European Court of Human Rights

Information Note on the Court’s case-law No. 154

July 2012

Savitskyy v. Ukraine - 38773/05

Judgment 26.7.2012 [Section V]

Article 3

Torture

Effective investigation

Failure adequately to investigate allegations of police brutality or to afford legal representation to victim disabled as a result of his injuries: violations

 

Facts - The facts of the case are disputed. The applicant alleged that on an evening in August 1998 he was subjected to a serious assault by three police officers who had arrested him in the street following a call from a petrol-station attendant who had mistakenly believed him to be drunk. According to the police officers, however, they had found the applicant lying near a fence in a park complaining of acute pain in the waist and stomach. The applicant was taken to hospital, where he was diagnosed with two fractured vertebrae and a spinal cord injury. He has been unable to walk unaided since and is registered disabled. Following a complaint by the applicant, the case was investigated by the prosecuting authorities. The applicant requested legal representation in view of his physical disability, but this was refused. The investigators subsequently terminated the proceedings after finding that the applicant had been very drunk and had sustained the injuries through his own negligence when falling from a fence. That decision was upheld by the domestic courts.

Law - Article 3

(a)  Procedural aspect - The Court found that the investigation of the applicant’s allegations of ill-treatment by police officers had not been effective for the purposes of the Convention. The investigation had not been impartial, objective or thorough and the overall length of the proceedings had been excessive. In addition, the applicant’s effective participation in the procedure had not been ensured. Although he was severely disabled and had had no legal education, his requests for free legal representation to support his allegations of ill-treatment had been refused. The Convention was intended to guarantee rights that were “practical and effective”. Accordingly, in the particular circumstances of the case the State’s procedural obligations to ensure the effective participation of the victim in the investigation of his complaints of ill-treatment extended to the issue of providing effective access to free legal representation. The domestic law at the material time made no provision for legal-aid for someone in the applicant’s situation and it had not been shown that the social-support centres and legal-advice offices had been able to provide the applicant with the requisite legal representation. The applicant’s approaches to the national ombudsman and other authorities had not yielded appropriate results either. The State had thus fallen short of its obligation to provide the applicant with free legal assistance in order to ensure his effective participation in the domestic proceedings.

Conclusion: violation (unanimously).

(b)  Substantive aspect - The police officers had maintained that they had arrived at the petrol station shortly after receiving a call from the sales assistant and had immediately gone to the park opposite, where they found the applicant already severely injured. They did not, however, explain why they decided to look for the applicant, who had already left the petrol station without committing an offence and was no longer disturbing the sales assistant. Even on the basis of the officers’ account, given the short interval between the applicant’s last being seen in good health and the police finding him severely injured and given the officers proximity to the scene at the time, the State was obliged under Article 3 to provide a satisfactory and convincing explanation for the applicant’s injuries. That burden had not been discharged as, owing to the serious shortcomings of the domestic enquiries and investigations, the evidential basis for the support of the official version of the incident was of poor quality, while the applicant’s version had not been effectively investigated and the evidence to support it had not been properly assembled. The applicant’s submissions were coherent and consistent with the indirect evidence available in the file. In view of the exceptional gravity of his injuries and the fact that they had been inflicted in order to intimidate and humiliate, the ill-treatment amounted to torture.

Conclusion: violation (unanimously).

The Court also found a violation of Article 6 § 1 of the Convention and a failure by the State to comply with its obligations under Article 34 in respect of the authorities’ failure to produce certain documents despite a domestic court order requiring them to do so and a request by the European Court for their production.

Article 41: EUR 100,000 in respect of non-pecuniary damage; EUR 50,994.05 in respect of pecuniary damage.

 

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