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TESLENKO v. UKRAINE - 55528/08 [2011] ECHR 2246 (20 December 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/2246.html
Cite as:
[2011] ECHR 2246
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FIFTH
SECTION
CASE OF TESLENKO v. UKRAINE
(Application no. 55528/08)
JUDGMENT
STRASBOURG
20
December 2011
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 Teslenko v.
Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Dean Spielmann,
President,
Elisabet Fura,
Karel
Jungwiert,
Boštjan M. Zupančič,
Mark
Villiger,
Ganna Yudkivska,
Angelika Nußberger,
judges,
and Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 29 November 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 55528/08)
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 Anatoliy Grigoryevich Teslenko (“the applicant”),
on 31 October 2008.
The
applicant was represented by Ms Zoya Shevchenko, a lawyer practising
in Kyiv. The Ukrainian Government (“the Government”)
were represented by their Agents, Mr Yuriy Zaytsev, succeeded by
Ms Valeria Lutkovska.
3. The
applicant alleged, in particular, that he had been tortured by police
and that the domestic authorities had failed to duly
investigate his complaint in that regard.
On
10 March 2010 the President of the Fifth Section
decided to give notice of the application to the Government.
It was also decided to rule on the admissibility and merits of the
application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1974. His present place of
residence is unknown.
A. Background events
On
4 August and 5 November 2003 Ms Z. and Ms G. were robbed in their
flats. The first robbery took place in the building where the
applicant’s acquaintance Ms M. lived, while the second victim
was her distant relative.
On
5 November 2003 the police questioned Ms M., who was suspected by one
of the victims. She stated that both robberies had been committed by
the applicant and his friends.
On
8 November 2003 Ms M. was hospitalised with a head injury and
concussion. On 10 November 2003 she complained to the Ministry of the
Interior that she had been coerced by the police into testifying
against the applicant. After this Ms M. went into hiding from the
authorities. Her complaint was later examined as part of the
applicant’s trial (see paragraph 14 below).
B. Criminal proceedings against the applicant
Late
in the evening of 5 November or during the early hours of 6 November
2003 the applicant was apprehended by the police on suspicion of the
robberies of Ms Z. and Ms G. His arrest was documented on 6 November
2003.
On
2 June 2004 the Solomyanskyy District Court of Kyiv (“the
Solomyanskyy Court”) severed the charge concerning the robbery
of Ms Z. and remitted the case in that part for additional
investigation. Its outcome is unknown.
While
it is not known when the applicant began to be legally represented,
it transpires from the aforementioned ruling of 2 June 2004, as well
as from the subsequent judicial decisions, that from that point
onwards one or sometimes two lawyers represented him in the course of
the trial.
Although
the applicant consistently denied guilt, both during the pre-trial
investigations and the trial, on 11 November 2004 the Solomyanskyy
Court found him guilty of the violent robbery of Ms G. and sentenced
him to seven years and six months’ imprisonment with
confiscation of all his personal property. The court relied on the
statements of the victim, who recognised the applicant as one of the
perpetrators, as well as the statements of a witness who had seen him
close to the crime scene around the time of the robbery. The court
further relied on the statements given by Ms M. during the pre-trial
investigation. It also heard statements from two defence witnesses,
according to which the applicant had spent the whole day with them on
5 November 2003, but did not trust the statements, deeming them
too general and contradictory.
On
24 May 2005 the Kyiv City Court of Appeal (“the Court of
Appeal”) quashed the judgment and remitted the case for
additional investigation, having pointed out a number of procedural
shortcomings.
On
22 May 2007 the Solomyanskyy Court delivered a new judgment, the
operative part of which was identical to the previous one. The court
additionally heard a number of defence witnesses who stated that they
had either spent the whole day on 5 November 2003 in the
applicant’s company or had seen him at various times on that
date. The court decided, however, that those statements were either
untruthful, because the witnesses were the applicant’s friends
and wanted to help him avoid criminal liability, or unrelated to the
precise time when the robbery had been committed. Ms M. was
questioned during the trial and retracted her earlier statements
incriminating the applicant as given under duress. However, the court
chose to rely on those earlier statements as more plausible and
concordant with the other facts. It noted, in particular, that she
had not requested a medical examination until two days after her
questioning by the police and that there was no evidence that the
injuries discovered had been inflicted on her in police custody.
While Ms M. contended that she had been hiding in fear that the
police might seek revenge, the court considered it more probable that
she had in fact been afraid that the applicant’s accomplices
who had not been detained might seek revenge.
On
5 February and 9 June 2008 the Court of Appeal and the Supreme Court
respectively upheld the aforementioned judgment.
On
12 August 2009 the applicant was released on parole.
C. The applicant’s alleged ill-treatment and its
investigation
According
to the applicant, the Chief and Deputy Chief of the Criminal
Investigation Unit of the Solomyanskyy District Police Department
(начальник
та заступник
начальника
відділу кримінального
розшуку Солом’янського
РУ ГУ МВС України
в м. Києві),
officers T. and Z., tortured him in the police station at
Povitroflotskyy Avenue during the night of 5-6 November 2003. They
allegedly sought, but failed to obtain, a confession from him to
several counts of robbery.
As
submitted by the applicant, T. and Z. punched and kicked him, forced
him to stand for a long time with his legs wide apart, attempted to
insert a truncheon into his anus, and put a plastic bag over his
head, stopping him from breathing. In the early hours of 6 November
2003 they allegedly took him to the police station garage, where they
forced him to undress, handcuffed him to a radiator and poured cold
water on him from a car-wash hose until he lost consciousness. After
the applicant regained consciousness, he found himself inside the
police station and was given a mug of hot water to drink and some
drops.
On
6 November 2003 the applicant wrote an “explanatory note”,
stating that he had accidentally fallen in the street the night
before and had received some injuries as a result. He noted that he
had no complaints against the police.
In
the afternoon of 6 November 2003 the applicant was taken to another
police station in Shutov Street, Solomyanskyy District, TUM-4
(Територіальне
управління
міліції № 4, ТУМ-4).
On
11 November 2003 the applicant’s mother complained to the
Ombudsman that he had been ill-treated in police custody.
On
12 November 2003 representatives of the Ombudsman visited the
applicant in TUM-4 and took photographs of his injuries. The
applicant provided the Court with seven colour photographs, which,
according to him, are those taken by the Ombudsman’s
representatives. From these photographs, the following injuries can
be seen on his body: a large bruise on the inner part of his left
thigh, a considerable number of bruises on the upper parts of both
buttocks, several sores and bruises on the front of both ankles, and
sores on the bridge of his nose. The date printed on the photographs
is 12 November 2003.
On
the same date the applicant gave an account of the 5-6 November
events to the Ombudsman’s representatives in writing. He
submitted that on 6 November 2003 he had been forced to write that he
had no complaints against the police.
On
13 November 2003 the Ombudsman wrote to the Ministry of the Interior
that the applicant’s situation called for investigation.
On
the same date a doctor examined the applicant and discovered sixteen
bruises on his face, arms, buttocks and legs (with the largest one
measuring 21 x 20 centimetres), as well as sores on his wrists and
feet. He concluded that the injuries were not serious, and that they
had been inflicted by blunt objects, possibly on 5 or 6 November
2003.
On
17 November 2003 an investigator of TUM-4 and the Chief Inspector of
Staff of the Kyiv Police Department (начальник
Інспекції по
особовому
складу РУ МВС
України)
questioned the applicant about his alleged ill-treatment.
On
21 November 2003 another investigator of TUM-4 ordered another
forensic medical examination aimed at answering the following
questions: whether the applicant had any injuries on his body and, if
so, how they had been inflicted; whether those injuries could have
been inflicted on 5 or 6 November 2003; and how serious
they were.
On
25 December 2003 the Solomyanskyy District Prosecutor’s Office
(“the SDPO”) instituted a criminal investigation, without
naming any specific individuals, into the allegation that
Solomyanskyy District police officers had exceeded their powers by
engaging in violent and degrading treatment of the applicant. The
investigation was entrusted to SDPO investigator N.
On
26 January 2004 a new forensic medical report confirmed the results
of the applicant’s medical examination of 13 November 2003.
On
9 February 2004 the investigator ordered another medical examination
to clarify: whether the applicant could have inflicted the injuries
on himself; whether he could have sustained those injuries by
falling; what his body position had been during the infliction of the
injuries; and whether he could have sustained them in self-defence.
On
12 February 2004 an expert report answered those questions as
follows: the injuries were to parts of the applicant’s body on
which self-infliction would be possible; the possibility that they
had been the result of a fall was excluded; and the remaining two
questions could not be answered.
In
the meantime, on 11 February 2004, the applicant was assigned victim
status.
On
6 April 2004 the investigator questioned the forensic medical expert,
who confirmed that the applicant could have sustained his injuries at
the time and under the circumstances described by him.
On
20 April 2004 the SDPO opened a criminal case against police officers
T. and Z. on suspicion of abuse of power associated with violence and
degrading treatment (Article 365 § 2 of the Criminal Code),
given that the applicant had recognised them as those who had
allegedly tortured him.
On
the same date those officers were suspended from duty.
On
30 April 2004 they were indicted, and the case was sent to the
Golosiyivskyy District Court of Kyiv (“the Golosiyivskyy
Court”).
On
9 August 2004 the Golosiyivskyy Court directed the SDPO to find out
with whom the applicant had shared cells from 6 to 12 November 2003
and to question these persons.
On
20 October 2004 the court referred the case back to the SDPO for
additional investigation, which was to clarify the origin of the
applicant’s injuries given that, on the one hand, they were to
parts of his body on which self-infliction would be possible and, on
the other hand, his cell-mates at the time had not been identified or
questioned.
On
22 January 2005 the forensic medical expert, repeatedly questioned by
the investigator, confirmed again her earlier findings that the
applicant’s injuries could have been inflicted as he had
described.
On
8 February 2005 formal charges were brought against T. and Z. under
Article 365 § 2 of the Criminal Code.
On
18 February 2005 the SDPO invited the Kyiv Chief of Police to
consider suspending T., who had resumed his work as a police officer
at some point in the meantime, from his duties.
On
25 March 2005 the SDPO approved a bill of indictment against T. and
Z. and sent the case to the Golosiyivskyy Court for examination.
On
26 April 2005 the trial began.
On
16 May 2005 the applicant lodged a civil claim seeking compensation
for non-pecuniary damage in the amount of 200,000 Ukrainian
hryvnias (UAH).
On
16 August 2005 the Golosiyivskyy Court found T. and Z. guilty and
sentenced them to four years’ imprisonment with a prohibition
on working in law-enforcement bodies for two years. The prison
sentence was suspended for two years on probation. The court also
awarded the applicant UAH 20,000 in compensation for non-pecuniary
damage, to be paid by the defendants.
While
both defendants admitted that they had questioned the applicant on
the night of 5-6 November 2003 in the police station at
Povitroflotskyy Avenue, they denied any coercion. However, the court
found that there was sufficient evidence to establish their guilt. It
took into account statements by several witnesses, who had seen the
applicant during the day before his arrest without any visible
injuries. Furthermore, the court relied on the statements of the
applicant’s cell-mates in TUM-4 at Shutov Street (where he had
been placed in the afternoon of 6 November 2003), who, on the one
hand, had seen numerous bruises and sores on his body, but, on the
other, denied any ill-treatment in TUM-4. Also, the police officers
who had escorted the applicant from the police station at
Povitroflotskyy Avenue to TUM-4 on 6 November 2006 stated that at
that time his face was already bruised and swollen. The court also
examined the photographs of the applicant taken by the Ombudsman’s
representatives on 12 November 2003 and relied on the
findings of the medical reports of 26 January and
12 February 2004. It noted that the applicant’s
description of the police station garage where he had allegedly been
ill-treated, was very detailed and subsequently confirmed as
accurate, which showed that he had indeed been there.
On
13 February 2006 the Court of Appeal quashed the judgment and
remitted the case for additional investigation. It concluded that the
investigation had been incomplete, mainly because it had failed to
establish how exactly the injuries had been inflicted on the
applicant.
On
22 March 2006 investigator S. of the SDPO took the case over.
On
21 April 2006 he ordered another forensic medical examination with a
view to clarifying the number, nature, location, origin and date of
each of the applicant’s injuries.
On
15 May 2006 an expert report was produced, which confirmed the
findings of the earlier reports. It further specified that the
abrasions on the applicant’s wrists could have been caused by
handcuffs, while the bruises could have been caused by being punched,
kicked or hit with a truncheon.
On
24 July 2006 the investigator instructed the Kyiv Chief of Police to
find the truncheon with which the applicant could have been beaten.
The reply given on 27 July 2006 stated that it could not be found.
On
25 July 2006 T. was again suspended from duty (it is not known when
he resumed his duties following the earlier removal).
On
22 August 2006 investigator S. decided to withdraw from the case. He
considered that the evidential basis was limited to the applicant’s
allegations and not corroborated by any other valid evidence. The
investigator grounded his withdrawal by that view and further
referred to the principle of the impartiality of the investigation.
On
the same date the SDPO reversed that withdrawal as lacking legal
basis.
On
27 March 2007 the investigator applied to the Deputy General
Prosecutor for an extension of the term of the pre-trial
investigation to eight months (the six-month term was to expire on 7
April 2007) given that the accused had not yet studied the case file.
In the application the investigator however indicated that T. and Z.
had been protracting the investigation by taking an unjustifiably
long time to familiarise themselves with the file and by
unmeritorious requests for unnecessary investigation measures.
On
16 June 2007 the SDPO indicted T. and Z. again.
On 30 July 2007 the Golosiyivskyy Court started the
examination of the case.
On
17 September 2007 the applicant brought a new civil claim against T.
and Z. within the criminal proceedings.
During
the period between September 2007 and March 2008 the court adjourned
hearings eight times for a total of over three months because of the
absence of a number of witnesses.
On
7 March 2008 the Golosiyivskyy Court again remitted the case for
additional investigation on the following grounds: the defendants’
lawyer had been deprived of his licence at some point during the
pre-trial investigation, but had nonetheless continued to represent
them. As a result, the court considered that the defence rights of T.
and Z. had been violated.
On
29 May 2008 the Court of Appeal quashed that decision and referred
the case back to the first-instance court, allowing the public
prosecutor’s appeal.
On
10 July 2009 the Golosiyivskyy Court issued a special ruling (окрему
ухвалу) bringing to
the attention of the Kyiv Chief of Police the latter’s failure
to comply with the court orders of 14 April, 20 May and 19 June
2009, that the obligatory attendance of numerous witnesses should be
ensured. The orders were that the police were to take appropriate
measures and report to the court.
On
21 July 2009 the applicant wrote the following statement addressed to
the President of the Golosiyivskyy Court:
“I, Teslenko Anatoliy Grigoryevich, would like to
make the following statement. The Golosiyivskyy District Court of
Kyiv is currently examining a case against the Chief of the Criminal
Investigation Department [T.] and [Z.], in which I am a victim.
I retract the statements which I gave in the prosecutor’s
office under pressure from the investigator and in court, namely that
it was precisely [T. and Z.] who had beaten and humiliated me. The
investigator [N.] demanded that I identify [T. and Z.]. In exchange,
he promised I would be acquitted and that criminal department
officials would be held liable. I remembered [T.] because he had been
the Chief, and [Z.] because he had been wearing glasses. I could
recognise only those two, as I could not, and do not now, remember
any other officers. I was beaten up at Shutov Street, no. 3, as they
really needed my confession to the robbery. But I did not remember
any officers from Shutov [street], and I was advised to incriminate
those I remembered. When the investigator [N.] came to see me, I was
at a loss and did not know what to tell him. But he reassured me and
told me that I did not have to worry and that I was to testify
against those I remembered. As to what exactly I had to tell and to
show, he told that he would help me. At the same time, he promised
that if I followed his advice I would be at liberty shortly. It is
very difficult for me now to testify before the court, for I have got
confused in my statements because it was the investigator [N.] who
gave them to me. I therefore request you not to disturb me any longer
regarding the case of [T. and Z.] and not to bring me to the court”.
On 18 September 2009 the Golosiyivskyy Court directed
the SDPO investigator to establish the actual places of residence of
twenty-two witnesses whose obligatory presence had been ordered, but
who had failed to attend and whom the police had failed to bring to
the courtroom. Ten of the witnesses in question were police officers,
nine were detained (at the time) in the police stations where the
applicant had been placed on 6 November 2003, two were
acquaintances of the applicant, and one was the forensic expert.
On
6 October 2009 the Golosiyivskyy Court also ordered obligatory
attendance by the applicant, who had been released from prison in the
meantime in July 2009 and had not been appearing for hearings.
On
19 October 2009 the police informed the court that the applicant’s
actual place of residence could not be established.
On
24 March and 18 May 2010 the court ordered mandatory attendance by
the applicant, to be ensured by the police.
On
24 June 2010 the Golosiyivskyy Court referred the case for additional
investigation, given the need to question the applicant regarding his
statement of 21 July 2009.
On
20 September 2010 the Kyiv Court of Appeal quashed the aforementioned
decision and remitted the case to the first-instance court for
examination. The parties did not provide the Court with a copy of
this ruling.
According
to the most recent information submitted by the Government in
February 2011, the case remains pending before the Golosiyivskyy
Court.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Criminal Code
Article
365 § 2, as worded in November 2003, provided 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 as punishment for exceeding one’s power by engaging
in the violent or degrading treatment of a victim.
B. Report of the Commissioner for Human Rights of the
Parliament of Ukraine (Ombudsman) for 2003
The
relevant extracts from Chapter 3.3 provide as follows:
“... On 11 November 2003 the mother of detained A.
Teslenko complained [to the Ombudsman] that her son had been tortured
in the Solomyanskyy Police Department (у
Солом’янському
РУ ГУ МВС України
в м. Києві).
Staff members of the Ombudsman’s Secretariat verified this
allegation on site and found numerous traces of beatings on the body
of A. Teslenko (photos were taken).
A. Teslenko gave the following explanations to the staff
of the Ombudsman’s Secretariat: “I was tortured for
thirteen hours in the district police station. Trying to extract a
confession to a crime from me, they beat me, forced me to stand with
my legs wide apart (садили
на «шпагат»),
prevented me from breathing by putting a plastic bag over my head,
hanged me naked from handcuffs and poured cold water on me for forty
minutes, threatening to make a General Karbyshev
out of me. To conceal the torture, they forced me to write a
statement that I had injured myself by an accidental fall on my way
home the previous evening and that I had no complaints against the
police.”
By the way, this is a typical example: police officers
often force the victims of torture to write a no-complaint statement
under threats that the torture will continue or in exchange for
release. Later on [such statement] is used by the police as a key
proof of their innocence as regards any injuries sustained by the
person.
After its own investigation and the Ombudsman’s
application to the General Prosecutor’s Office concerning the
verification of A.Teslenko’s allegations, the Solomyanskyy
District Prosecutor’s Office opened a criminal case concerning
the police officers, which is now being examined by the Golosiyivskyy
District Court of Kyiv. ...”
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLE 3 OF THE CONVENTION
The
applicant complained that on 5-6 November 2003
he had been tortured by police and that there had been no effective
domestic investigation into that matter. He relied on Article 3 of
the Convention, which reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Admissibility
The
Government submitted that the domestic investigation into the
applicant’s allegation of ill-treatment was still ongoing. In
their view, the applicant could not therefore be regarded as having
exhausted the remedies available to him under domestic law, as
required by Article 35 § 1 of the Convention. The Government
referred in this connection to the judgment in the case of Misiak
v. Poland (no. 43837/06, 3 June 2008), in which the Court
dismissed the applicant’s complaint of ill-treatment as
premature, given that the investigation into the matter was still
pending (§ 32).
The
applicant disagreed. He insisted that the domestic investigation in
his case was ineffective, having lasted for over seven years without
any meaningful result, and that he could not be reproached for not
waiting for a final outcome. In any event, the applicant considered
that the issue of the exhaustion of domestic remedies was to be
joined to the merits of his complaint about the alleged
ineffectiveness of the investigation.
The
Court notes that, according to its case-law, an applicant is
dispensed from the obligation to avail himself of an ineffective
domestic remedy. As regards complaints under Article 3 of the
Convention, the Court has held, in particular, that an applicant
cannot be reproached for not pursuing an investigation which is found
it be ineffective (see Lotarev v. Ukraine, no. 29447/04,
§ 93, 8 April 2010).
The
Court observes that, unlike in the present case, the applicant in the
case of Misiak v. Poland, cited by the Government, did not
allege before the Court that the domestic investigation into his
allegation of ill-treatment had proved ineffective. Accordingly, he
was to wait for its completion before bringing that complaint to this
Court.
In
the present case however it is impossible to establish whether or not
the applicant was under such an obligation before examination of the
merits of his complaint about the alleged ineffectiveness of the
domestic investigation in question.
The
Court therefore joins this objection of the Government to the merits
of the applicant’s complaint under the procedural limb of
Article 3 of the Convention (see, for example, Lotarev v.
Ukraine, cited above, § 74, and Oleksiy Mykhaylovych
Zakharkin v. Ukraine, no. 1727/04, § 50, 24 June 2010).
The
Court further notes that this complaint is not otherwise manifestly
ill-founded within the meaning of Article 35 § 3 (a) of the
Convention and is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. Alleged ill-treatment
The
applicant insisted that he had been subjected to
ill-treatment amounting to torture. He considered this allegation to
be corroborated by sufficient documentary evidence.
The
Government emphasised that the domestic investigation had yet to
conclude whether the applicant’s allegation had any basis.
Accordingly, they abstained from expressing a view on the merits of
this complaint, considering that it would prejudge the outcome of the
ongoing investigation.
As
the Court has stated on many occasions, Article 3 of the Convention
enshrines one of the most fundamental values of a democratic society.
It prohibits in absolute terms torture or inhuman or degrading
treatment or punishment, irrespective of the circumstances or the
victim’s behaviour (see, among other authorities, Labita v.
Italy [GC], no. 26772/95, § 119, ECHR 2000-IV). 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 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).
In
the present case, the applicant alleged that police officers T. and
Z. had subjected him to various kinds of ill-treatment and
humiliation during the night of 5-6 November 2003, seeking to obtain
a confession to a crime. He alleged, in particular, that they had
been punching and kicking him, had forced him to stand with his legs
wide apart, had attempted to insert a truncheon into his anus, and
had stopped his breathing by putting a plastic bag on his head. The
applicant also alleged that they had stripped him naked, had
handcuffed him to a radiator in the police station garage and had
dosed him with cold water.
According
to the Court’s case-law, allegations of ill-treatment must be
supported by appropriate evidence. In assessing evidence, the Court
adopts the standard of proof “beyond reasonable doubt”.
Such proof may follow from the coexistence of sufficiently strong,
clear and concordant inferences or of similar unrebutted presumptions
of fact (see, as a classic authority, Ireland v. the United
Kingdom, 18 January 1978, § 161, Series A no. 25). Where the
events in issue lie wholly or in large part 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 occurring during such detention. The burden of proof may
be regarded as resting on the authorities to provide a satisfactory
and convincing explanation (see Salman v. Turkey [GC],
no. 21986/93, § 100, ECHR 2000 VII). It
should be borne in mind that this obligation stems from the State’s
international responsibility under the Convention which implies
different methods and standards of proof than those applicable in
national legal systems regarding criminal prosecution of individuals
with due respect of their right to the presumption of innocence (see
Ribitsch v. Austria, 4 December 1995, § 34, Series A
no. 336, and Alboreo v. France, no. 51019/08,
§ 153, 20 October 2011).
The
Court notes that, as established by three medical reports – of
13 November 2003, 26 January 2004 and 15 May 2006 –
and confirmed by the photographs taken by the Ombudsman’s
representative on 12 November 2003, the applicant had numerous
bruises and sores on his face, arms, buttocks and legs, with the
largest bruise on the inner part of his left thigh and measuring 21 x
20 cm (see paragraphs 22, 25, 29 and 50 above).
As
to the time those injuries were inflicted, the aforementioned medical
reports concluded that they could have been inflicted on the
applicant on 5 or 6 November 2003. The Court notes in this
connection the statements of several witnesses who submitted having
seen the applicant throughout the day on 5 November 2003 uninjured
and whose statements remained unchallenged (see paragraph 46 above).
At the same time, the Court observes that the applicant’s
arrest was not followed by any immediate medical examination which
could have documented any injuries sustained by him by the time of or
during his arrest. All these considerations lead the Court to
conclude that the applicant sustained the injuries in question while
in police hands on 5 and/or 6 November 2003.
The
Court is not convinced by the applicant’s written statement of
6 November 2003 that he had injured himself the previous
evening, having accidentally fallen down, because, firstly, given the
circumstances, he could have been forced to write in this way, and,
secondly, the accuracy of that statement was put into question by a
medical report (see paragraphs 18, 19, 23 and 31 above).
The
Court reiterates that where an individual is taken into police
custody in good health but is found to be injured at the time of
release, it is incumbent on the State to provide a plausible
explanation of the cause of the injury, failing which a clear issue
arises under Article 3 of the Convention (see, among other
authorities, Selmouni v. France [GC], no. 25803/94, §
87, ECHR 1999 V). Moreover, when the national authorities failed
to conduct a medical examination before placing the applicant in
detention, as in the present case, the Government cannot rely on that
failure in their defence and claim that the injuries in question
pre-dated the applicant’s detention in police custody (see
Türkan v. Turkey, no.
33086/04, § 43, 18 September 2008). In this respect
the Court recalls that a medical examination, together with the right
of access to a lawyer and the right to inform a third party of the
detention, constitute fundamental safeguards against the
ill-treatment of detained persons which should apply as from the very
outset of deprivation of liberty. This would not only ensure the
applicant’s rights but would also enable the respondent
Government to discharge their burden of providing a plausible
explanation for the injuries (see Korobov v. Ukraine, §
70, 21 July 2011).
Given
that the domestic authorities in the present case neither proved that
the applicant had been injured before his detention nor explained the
origin of his injuries, they are to bear the responsibility for those
injuries.
This
finding alone is sufficient for the Court to find a breach of
Article 3 of the Convention, without getting into the
classification of the ill-treatment in question. However, given the
applicant’s insistence that the ill-treatment complained of
amounted to torture, all further aspects of his allegation as to the
nature of the ill-treatment suffered and the underlying circumstances
are to be scrutinised with great care.
As
regards the manner in which the applicant could have been injured,
the Court notes that the domestic medical findings are as follows:
firstly, the doctor examining the applicant on 13 November 2003
concluded that his injuries might have been caused by blows with
blunt objects; secondly, the report of 12 February 2004
established, on the one hand, that the injuries were to parts of the
body on which wounds could be self-inflicted, while, on the other
hand, they could not have resulted from the applicant’s
falling; and, lastly, the forensic medical report of 15 May 2006
specified that the abrasions on the applicant’s wrists could
have been caused by handcuffs, while the bruises could have resulted
from punches, kicks or blows with a truncheon (see paragraphs 25, 31
and 50 above). Moreover, the forensic medical expert confirmed twice
while being questioned by the investigating authorities that the
applicant might have sustained the aforementioned injuries in
circumstances described by him (see paragraphs 29 and 33 above).
Accordingly,
the Court considers it established that the applicant had been
subjected to handcuffing, punches, kicks and blows from a truncheon.
It considers the reported failure of the police to find the truncheon
in question almost three years after the events to be of no relevance
in this regard (see paragraph 51 above).
At
the same time, the Court notes that the applicant alleged more than
that (see paragraphs 18 and 84 above). The remaining part of his
allegations is neither confirmed nor refuted by any documents. The
Court does not however draw inferences from the absence of such
evidence itself, for the applicant might have indeed been subjected
to an attempted rape with a truncheon, temporary stopping of his
breathing with a plastic bag, as well as being stripped naked and
doused with cold water, without any traces being left. There is
nothing in the case file to undermine the plausibility of these
allegations, and the applicant’s account appears concordant
with the other facts of the case. Thus, police officers T. and Z.
admitted that they remained with the applicant during the night of
5-6 November 2003. The officers who convoyed the applicant to another
police station during the afternoon of 6 November 2003 stated that he
already had visible injuries by that time. Lastly, the applicant gave
a detailed and accurate description of the interior of the police
garage where he had allegedly been ill-treated during the night of
5-6 November 2003 (see paragraph 46 above).
The
Court does not lose sight of the delayed and inexplicable change by
the applicant of the account of events he gave the domestic
investigating authorities. It notes that almost six years after his
alleged ill-treatment the applicant submitted to the Golosiyivskyy
Court, which was trying officers T. and Z., that he had incriminated
them under pressure from the investigator and that he had in fact
been ill-treated in a different police station, where he had been
taken on the afternoon of 6 November 2003, by some officers whom he
did not remember (see paragraph 63 above).
Whatever
led the applicant to change his statements, the Court is not
convinced by this new account which, by the way, was never submitted
to this Court. Firstly, there had been several investigators dealing
with the case (see paragraphs 26-28 and 48 above) and the applicant’s
allegation that he was put under pressure by one of them does not
stand up under scrutiny. Secondly, his initial account had been
detailed and consistent, while the new version was couched in vague
terms. Lastly, the applicant apparently appeared reluctant to pursue
that new version, having ceased to cooperate with the investigation
after making the statement in question in July 2009 (see paragraphs
63 and 65-67 above).
In
the light of all the foregoing, the Court finds the applicant’s
allegation of ill-treatment, as raised in his application to this
Court, to be plausible overall, being either corroborated by the
documentary evidence or supported by factual inferences.
It
will assess now whether the ill-treatment in question amounted to
torture as alleged by the applicant.
In
determining whether a particular form of ill-treatment should be
classified as torture, consideration must be given to the
distinction, embodied in Article 3, between this notion and that of
inhuman or degrading treatment. As noted in previous cases, it
appears that it was the intention that the Convention should, by
means of such a distinction, attach a special stigma to deliberate
inhuman treatment causing very serious and cruel suffering (see
Ireland v. the United Kingdom, cited above, § 167).
In
addition to the severity of the treatment, there is a purposive
element to torture, as recognised in the United Nations Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, which in Article 1 defines torture in terms of the
intentional infliction of severe pain or suffering with the aim,
inter alia, of obtaining information, inflicting
punishment or intimidating (see Selmouni v. France [GC], cited
above, § 97, and Akkoç v. Turkey, nos. 22947/93
and 22948/93, § 115, ECHR 2000 X). In the Selmouni
judgment, cited above, the Court took the view that the increasingly
high standard being required in the area of the protection of human
rights and fundamental liberties correspondingly and inevitably
required greater firmness in assessing breaches of the fundamental
values of democratic societies (§ 101). In the light of this
approach, the Court held that certain acts which were classified in
the past as “inhuman and degrading treatment” as opposed
to “torture” could be classified differently in future
(ibid.).
Turning
back to the instant case, the Court notes that the multiple bruises
(sixteen in total, with the largest measuring 21 x 20 cm) and
numerous abrasions sustained by the applicant, even though classified
as “light injuries” in the domestic proceedings, attest
to the severity of the ill-treatment he suffered (see and compare
with Nikiforov v. Russia, no. 42837/04, § 46, 1 July
2010). The applicant’s physical pain from his beatings, and
possibly from other forms of ill-treatment (see paragraphs 93-94
above), must without doubt have been exacerbated by feelings of
helplessness, stress and anxiety, given that he was ill-treated
during the night, in a police station, by trained officers whose
violence he had no means of resisting. It is also relevant for the
assessment of the seriousness of the ill-treatment suffered by the
applicant that it was intentional and aimed at extracting from him a
confession that he had committed the offence of which he was
suspected.
In
these circumstances, the Court concludes that, taken as a whole and
having regard to its purpose and severity, the ill-treatment at issue
amounted to torture within the meaning of Article 3 of the
Convention.
The
Court therefore finds that there has been a violation of Article 3
of the Convention under its substantive limb.
2. Effectiveness of the investigation
The
applicant maintained that the domestic investigation had been slow
and ineffective. He considered that its duration for over seven years
was an indication of the authorities’ lack of will to establish
the truth and to hold the police officers who had tortured him
criminally liable.
The
Government contended that there had been a prompt and effective
response to the complaints of the applicant’s relatives about
his alleged ill-treatment raised for the first time on 11 November
2003. In the Government’s view, the fact that the investigation
remained pending was not an indication of its ineffectiveness, but
rather proved that the applicant’s allegations were receiving
due attention. Lastly, they argued that the applicant himself did not
appear interested in the prompt completion of the investigation,
because, after he was released from prison in August 2009 he did not
inform the authorities about his place of residence.
The
Court emphasises that 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 requires by implication that there
should be an effective official investigation capable of leading to
the identification and punishment of those responsible. Otherwise,
the general legal prohibition of torture and inhuman and degrading
treatment and punishment would, despite its fundamental importance,
be ineffective in practice and it would be possible in some cases for
agents of the State to abuse the rights of those within their control
with virtual impunity (see Assenov and Others v. Bulgaria,
28 October 1998, § 102, Reports of Judgments and Decisions
1998 VIII, and Labita, cited above, § 131). The
minimum standards of effectiveness defined by the Court’s
case-law 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, Menesheva v. Russia,
no. 59261/00, § 67, ECHR 2006 III).
In
the present case, the Court has found that the respondent State is
responsible under Article 3 for the applicant’s torture (see
paragraphs 102-103 above). The applicant’s complaint in this
regard is therefore “arguable”, which means that the
authorities had an obligation to investigate it in compliance with
the aforementioned effectiveness standards.
The
Court notes that the allegation about the applicant’s
ill-treatment was raised for the first time on 11 November 2003 by
his mother in her complaint to the Ombudsman, and maintained by the
applicant himself thereafter before the domestic investigation
authorities.
The
fact that the applicant remained silent about his alleged
ill-treatment for six days might be explained by his written
statement of 6 November 2003 that he had no complaints against
the police. In any event, this delay was insignificant and did not
hinder the investigation by any means (see and compare with Aleksandr
Smirnov v. Ukraine, no. 38683/06, § 59, 15 July 2010).
The
Court observes that the Ombudsman’s representatives were able
to meet the applicant without delay, question him and take
photographs of his injuries (see paragraphs 21-22 above). Immediately
after their visit the applicant was examined by a doctor, and several
days later he was questioned by the investigating authorities about
his allegations of ill-treatment (see paragraphs 25-27 above). About
a month later, a criminal investigation was launched into the matter
(see paragraph 28 above). Accordingly, the Court considers that the
domestic authorities responded to the applicant’s complaint
with the requisite promptness.
The
development and duration of the subsequent investigation however
disclose deficiencies which cast doubts on the diligence of the
authorities in their efforts to establish the truth and to bring
those guilty to justice.
The
Court observes that the investigation has lasted for more than seven
and a half years, and has advanced no further than to the examination
of the case by the first-instance court (see paragraphs 28, 34 and 70
above).
The
Court does not lose sight of the criticism expressed by the trial
court as regards the quality of the pre-trial investigation, which
necessitated the remittal of the case for additional investigation on
two occasions (see paragraphs 38 and 47 above).
At
the same time, the Court notes that, while the medical evidence
corroborated the applicant’s allegation as early as 13 November
2003 (when he was examined by a doctor for the first time), numerous
further medical examinations were ordered, and the forensic medical
expert was repeatedly questioned by the investigator. Although the
results of those additional medical reports and interviews were
consistent with that early conclusion, the investigating authorities
kept questioning their completeness and accuracy, as if seeking to
undermine the applicant’s allegation rather than objectively
establish its veracity (see paragraphs 25, 27, 29-31, 33, 39, 49 and
50 above).
The
Court also considers questionable the independence of investigator
S., who was in charge of the investigation from March 2006 till the
referral of the case to the trial court in June 2007. While he
expressed the view that the applicant’s allegation of torture
was groundless, this investigator did not terminate the proceedings
with a conclusion that there was no case to answer, but admitted his
lack of impartiality and sought, unsuccessfully, to withdraw from the
investigation (see paragraphs 53-54 above).
The
Court next observes that, as it appears from the facts of the case,
starting from September 2007, the trial of the accused officers T.
and Z. came to a stalemate due to the failure of numerous witnesses
to attend. The Court notes in this connection that almost half the
witnesses in question (ten out of twenty-two) were police officers,
and therefore their attendance could have easily been ensured if the
authorities had had the will to do so (see paragraph 64 above).
Moreover, the near halt of the proceedings by the Golosiyivskyy
Court, solely because of the absence of witnesses, appears
unjustified, given that the passage of about four years – as of
September 2007 and even more thereafter – must inevitably have
taken a toll on the witnesses’ capacity to recall events in
detail and with accuracy.
Lastly,
the Court does not lose sight of the applicant’s change of his
account of the events complained of and his termination of any
cooperation with the domestic investigation from July 2009 (see
paragraphs 63 and 65-67 above). While the Court has doubts regarding
the applicant’s motives and the veracity of his new version
(see paragraph 96 above), it notes that until then the domestic
investigation had already lasted for almost six years. Its lack of
progress cannot therefore be explained or excused solely by this
change of the applicant’s account at such a late stage. In any
event, the obligation on the part of the domestic authorities to
investigate a credible allegation of ill-treatment by police does not
derive from the purported victim’s attitude, but is to be
undertaken by virtue of Article 3 of the Convention (see Arat v.
Turkey, no. 10309/03, § 43, 10 November 2009).
The
foregoing considerations provide a sufficient basis for the Court to
conclude that the State fell short of its obligation to conduct an
effective investigation into the applicant’s allegation of
torture by the police.
The
Court therefore dismisses the Government’s objection as to the
exhaustion of domestic remedies previously joined to the merits (see
paragraph 79 above) and finds that there has been a violation of
Article 3 of the Convention under its procedural limb as well.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
The
applicant complained that the investigation into his allegation of
torture was ineffective and thus contrary to Article 13 of the
Convention, which provides:
“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.”
The
Court observes that this complaint concerns the same issues as those
examined in paragraphs 104 to 118 above under the procedural limb of
Article 3 of the Convention. Therefore, the complaint should be
declared admissible. However, having regard to its conclusion above
under Article 3 of the Convention, the Court considers it unnecessary
to examine those issues separately under Article 13 of the Convention
(see Polonskiy v. Russia, no. 30033/05, §§
126-127, 19 March 2009).
III. REMAINDER OF THE APPLICATION
The
applicant complained under Article 5 §§
1 (c) and 2 of the Convention that his arrest was unlawful and that
the reasons for it had not been explained to him. Furthermore,
relying on Article 6 §§ 1 and 3 (b), (c) and (d), he
complained that his trial had been unfair and that his conviction
lacked a solid evidential basis. He submitted in that regard that the
courts had wrongly relied on the statements of Ms M. given
during the pre-trial investigation, had arbitrarily disregarded the
statements of several witnesses confirming his alibi, and had failed
to summon some other witnesses for the defence. Lastly, the applicant
complained, relying on Article 13, that there had been no
investigation into the lawfulness of the institution of the criminal
proceedings against him on the charge of robbery of Ms Z.
In
the light of all the material in its possession, and in so far as the
matters complained of are within its competence, the Court finds that
they do not disclose any appearance of a violation of the rights and
freedoms set out in the Convention or its Protocols. It follows that
this part of the application must be rejected as manifestly
ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of
the Convention.
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 20,000 euros (EUR) in respect
of non-pecuniary damage.
The
Government contested this claim as unsubstantiated and, in any event,
excessive.
The
Court finds that the applicant must have suffered pain and distress
which cannot be compensated solely by the finding of a violation.
Having regard to the circumstances of the case and ruling on an
equitable basis, as required by Article 41, it awards him the claimed
amount in full, plus any tax that may be chargeable.
B. Costs and expenses
The
applicant did not submit any claims for legal costs and expenses.
Accordingly, the Court makes no award under this head.
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
Decides to join to the merits the
Government’s objection as to the exhaustion of domestic
remedies in respect of the applicant’s complaint under Article
3 of the Convention concerning his alleged torture by the police, and
dismisses it after having examined the merits of that complaint;
Declares the complaints about the applicant’s
alleged torture in police custody and the lack of an effective
investigation into that allegation admissible and the remainder of
the application inadmissible;
Holds that the applicant has been subjected to
torture in violation of Article 3 of the Convention;
Holds that there has been a violation of
Article 3 of the Convention on account of the lack of an
effective investigation into the applicant’s allegation of
torture by the police;
Holds that there is no need to examine the
complaint in that regard under Article 13 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 20,000 (twenty thousand euros) in respect of
non-pecuniary damage, plus any tax that may be chargeable, to be
converted into the currency of the respondent State at the rate
applicable on 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.
Done in English, and notified in writing on 20 December 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia
Westerdiek Dean Spielmann Registrar President
