CASE OF USHAKOV AND USHAKOVA v. UKRAINE
(Application no. 10705/12)
18 June 2015
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Ushakov and Ushakova v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
Boštjan M. Zupančič,
Vincent A. De Gaetano,
Aleš Pejchal, judges,
and Claudia Westerdiek, Section Registrar,
Having deliberated in private on 26 May 2015,
Delivers the following judgment, which was adopted on that date:
1. The case originated in an application (no. 10705/12) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Ukrainian nationals, Mr Sergey Viktorovich Ushakov (“the first applicant”) and Ms Anna Mikhaylovna Ushakova (“the second applicant”), on 2 February 2012.
2. The applicants were represented by Mr G.V. Tokarev and Ms M.G. Motorygina, lawyers practising in Kharkiv.
3. The applicants alleged, in particular, that they had been ill-treated by the police and that there had been no effective domestic investigation into the matter. The first applicant also complained that his rights to be legally represented and not to incriminate himself had been violated.
4. On 3 February 2014 the above complaints were communicated to the Government and the remainder of the application was declared inadmissible.
I. THE CIRCUMSTANCES OF THE CASE
5. The applicants are a married couple. They were born in 1976 and 1988 respectively. The first applicant is serving a sentence of imprisonment in Kholodnogirska penitentiary no. 18. The second applicant lives in Kharkiv.
A. Background facts
6. At the time of the events the applicants lived in a two-room apartment together with Ms S., the second applicant’s mother.
7. Ms S. had a pending judicial dispute with a certain Mr L. regarding the inheritance of a house. The applicants, being interested in improving their living conditions, provided her with various support in those proceedings.
8. In April 2008 the first applicant visited Mr L. with a view to dissuading him from pursuing the mentioned dispute.
B. Events between 27 June and 2 July 2008
9. On 27 June 2008 Mr L. was found dead in his house. His throat was cut and there were multiple stabs and cuts on his body. One of the windows was broken, and there was a hoe lying nearby on the floor.
10. On the same day a criminal investigation was opened into the murder.
11. At about 10 p.m. on that same day the applicants came home where several police officers were waiting for them. The applicants were taken to the Kharkiv Frunzenskyy District Police Department (Фрунзенський районний відділ Харківського міського управління Головного управління внутрішніх справ МВС України в Харківській області). According to the applicants, this was done under the pretext that they needed to be questioned in respect of the first applicant’s debt vis-à-vis some third persons. As submitted by the Government, the police apprehended the applicants on suspicion of the murder of Mr L.
12. The applicants were questioned regarding their whereabouts and actions on 26 and 27 June 2008. They stated that they had been together shopping, going to the cinema, having meals and so on.
13. Both applicants were held in the police station during the night on 27-28 June 2008. They stated in their submissions to the Court that they had not been subjected to any ill-treatment at that stage.
14. On 28 June 2008 the first applicant underwent a forensic medical examination. According to its report, which was completed on 1 July 2008, the examination revealed multiple bruises and sores on virtually all the body of the first applicant. They included about thirty multidirectional sores on his back and about the same number of sores on his hips, buttocks and knees. The expert gave the following possible dates of the injuries: a bruise on the left shoulder and a sore on the torso - between 22 and 24 June 2008; bruises on the right part of the torso - between 25 and 27 June 2008; sores on the torso, the back and the legs - between 25 and 27 June 2008. Those sores were assessed as having possibly originated from the impact of some protruded blunt objects, such as glass fragments.
15. According to the first applicant, he sustained the injuries discovered on 28 June 2008, having accidentally fallen a day before.
16. The first applicant submitted the following account of the subsequent events. After the aforementioned examination, he was taken to the criminal investigation department, where one of the officers suggested that he should confess to the murder of Mr L. As the first applicant refused to do so, some officers brought in a dirty matrass and a gas mask. They put wet cloths around his wrists and handcuffed him. One of the officers punched him in the solar plexus and pushed him on the matrass. The others twisted his arms behind his back and made him split his legs while beating him to his torso and genitals. The gas mask was then put on the first applicant’s face and the vent was blocked. He fainted several times and was made regain consciousness with cold water. The gas mask was repeatedly put on his face, and he was made inhale cigarette smoke. At the same time, his genitals were being twisted. The first applicant’s ill-treatment continued as described above in several rounds. The officers threated him that they would bring his wife and do the same with her in front of him. He then signed a confession to the murder of Mr L. He had, however, to adjust it many times as dictated by the police. The first applicant was made memorise his confession.
17. The Government maintained that the first applicant had not been subjected to any ill-treatment.
18. According to the detention logbook of the police station, the first applicant was detained at 8.15 p.m. on 28 June 2008 as a criminal suspect.
19. On the same date, 28 June 2008, the investigator appointed a lawyer, Mr M., for the first applicant. He maintained his initial confession during his questioning in the presence of the lawyer. According to the first applicant, he did so fearing further ill-treatment and not having the possibility to talk with the lawyer in private prior to the questioning.
20. As regards the second applicant, in the morning on 28 June 2008 she was taken from the police station to her home, where a search was conducted. The police allegedly threatened her that if she did not testify against her husband, they would accuse her of a drug-related offence having previously planted drugs in her apartment.
21. Thereafter the second applicant was taken back to the police station, where she made a statement, allegedly under coercion, that her husband had admitted to her having murdered Mr L. More specifically, the second applicant submitted that three police officers had hit her several times on the head and had pulled her by the hair.
22. On 30 June 2008 a reconstruction of the crime was conducted in the presence of the first applicant’s lawyer, during which the first applicant confessed again to the incriminated crime. About forty minutes later he, however, retracted his confession as made under duress and complained of his ill-treatment by the police. According to the first applicant, he did so after his first confidential conversation with his lawyer, which had taken place only after the aforementioned event. His lawyer subsequently stated that he had had his first confidential meeting with the first applicant prior to the latter’s questioning on 28 June 2008 (see paragraph 65 below).
23. On 1 July 2008 the investigator submitted for approval to the Frunzenskyy District Prosecutor’s Office (“the Frunzenskyy Prosecutor’s Office”) an application for the first applicant’s pre-trial detention as a preventive measure pending trial. The prosecutor decided to question the first applicant himself before taking a decision. He saw that the first applicant had multiple injuries and concluded that his confession had been extracted by force. Furthermore, the prosecutor noted a number of discrepancies between the confessions of the first applicant and the autopsy report in respect of the victim. The second applicant was questioned too. She submitted that she had incriminated her husband under duress.
24. As a result, the prosecutor refused to approve the investigator’s application, quashed the latter’s decision on bringing the charges against the first applicant and released him. The prosecutor also directed his subordinates to question both applicants about their ill-treatment in police custody and to duly report their submissions.
25. While the applicants were making written statements in the office of the deputy prosecutor, at about 10.30 p.m., four officers of the Frunzenskyy District Police Department, namely, the first deputy head of the department (перший заступник начальника райвідділу) Mr K. (see also paragraphs 68 and 83 below for additional information about this police officer), the head of the criminal investigation department (начальник сектору карного розшуку) Mr Pap., his deputy (заступник начальника карного розшуку) Mr Par., and the chief of the investigation unit (начальник слідчого відділу) Mr M., broke in. Disregarding the objections of the deputy prosecutor and constraining him by force, they took the applicants out. There were more police officers waiting in the corridor.
26. The applicants were handcuffed and taken to the Frunzenskyy Police Department, located near the prosecutor’s office. On the way, one of the officers allegedly hit the first applicant in the right hip.
27. The first applicant was taken to an office on the ground floor where he was made sit quiet with one of the police officers. The office was locked from inside, and the light was switched off. About an hour later, he was taken to another office where the bars on the window could be removed. He was made write a note that he had left the police station at 10.30 p.m. The first applicant was then taken outside through the window behind the building of the police station. The police officers placed him a car, parked that car in a nearby yard and waited there till 3 or 4 a.m. It is not known what happened thereafter. It appears that the first applicant remained detained (see, in particular, paragraph 31 below).
28. After the police had taken the applicants from the prosecutor’s office, at 11.15 p.m. the deputy prosecutor visited the Frunzenskyy Police Department. According to the visitors’ logbook, the applicants had entered the building at 10.30 p.m. and had been remaining there. Having searched the premises, the prosecution officials found the second applicant in tears in one of the offices. The first applicant could not be found. Police officer K. submitted to the prosecutor a note on behalf of the first applicant, but without his signature, that he had left the police department at 10.30 p.m. The prosecution officers went to the applicants’ home, but the first applicant was not there.
C. Investigation of the applicants’ allegations of ill-treatment and related events
29. On 30 June 2008 the first applicant complained to the prosecution authorities that he had been ill-treated by the police (see also paragraph 22 above). It appears that the second applicant raised a similar complaint too.
30. On 2 July 2008 the Frunzenskyy Prosecutor’s Office opened a criminal case against the police officers K., Pap. and Par. under Article 365 § 2 of the Criminal Code (exceeding power by engaging in the violent or degrading treatment of a victim) in respect of the events of the evening of 1 July and the night from 1 to 2 July 2008.
31. On the same date the applicants were assigned victim status and questioned. Also on that day the first applicant underwent a forensic medical examination, after which he was released.
32. On 4 July 2008 a report of the first applicant’s examination was delivered. It documented multiple bruises on his shoulders, torso, back, chest, arms, hips, thighs and legs. Their colouring varied from yellowish to violet and purple. The first applicant also had crust-covered sores and bruises on both wrists. The expert concluded that most of the injuries had originated from the impact of blunt objects between 23 and 27 June 2008. One bruise on the first applicant’s back below the left shoulder blade was assessed as sustained between 30 June and 1 July 2008. Lastly, according to the report, some sores on the right forearm, the left elbow and the right ankle had been inflicted on the first applicant on 1 July 2008.
33. On 2 July 2008 the second applicant underwent a medical examination too, which did not reveal any injuries. According to the second applicant, she complained to the expert that she had headaches and was advised to apply for help to a hospital.
34. On 5 July 2008 she was examined by a neurosurgeon in the local hospital who reported that she had bruises of the head soft tissues.
35. On 8 and 9 July 2008 the applicants were questioned in respect of their alleged ill-treatment by the police. They recognised the officers K., Pap. and Par. at the photos shown to them.
36. On 11 and 14 July 2008 a reconstruction of the events of 28 June and 1-2 July 2008 was conducted with the applicants’ participation.
37. On an unspecified date the Frunzenskyy Prosecutor’s Office directed the management of the police department to establish the whereabouts of the officers K., Pap. and Par., who had not complied with the prosecutor’s summonses.
38. On 18 July 2008 the Chief of the Frunzenskyy Police Department wrote to the prosecutor that all those three officers were on sick leave and that their whereabouts were being established.
39. On 21 August 2008 the police officers K., Pap. and Par. were questioned in respect of the alleged ill-treatment of the applicants. K. and Pap. refused making any statements. It is not known what Par. stated.
40. On 2 September 2008 the Kharkiv Regional Prosecutor’s Office discontinued the criminal investigation in respect of the aforementioned police officers, having concluded that the wrongdoings imputed to them were to be qualified as interference with the activity of a law-enforcement official (the Frunzenskyy Prosecutor) rather than exceeding power by engaging in the violent or degrading treatment of a victim. Accordingly, a different criminal case was opened, with a new charge.
41. On an unspecified date in October 2008 K., Pap. and Par. were questioned again. They denied any ill-treatment of the applicants. As to their behaviour on 1 July 2008, they submitted that they had believed that the applicants had posed a danger to the deputy prosecutor.
42. On 21 October 2008 the prosecutor, who had been involved in the events of 1 July 2008, gave detailed statements regarding those events, when questioned as a witness in the framework of the criminal investigation against the police officers.
43. Between 19 and 23 December 2008 the first applicant underwent a forensic medical examination with a view to establishing the origin of his injuries documented earlier.
44. On 23 December 2008 the examination report was completed. It reiterated the findings of the first applicant’s examinations of 28 June and 2 July 2008 (see paragraphs 14, 31 and 32 above). Furthermore, it noted that the sores on the first applicant’s wrists could have been caused by his handcuffing. The report stated that the findings of the earlier examinations did not contradict the other materials in the case file.
45. On 30 December 2008 the Kharkiv Regional Prosecutor’s Office terminated the criminal investigation into the applicants’ allegations of ill-treatment, for the lack of corpus delicti in the actions of the police officers. The prosecutor noted a contradiction in the first applicant’s submissions, according to which his only injury as of 28 June 2008 had been a bruise on his right hip from an accidental falling the day earlier, and the forensic medical examination report of 28 June 2008, which had established many others injuries. The expert who had examined the first applicant on 2 July and 23 December 2008, had stated during his questioning by the prosecutor that the injuries sustained by the first applicant after 28 June 2008, were located in the body parts accessible for self-infliction, apart from the bruise below the left shoulder blade. It appeared impossible to establish the origin of that bruise. The expert had also noted that no injuries on the first applicant’s genitals had been revealed. Overall, the prosecutor concluded that those few injuries which were dated later than 28 June 2008 “could have been sustained [by the first applicant] in circumstances unrelated to any use of force by the police against him”. It was also noted in the ruling that the first applicant had never raised any complaints before the medical personnel of the detention facility. Lastly, as regards the allegations of the second applicant that she had been ill-treated by the police, the prosecutor noted that her medical examination of 2 July 2008 had not revealed any injuries. In sum, the ill-treatment allegations of both applicants were found to be without basis.
46. On 9 October 2009 the Kharkiv Chervonozavodskyy District Court (“the Chervonozavodskyy Court”) quashed the above decision and directed the prosecution authorities to carry out an additional investigation. It noted, in particular, that the contradictions between the first applicant’s submissions that he had had no injuries as of 28 June 2008 and the forensic medical examination report of that date, according to which he had had numerous injuries, had to be clarified.
47. On 27 May 2010 a reconstruction of the events of 28 June and 1-2 July 2008 was conducted with the participation of the first applicant. He maintained the allegations of his ill-treatment by the police.
48. On 27 and 28 May 2010 a forensic medical expert examined the available documents in respect of the first applicant with a view to clarifying the origin of his injuries. The case file does not contain a copy of the respective report. It appears that, according to the expert’s conclusions, only some of the first applicant’s injuries could have originated in the circumstances as described by him.
49. On 31 May 2010 the Kharkiv Regional Prosecutor’s Office once again terminated the investigation initiated on 2 July 2008 for the lack of corpus delicti in the actions of the police officers concerned. The prosecutor noted that, even though the first applicant had sustained some injuries while in detention, the exact time and circumstances of their infliction remained unknown. Furthermore, the location of some of the injuries allowed to presume that they could have been self-inflicted. The prosecutor also noted that the first applicant had not “personalised” his injuries: in other words, that he had not specified who exactly of the police officers had inflicted each specific injury on him. The investigator had also questioned the forensic expert who had conducted the examination of the first applicant on 28 June 2008 who had confirmed her findings.
50. On the same date, 31 May 2010, the Regional Prosecutor’s Office delivered two additional rulings refusing to open a criminal case following the complaints of ill-treatment by each of the applicants.
51. On 29 November 2010 the Kharkiv Regional Court of Appeal, acting as a court of first instance in the first applicant’s trial, ordered the Kharkiv Regional Prosecutor’s Office to investigate the first applicant’s allegation of ill-treatment by the police. It noted that, according to the first applicant, the presence of his fingerprint on the hoe seized at the crime scene was explained by the fact that the police officers had put that hoe in his hands by force during his ill-treatment.
52. On 28 December 2010, 25 April and 5 May 2011 the Frunzenskyy Prosecutor’s Office, to which the investigation was re-assigned, refused to open a criminal case against the police, having mainly relied on the respective rulings of 31 May 2010 (see paragraphs 49 and 50 above). All those decisions were, however, quashed as premature.
53. On 18 May 2012 the Frunzenskyy Prosecutor’s Office again refused to open a criminal case against the police officers allegedly involved in the applicants’ ill-treatment.
54. On 11 June 2012 the Kharkiv Regional Prosecutor’s Office ordered a forensic medical examination of the first applicant by an expert panel with a view to clarifying his injuries and the possible circumstances of their infliction. The investigator noted that similar examinations, which had been carried out earlier, were inconsistent in their conclusions.
55. On 12 July 2012 a panel of experts issued a forensic medical examination report, in which they stated, in particular, that the first applicant might have sustained all the injuries (with the exception of two bruises and one sore) at the time and under the circumstances as indicated by him during the reconstruction of the events conducted on 27 May 2010 (see paragraph 47 above).
56. On 6 August 2012 the Kharkiv Regional Prosecutor’s Office, which was apparently investigating the matter in parallel, refused to open a criminal case against the police officers too. On the same day it terminated, on similar grounds as earlier, the criminal investigation initiated on 2 July 2008. On 5 September 2012 the Chervonozavodskyy Court quashed both aforementioned rulings as based on an incomplete and one-sided investigation.
57. On 8 October 2012 the Kharkiv Regional Court of Appeal upheld that decision.
58. On 22 October 2012 the Kharkiv Regional Prosecutor’s Office refused to open a criminal case against the police officers in respect of the second applicant’s allegations of ill-treatment. On the same date it discontinued the criminal investigation against the police officers in respect of the first applicant’s allegations of ill-treatment, which had been launched on 2 July 2008 (see paragraph 30 above).
59. The first applicant unsuccessfully challenged the aforementioned decision before the domestic courts.
D. The first applicant’s trial
60. On 11 November 2008 the first applicant was committed for trial.
61. On 18 May 2009 the Kharkiv Regional Court of Appeal (“the Kharkiv Court”), sitting as a court of first instance, remitted the case for additional investigation. It noted, in particular, that the first applicant’s initial confession could not be relied on because he had later retracted it as obtained under duress and given that his ill-treatment complaint had not been duly investigated. The court also indicated a number of contradictions between the first applicant’s confessions and the case-file materials.
62. On an unspecified date the additional investigation was completed and the case was referred to the trial court again.
63. On 26 January 2011 the Kharkiv Court found the first applicant guilty of murder for profit and sentenced him to fourteen years’ imprisonment with confiscation of all his personal property. It relied, in particular, on the first applicant’s initial confessions, which he had later retracted. Furthermore, the court referred to certain material evidence inculpating the first applicant (such as the hoe with his fingerprint found at the scene of the crime, and his shorts with a blood stain possibly originating from the victim). His allegations that he had been ill-treated and that the evidence against him had been fabricated were dismissed as unsubstantiated.
64. On 20 September 2011 the Higher Specialised Civil and Criminal Court quashed the above judgment mainly on the ground that Article 3 of the Convention and the Court’s case-law required a proper investigation of the first applicant’s allegations of ill-treatment, which had not been done. The Higher Court also remitted the case to the first-instance court for fresh examination.
65. On 4 July 2012 the Kharkiv Court once again found the first applicant guilty of murder for profit and sentenced him to fourteen years’ imprisonment with confiscation of all his personal property. The court relied, inter alia, on his confessions made on 28 June 2008 and further reiterated on 30 June 2008 in the presence of his lawyer (see paragraphs 19 and 22 above). It was noted in the judgment that the first applicant’s lawyer, who had represented him on the aforementioned dates, had been questioned and had stated that he had had a confidential conversation with the first applicant prior to the first questioning and that there had been no violations of the criminal procedure.
66. As regards the first applicant’s allegation that he had been ill-treated on 28 June 2008, the court noted that the prosecution authorities had thoroughly investigated the matter and had decided not to institute criminal proceedings against the police officers concerned. The Kharkiv Court referred in this connection to the prosecutor’s decision of 18 May 2012 (see paragraph 53 above). At the same time, having regard to the ill-treatment allegation on the part of the second applicant, which was still under investigation, the Kharkiv Court decided not to rely on her statements incriminating the first applicant, which she had made during the pre-trial investigation.
67. In so far as the first applicant complained of his kidnapping by the police from the prosecutor’s office on 1 July 2008, the trial court noted that the investigation was ongoing and that it was not necessary to wait for its outcome for the pronouncement of the judgment.
68. The first applicant challenged the judgment on points of law. He submitted, in particular, that that there was no solid evidence proving his guilt and that the trial court had wrongly relied on his self-incriminating statements obtained under duress, without any adequate investigation of his ill-treatment complaint. He referred in this connection to the Court’s judgment in the case of Savin v. Ukraine (no. 34725/08, 16 February 2012), which concerned that applicant’s torture by K., the same police officer who was involved in the alleged ill-treatment of the applicants in the present case.
69. On 22 January 2013 the Higher Specialised Civil and Criminal Court upheld the judgment of the first-instance court and its reasoning.
II. RELEVANT DOMESTIC LAW AND PRACTICE
70. Article 365 § 2 of the Criminal Code provides for three to eight years’ imprisonment with a prohibition on holding certain offices or carrying out certain activities for a period of up to three years, and a fine, as punishment for exceeding one’s power by engaging in the violent or degrading treatment of a victim.
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
71. The applicants complained that they had been ill-treated by the police and that the officers concerned had escaped any liability in the absence of an effective investigation. They relied on Article 3 of the Convention, which reads:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
72. The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.
1. Alleged ill-treatment of the applicants
(a) The parties’ submissions
73. The first applicant submitted that he had been subjected to ill-treatment, which had caused him severe pain and suffering even though it had not resulted in any significant injuries for him. He referred, in particular, to the expert reports of 23 December 2008 and 12 July 2012 (see paragraphs 44 and 55 above) as evidence in support of his allegations.
74. The second applicant maintained her complaint too. She submitted that, following her ill-treatment by the police, she had not felt well and had had to seek medical assistance. The second applicant also referred to the undisputed fact that during the night on 2 July 2008 the prosecution officials had found her in tears locked in one of the offices of the police station (see paragraph 28 above).
75. The Government argued that the first applicant’s allegations lacked convincing evidence. They noted that he had maintained his confession even during his questionings in the presence of his lawyer on 28 and 30 June 2008.
76. The Government also questioned the veracity of the second applicant’s allegation. In their view, had she indeed been ill-treated as alleged, there would have been at least some injuries. However, the Government emphasised that the second applicant had herself admitted that she had not sustained any injuries. They also observed that she had never challenged any of the prosecution authorities’ refusals to launch a criminal investigation in respect of her ill-treatment complaint.
(b) The Court’s assessment
77. 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).
78. In assessing evidence, the Court has adopted the standard of proof “beyond reasonable doubt”. According to its established case-law, proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Furthermore, it is to be recalled that Convention proceedings do not in all cases lend themselves to a strict application of the principle affirmanti incumbit probatio. Where the events in issue lie within the exclusive knowledge of the authorities, as in the case of persons under their control in custody, strong presumptions of fact will arise in respect of injuries and death occurring during that detention. The burden of proof in such a case may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, §§ 151 and 152, ECHR 2012, with further case-law references).
79. Turning to the present case, the Court takes note of the medical documents proving that the first applicant sustained some bruises and sores while in police custody. More specifically, these are three forensic medical examination reports (of 4 July and 23 December 2008 and of 12 July 2012 - see paragraphs 32, 44 and 55 above). Moreover, the report of 12 July 2012, which was delivered by a panel of experts, stated that the first applicant could have sustained his injuries at the time and under the circumstances as alleged by him. Those findings have never been refuted. Furthermore, the Court notes that the authorities did not advance any alternative explanation regarding the origin of the first applicant’s injuries, apart from a general observation that some of those were located on the part of his body reachable for self-infliction (see paragraphs 45 and 49 above). Accordingly, the Court considers the State to be responsible for those injuries.
80. As regards the second applicant, the Court notes that indeed her examination on 2 July 2008 did not reveal any injuries. The Court does not consider, however, this fact alone to undermine the credibility of her ill-treatment allegation. Thus, the Court is well aware that there are methods of applying force which do not leave any traces on a victim’s body (see Boicenco v. Moldova, no. 41088/05, § 109, 11 July 2006). And, of course, the consequences of any intimidation, or indeed any other form of non-physical abuse, would in any event have left no visible trace (see Hajnal v. Serbia, no. 36937/06, § 80, 19 June 2012).
81. The Court further notes that the second applicant’s later examination on 5 July 2008 documented bruises on the soft tissues of her head. That conclusion appears concordant with the second applicant’s account of the events (see paragraphs 21 and 34 above).
82. The Court also attaches weight to the established fact that in the evening on 1 July 2008 the applicants were forcefully taken by the police from the office of the prosecutor in spite of the latter’s objections. The prosecution authority proved unable to protect them from that virtual kidnapping. The Court considers that even if there were no physical ill-treatment of the applicants as such during the aforementioned events, they must have undoubtedly suffered anxiety and fear, as well as utter helplessness and vulnerability.
83. Lastly, it does not escape the Court’s attention that, as pointed out by the applicants, one of the police officers actively involved in their ill-treatment, K., has been mentioned by the Court in the case of Savin (cited above). Indeed, it was established by the domestic courts in that case that K. had severely ill-treated the applicant back in 1999, but the charges were dropped as time-barred. The Court classified that ill-treatment as torture given that it had resulted in the applicant’s disability for life. It also noted that K. had however built a successful career in the police as of March 2010 (see, in particular, §§ 59-73 of the cited judgment). In the present case, the behaviour of K. and his colleagues, as described by the applicants, can only be interpreted as a demonstration of ultimate impunity and arbitrariness.
84. In the light of all the foregoing, the Court considers it sufficiently established that both applicants suffered ill-treatment in the hands of the police in breach of Article 3 of the Convention.
85. There has therefore been a violation of the substantive limb of that provision in respect of both applicants.
2. Effectiveness of the investigation
86. The applicants submitted that the investigation into their allegations of ill-treatment had been superficial and lacked independence.
87. The Government contested that argument. They maintained that the investigation had been launched without delay and that all the essential investigative steps had been taken to verify the applicants’ allegations. The fact that those allegations had proved unsubstantiated was not an indication of the ineffectiveness of the domestic investigation.
88. 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).
89. In the present case the Court has found that the respondent State was responsible under Article 3 for the applicants’ ill-treatment (see paragraphs 84 and 85 above). The authorities therefore had an obligation to investigate it in accordance with the aforementioned effectiveness standards.
90. The Court notes that the authorities launched a criminal investigation into the matter without delay. Thus, the first applicant complained of his ill-treatment for the first time on 30 June 2008. Subsequently, on 1 July 2008 the alleged ill-treatment of both applicants was brought to the attention of the prosecution authorities. On the following day a criminal case was opened, both applicants were afforded victim status and questioned in that capacity (see paragraphs 23-24 and 29-31 above). However, the first questioning of the police officers concerned took place more than a month later. The police department explained that delay by the fact that all the three officers were on sick leave and that their whereabouts could not be established (see paragraph 37-39 above). The Court considers the aforementioned reasons unconvincing.
91. The Court observes that the domestic investigation lasted for over four years (from July 2008 to October 2012) and resulted in the refusal of the prosecution authorities to institute criminal proceedings against the police officers. It is noteworthy that, prior to that decision, the investigation had been dropped and re-opened about eight times, each time having been criticised by the higher authorities as being incomplete or superficial (see, in particular, paragraphs 52 and 56 above).
92. The Court further notes that four forensic examinations of the first applicant or of his medical file were carried out at various dates in 2008 and 2010 (see paragraphs 14, 31, 43 and 48 above). However, on 11 June 2012 the prosecution authorities decided to order yet another such examination, this time by a panel of experts, having concluded that those carried out earlier had been inconsistent in their findings. Although the subsequent expert examination corroborated the first applicant’s allegation regarding the origin of his injuries, no further consideration was apparently given to that conclusion (see paragraphs 54 and 55 above).
93. As regards the second applicant, the Court observes that her medical examination on 2 July 2008 in fact failed to assess her complaint of headaches closely linked to her allegation of ill-treatment. Nor did the investigation assess the medical finding of 5 July 2008, according to which the second applicant had bruises to the head (see paragraphs 33 and 34 above).
94. The Court notes that in the case of Kaverzin v. Ukraine (no. 23893/03, §§ 173-180, 15 May 2012) it 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. The Court concludes that, in the light of the circumstances of the case and in line with its earlier case-law, in the present case, too, the domestic authorities failed in their procedural obligation to effectively investigate the allegations of ill-treatment.
95. There has therefore also been a violation of Article 3 of the Convention under its procedural limb too in respect of both applicants.
II. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (c) OF THE CONVENTION IN RESPECT OF THE FIRST APPLICANT
96. The first applicant complained under Article 6 §§ 1 and 3 (c) of the Convention that his self-incriminating statements obtained under duress and without the presence of a lawyer had been used for his conviction. The provisions relied on read as follows in the relevant part:
“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.”
97. 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.
1. The parties’ submissions
98. The first applicant submitted that his initial confession of 28 June 2008 had been the result of his severe ill-treatment by the police, while he had had no access to a lawyer. The first applicant noted that he had maintained his confessions during the subsequent investigative measures in the presence of the appointed lawyer later on 28 and 30 June 2008 while still remaining under the effect of his ill-treatment and fearing that it would be repeated. He observed that the domestic courts had relied on those confessions, even if not to a decisive degree, for securing his conviction without due verification of his allegations of ill-treatment.
99. The Government submitted that, firstly, the domestic courts had relied only on the first applicant’s confessions given in the presence of his lawyer and, secondly, they had not been decisive or sole evidential basis for securing his conviction. The Government also emphasised that the first applicant had had an adversarial trial, which had given him the opportunity to raise any arguments he considered relevant as well as to challenge any evidence.
2. The Court’s assessment
(a) General principles
100. The Court reiterates that the requirements of paragraph 3 of Article 6 are to be seen as particular aspects of the right to a fair trial guaranteed by paragraph 1 of that Article and thus they are to be examined together (see Van Geyseghem v. Belgium [GC], no. 26103/95, § 27, ECHR 1999-I). On the whole, the Court is called upon to examine whether the proceedings in their entirety were fair (see Balliu v. Albania, no. 74727/01, § 25, 16 June 2005).
101. The Court emphasises that, although not absolute, the right of everyone charged with a criminal offence to be effectively defended by a lawyer, assigned officially if need be, is one of the fundamental features of fair trial (see Krombach v. France, no. 29731/96, § 89, ECHR 2001-II). As a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right (see Salduz v. Turkey [GC], no. 36391/02, § 55, ECHR 2008). The right to defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction (ibid).
102. The Court has consistently viewed early access to a lawyer as a procedural guarantee of the privilege against self-incrimination and a fundamental safeguard against ill-treatment, noting the particular vulnerability of an accused at the early stages of the proceedings, when he is confronted with both the stress of the situation and the increasingly complex criminal legislation involved. Any exception to the enjoyment of this right should be clearly circumscribed and its application strictly limited in time. These principles are particularly called for in the case of serious charges, for it is in the face of the heaviest penalties that respect for the right to a fair trial is to be ensured to the highest possible degree by democratic societies (see Salduz, cited above, § 54).
103. The aforementioned principles of the right to defence and the privilege against self-incrimination are in line with the generally recognised international human rights standards, which are at the core of the concept of a fair trial and whose rationale relates in particular to the protection of the accused against abusive coercion on the part of the authorities. They also contribute to the prevention of miscarriages of justice and to the fulfilment of the aims of Article 6, notably equality of arms between the investigating or prosecuting authorities and the accused (see Salduz, cited above, § 53, Bykov v. Russia [GC], no. 4378/02, § 92, 10 March 2009, with further references, and Pishchalnikov v. Russia, no. 7025/04, § 68, 24 September 2009). The right not to incriminate oneself, in particular, presupposes that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused (see Jalloh v. Germany [GC], no. 54810/00, § 100, ECHR 2006-IX).
(b) Application of the above principles to the present case
104. The Court notes that the first applicant was de facto detained and questioned as a suspect in respect of the murder of Mr L. from 10 p.m. on 27 June to 8.15 p.m. on 28 June 2008. While he did not make any self-incriminating statements during his questioning on 27 June 2008, on the following day he confessed to the murder. By virtue of the Court’s case-law principles, the applicant was entitled to be assisted by a lawyer as from his very first questioning as a suspect by the police. However, he was not legally represented until his repeated questioning late in the evening on 28 June 2008. The Court therefore considers that his right to legal assistance was restricted on this account.
105. The Court also refers to its finding of a violation of Article 3 of the Convention in respect of the first applicant’s complaint of ill-treatment (see paragraphs 84 and 85 above). The Court therefore considers it established that the first applicant was subjected to ill-treatment during his questioning on 28 June 2008, which resulted in his initial confession.
106. It does not escape the Court’s attention that the first applicant maintained his confession in presence of the appointed lawyer during his repeated questioning later on 28 June 2008 (for the first time in his status of a criminal suspect) and during the reconstruction of the crime on 30 June 2008. It is noteworthy, however, that his original confession formed part of the case file. It thus affected the investigation strategy and set the framework within which the first applicant’s further defence had to be mounted.
107. Furthermore, having regard to the fact that the first applicant was questioned for the first time in the presence of his lawyer only a few hours after his ill-treatment, the Court does not consider it unlikely that he was still under the effect of that ill-treatment. Likewise, the events of 1 July 2008 (namely, the applicants’ unhindered kidnapping by the police officers, who had earlier ill-treated them, directly from the prosecutor’s office) indicate to the Court that the first applicant remained vulnerable and had reasons to fear further ill-treatment. This could explain the fact that he continued to maintain his confession on 3 July 2008.
108. Another issue of relevance is the possible delay as regards the first applicant’s confidential communication with his lawyer. It remains unclear when it took place. The fact that only forty minutes after the reconstruction of the crime on 30 June 2008 the first applicant retracted his confession and decided to complain about his ill-treatment suggests that it might be then that he had been able to talk to his lawyer in private. At the same time, the lawyer himself stated that such a conversation had taken place before the first applicant’s questioning on 28 June 2008 (see paragraph 22 above). The Court would not, however, be inclined to take that statement at face value given that the drastic change in the first applicant’s position on 30 June 2008 remained unexplained.
109. The Court further notes that the domestic courts relied on the first applicant’s confessions, along with some other evidence, with a view to securing his conviction. They failed, however to establish in a convincing manner that those confessions had been made in full freedom. Thus, in its judgment of 4 July 2012 the trial court dismissed the first applicant’s complaint of ill-treatment with the reference to the prosecutor’s decision of 18 May 2012 refusing to open a criminal case in respect of the police officers. If the court had sought at least to obtain a factual update on the matter, it would have noticed than meanwhile, on 11 June 2012, a higher-level prosecution authority had in fact stated that the origin of the first applicant’s injuries had never been established and had therefore ordered a repeated forensic medical examination to that effect (see paragraphs 53-55 and 65-66 above). Although the Higher Specialised Court had once quashed the first instance court’s judgment for its failure to duly examine the first applicant’s ill-treatment complaint, there appears no indication in the subsequent judgment of any further efforts having been made in that regard.
110. In the light of all the foregoing, the Court considers that the first applicant’s right to freedom against self-incrimination and to legal assistance were unduly restricted during his initial questionings by the police, and that that restriction was not remedied in the course of his trial.
111. This suffices for the Court to conclude that there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention in respect of the first applicant.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
112. 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.”
113. The first applicant claimed 50,000 euros (EUR) in respect of non-pecuniary damage. The second applicant claimed EUR 8,000 under this head.
114. The Government contested these claims as unsubstantiated and exorbitant.
115. The Court considers that the applicants suffered non-pecuniary damage on account of the violations of their rights under Article 3 of the Convention, which cannot be compensated for by the mere finding of a violation of his 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 first applicant EUR 9,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount. The Court also awards the second applicant EUR 4,500 under this head, plus any tax that may be chargeable.
116. The Court further notes that where an individual, as the first applicant 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, Leonid Lazarenko v. Ukraine, no. 22313/04, § 65, 28 October 2010).
B. Costs and expenses
117. The first applicant claimed EUR 14,970 in respect of his legal representation, which comprised about 95 hours of legal work in the domestic proceedings at EUR 60 per hour, and about 93 hours of work in the proceedings before the Court at EUR 100 per hour.
118. In addition, the first applicant claimed EUR 1,047.9 in compensation for administrative expenses. This amount was calculated as being equal to 7% of the legal fees mentioned above.
119. To substantiate that claim, the first applicant submitted a legal assistance contract with Mr Tokarev of 22 December 2008, which stipulated that it would remain valid until the completion of the proceedings in Strasbourg and that payment would be made thereafter and within the limits of the sum awarded by the Court, or any domestic court, in costs and expenses. The first applicant also submitted five time-sheets and expense reports completed by Mr Tokarev in respect of the work done over the period from September 2009 to September 2014.
120. The Government contested the above claims.
121. The Court must establish, firstly, whether the costs and expenses indicated by the first applicant were actually incurred and, secondly, whether they were necessary (see McCann and Others v. the United Kingdom, 27 September 1995, § 220, Series A no. 324).
122. 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 first applicant the sum of EUR 5,000 covering costs under all heads.
C. Default interest
123. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the application admissible;
2. Holds that there has been a violation of Article 3 of the Convention under its substantive limb in respect of both applicants;
3. Holds that there has been a violation of Article 3 of the Convention under its procedural limb in respect of both applicants;
4. Holds that there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention in respect of the first applicant;
(a) that the respondent State is to pay 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) to the first applicant:
(α) EUR 9,000 (nine thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(β) EUR 5,000 (five thousand euros), plus any tax that may be chargeable to the first applicant, in respect of costs and expenses; and
(ii) to the second applicant: EUR 4,500 (four thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(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 applicants’ claims for just satisfaction.
Done in English, and notified in writing on 18 June 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Westerdiek Mark Villiger