(Applications nos. 2278/03 and 6222/03)
20 May 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 Lopatin and Medvedskiy v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
Peer Lorenzen, President,
Mirjana Lazarova Trajkovska, judges,
Mykhaylo Buromenskiy, ad hoc judge,
and Claudia Westerdiek, Section Registrar,
Having deliberated in private on 27 April 2010,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
II. RELEVANT DOMESTIC LAW
A. Constitution of Ukraine
“Everyone has the right to respect for his or her dignity.
No one shall be subjected to torture, cruel, inhuman or degrading treatment or punishment that violates his or her dignity. ...”
“Every person has the right to freedom and personal inviolability.
No one shall be arrested or held in custody other than pursuant to a reasoned court decision and only on grounds of and in accordance with a procedure established by law.
In the event of an urgent necessity to prevent or stop a crime, bodies authorised by law may hold a person in custody as a temporary preventive measure, the reasonable grounds for which shall be verified by a court within seventy-two hours. The detained person shall be released immediately if he or she has not been provided, within seventy-two hours of the time of detention, with a reasoned court decision in respect of the holding in custody.
Everyone who has been arrested or detained shall be informed without delay of the reasons for his or her arrest or detention, apprised of his or her rights, and from the time of detention shall be given the opportunity to personally defend himself or herself, or to have the legal assistance of defence counsel.
Everyone who has been detained has the right to challenge his or her detention in court at any time.
The relatives of an arrested or detained person shall be informed immediately of his or her arrest or detention.”
B. Code of Criminal Procedure, 1960
C. Civil Code, 2003
Grounds of Responsibility for Non-Pecuniary Damage
“...2. Non-pecuniary damage shall be indemnified irrespective of the guilt of the government, governmental body of the Autonomous Republic of Crimea, local self-government, physical or legal person that inflicted it:
2) if damage to a physical person has resulted from his or her illegal imprisonment...”
D. The Act “on the procedure for the compensation of damage caused to a citizen by the unlawful actions of bodies of inquiry, pre-trial investigative authorities, prosecutors or courts” of 1 December 1994 (with amendments)
“Under the provisions of this Law a citizen is entitled to compensation for damage caused by:
(1) unlawful conviction, unlawful indictment, unlawful arrest and detention, unlawful conduct of a search, seizure of property during the investigation and trial, unlawful removal from work (office) or other procedural actions that interfere with a citizens’ rights;
(2) the unlawful imposition of administrative arrest or correctional labour, unlawful confiscation of property, the unlawful imposition of a fine;
(3) the unlawful conduct of search and seizure activities provided for by the Laws of Ukraine on “Search and Seizure Activities”, “the Organisational Legal Basis for Combating Organised Crime”, and other legal acts.
In the cases indicated in part 1 of this section, the damage sustained shall be compensated in full irrespective of the guilt of the officials of the bodies of inquiry, the pre-trial investigative authorities, prosecutors or courts.”
“The right to compensation for damage in the amount, and in accordance with the procedure, established by this Law shall arise in cases of:
(1) acquittal by a court;
(2) the termination of a criminal case on grounds of the absence of proof of the commission of a crime, the absence of corpus delicti, or a lack of evidence of the accused’s participation in the commission of the crime;
(3) the refusal to initiate criminal proceedings or the termination of criminal proceedings on the grounds stipulated in paragraph 2 of part 1 of this section;
(4) the termination of proceedings for an administrative offence.
The right to compensation for damage caused by the search and seizure activities indicated in section 1 of this Law, conducted prior to the institution of criminal proceedings, arises in the cases set out in paragraph 1(1) of part 1 of section 1, or in cases in which no decision was taken on instituting criminal proceedings within six months of the conduct of such activities, as a result of which such activities ... were cancelled.”
“In the cases referred to in section 1 of this Law the applicant shall be compensated for ...
(5) non-pecuniary damage.”
“... Compensation for non-pecuniary damage shall be awarded in cases in which unlawful actions by bodies of inquiry, pre-trial investigative authorities, prosecutors or courts have caused non-pecuniary losses to a citizen or led to the disruption or the need for additional effort in the organisation of his or her life.
Non-pecuniary damage shall be defined as the suffering caused to a citizen due to physical or psychological influence resulting in a deterioration or deprivation of his or her ability to act in accordance with his or her usual habits and wishes, a deterioration in his or her relations with the people around him or her, or other adverse effects of a non-pecuniary nature.”
“(1-1) the finding in a judgment by a court or other decision by a court (except a ruling or decision of a court on remittal of the case for further investigation or for retrial) of the fact of unlawful indictment, unlawful arrest and detention, the unlawful conduct of a search, seizure of property during the investigation and trial, unlawful removal from work (office), other procedural actions that interfere with citizens’ rights, or the unlawful conduct of search and seizure activities;”
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
1. Alleged ill-treatment by the police
2. Alleged failure to carry out an effective investigation
66. Where an individual raises an arguable claim that he or she has been seriously ill-treated by the police in breach of Article 3, that provision, read in conjunction with the State’s general duty under Article 1 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. This investigation should be capable of leading to the identification and punishment of those responsible (see Assenov and Others v. Bulgaria, 28 October 1998, § 102, Reports 1998-VIII, and Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000-IV). The minimum standards of effectiveness defined by the Court’s case-law also include the requirements that the investigation must be independent, impartial and subject to public scrutiny, and that the competent authorities must act with exemplary diligence and promptness (see, for example, Isayeva and Others v. Russia, nos. 57947/00, 57948/00 and 57949/00, §§ 208-13, 24 February 2005).
II. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent court;
(b) the lawful arrest or detention of a person for non- compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so...”
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
“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.”
IV. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Joins to the merits the Government’s contentions concerning the exhaustion of domestic remedies in respect of the applicants’ complaints under Articles 3 and 13 of the Convention; and rejects them after an examination on the merits;
2. Declares the remainder of the applications admissible;
3. Holds that there has been a violation of Article 3 of the Convention as regards the applicants’ ill-treatment;
4. Holds that there has been a violation of Article 3 of the Convention as regards the absence of an effective investigation into the applicants’ allegations of ill-treatment;
5. Holds that there has been a violation of Article 5 § 1 of the Convention in respect of the applicants’ unreported detention between 10 and 13 July 1999;
6. Holds that there is no need to examine the complaints under Article 13 of the Convention;
7. Holds that there has been a violation of Article 6 § 1 of the Convention as regards the length of criminal proceedings against the applicants;
(a) that the respondent State is to pay Mr Lopatin, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 8,000 (eight thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into Ukrainian hryvnias at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
9. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 20 May 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen