applicant’s arrest. Moreover, police officers L. and P. had continued to occupy their posts throughout the investigation.

(ii) The Government

91. The Government submitted that, contrary to the applicant’s statements, the investigation into his complaints had complied with all the requirements of an effective investigation under Article 3 of the Convention.

92. The Government noted at the outset that the applicant had not complained about his alleged ill-treatment until 10 February 2003, although the events in question had taken place on 30 December 2002. Between 3 January and 10 February 2003 the applicant had been in a hospital where a number of his injuries were documented. The applicant claimed, in particular, that he had been hit on the head with a gun handle. However, there is no record of such an injury in the applicant’s hospital medical file and after 10 February 2003, when the applicant lodged his complaint, a forensic expert examination of the applicant’s hospital medical records was all that had been possible, since after more than forty days the traces of inflicted blows had already disappeared. The fact that the applicant lodged his complaint with a considerable delay therefore undermined the effectiveness of the investigation.

93. The Government stated that all the necessary investigative actions had been conducted aimed at establishing the circumstances in which the bodily injuries of the applicant had been sustained. The police officers’ and the applicant’s versions had both been checked. All possible witnesses had been questioned several times - in particular, the applicant had been questioned four times, L. seven times and P. twice. Everyone who had seen the applicant at the factory had been questioned three or four times, the applicant’s mother-in-law and his other family members had been questioned four times. A number of other witnesses had been questioned, including the police officers who had been in contact with the applicant at the police station and the judge who had seen the applicant the day after his arrest. A number of face-to-face confrontations had been held in order to clarify the contradictions between the testimonies of the applicant and those of the aforementioned persons. Other investigative actions such as forensic medical examinations, reconstructions of events, site examinations etc. had also been conducted.

94. The Government stated that all the investigative steps needed to establish the truth in the case had been performed. However, it could not be concluded that the applicant had been ill-treated by the police officers L. and P. Moreover, there was evidence suggesting the contrary.

95. The Government concluded that the investigation in the present case had complied with the requirements of Article 3.

(b) The Court’s assessment

96. The Court reiterates that where an individual raises an arguable claim that he has been ill-treated by State authorities in breach of Article 3, that provision ‒ read in conjunction with the State’s general duty under Article 1 of the Convention ‒ requires that there should be an effective official investigation. Such an investigation should be capable of leading to the identification and punishment of those responsible. Otherwise, the general legal prohibition of torture and inhuman and degrading treatment and punishment would, despite its fundamental importance, be ineffective in practice, and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity (see Assenov and Others v. Bulgaria, 28 October 1998, § 102, Reports of Judgments and Decisions 1998-VIII, and Labita v. Italy [GC], cited above, § 131).

97. Article 3 requires that the investigation should start as soon as an arguable claim has been lodged by the applicant or, even in the absence of an express complaint, if there are sufficiently clear indications that ill-treatment might have occurred (see Begheluri v. Georgia, no. 28490/02, § 99, 7 October 2014).

98. Once an investigation has been triggered, the following elements establishing its effectiveness can be derived from the Court’s case-law.

99. The investigation should be conducted promptly. A prompt response by the authorities in the investigation of a case of ill-treatment may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and preventing any appearance of collusion in or tolerance of unlawful acts (see Batı and Others v. Turkey, nos. 33097/96 and 57834/00, § 136, ECHR 2004-IV (extracts)). In order to accomplish the necessary steps, the collection and securing of evidence should also be done promptly (see Poltoratskiy v. Ukraine, no. 38812/97, § 126, ECHR 2003-V).

100. The investigation must be thorough, that is to say the authorities should make a serious attempt to find out what happened and not rely on hasty or ill-founded conclusions (see Assenov and Others v. Bulgaria, cited above, §§ 103 et seq.). In particular, all reasonable available steps should be taken to secure the evidence concerning the incident, including eyewitness statements and forensic evidence which provides a complete and accurate record of injuries and an objective analysis of the clinical findings. The investigation’s conclusions must be based on thorough, objective and impartial analysis of all relevant elements.

101. The authorities undertaking the investigation should be independent (both institutionally and in practical terms) from those involved in the events (see, for example, Barbu Anghelescu v. Romania, no. 46430/99, § 66, 5 October 2004) and the victim should be able to actively participate therein (see Savitskyy v. Ukraine, no. 38773/05, § 114, 26 July 2012).

102. Turning to the present case, the Court notes that the investigation into the events in question started after the applicant lodged a complaint on 10 February 2003, that is to say more than forty days after these events. While the applicant stated that the public hospital doctors had failed, contrary to their legal obligation, to inform the police about his injuries, the Court questions to what extent such an obligation exempts an applicant from lodging a formal complaint. In the present case, the applicant did not submit any evidence indicating that he or his lawyer had not had any possibility of lodging such a complaint before 10 February 2003.

103. In the Court’s view, this delay of over 40 days in submitting his complaint to the relevant authorities had a negative impact on the subsequent investigation since it rendered it more difficult to examine the applicant in a timely fashion, record his injuries and draw the correct inferences therefrom. Consequently, all the forensic experts reached their conclusions on the basis of the applicant’s hospital medical records, which are kept in order to track the applicant’s diagnosis and treatment and not to document injuries for the purpose of a criminal investigation.

104. However, the Court notes that, even accepting that the applicant was responsible for some delay in beginning the investigation, once it had been initiated it was marred by significant shortcomings for which the investigative authorities must be held responsible. In particular, the decision not to institute criminal proceedings was taken nearly a month after the applicant had lodged his complaint, without a reconstruction of events having been staged or a forensic medical opinion having been issued on how the injuries in question could have been sustained. Those shortcomings were noted by the national authorities when decisions refusing the institution of criminal proceedings were quashed and the case remitted for additional investigation.

105. The Court also notes that, after criminal proceedings were finally instituted in October 2004, there were six subsequent decisions to terminate them. Five of those decisions were quashed by higher prosecutors or a court for various shortcomings. As a result, those proceedings lasted for more than five and a half years and were eventually terminated with the finding that it had been impossible to find any evidence of a crime due to the passage of time (see paragraph 50 above).

106. The Court takes note of the Government’s submissions that, by the end of the investigation, the witnesses and the persons involved in the incident had been questioned on numerous occasions, and that five forensic medical examinations and other investigative steps had been conducted. Nevertheless the Court observes that those investigative steps, although relevant, were very often performed only as a response to instructions from higher prosecutors or the court and resembled formal perfunctory steps rather than parts of a prompt and thorough investigation.

107. Lastly, the Court notes that on several occasions the police bodies were asked by the prosecutor’s office to conduct certain investigative steps, in particular to find witnesses. Although those requests were addressed to an entity different from the one where the police officers L. and P. were employed, the fact that an entity within the Ministry of Interior was involved in an investigation concerning employees of that same Ministry is capable of undermining the independence of such an investigation. In this respect the Court also refers to the findings of the CPT, which has long been urging the Ukrainian authorities to create an independent investigative agency specialised in the investigation of complaints against public officials (see paragraph 58 above).

108. In view of the above, the Court concludes that the applicant’s complaints were not the subject of an effective investigation. Moreover, the Court would like to underline that apart from the applicant’s failure to substantiate his complaint under the substantive limb of Article 3 of the Convention it was the authorities’ failure to carry out an effective investigation into it that kept the crucial issues of the case unclear (see Dzhulay v. Ukraine, no. 24439/06, 3 April 2014). Consequently, there has been a violation of the procedural limb of Article 3 of the Convention. It follows that the Government’s preliminary objection (see paragraph 60 above) must be dismissed.

109. Having regard to its finding under Article 3, the Court considers that it is not necessary to examine whether in this case there has also been a violation of Article 13 of the Convention (see Kobets v. Ukraine, cited above, § 57).

II. ALLEGED BREACH OF ARTICLE 34 OF THE CONVENTION

110. In a fax dated 12 December 2010 the applicant’s representative submitted that on 15-16 October 2010 the police had searched the office where he worked and had seized his computer, which contained some documents and letters relating to the present case.

111. The Court considers that this information is to be examined in the light of Article 34 of the Convention, the relevant parts of which read:

“The Court may receive applications from any person... The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”

A. The parties’ submissions

1. The applicant

112. According to the applicant, the Government did not advance any reasons for the seizure of the computers and documents or for breaching the right to respect for a person’s home notwithstanding the absence of a court decision authorising the search and seizure and the lack of permission from the premises’ owner for such a search.

113. According to the applicant, the State agents had been in possession of a court decision authorising them to search the premises at K. Street 54/1, where the applicant’s representative resided, but they possessed no such decision in respect of the premises at K. Street 54/3. A video recording of the search shows that the employees of the human rights organisation protested against the police officers’ presence on the premises. The State agents had been aware that there were no personal belongings of the applicant’s representatives on the premises and the employees present had reiterated this.

114. The applicant submitted that although the police officers had allegedly been looking for “pornographic material”, they had seized 15 kilograms of papers which included refugees’ files as well as documents relating to the applicant’s case.

115. Despite the Government’s assertions to the contrary, the applicant’s representative lodged a complaint and then appealed against the decision not to institute criminal proceedings, but that appeal was at the time of submitting the present observations still pending.

116. According to the applicant, the fact that State agents who were allegedly looking for pornographic material unlawfully seized the documents in question ‒ despite being informed about the nature of their contents ‒ raises doubts about the agents’ real intentions.

117. Lastly, the applicant submitted that the seized computers contained files concerning a psychological examination of the applicant carried out for the purpose of substantiating the amount of non-pecuniary compensation sought, correspondence with the experts involved, and copies of preliminary documents which at that time had not yet been submitted to the Court. Therefore, in the applicant’s view, the State had not respected the procedural guarantees regarding confidentiality of correspondence with the Court, which constituted a breach of Article 34 of the Convention.

2. The Government

118. The Government submitted that the applicant’s complaint under Article 34 of the Convention was manifestly ill-founded and unsupported by any evidence. The Government further argued that the search of the office of the applicant’s representative had been lawful, had not been intended to exert any pressure on the applicant or his representative, and had not influenced the proceedings before the Court.

119. The search in question had been conducted in the apartment containing the belongings of the applicant’s representative within the framework of criminal proceedings that had been instituted on suspicion of the distribution of pornographic materials.

120. In the Government’s view the search and seizure of the documents and equipment had not affected the applicant’s representation before the Court. The applicant’s representative never asked for the documents and files which he allegedly needed for the applicant’s representation before the Court to be returned to him. Nor did he provide any evidence that the aim of the search was to hinder the representation of the applicant’s interests before the Court or that this search had any effect on his representation in the present case.

121. Following the complaints about an allegedly unlawful search, the prosecutor refused to institute criminal proceedings and the applicant’s representative did not appeal against that decision.

122. In view of the above the Government stated that there had been no interference with the exercise of the right of individual application in the present case.

B. The Court’s assessment

123. The Court reiterates that a complaint under Article 34 of the Convention is of a procedural nature and therefore does not give rise to any issue of admissibility under the Convention (see Iulian Popescu v. Romania, no. 24999/04, § 29, 4 June 2013).

124. The Court furthermore points out that for the effective operation of the system of individual application instituted by Article 34, it is of the utmost importance that applicants or potential applicants should be able to communicate freely with the Court without being subjected to any form of pressure from the authorities to withdraw or modify their complaints (see, among other authorities, Akdivar and Others v. Turkey, 16 September 1996, § 105, Reports of Judgments and Decisions 1996-IV). In this context, “pressure” includes not only direct coercion and flagrant acts of intimidation, but also other improper indirect acts or contacts designed to dissuade or discourage applicants from pursuing a Convention remedy (see Kurt v. Turkey, 25 May 1998, § 159, Reports of Judgments and Decisions 1998-III).

125. Furthermore, the question of whether or not a particular form of contact between the authorities and an applicant is tantamount to unacceptable practice from the standpoint of Article 34 must be determined in the light of the particular circumstances of the case. In this respect, regard must be had to the vulnerability of the complainant and his or her susceptibility to influence exerted by the authorities (see Akdivar and Others, § 105, and Kurt, § 160, both cited above).

126. Turning to the present case, the Court notes that the computers and documents of the applicant’s representative were seized by the authorities in the course of the unrelated criminal proceedings instituted against the applicant’s representative. The Court observes, however, that there is no evidence that, at the moment of the seizure, the State authorities were aware what material the computer contained. There is equally no evidence that their real aim was to hinder the applicant’s representation in the present case or to discourage him from pursuing it. In particular, when complaining about the seizure to the national authorities, the applicant’s representative stated only that “one of the seized computers contained, inter alia, some confidential correspondence” to the Court in the present case. He did not request access to the seized documents, nor did he state at any stage that he was unable to substantiate his submissions before this Court because of the above seizure.

127. In such circumstances, the Court cannot conclude that the State has failed to fulfil its obligation under Article 34 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

128. 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.”

129. The applicant did not submit a claim for just satisfaction.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Joins to the merits the Government’s objection as to the admissibility of the applicant’s complaint of ill-treatment by the police (on the grounds of non-exhaustion of domestic remedies) and dismisses this objection after an examination on the merits;

2. Declares the application admissible;

3. Holds that there has been no violation of Article 3 of the Convention under its substantive limb;

4. Holds that there has been a violation of Article 3 of the Convention under its procedural limb;

5. Holds that there is no need to examine the complaint under Article 13 of the Convention;

6. Holds that the State has not failed to fulfil its obligation under Article 34 of the Convention.

Done in English, and notified in writing on 23 June 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Claudia Westerdiek Angelika Nuβberger
Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> KULYK v. UKRAINE - 30760/06 (Judgment (Merits and Just Satisfaction) : Court (Fifth Section)) [2016] ECHR 560 (23 June 2016) URL: http://www.bailii.org/eu/cases/ECHR/2016/560.html Cite as: [2016] ECHR 560