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ALEKSANDR SMIRNOV v. UKRAINE - 38683/06 [2010] ECHR 1117 (15 July 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/1117.html
Cite as:
[2010] ECHR 1117
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FIFTH
SECTION
CASE OF
ALEKSANDR SMIRNOV v. UKRAINE
(Application
no. 38683/06)
JUDGMENT
STRASBOURG
15
July 2010
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 Aleksandr Smirnov v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer
Lorenzen,
President,
Karel
Jungwiert,
Rait
Maruste,
Mark
Villiger,
Isabelle
Berro-Lefèvre,
Mirjana
Lazarova Trajkovska,
Ganna
Yudkivska,
judges,
and
Claudia Westerdiek, Section
Registrar,
Having
deliberated in private on 22 June 2010,
Delivers
the following judgment:
PROCEDURE
The
case originated in an application (no. 38683/06) against Ukraine
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Ukrainian national, Mr Aleksandr
Vladimirovich Smirnov (“the applicant”), on 15 September
2006.
The
applicant, who had been granted legal aid, was represented by Ms A.
Mukanova, a lawyer practising in Kharkiv. The Ukrainian Government
(“the Government”) were represented by their Agent,
Mr Y. Zaytsev.
The
applicant alleged, in particular, that he had been ill-treated by the
police and that the domestic authorities had failed to adequately
investigate his complaints in that regard.
On
5 March 2009 the Court decided to give notice of the application
to the Government. It was also decided to examine the merits of the
application at the same time as its admissibility (Article 29 §
3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1970 and lives in Yevpatoriya.
A. Alleged ill-treatment and related events
On 26 March 2002 the applicant was arrested on
suspicion of theft. He was taken to Yevpatoriya Police Base
Station No. 8 («Опорний
пункт охорони
правопорядку
№ 8»),
where the police body-searched him and discovered, in the presence of
two attesting witnesses, two packets of opium extract. The record
of the search and seizure, which contained a signature appearing to
be that of the applicant, indicated that he had admitted having
bought those drugs for his own use. However, once the drug seizure
was documented, the applicant cut his neck with his key-ring as an
indication of protest. The police called an ambulance, which
documented the injury as being of a minor nature and provided the
applicant with the required aid.
The
applicant was placed under three-day administrative detention pending
clarification of all the circumstances of the supposed drug offence.
On
the same date he was delivered to the Yevpatoriya Local Police
Precinct («РОВД м.
Євпаторія»),
where, according to the applicant, police officer R. beat him
severely.
According
to the applicant, R. asked him not to raise any complaints in
exchange for a promise that the police would turn a blind eye to any
future misdemeanours from his side. The applicant accepted this.
On
26 March 2002 he was delivered to the Yevpatoriya Temporary Detention
Facility, where he was placed in a cell shared by some twelve
inmates. According to the registration journal, he arrived there
without any visible bodily injuries. During the three days of his
detention he did not request or receive any medical assistance.
On
29 March 2002 the applicant was released.
On
15 April 2002 he complained to a traumatologist in the Yevpatoriya
hospital that he was suffering from pain in the chest and was
prescribed some antibacterial medication.
Having
repeatedly sought medical assistance for continuous pain, on 22 April
2002 the applicant was diagnosed with post-traumatic intercostal
neuralgia and painful hypodermic indurations from both sides of the
rib cage. He told the doctor that he had accidentally fallen down
some stairs on 13 April 2002.
On
25 April 2002 the applicant was hospitalised with the following
diagnoses: right-lung pneumonia concentrated in the inferior lobe,
fracture of the middle third of the breastbone and closed fracture of
the seventh rib on the right side. He underwent treatment as an
in-patient until 8 May 2002.
B. Investigation of the alleged ill-treatment
On
22 January 2003 the applicant complained to the Yevpatoriya Town
Prosecutor’s Office (“the Yevpatoriya Prosecutor”)
that on 26 March 2002 he had been beaten up by police
officer R., as a result of which he had several rib fractures. He
explained the delay in bringing that complaint by the alleged
agreement with R. (see paragraph 9 above), which he considered to
have been breached.
On
29 January 2003 the hospital where the applicant had been treated
submitted all the related medical documentation (namely the X-ray
films, the medical history sheet and other medical records) to the
Yevpatoriya Deputy Prosecutor at the latter’s request. As it
would be later admitted in the course of the investigation, the
content of those documents was never reflected in the investigation
paperwork.
Overall,
in the period from January 2003 to December 2007 the Yevpatoriya
Prosecutor refused thirteen times to open a criminal case against R.
on the basis of the applicant’s complaints. All those refusals
were subsequently quashed by the Crimea Prosecutor or by the
Prosecutor General as unlawful, premature or groundless.
The
major investigative steps taken and the omissions indicated by the
higher-level prosecution authorities were as follows.
In
January 2003 the Yevpatoriya Prosecutor questioned police officer R.
and the investigator dealing with the applicant’s own criminal
case, who denied the alleged ill-treatment.
In
October 2003 the ambulance doctors who had provided the applicant
with medical aid on account of the cut to his throat on 26 March 2002
were questioned and noted that he had not raised any ill treatment
allegations, whereas the cut itself had been an insignificant injury.
The therapist who had hospitalised the applicant in April 2002
was also questioned, but could not remember any details.
At
about the same time it was found out that the medical documentation
seized earlier from the hospital was missing.
In
February 2004 the Crimea Prosecutor criticised his lower-level
colleague for not having questioned the applicant and his family
members. Among the other omissions he pointed out the failure to
conduct a medical forensic examination of the applicant with a view
to establishing the nature, date and gravity of the injuries
complained of.
That
criticism was repeated in June, August and November 2004.
On
25 November 2004 a forensic medical examination was conducted to
clarify which of the applicant’s versions concerning the date
and origin of his injuries – from the alleged beatings on
26 March 2002 or from the accidental fall on 13 April 2002
– was more plausible. The examination was limited to an
analysis of the few medical documents which were available and
concluded that both dates were possible for the applicant’s
injuries at issue, whereas their nature and origin could not be
established in the absence of the X-ray films of the material time,
as well as the other essential medical documentation (see paragraphs
16 and 21 above).
In
December 2004 the attested witnesses present at the applicant’s
arrest on 26 March 2002 stated that they had not witnessed any
ill treatment.
The
applicant’s mother, who was questioned in January 2005, stated
that after his release on 29 March 2002 the applicant had complained
that he had been beaten by the police and of pain in the chest.
On
4 January 2005 the Crimea Prosecutor instructed the investigator,
inter alia, to find the applicant’s medical
documentation and to question the inmates with whom he had been
sharing a cell in March 2002.
In
February and April 2005 efforts were taken to find the applicant’s
cellmates. The whereabouts only of four of them were established.
Three inmates did not remember the applicant complaining of
ill-treatment or being in need of medical aid, whereas the fourth one
mentioned that the applicant had complained to him that he had been
beaten by the police without giving any further details.
On
21 April 2006 the Crimea Prosecutor criticised the investigator for
not having undertaken an inquiry in respect of the loss of the
applicant’s medical documents. In June 2006 such an inquiry was
held, but to no avail. The Yevpatoriya Deputy Prosecutor stated that
he had handed the documents to his superior, who had retired in
October 2003 and whose current place of residence was unknown.
On
22 June 2006 another forensic medical examination was held. It
confirmed the conclusions of the earlier one, also referring to the
absence of the X-ray films as an impediment to more specific
conclusions.
In
January 2007 the applicant was questioned for the first time in the
framework of the investigation of his allegation of ill-treatment.
The administration of the prison where he was serving his sentence at
the time questioned him at the investigator’s request.
According to the investigation documents, he stated that he had
earlier explained his injuries by an accidental fall because he did
not want to bring the police officer to criminal liability, without
giving any further details.
On
9 January 2007 the applicant was X-rayed, as a result of which a
consolidated fracture of one rib was confirmed. The film was lost in
the course of 2007.
On
4 December 2007 the Crimea Prosecutor noted that the investigation
had fallen short of meeting any of its or the Prosecutor General’s
earlier instructions, given on eleven occasions.
On
30 January 2008 the third forensic medical examination was held. This
time it was based on a visual examination of the applicant and took
place in the prison where he was serving his sentence. As the X-ray
films both of April 2002 and of January 2007 remained missing
and the X ray machine in the prison was not operational, the
expert made a general conclusion that the applicant might have had
his rib broken in April 2002. In any event, it appeared
impossible to clearly establish the date, nature and origin of his
injuries given the considerable lapse of time. The report contained a
general observation that, as a rule, establishing the precise time of
a fracture was possible only within a year after it had taken place,
as later consolidated fractures appear the same.
On
31 January 2008 the Yevpatoriya Prosecutor issued the fourteenth and
last decision on the refusal to open criminal proceedings against
police officer R. on the basis of the applicant’s complaints.
It noted that all possible investigative measures had been taken, but
had failed to yield any substantiation of the applicant’s
allegations.
On
19 May, 18 November 2008 and 3 June 2009 respectively the
Yevpatoriya Town Court (“the Yevpatoriya Court”), the
Crimea Court of Appeal (“the Court of Appeal”) and the
Supreme Court upheld the above ruling. The reasoning of the three
courts was confined to a finding that the requirements of Article 99
of the Code of Criminal Procedure had been fulfilled, with no facts
established in proof of the applicant’s allegation.
C. Criminal proceedings against the applicant
1. The first set
On
24 July 2002 and 18 March and 23 September 2003 respectively, the
Yevpatoriya Court, the Court of Appeal and the Supreme Court found
the applicant guilty of possession of illegal drugs and theft and
sentenced him to three years and six months’ imprisonment.
On
25 November 2002 the applicant was arrested (with the reasons for the
delay before his arrest being unclear).
2. The second set
On
20 May 2003 the Yevpatoriya Court found the applicant guilty of some
fifteen counts of theft committed during October and November 2002
and sentenced him to four years’ imprisonment. The final
sentence under both verdicts – of 24 July 2002 and of
20 May 2003 – was set at six years.
The
applicant appealed against the charge of the drug offence.
On
2 September 2003 the Court of Appeal rejected the appeal as related
to another verdict (of 24 July 2002).
On
12 May 2005 the Yevpatoriya Court rejected the applicant’s
request that his mother be allowed to represent him, referring to the
fact that both verdicts against him had entered into force.
3. Other events
On
22 November 2008 the applicant was released from prison, having
served his sentence in full.
In
December 2008 he was provided with an opportunity to copy the entire
case file.
On
4 August 2009 he underwent computer tomography, which revealed old
fractures of the breastbone and three ribs.
II. RELEVANT DOMESTIC LAW
Pursuant to Article 99 of the Code of Criminal
Procedure, a prosecutor, an investigator, an enquiry body or a court
shall refuse to open a criminal case if there are no grounds for
deciding otherwise.
Other relevant legal provisions can be found in the
Spinov v. Ukraine judgment, no. 34331/03, §§ 32-33,
27 November 2008.
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLE 3 OF THE CONVENTION
The
applicant complained that he had been ill-treated by the police on 26
March 2002 and that there had been no effective investigation into
the matter. Although he relied on Articles 3 and 13 of the
Convention, the Court considers that these complaints fall to be
examined solely under Article 3, which reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Admissibility
The Court notes that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It is not inadmissible on any other grounds and must
therefore be declared admissible.
B. Merits
1. The parties’ submissions
The
Government denied the applicant’s allegation of ill-treatment
as not corroborated by any conclusive evidence. They noted that he
had sought medical assistance on that account neither during his
detention between 26 and 29 March 2002 nor until more than two weeks
after his release. He could have sustained the injuries complained of
while at liberty, as he had himself stated when consulting a doctor
in April 2002. The Government also found the applicant’s
explanations as regards his ten-month delay in raising this complaint
unconvincing, which, according to them, had rendered futile all the
subsequent investigation despite its thoroughness. They considered
that the authorities had verified his allegation to the best of their
efforts and had no choice but to dismiss it as unsubstantiated.
The
applicant maintained his allegation, asserting that none of the
medical examinations had in fact contradicted it. As regards the
investigation, he submitted that it had been lengthy and inefficient.
The applicant pointed out, in particular, some deficiencies which
had, in his opinion, seriously undermined it, such as the loss of the
essential medical documents and the delays in conducting the forensic
medical examinations.
2. The Court’s assessment
(a) As regards the alleged ill-treatment
The
Court notes at the outset that the injuries complained of, namely
multiple rib fractures, are sufficiently serious to amount to
ill-treatment falling within the scope of Article 3 of the
Convention (see, for example, Gladyshev v.
Russia, no. 2807/04, §§ 54-58,
30 July 2009). The question arises whether the State authorities
should be held responsible for them.
The
Court reiterates that allegations of ill-treatment must be supported
by appropriate evidence. In assessing evidence, the Court has
generally applied the standard of proof “beyond reasonable
doubt”. However, such proof may follow from the coexistence of
sufficiently strong, clear and concordant inferences or of similar
unrebutted presumptions of fact (see Ireland v. the United
Kingdom, 18 January 1978, § 161, Series A no. 25).
In
the present case the only common ground between the parties is the
fact that the applicant had sustained some rib fractures, whereas
they disagreed on the time and the origin of those injuries and
disputed whether they had resulted from the use of force by the
police (see and compare with Stoica v. Romania, no. 42722/02,
§§ 48 and 66, 4 March 2008). The medical
evidence, which consists of three forensic reports (see
paragraphs 24, 30 and 34 above), does not elucidate the matters
disputed. The Court further notes that the applicant failed to
produce any other strong evidence corroborating his allegations, such
as eyewitness statements (as, for example, in Muradova
v. Azerbaijan, no. 22684/05, §§ 51-52
and 108, 2 April 2009) or documents showing that he had entered
the police premises in good health but left it having sustained
injuries (see Selmouni v. France [GC], no. 25803/94, §
87, ECHR 1999 V, with further references).
That
being so, the Court finds it impossible to establish “beyond
reasonable doubt” whether or not the applicant’s injuries
were caused by the police as he alleged and concludes that there has
been no violation of Article 3 of the Convention under its
substantive limb.
(b) As regards the adequacy of the
investigation
The Court underlines that where an individual raises
an arguable claim that he has been seriously ill-treated by the
police or other such agents of the State unlawfully and in breach of
Article 3, that provision requires by implication that there should
be an effective official investigation capable of leading to the
identification and punishment of those responsible. If this were not
the case, the general legal prohibition of torture and inhuman and
degrading treatment and punishment would 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).
Although
in the present case the Court has not found it proved, on account of
lack of evidence, that the applicant was ill-treated in the hands of
the police, nonetheless, as it has held in previous cases, that does
not in principle preclude the complaint in relation to Article 3 from
being “arguable” for the purposes of the positive
obligation to investigate (see Böke and
Kandemir v. Turkey, nos. 71912/01,
26968/02 and 36397/03, § 54, 10 March 2009). The Court
notes that the applicant alleged before the domestic authorities that
he had been seriously ill-treated by the police. The credibility of
that allegation could have been verified on the basis of the
applicant’s medical documentation of April 2002. However, even
though the prosecutor seized the relevant documents shortly after the
applicant had lodged his complaint, those documents not only remained
without any evaluation, but went missing altogether while in the
authorities’ possession. This omission makes it more difficult
for the Court to determine whether there was a reasonable suspicion
underlying the applicant’s allegation which would engage the
authorities’ obligation effectively to investigate it. At the
same time, the Court is mindful of the fact that the responsibility
for the aforementioned difficulty – the missing documents -
lies with the State authorities rather than with the applicant.
Furthermore, the Court does not lose sight of the findings of
subsequent medical forensic reports, none of which contradicted the
applicant’s allegations. In sum, there is nothing in the
case-file materials to convince the Court that the applicant’s
complaint of ill-treatment before the domestic authorities so devoid
of any reasonable suspicion that it merited no investigation. It
therefore finds that the State was bound in the present case by the
positive obligation to investigate the allegation in an efficient and
expedient manner.
The
Court reiterates that an obligation to investigate “is not an
obligation of result, but of means”: not every investigation
should necessarily be successful or come to a conclusion which
coincides with the claimant’s account of events; however, it
should in principle be capable of leading to the establishment of the
facts of the case and, if the allegations prove to be true, to the
identification and punishment of those responsible (see Paul and
Audrey Edwards v. the United Kingdom, no. 46477/99, § 71,
ECHR 2002 II, with further references). 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, cited above, §§ 103 et seq.).
The
Court notes that in the present case the applicant indeed did not
hurry to bring his allegation of ill-treatment to the authorities’
attention, whatever his thinking might be, having raised it for the
first time ten months after the complained-of event (see paragraph 15
above). The Court does not rule out that such a delay could in
principle have a negative impact on the efficiency of the
investigation. In the present case, however, there are no reasons to
regard it as a prima facie impediment for establishment of the
truth, for the investigation could have relied on the applicant’s
medical documentation of April 2002, or alternatively it could have
arranged for new X-rays, for which it was still not too late (see
paragraph 34 above). None of these measures was undertaken. As noted
above, the medical documentation of April 2002 disappeared from the
investigation paperwork without trace, whereas the applicant’s
new X-ray, taken only in January 2007, was not capable of
establishing the exact date of his injuries and, in any event, it too
was lost, in unclear circumstances. It is also noteworthy that,
firstly, the applicant did not fail to comply with any time-limits in
raising his complaint, and, secondly, the investigation authorities
themselves never invoked his delay as an obstacle to the
investigation.
The Court finds it remarkable that the investigation
did not question the applicant himself until four years after his
alleged ill-treatment had taken place, despite the repeated
instructions of the higher-level prosecution authorities in that
regard (see paragraphs 22, 23 and 31 above).
The
Court further observes that the investigation lasted overall for
about five years, having been discontinued and subsequently resumed
thirteen times. In the Court’s opinion, repeated remittals of a
case for further investigation may disclose a serious deficiency in
the domestic prosecution system (see, in the context of Article 6 of
the Convention, Wierciszewska v. Poland, no. 41431/98,
§ 46, 25 November 2003, applied in the context of
Article 3 in Kozinets v. Ukraine, no. 75520/01, § 61, 6
December 2007). Having regard to the reasons for the multiple
remittals in the present case, which were unambiguously indicated by
the Crimea Prosecutor or the Prosecutor General as largely based on
the unlawfulness, prematurity and groundlessness of the investigation
findings (see paragraph 17 above), the Court considers that such
remittals indeed disclose serious deficiencies in the investigation.
Its effectiveness is further undermined by the investigator’s
disregard for the instructions of the higher-level prosecutors, which
seemed to be a regular practice (see paragraphs 23 and 33
above).
Having
regard to the above-mentioned deficiencies, the Court concludes that
the State authorities failed to conduct a proper investigation into
the applicant’s allegations of ill-treatment.
There has accordingly been a violation of Article 3 of
the Convention under its procedural head.
II. ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION
The
applicant complained under Article 6 of the Convention that he had
not had sufficient time and facilities to prepare his appeal in the
first set of proceedings against him, whereas the second set of
proceedings had been unfair for various reasons.
The
Court notes that these complaints should be rejected as being outside
the six-month time-limit and for non-exhaustion of domestic remedies
respectively, pursuant to Article 35 §§ 1 and 4 of the
Convention.
III. ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION
The
applicant also alleged, relying on Article 34 of the Convention, that
he had encountered difficulties in collecting copies of documents in
support of his application.
The
Court notes that the applicant received all the documents which he
had intended to send to the Court in support of his application
having been able to copy the entire case file (see paragraph 44
above), and there is nothing to suggest any explicit or implicit
obstruction by the authorities in that respect. Accordingly, it
considers that the State cannot be considered to have failed to
comply with its obligations under Article 34 of the Convention
in the present case.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
The
applicant claimed 15,000 euros (EUR) in respect of non pecuniary
damage.
The
Government contested that claim.
The
Court considers that the applicant suffered non-pecuniary damage
which cannot be compensated 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, it awards
him EUR 6,000 in respect of non-pecuniary damage plus any tax
that may be chargeable.
B. Costs and expenses
The
applicant also claimed EUR 7 for postal expenses incurred in the
proceedings before the Court.
The Government left the matter to the Court’s
discretion.
According to the Court’s case-law, an applicant
is entitled to the reimbursement of costs and expenses only in so far
as it has been shown that these have been actually and necessarily
incurred and are reasonable as to quantum. In the present case,
regard being had to the information in its possession and the above
criteria, the Court considers it reasonable to award the claimed sum
of EUR 7 in respect of costs and expenses.
C. Default interest
The
Court considers it appropriate that the default interest 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
Declares the complaints under Article 3 of
the Convention admissible and the remainder of the application
inadmissible;
Holds that there has been no violation of
Article 3 of the Convention under its substantive limb;
Holds that there has been a violation of Article
3 of the Convention under the procedural limb;
Holds that Ukraine has not failed to comply with
its obligations under Article 34 of the Convention;
Holds
(a) that
the respondent State is to pay the applicant, within three months of
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 6,000 (six
thousand euros) in respect of non-pecuniary damage and EUR 7 (seven
euros) in respect of costs and expenses, to be converted into the
national currency of the respondent State at the rate applicable at
the date of settlement, plus any tax that may be chargeable;
(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;
Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 15 July 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia
Westerdiek Peer Lorenzen
Registrar President
