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GRIGORYEV v. UKRAINE - 51671/07 [2012] ECHR 838 (15 May 2012)
URL: http://www.bailii.org/eu/cases/ECHR/2012/838.html
Cite as:
[2012] ECHR 838
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FIFTH
SECTION
CASE OF GRIGORYEV v. UKRAINE
(Application
no. 51671/07)
JUDGMENT
STRASBOURG
15
May 2012
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 Grigoryev v.
Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Dean Spielmann,
President,
Elisabet Fura,
Boštjan M.
Zupančič,
Ann Power-Forde,
Ganna
Yudkivska,
Angelika Nußberger,
André
Potocki, judges,
and Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 10 April 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 51671/07) 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 Andrey Grigoryevich
Grigoryev (“the applicant”), on 1 November 2007.
The
applicant was represented by Ms L. Lyakhovetska, a lawyer practising
in Odessa. The Ukrainian Government (“the Government”)
were represented by their Agent, Ms Valeria Lutkovska.
The
applicant alleged that he had been tortured by the police and that
his subsequent conviction had essentially been based on his
self-incriminating statements and material evidence obtained by
coercion and without legal representation. He also complained that
there had been no effective domestic investigation into his
allegations of torture.
On
22 March 2011 the application was communicated to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1967 and is currently serving a prison sentence
in Yenakiyeve Penitentiary no. 52.
In
the morning of 1 March 2002 the “Berkut” special police
unit apprehended the applicant, at the home of an acquaintance, in
connection with an investigation into a series of armed robberies and
murders.
The
police searched the applicant and discovered a suspicious sachet in
his pocket appearing to contain drugs. According to him, the police
had planted it on him when he was already handcuffed. The applicant’s
arrest was documented as being based on a suspicion of illegal drug
possession.
On
the same day, 1 March 2002, the applicant was placed in
administrative detention for three days while the contents of the
sachet were analysed.
Between
1 and 3 March 2002 he confessed to about fifteen counts of robbery,
theft and smuggling, as well as an attempted murder. The applicant
also showed to the police a garage and a forest cache where firearms
and other weapons and explosives were stored.
According
to the Government’s submissions, the applicant decided to
confess and to cooperate with the police of his own free will.
According to the applicant, however, he was coerced into
self-incrimination. His account of the events following his arrest is
as follows. At about 11 a.m. on 1 March 2002 the applicant was
taken to an office in the Kyivskyy District Police Department in
Odessa where two law-enforcement officials from Kyiv, D. and Y., who
introduced themselves as the Deputy Chief of the Criminal
Investigation Unit (заступник
начальника
Департаменту
карного розшуку
МВС України)
and the Chief of the Main Criminal Investigation Department
(начальник
Головного
управління
карного розшуку
МВС України)
respectively, questioned him in respect of a number of robberies and
murders. As the applicant denied any involvement in them or knowledge
thereof, Y. summoned several officers and ordered them to force him
to confess to about forty instances of such offences. The applicant,
being handcuffed, was suspended from a metal bar between two tables,
and Y., together with D., delivered numerous blows with a rubber
truncheon to various parts of his body. Subsequently a mask was put
on the applicant’s face, and other police officers continued to
beat him until about 7 p.m. The applicant signed numerous
confessions. In the evening D. and Y. checked on him. As they
considered that he had not been sufficiently cooperative, the
applicant’s ill-treatment continued until 4 March 2002. During
that period he was detained in the police station, where he had no
contact with his relatives or a lawyer.
On
4 March 2002 the applicant was arrested on suspicion of several
counts of armed robbery, illegal arms handling and attempted murder.
He signed a waiver of legal assistance (its copy in the case file is
illegible) and confessed to six counts of robbery.
The
applicant was then transferred to the Odessa Temporary Detention
Facility (“the ITT”).
Before
that transfer, on 4 March 2002, he was examined by a doctor at the
local hospital, who found that he had a chest contusion and
post-traumatic neuritis. The doctor also concluded that the
applicant’s right hand had been subjected to prolonged
constriction.
On
5 March 2002 an expert from the Odessa Regional Bureau for Expert
Forensic Medical Examinations examined the applicant on the
instructions of the investigator. Although the examination report
(delivered on 1 April 2002) noted that the applicant’s
right wrist was swollen and restricted in movement, its general
conclusions were as follows:
“1. The forensic medical examination of [the
applicant] has not discovered any external injuries (sores, bruises
or wounds).
2. It is impossible to establish the nature of the
pathology of the right wrist without an X-ray.”
From
5 March 2002 the applicant was represented by Ms Lyakhovetska.
During his questioning in her presence on that day he again confessed
to six counts of robbery. At the same time, the lawyer requested the
investigator to arrange for her client to have a medical examination
in view of his complaints of ill-treatment.
On
6 March 2002 a judge of the Zhovtnevyy District Court of Odessa
remanded the applicant in custody pending trial. According to that
ruling, the applicant was to be detained in the Pre-Trial Detention
Centre (“the SIZO”). In reality, however, he remained in
the ITT.
On
16 March 2002 the investigator decided that the applicant was to be
detained in the ITT until 19 March 2002, on account of the
considerable number of investigative measures yet to be taken.
According
to the applicant, on 17 March 2002 Y. and D. again tried to obtain
confessions from him, this time to several counts of murder. As the
applicant resisted, he was handcuffed and beaten by four officers for
about thirty minutes. Thereafter he was placed face-down on the floor
and immobilised with a chair. The officers then brought an electric
generator and attached its wires to the applicant’s ankles and
buttocks. After several electric shocks, the applicant signed all the
documents handed to him by the police.
On
18 March 2002 he complained to his lawyer about these events, and she
further raised the complaint before the prosecution authorities.
On
19 March 2002 the applicant was transferred to the SIZO, where he was
examined by a doctor. As a result, burn marks measuring about 2 x
1 cm were discovered on his both ankles. They were estimated to
have been sustained two days earlier as the result of an electric
shock.
On
5 April 2002 another forensic medical examination of the applicant
was carried out. According to the report (delivered on 8 April
2002), eight wounds measuring 1.5 x 2 cm each were discovered on both
of his ankles. While the expert noted that it was impossible to
establish exactly how and when they had been caused, he referred to
the medical certificate of 19 March 2002, according to which the
wounds could have been caused by electric burns.
On
29 April 2002 the Odessa Regional Prosecutor’s Office (“the
ORPO”) opened a criminal case in respect of the allegations of
ill-treatment by the applicant and a co-accused under Article 365 §
2 of the Criminal Code (abuse of power associated with violence and
degrading treatment). The prosecutor referred, in particular, to the
medical certificate of 8 April 2002 confirming that the
applicant had sustained injuries possibly originating in electric
shocks.
Yet
another forensic medical expert examination, which had been assigned
on 21 June and completed on 2 July 2002, reported the same injuries
as before and classified them as minor. Given the ongoing
cicatrisation process, it was impossible to establish their origin
with precision: the wounds could have been caused either by electric
burns or by blunt objects. The report further noted that, according
to the medical file, it could not be ruled out that they had been
caused by electric shocks. Lastly, the expert answered in the
positive the investigator’s question as to whether the wounds
in question were in places within the applicant’s reach
(“accessible for self-infliction”).
On
16 September 2002 the investigator at the Odessa City Prosecutor’s
Office (“the OCPO”), to whom the case had apparently been
transferred, discontinued the criminal investigation into the
ill-treatment allegations, concluding that no indication of a crime
could be discerned in the actions of the police officers. This
decision was based, on the one hand, on the submissions of the
applicant and two co-accused (found to be unreliable), and, on the
other, on statements by eighteen police officers, including Y. and
D., who either denied any coercion or submitted that they did not
know anything (found to be trustworthy). While both Y. and D.
admitted that they had questioned the applicant following his arrest
on 1 March 2002, they maintained that he had confessed to some
of the crimes under investigation of his own free will. When asked
how he could explain the electric burns on the applicant’s
ankles, Y. stated as follows:
“I can explain them by the sheer inventiveness of
this person, who could make explosive devices and who tortured his
victims with devious methods.”
The
investigator also mentioned the medical certificate issued by the
SIZO doctor in respect of the applicant’s injuries, without
commenting on it. The general conclusions of this decision read as
follows:
“... the investigation has established that [the
applicant], after [his] arrest, confessed to armed robberies and
maintained his confessions during the crime reconstruction exercise.
Moreover, [the applicant] showed [the investigators] an underground
cache of firearms and ammunition.
However, later these persons [the applicant and his
co-accused], who have previous convictions and are bound by joint
responsibility, retracted their earlier statements. In an attempt to
escape criminal liability for particularly serious crimes, they,
personally and with the assistance of their lawyers, sent complaints
to various authorities attempting to cast doubt on their own
depositions by allegations that they had been beaten by the police
and that they had confessed under duress.
The allegations of [the applicant] and the other
co-accused are refuted by the ... statements of the police officers.”
On
5 November 2002 the ORPO quashed the above decision, concluding that
it was not based on a comprehensive and objective investigation.
On
16 December 2002 one of the applicant’s cellmates in the ITT at
the material time, L., when questioned by the investigator, confirmed
that the applicant, on returning to the cell after his questioning,
had had injuries and had hardly been able to stand on his feet. The
other cellmates, who were also questioned, did not remember anything
of that kind.
On
28 December 2002 the OCPO investigator again discontinued the
criminal investigation, finding nothing criminal in the police
officers’ actions. The decision was identical to that of 16
September 2002.
On
8 May 2003 the ORPO quashed this second decision also, for
non-compliance with instructions.
On
14 May 2003 the OCPO investigator in charge of the ill-treatment
investigation wrote to the Odessa City Prosecutor (his superior) that
it would be more appropriate to transfer the case to the ORPO dealing
with the criminal case against the applicant. He noted that the ORPO
had criticised his decisions and made the following comment in that
regard:
“... compliance or non-compliance with those
instructions would not have had any influence whatsoever on the
conclusions reached in this case. This case has no prospect of
judicial examination.”
In
July 2003 the pre-trial investigation in the criminal proceedings
against the applicant (and the co-accused) was completed and the case
was sent for trial to the Odessa Regional Court of Appeal (“the
Regional Court”), acting as a court of first instance.
On
8 August 2003 the OCPO investigator, who was still in charge of the
ill-treatment investigation, discontinued the proceedings by a
decision worded identically to his earlier decisions of 16 September
and 28 December 2002. The only new part was a remark that the
applicant’s cellmates had been questioned and had not confirmed
his allegations.
On
31 March 2004 the Regional Court examined the applicant’s
criminal case and decided that it was necessary to undertake an
official investigation (призначити
по справі службове
розслідування)
into the defendants’ allegations about their ill-treatment by
the police. This investigation was entrusted to the General
Prosecutor’s Office (“the GPO”). It was noted in
the court’s ruling that the official investigation in question
was required “to take into account not only the explanations of
the persons who took part in the investigative measures involving the
defendants, but also the medical documents and expert reports on
their injuries available in the case file”.
On
21 May 2004 the ORPO quashed the OCPO’s decision (see paragraph
32 above). The case file does not contain a copy of this ruling.
On
22 November 2004 the OCPO investigator once again discontinued the
investigation for lack of corpus delicti in the police
officers’ actions. In addition to the earlier reasoning it was
noted that, despite all possible efforts, it had been impossible to
establish the origin of the applicant’s injuries.
On 25 February 2005 the ORPO quashed the
above-mentioned decision as based on an incomplete investigation.
On
12 April 2005 the OCPO investigator again discontinued the case with
a decision identical to that of 22 November 2004.
On
11 May 2005 the Regional Court sent a letter to the GPO which stated
as follows:
“During the judicial proceedings all the
defendants changed their original statements and alleged that they
had been subjected to ill-treatment (sometimes amounting to torture)
during the pre-trial investigation, as a result of which they were
forced to incriminate themselves and plead guilty to criminal
offences which they had not committed.
The statements of the defendants are indirectly
confirmed by some of the materials in the case-file.
The court requested the [GPO] as early as 31 March 2004
to undertake an official investigation into the defendants’
allegations.
This judicial request was addressed to the GPO because
the earlier investigation by the [local prosecuting authorities] had
been superficial and failed to take into account all the arguments
and the medical documents.
All the materials in the case-file were forwarded to the
[GPO] on 1 April 2004.
However, in spite of numerous reminders, the judicial
request has not been complied with.
The examination of the evidence was completed on
24 January 2005, and the proceedings were stayed pending the
[GPO’s] conclusion.”
On
2 August 2005 the ORPO wrote to the President of the Regional Court
that, on the instructions of the GPO, it had thoroughly investigated
the defendants’ allegations of ill-treatment and dismissed them
as unfounded.
On
10 October 2005 the Regional Court found the applicant, along with
five other persons, guilty of premeditated murder committed with
particular cruelty, for profit, repeatedly and following conspiracy
by a group of persons, as well as banditry, illegal firearms
handling, carjacking, deliberate destruction of the property of
others, and multiple counts of theft and armed robbery. The applicant
was additionally found guilty of illegal drug possession. He was
sentenced to a total of nineteen years’ imprisonment, with
confiscation of all his personal property. The court relied on, among
other things, the applicant’s confessions made during the
pre-trial investigation – in particular, on 1 and 2 March 2002
– even though he had retracted them in the judicial
proceedings. It also relied on the material evidence (firearms and
ammunition) shown by the applicant to the police on 1 and 2 March
2002. The court found that the applicant’s allegation of
ill-treatment in police custody had been thoroughly examined by the
official investigation and had been rightly dismissed as
unsubstantiated. The term of the applicant’s sentence was to be
calculated from 1 March 2002.
The
applicant, both personally and through his lawyer, appealed in
cassation. He submitted that the first-instance court had distorted
the facts of the case and that his conviction had been based mainly
on confessions obtained from him by coercion and in breach of his
right to legal assistance. He emphasised in this connection that the
Regional Court had relied on the investigation of his ill treatment
allegations, which had earlier been recognised as superficial and
otherwise flawed. It was for that reason that the trial court had
decided to entrust the official investigation of his allegations to
the General Prosecutor’s Office, since the earlier
investigation undertaken by the local prosecution authorities had not
taken into account all his arguments or the medical documents.
The
applicant further emphasised that he (as well as the other
defendants) had never been assigned victim status in the criminal
investigation regarding the ill-treatment allegations. He noted that
on 12 April 2005 the OCPO had discontinued the investigation,
finding that there was no case to be examined, and the Regional
Court’s assignment of the official investigation to the GPO had
never been implemented. The applicant pointed out that the fact that
he had sustained injuries had not even been mentioned in the final
decision. Lastly, he criticised the first-instance court for not
having given any consideration to his continued detention in the ITT
(for eighteen days instead of the legal maximum of three days).
On
4 September 2007 the Supreme Court rejected the applicant’s
appeal in cassation. It concluded that his guilt was sufficiently
proved by the evidence, including his own confessions. As to the
applicant’s complaint of a violation of his right to legal
assistance, the Supreme Court noted that he had had his rights in
that respect explained to him following his arrest on 4 March
2002 and that he had been legally represented thereafter. In so far
as his allegation of ill-treatment was concerned, the Supreme Court
referred to the investigation into the matter by the prosecution
authorities undertaken at the request of the first-instance court.
On
19 December 2008 the GPO returned the case file on the ill-treatment
allegations to the ORPO as “no longer required”. It noted
in its letter: “the General Prosecutor’s Office has not
established any grounds for setting aside the decision made”.
II. RELEVANT DOMESTIC LAW AND PRACTICE
Articles
59 and 63 of the Constitution concerning the right to legal
assistance and the right not to incriminate oneself can be found in
the judgment of 19 February 2009 in the case of Shabelnik v.
Ukraine (no. 16404/03, § 25).
The
provisions concerning the obligation to institute criminal
proceedings and investigate a crime can be found in the judgment of
27 November 2008 in the case of Spinov v. Ukraine
(no. 34331/03, § 33).
According
to Article 263 of the Code of Administrative Offences, a person
suspected of a drug offence may be detained for up to three days if
the suspected drug needs to be analysed.
Under
Article 315-1 of the Code of Criminal Procedure, if a court requires
verification or clarification of the factual information obtained
during a pre-trial investigation, it may request the investigating
authority, by a judicial request (судове
доручення),
to undertake certain investigative activities within an established
time-limit.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
The
applicant complained that he had been tortured by the police and that
there had been no effective investigation into the 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 applicant could not be regarded as
having exhausted domestic remedies under Article 35 § 1 of the
Convention because he had failed to challenge the decision of the
Odessa City Prosecutor’s Office of 12 April 2005 before the
higher-level prosecution authorities or before the domestic courts.
Alternatively,
the Government argued that, had the applicant believed he had no
effective domestic remedies to exhaust following the aforementioned
prosecutor’s decision discontinuing the criminal investigation
into his ill-treatment allegation, he should have introduced his
application before the Court within the six-month time-limit to be
calculated from that date. Accordingly, they maintained that it
should be rejected as belated.
The applicant disagreed. He noted that, indeed, under
the domestic legislation, he could have challenged the decision of 12
April 2005 either before the Odessa Regional Prosecutor’s
Office or before a local court. He contended, however, that none of
those remedies could be considered effective for the following
reasons in particular. The Odessa Regional Court of Appeal, which had
acted as a first-instance trial court in his own criminal case, had
already considered the ill-treatment allegation and assigned its
investigation to the General Prosecutor’s Office on account of
the deficiencies in the investigation undertaken by the local
prosecution authorities (at the city and the regional level).
Accordingly, the applicant had considered it pointless to bring the
issue before a lower-level court (a local court as compared to the
aforementioned Regional Court) or before the Regional Prosecutor’s
Office, which had been criticised by the Regional Court for the
inadequacy of its investigation.
He
also pointed out that the aforementioned judicial request of the
Regional Court to the GPO had revived the latter’s obligation
to investigate his allegation of ill-treatment after the prosecutor’s
decision of 12 April 2005 discontinuing the investigation.
The
Court emphasises that the application of the rule of exhaustion of
domestic remedies must make due allowance for the fact that it is
being applied in the context of machinery for the protection of human
rights that the Contracting States have agreed to set up.
Accordingly, it has recognised that Article 35 § 1 must be
applied with some degree of flexibility and without excessive
formalism. It has further recognised that the rule of exhaustion is
neither absolute nor capable of being applied automatically; for the
purposes of reviewing whether it has been observed, it is essential
to have regard to the circumstances of the individual case. This
means, in particular, that the Court must take realistic account not
only of the existence of formal remedies in the legal system of the
Contracting State concerned but also of the general context in which
they operate, as well as the personal circumstances of the applicant.
It must then examine whether, in all the circumstances of the case,
the applicant did everything that could reasonably be expected of him
or her to exhaust domestic remedies (see Akdivar and Others v.
Turkey [GC], 16 September 1996, § 69, Reports of
Judgments and Decisions 1996 IV, and Aksoy v. Turkey,
18 December 1996, §§ 53-54, Reports 1996-VI).
Regard
being had to the above, the Court considers that the questions of
exhaustion of domestic remedies and compliance with the six-month
rule are closely linked to the substance of the applicant’s
complaint regarding the effectiveness of the investigation, and
accordingly joins them to the merits of that complaint (see, for
example, Oleg Nikitin v. Russia, no. 36410/02, § 28,
9 October 2008, and Bocharov v.
Ukraine, no. 21037/05, § 40,
17 March 2011).
The
Court notes that these complaints are not manifestly ill-founded
within the meaning of Article 35 § 3 (a) of the Convention. It
further notes that they are not inadmissible on any other grounds.
They must therefore be declared admissible.
B. Merits
1. Alleged ill-treatment
(a) The parties’ submissions
Relying
on the medical documents in the case-file and referring to his
lengthy detention under the full control of the police (in an ITT
instead of a SIZO), the applicant submitted that police officials Y.
and D., with the assistance of some other officers, had tortured him
following his arrest on 1 March, as well as on 17 March 2002,
with a view to extracting his confession to numerous crimes.
The
Government considered the applicant’s allegation to lack any
basis. They contended that, despite the fact that all possible
efforts had been undertaken by the domestic authorities, its veracity
had never been established. The Government relied, in particular, on
the medical report of 1 April 2002, with the emphasis on its
finding that there had been no external injuries discovered on the
applicant. As to the other medical evidence confirming that he had
sustained eight wounds to his ankles, the Government noted that they
were minor injuries and that it could not be ruled out that the
applicant had inflicted them on himself.
(b) The Court’s assessment
As
the Court has stated on many occasions, Article 3 of the Convention
enshrines one of the core values of democratic societies (see, among
many other references, Selmouni v. France [GC], no. 25803/94,
§ 95, ECHR 1999 V). Where allegations are made under
this provision, the Court must conduct a particularly thorough
scrutiny and will do so on the basis of all the 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
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, cited above, § 161). Where the
events in issue lie wholly, or in large part, within the exclusive
knowledge of the authorities, as in the case of persons within 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).
Turning
to the present case, the Court notes that three days after the
applicant’s arrest, on 4 March 2002, a doctor discovered that
he had a chest contusion and post-traumatic neuritis and that his
right hand had been subjected to prolonged constriction (see
paragraph 13 above). The medical examination a day later made
contradictory findings: on the one hand, it stated that “there
were no external injuries discovered” on the applicant, while,
on the other, it noted that his right wrist was swollen and he could
not move it (see paragraph 14 above). The Court therefore does not
regard it as having rebutted the earlier medical evidence of the
applicant’s injuries.
The
Court further notes that the SIZO doctor who examined the applicant
on 19 March 2002 following his transfer there from the ITT
discovered several burns on his both ankles and found that they fully
corroborated the applicant’s account as to their date and
origin. Although the two later forensic medical examinations, of
5 April and 21 June 2002, were less conclusive as to the origin
of these injuries, they did not challenge that finding (see
paragraphs 20, 21 and 23 above).
Thus
the applicant’s allegation of ill-treatment at the hands of the
police – including the administration of electric shocks to him
– has a solid evidential basis. The fact that the injuries were
to parts of his body within his reach and the alternative view that
they had not necessarily resulted from electric shocks, on which the
Government relied in their observations, do not undermine its
credibility. The Court notes in this connection that the Government
did not provide any explanation as to how the applicant could have
possibly inflicted such injuries on himself.
As
to the Government’s submission about the supposedly minor
nature of the applicant’s injuries, the Court has already held
in its case-law that subjecting a person to electric shocks is a
particularly serious form of ill-treatment capable of provoking
severe pain and cruel suffering, and therefore falling to be treated
as torture, even if it does not result in any long-term damage to
health (see Polonskiy v. Russia, no. 30033/05, § 124,
19 March 2009; and Nechiporuk and Yonkalo v. Ukraine, no.
42310/04, § 157, 21 April 2011).
Moreover, it appears that the use of force against the applicant in
the present case was aimed at debasing him, driving him into
submission and making him confess to criminal offences.
The
Court therefore concludes that the applicant suffered ill-treatment
serious enough to be considered as torture.
Accordingly,
there has been a violation of Article 3 of the Convention under its
substantive limb.
2. Effectiveness of the investigation
(a) The parties’ submissions
The
applicant maintained that the domestic authorities had failed to duly
investigate his complaint of torture and to hold those responsible
liable. He contended that the prosecuting authorities in charge had
not taken an objective stand on the matter and had sought to dismiss
his complaint rather than to verify it. The applicant also pointed
out that he had never been assigned victim status even though it had
been established that he had sustained injuries in police custody.
Lastly, he submitted that, while the deficiencies in the
investigation undertaken by the prosecuting authorities at the city
and regional levels had been acknowledged and criticised on many
occasions, both the General Prosecutor’s Office and the courts
eventually chose to ignore them and to take the investigation’s
findings at face value.
The
Government contested that view. They submitted that the domestic
authorities had investigated the applicant’s allegation of
ill-treatment with due diligence and the fact that they had not
discerned anything criminal in the police officers’ actions did
not undermine the effectiveness of the investigation as such.
(b) The Court’s assessment
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 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 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 57-66 above). The authorities therefore had an
obligation to investigate it in compliance with the aforementioned
effectiveness standards.
The
Court notes that the applicant complained to the prosecuting
authorities about his ill-treatment on 18 March 2002. His allegations
were confirmed by two medical reports. As a result, on 29 April 2002
the Odessa Regional Prosecutor’s Office opened a criminal case
in respect of abuse of power, associated with violence and degrading
treatment, by the police.
The
city and regional prosecuting authorities, however, discontinued the
proceedings five times, finding that there was nothing criminal in
the actions of the officers in question. The Court also observes that
the applicant was never assigned victim status. Although each of the
decisions to discontinue the proceedings (apart from the last one of
12 April 2005) was quashed as not being based on proper investigation
and taken in disregard of the higher-level prosecutor’s
instructions, another such decision followed which merely repeated
the earlier reasoning. Its key point was, in substance, that the
applicant had himself confessed to a number of criminal offences, but
later sought to escape criminal liability, and therefore his words
could not be trusted. By such perverted logic the investigator used
the applicant’s confessions, the result of his alleged torture,
as a reason to dismiss his allegations in that regard.
Furthermore,
the Court notes that the investigator in charge of the ill-treatment
investigation explicitly admitted that he did not find it necessary
to improve the investigation in line with the received instructions,
because its conclusions appeared clear to him from the outset (see
paragraph 30 above). For the Court, this is not only another
confirmation of the investigation’s deficiencies, but also an
indication of its lack of impartiality, as reasonably feared by the
applicant.
The
Court also observes that the superficial nature of the investigation
and, in particular, its failure to take into account all the medical
documents was acknowledged by the Regional Court in the context of
the applicant’s trial. Moreover, the court instructed the
General Prosecutor’s Office to take over the investigation.
The
Court considers that after the Regional Court requested the GPO, the
highest prosecution authority in Ukraine, to investigate the
applicant’s complaint of ill-treatment (on 31 March 2004 and
again on 11 May 2005), it must indeed have appeared pointless to
him to challenge, on his own, the local prosecutor’s decision
of 12 April 2005 dismissing that complaint, especially given that the
earlier remittals had not in fact led to any improvements in the
investigation.
The
Court notes that the aforementioned instruction regarding the
investigation by the GPO remained unimplemented, and the Regional
Court eventually contented itself with the findings of the local
prosecution authorities which it had itself previously criticised
(see paragraphs 33, 38 and 40 above). The applicant’s
appeal in cassation within his trial was also without effect: the
Supreme Court too relied on the findings of the investigation by the
prosecution authorities, erroneously noting that it had been
undertaken at the instruction of the first-instance court.
It
therefore appears that appeals both to higher-level prosecutors and
to courts have proved not capable of ensuring effective investigation
of the applicant’s complaint of ill-treatment by police. At the
same time, the Court does not reproach the applicant for having
reasonably waited the completion of his trial within which this
complaint was examined on the merits. Accordingly, the Court
dismisses the Government’s objections as regards exhaustion of
domestic remedies and compliance with the six month time-limit
previously joined to the merits (see paragraph 55 above).
In
the light of the above considerations, the Court concludes that the
applicant was denied a thorough and effective investigation into his
arguable claim that he had been subjected to torture at the hands of
police. As the Court has held in its judgment concerning the case of
Kaverzin v. Ukraine, this situation stems from systematic
problems at the national level allowing for agents of the State
responsible for such ill-treatment go unpunished (no. 23893/03, 15
May 2012, §§ 169-182, not yet final).
There
has therefore also been a violation of Article 3 of the Convention
under its procedural limb.
II. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 OF
THE CONVENTION
The
applicant further complained that he had not had a fair trial on
account of his self-incrimination under duress and in the absence of
legal assistance. He relied on under Article 6 §§ 1 and 3
(c), which read as follows in their relevant parts:
“1. In the determination of ... any criminal
charge against him, everyone is entitled to a fair ... hearing ... by
[a] ... tribunal ...
3. Everyone charged with a criminal offence has the
following minimum rights:
... (c) to defend himself in person or through
legal assistance of his own choosing or, if he has not sufficient
means to pay for legal assistance, to be given it free when the
interests of justice so require.”
A. Admissibility
The
Court notes that this complaint is neither manifestly ill-founded
within the meaning of Article 35 § 3 (a) of the Convention nor
inadmissible on any other grounds. It must therefore be declared
admissible.
B. Merits
(a) The parties’ submissions
The
applicant maintained that he had been coerced into confessing to a
series of serious crimes, while being deprived of any procedural
rights, including the right to legal assistance. He noted that the
courts had relied on his confessions in securing his conviction, in
disregard of the documents in the file indicating that he had not
given the confessions of his own free will and with the assistance of
a lawyer.
The
Government submitted that courts at two levels of jurisdiction had
examined the applicant’s case with due diligence and that there
was no reason to question their findings. According to them, had
there been any serious breaches of the criminal procedural
legislation by the first-instance court, the Supreme Court would have
identified and remedied them.
(b) The Court’s assessment
The Court notes that although the admissibility of
evidence is, as a matter of principle, a prerogative of domestic
courts, with the role of this Court being limited to assessing the
overall fairness of the proceedings, particular considerations apply
to evidence obtained by a measure found to violate Article 3 of the
Convention. Thus, according to the Court’s case-law, the
admission of statements obtained as a result of torture as evidence
to establish the relevant facts in criminal proceedings renders the
proceedings as a whole unfair, irrespective of their probative value
and of whether their use was decisive in securing the defendant’s
conviction (see Gäfgen v. Germany [GC], no.
22978/05, § 166, ECHR 2010, with further references).
The
Court has found in the present case that the applicant’s
initial confessions were extracted and the material evidence was
obtained from him by ill-treatment amounting to torture within the
meaning of Article 3 of the Convention (see paragraphs 57-66
above). It also notes that the domestic courts admitted those
confessions as evidence in his trial (see paragraph 40 above).
In the light of the principles of its case-law as outlined above, the
Court considers that this extinguished the very essence of the first
applicant’s privilege against self-incrimination, irrespective
of the weight of the impugned confessions in the evidential basis for
his conviction, and regardless of the fact that he confessed again
several times during the investigation.
Furthermore,
as confirmed by the domestic courts (the judgment of the Regional
Court of 10 October 2005 and the ruling of the Supreme Court of
4 September 2007 upholding it), the applicant met with a lawyer
for the first time on 4 March 2002, whereas he had been arrested on 1
March 2002. Although his detention from 1 to 4 March 2002 was
documented by the police as being based on a suspicion that he had
committed an administrative offence, the Court notes that during that
period the applicant was treated as a suspect in criminal
investigations into such serious crimes as banditry, murder, robbery
and theft. It was during that period that he confessed to these
crimes and showed weapons storage places to the police. Looking
beyond the appearances and the language used and concentrating on the
realities of the situation, the Court considers that the applicant’s
administrative detention in reality formed part of his detention as a
criminal suspect, but without the requisite safeguards for his
procedural rights, notably the right to defence (see Kafkaris v.
Cyprus [GC], no. 21906/04, § 116, ECHR 2008, and,
mutatis, mutandis, Doronin v. Ukraine,
no. 16505/02, § 55-56, 19 February 2009). The rights
of the defence will in principle be irretrievably prejudiced when
incriminating statements made during police interrogation without
access to a lawyer are used for a conviction (see Salduz v. Turkey
[GC], no. 36391/02, § 55, ECHR 2008). The Court observes
that, in the course of the applicant’s trial, the courts failed
to give an adequate response to his complaints about the early
restrictions on his right to defence. Moreover, they relied on the
applicant’s self-incriminating statements made in the absence
of legal assistance.
The
Court has on many occasions condemned the practice of placing a
person under administrative arrest to ensure his availability for
questioning as a criminal suspect while not respecting his procedural
rights (see, for example, Leonid Lazarenko v. Ukraine, no.
22313/04, § 54, 28 October 2010, and
Nechiporuk and Yonkalo, cited above, § 264).
Moreover, the Court has held that this problem is of a structural
nature in Ukraine (see Balitskiy v. Ukraine, no.
12793/03, § 54, 3 November 2011). The present
case discloses another example of it.
88. Accordingly,
the Court concludes that there has been a violation of Article
6 §§ 1 and 3 (c) of the Convention.
III. 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 nothing for pecuniary or non-pecuniary damage. He
noted that the fair examination of his case by the Court would be
sufficient just satisfaction for him.
The
Government submitted that no award should be made to the applicant
given the aforementioned statements.
Having
regard to the applicant’s position on the issue, the Court
considers that the finding of a violation constitutes in itself
sufficient just satisfaction for him. At the same time, given the
Court’s findings regarding the unfairness of the domestic
proceedings resulting in the applicant’s conviction and having
regard to the grave circumstances of this case, including the fact
that confessions obtained in violation of the absolute prohibition on
torture were admitted into evidence, the Court considers it
indispensable for the proper protection of human rights that a
retrial (a possibility of which is envisaged in the Ukrainian
legislation) be provided forthwith should the applicant so request.
Any such trial must observe, strictly, the substantive and procedural
safeguards enshrined in Article 6 of the Convention (see Nechiporuk
and Yonkalo, cited above, § 297).
B. Costs and expenses
The
applicant did not make any claim under this head. The Court therefore
makes no award.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Decides to join to the merits the
Government’s objections as to the exhaustion of domestic
remedies and compliance with the six-month time-limit in respect of
the applicant’s complaint under Article 3 of the Convention and
dismisses them after having examined the merits of that complaint;
Declares the application admissible;
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 has been a violation of
Article 6 § 1 of the Convention as regards the applicant’s
privilege against self-incrimination;
Holds that there has been a violation of
Article 6 § 3 (c) of the Convention;
Holds that, as suggested by the applicant, the
finding of a violation constitutes in itself sufficient just
satisfaction for the non-pecuniary damage sustained by him.
Done in English, and notified in writing on 15 May 2012, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia
Westerdiek Dean Spielmann Registrar President
