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KAVERZIN v. UKRAINE - 23893/03 [2012] ECHR 839 (15 May 2012)
URL: http://www.bailii.org/eu/cases/ECHR/2012/839.html
Cite as:
(2017) 64 EHRR 8,
[2012] ECHR 839,
64 EHRR 8
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FIFTH
SECTION
CASE OF
KAVERZIN v. UKRAINE
(Application
no. 23893/03)
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 Kaverzin 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. 23893/03)
against Ukraine lodged with the Court under Article 34
of the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a Ukrainian
national, Mr Aleksandr Valeryevich Kaverzin (“the applicant”),
on 1 July 2003.
The
Ukrainian Government (“the Government”) were represented
by their Agent, Mrs V. Lutkovska, of the Ministry of Justice.
On
12 January 2010 the Court declared
the application partly inadmissible and decided to communicate to
the Government the applicant’s complaints under Article 3 of
the Convention of his torture by the police, a lack of effective
investigation into his allegation of torture by the police, the
inadequacy of the medical assistance provided to him and the
conditions of his detention in Dnipropetrovsk Colony.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1973. He is currently serving a prison sentence
in Vinnytsya.
A. The applicant’s arrest and detention
On
12 January 2001 the applicant was arrested on suspicion of several
counts of aggravated murder and robbery. In the course of his arrest
force was used against the applicant.
Subsequently,
the applicant was taken to a police station, where he was allegedly
tortured by unspecified police officers with the aim of extracting a
confession of his having committed the crimes of which he was
suspected. According to the applicant, during such ill-treatment,
which continued for several days thereafter, he received an eye
injury which eventually resulted in him suffering a complete loss of
eyesight.
Later
on the same day he was taken to a temporary detention centre
(ізолятор
тимчасового
тримання –
“the ITT”) in Kharkiv.
The
next day the applicant was taken to the Kharkiv Emergency Hospital,
where he was examined by a trauma specialist, a surgeon and a
neurosurgeon. The applicant’s skull was x-rayed and samples of
his blood and urine were taken. He was diagnosed with bruising to the
chest, lumbar area, kidneys, and soft tissues on the face and the
back of his head. The doctors prescribed a further examination of the
applicant by an urologist and outpatient supervision by a
neurologist.
On
15 January 2001 a prosecutor from the Kharkiv Regional
Prosecutor’s Office questioned the applicant, in the presence
of a lawyer appointed to assist him by the authorities, with a view
to taking a decision concerning the applicant’s continued
detention. The prosecutor noted a haematoma on the applicant’s
face next to his right eye. According to the prosecutor’s
report to his superior of the same date, the applicant explained that
he had received the injury during his arrest, that he had not been
ill treated by the police after his arrest and that he had
voluntarily given his confession.
On
16 January 2001 the prosecutor was instructed by his superior to
carry out an inquiry in order to take a decision in accordance with
Article 97 of the Code of Criminal Procedure (see paragraph 45
below).
On
the same date several police officers gave written explanations
concerning the applicant’s arrest, in which they stated that
the applicant had resisted arrest by “applying unarmed
combat techniques and trying to escape”. According to
them, “measures of physical restraint and special means [of
restraint], namely handcuffs” had been used against the
applicant and he had been taken to the police station.
On
19 January 2001 the applicant was taken by the police to see a
medical expert. The expert examined the applicant and noted that he
displayed bleeding into the eyeball, haematomas and abrasions on the
left side of his chest, arms and legs, some of which were three to
four days old and others were nine to eleven days old. The expert
noted that many of the injuries, including the bleeding into the
applicant’s eyeball, had been caused by blunt solid objects.
According to the expert’s notes, during the examination the
applicant stated that some of his injuries had been caused by him
falling down the stairs, that his vision had been deteriorating since
he was young, and that he had no complaints about the authorities’
actions. The expert concluded that the injuries were of a minor
character and that they had not lead to a deterioration of the
applicant’s health.
The
applicant remained in police custody until 23 January 2001. On that
date he was placed in an investigative detention unit (слідчий
ізолятор –
“SIZO”) in Kharkiv. Upon his arrival at Kharkiv SIZO, the
applicant was examined by a paramedic, who noted several bruises on
the left shoulder, chest, arm and knee. The applicant did not receive
any treatment for his injuries in Kharkiv SIZO.
According
to the applicant, on 26 January 2001 he complained to the same
prosecutor from the Kharkiv Regional Prosecutor’s Office that
had previously questioned him that he had been tortured by the police
after his arrest.
On
the same date the prosecutor issued a decision rejecting the
applicant’s complaints and informed the applicant of it. The
relevant parts of the decision read as follows:
“...On 15 January 2001 A. V. Kaverzin was
questioned at the regional prosecutor’s office in the course of
consideration of the question of ... his placement in Kharkiv [SIZO]
No. 27. During his questioning with the participation of [his]
defence lawyer, A. V. Kaverzin explained that he had sustained the
injuries in the course of his arrest, that he did not have any
complaints against the police, [and] that he had made his first
statements freely, without psychological or physical pressure on the
part of the police officers.
The [police] officers ... who had taken part in the
arrest of A. V. Kaverzin [were questioned and] explained that they
had been aware that A. V. Kaverzin had used firearms during his
attempted arrest by the police in the Khmelnytsk Region, as a result
of which two police officers had died. Because of that [fact] they
had been particularly cautious and when A. V. Kaverzin had attempted
to resist [arrest] ... there had been measures of physical restraint
and special means [of restraint], namely handcuffs, applied to him.
According to the records of the forensic examination ...
dated 19 January 2001, [the following injuries on the body and face
of A. V. Kaverzin] had been discovered: bleeding into the eyeball; a
haematoma on the left side of the chest; numerous abrasions on the
lower limbs that had been caused by blunt solid objects; abrasions
and scratches on the wrists that had been caused by blunt solid
objects, which could have been the handcuffs; numerous indurations of
various parts of the skin with small wounds caused by insects ... the
injuries could have been caused to A. V. Kaverzin in the
circumstances described by [both] the police officers and A. V.
Kaverzin himself. Therefore, there are no elements of a crime in the
actions of the police officers.
On the basis of the foregoing, pursuant to paragraph 2
of Article 6 of [the Code of Criminal Procedure] of Ukraine [the
prosecutor].
Decided:
1. To refuse the opening of a criminal case
against [the police] officers who took part in the arrest of ... A.
V. Kaverzin on the ground there were no elements of a crime in their
actions...”
According
to the applicant, he was not given a copy of that decision and its
details were not explained to him.
The
decision was not challenged before the courts under the procedure
envisaged by Article 236-1 of the Code of Criminal Procedure.
On
25 February 2001 the applicant was transferred to Khmelnytsk
SIZO. On that date he was examined by a doctor, who noted that the
applicant suffered from loss of eyesight as a result of a head injury
in January 2001 and had several bruises on his body.
On
24 April 2001 the applicant was examined by a medical expert, who
noted that the applicant had suffered a head injury and was
completely blind.
During
his detention in Khmelnytsk SIZO the applicant was examined by
doctors and received specialist ophthalmological treatment in
September and October 2001 and in August, September and November
2002. On several occasions he was taken to public hospitals for
medical examination. The doctors concluded that the applicant did not
require eye surgery and could receive the necessary medical treatment
in the SIZO.
On
23 September 2002, on the order of the trial court, a medical panel
established that the applicant had become completely blind and,
accordingly, suffered from the highest officially recognised degree
of disability. The applicant was diagnosed with corneal cicatrix and
leucoma, a cataract of the right eye resulting from a penetrating
wound, and uveitis in the left eye. The doctors concluded that the
applicant was in need of outside assistance to manage aspects of
daily life.
On
12 August 2003 the applicant was placed in Dnipropetrovsk Colony
to serve his sentence.
During
his detention in Dnipropetrovsk Colony the applicant was examined by
doctors, including an ophthalmologist, at least once every year. In
2004 he was prescribed eye surgery at a specialised hospital.
According to the Government, the applicant did not avail himself of
the possibility to undergo the surgery pursuant to paragraph 5
Article 116 of the Code on the Execution of Sentences (see paragraph
48 below).
Subsequently,
the applicant was prescribed anti-relapse treatment in view of his
blindness, which mainly included administering medication. On several
occasions the applicant refused to be examined by doctors and in
January and February 2006 he refused to be transferred to a hospital
within Vinnytsya Colony to receive specialised ophthalmological
treatment.
In
February 2004 the administration of Dnipropetrovsk Colony did not
allow the applicant’s mother to supply him with unspecified
medication which he allegedly needed. The authorities explained that
the applicant would be given the necessary medication if his doctors
so decided. In March 2004 the authorities informed the applicant’s
mother that her request for the applicant’s transfer to a
specialised prison for persons suffering from the highest degree of
disability could not be met as no such a prison existed. The
applicant did not provide further details in that respect.
The
applicant alleged that in spite of his blindness he had been
handcuffed when leaving his cell, including during daily walks and
family visits, and had been followed by several wardens with a dog.
He
also stated that in Dnipropetrovsk Colony he had been unlawfully
refused two-hour daily walks to which he had allegedly been entitled
in view of his disability; that his cell had lacked ventilation; and
that he had not been allowed to make phone calls. He provided no
further details in this respect.
According
to the applicant, in April 2004 the prison authorities delayed, for
about a month, the dispatch of one of his letters.
By
a letter of 16 December 2004 addressed to the applicant’s
mother, the Head of the Dnipropetrovsk Penitentiary Service informed
her that:
“...
During [daily] walks [the
applicant] has been handcuffed with his hands behind his back, as are
all other life-sentenced prisoners, in accordance with paragraph 25
of the Internal Regulations of the Penitentiary Institutions.
...
Once the area for [daily] walks is adapted to the
requirements of the Internal Regulations ... as amended on 9 November
2004, life-sentenced prisoners will be allowed to stay there without
handcuffs.
In accordance with Article 151 of the Code on Execution
of Sentences and section 23 of the Internal Regulations of the
Penitentiary Institutions, prisoners sentenced for life are entitled
to one-hour daily walks.
Prisoners suffering from tuberculosis ... are entitled
to two-hour daily walks.
[Mr Kaverzin] does not suffer from tuberculosis, he is
being detained under the ordinary regulations, and he is being [taken
for] one-hour daily walks.
All [of Mr Kaverzin’s] correspondence is
dispatched in accordance with Article 113 of the Code on the
Execution of Sentences; it has not been hindered.”
By
a letter of 2 March 2005, the Governor of Dnipropetrovsk Colony
informed the applicant’s mother that in 2005 one of the dogs
accompanying the prison guards had bit the applicant because of his
own recklessness. It was also stated that handcuffs were not being
applied during daily walks.
The
two above-mentioned letters contained a statement that the actions of
the penitentiary authorities could be challenged before a prosecutor.
On
3 December 2008 the applicant was moved to Vinnytsya Colony, where he
is currently serving his sentence. The applicant has not provided
information concerning the medical assistance provided to him in that
colony.
B. Further complaints of the applicant’s torture
by the police
In
May 2001 the applicant’s mother was informed that the
applicant’s complaint of torture had been rejected as
unsubstantiated, though no details of the decision were given to her.
In November 2003 she requested a copy of the decision, which was sent
to her in February 2004.
Subsequently,
the applicant’s mother complained to a Member of Parliament of
the applicant’s torture by the police and the authorities’
failure to investigate the matter. Upon a request by the Member of
Parliament, in 2005 the materials of the previous inquiry were
checked by the prosecutor’s superior, who eventually confirmed
the accuracy of the decision issued on 26 January 2001. In
particular, the supervising prosecutor studied the materials of the
2001 inquiry.
In
March 2005 the applicant lodged a compensation claim with the
Shevchenkivskyi District Court of Kyiv against the State Department
for the Execution of Sentences and the Ministry of Interior, alleging
that his disability had been caused by the unlawful actions of the
police and the failure of the penitentiary authorities to provide him
with adequate medical assistance. The courts at two levels of
jurisdiction refused to examine the applicant’s claim for
failure to meet the relevant procedural requirements. The applicant
challenged the refusal in cassation, the outcome of which is unknown.
C. The criminal investigation against the applicant and
his trial
The
criminal investigation in the applicant’s case was completed in
November 2001. Subsequently, the criminal case was referred to the
Khmelnytsk Court of Appeal for trial.
In
the course of the investigation and trial, the applicant was assisted
by a lawyer appointed for him by the authorities. That lawyer took
part in the first stages of the proceedings before the first-instance
court and was later replaced by another lawyer for unknown reasons.
The new lawyer continued defending the applicant until those
proceedings were completed.
In
the course of the trial the applicant contested the charges against
him and alleged that his confession to some of the crimes of which he
had been accused had been obtained under physical and psychological
pressure from the police.
On
13 November 2002 the court found the applicant guilty of thirteen
counts of aggravated murder, infliction of grievous bodily injuries,
illegal possession of firearms, banditry, and robbery. In particular,
the applicant was held to be responsible for the murder of seven
people, including three police officers who had attempted to stop him
from committing crimes. He was found to be exceptionally dangerous to
society and was sentenced to life imprisonment, together with the
confiscation of all his property.
The
court mainly based its judgment on the statements of about thirty
witnesses and victims of the crimes, the testimony given by the
applicant at the trial, and on the conclusions of several forensic,
ballistic and other expert examinations. The findings of the court
concerning one of the counts of murder were partly based on the
confessions obtained from the applicant during his time in police
custody.
In
the same judgment the court, relying on the decision of the
prosecutor of 26 January 2001, dismissed the applicant’s
complaints of torture by the police and found that there was no
evidence that his confession had been obtained under duress.
On
17 December 2002 the applicant lodged an appeal in cassation,
contesting the first-instance court’s factual findings and
legal conclusions. He further argued that, in determining his
sentence, the court had not taken into account his poor state of
health. The applicant also maintained his allegation of torture by
the police.
On
13 May 2003 the Supreme Court partly varied the judgment of
13 November 2002, while confirming the first-instance
court’s findings concerning the applicant’s guilt and
upholding his sentence. The Supreme Court also rejected the
applicant’s allegation of torture on the same grounds as the
first-instance court.
II. RELEVANT DOMESTIC LAW
A. Constitution of Ukraine 1996
The
relevant provisions of the Constitution read as follows:
Article 28
“Everyone has the right to respect for his or her
dignity.
No one shall be subjected to torture, cruel, inhuman or
degrading treatment or punishment that violates his or her
dignity...”
Article 121
“The Prosecution Service of Ukraine constitutes a
unified system that is entrusted with:
(1) prosecuting [crimes] in court on behalf
of the State;
(2) representing the interests of a citizen
or of the State in court in cases determined by law;
(3) supervising compliance with the law by
the bodies that conduct detection and search activities, inquiries
and pre-trial investigations;
(4) supervising observance of the law in the
execution of judicial decisions in criminal cases, and also in the
application of other coercive measures aimed at the restraint of
citizens’ personal liberty.”
B. Code of Criminal Procedure 1960
The
relevant provisions of the Code of Criminal Procedure, as in force at
the material time, provided:
Article 4
The obligation to institute criminal proceedings and
to investigate a crime
“A court, prosecutor, investigator or body of
inquiry must, to the extent that it is within their power to do so,
institute criminal proceedings in every case where signs of a crime
have been discovered, take all necessary measures provided by law to
establish the circumstances surrounding the crime, identify those
guilty of the crime and punish them.”
Article 94
Grounds for instituting criminal proceedings
“Criminal proceedings shall be instituted on the
basis of:
(1) applications or communications from
enterprises, institutions, organisations, officials, representatives
of official bodies, the public and individuals;
(2) communications from representatives of
the authorities, the public or individual citizens who have
apprehended a suspect in the place where the crime was committed or
caught him red-handed;
(3) [the suspect’s] appearance with an
acknowledgement of guilt;
(4) information published in the media;
(5) direct detection of signs of a crime by a
body of inquiry, investigator, prosecutor or court.
[Criminal] proceedings may be instituted only where
there is sufficient information that a crime has been committed.”
Article 95
Applications and communications about a crime
“Applications or communications ... about a crime
may be made in writing or orally...”
Article 97
The obligation to accept applications or
communications about crimes and the procedure for their examination
“A prosecutor, investigator, body of inquiry or
judge shall accept applications or communications about crimes [which
have been] committed or [are] being prepared, including in cases that
are outside their jurisdiction.
Upon an application or communication about a crime, the
prosecutor, investigator, body of inquiry or judge shall adopt,
within three days, one of the following decisions:
(1) to institute criminal proceedings;
(2) to refuse to institute criminal
proceedings;
(3) to remit the application or communication
for examination in accordance with [the rules of] jurisdiction.
Simultaneously, all possible measures shall be applied
to prevent the further commission of the crime or to put an end to
it...
Before instituting criminal proceedings, the prosecutor,
investigator or body of inquiry shall conduct an inquiry, if it is
necessary to verify [information contained in] an application or
communication about a crime. [Such inquiry] shall be completed within
ten days by means of collecting explanations from individual citizens
or officials or by means of obtaining necessary documents.
[Information contained in] an application or
communication about a crime may be verified before instituting
criminal proceedings through detection and search activities...”
Article 99-1
Appeal against a decision refusing to institute
criminal proceedings
“A decision by an investigator or body of inquiry
refusing to institute criminal proceedings may be appealed against to
the relevant prosecutor. If that decision was taken by a prosecutor,
it may be appealed to a higher prosecutor. An appeal shall be lodged
by a person whose interests are concerned or by his/her
representative within seven days from the date of receipt of a copy
of the decision.
If the prosecutor refuses to annul the decision ... a
person whose interests are concerned or his/her representative may
lodge an appeal against it with a court under the procedure
prescribed by Article 236-1 of this Code.
...”
Article 236-1
Appeal to a court against a decision refusing to
institute criminal proceedings
“An appeal against a decision by a body of
inquiry, investigator or prosecutor ... refusing to institute
criminal proceedings shall be lodged with [the relevant] court by a
person whose interests are concerned or his/her representative within
seven days of notification of the decision by the prosecutor...”
Article 236-2
The court’s consideration of an appeal against
a decision refusing to institute criminal proceedings
“An appeal against a decision by a body of
inquiry, investigator or prosecutor ... refusing to institute
criminal proceedings shall be examined [by the relevant court] in a
single-judge bench within ten days of its receipt.
The judge shall obtain the materials on the basis of
which the decision ... was taken, examine them, and inform the
prosecutor and the appellant of the date on which the hearing on the
appeal is scheduled. If necessary, the judge may hear the appellant
in person.
Having examined the appeal, the judge ... shall take one
of the following decisions, depending on whether the requirements of
Article 99 of this Code were observed:
(1) to set aside the decision not to
institute criminal proceedings and remit the materials for additional
inquiry or open a criminal case;
(2) to reject the appeal.
The judge’s order may not be appealed against...”
C. Code on the Execution of Sentences 2003
Article
18 of the Code provides that male detainees sentenced to life
imprisonment are to serve their sentences in correctional colonies of
the highest level of security. They are placed in cells for two
people. Under Article 140, they are allowed to have a one-hour
daily walk.
Article
106 prohibits the use of special instruments of restraint, including
handcuffs, to prisoners with (amongst other things) “apparent
signs of disability”, provided they do not commit gang violence
or violent assault endangering the life or health of others and do
not offer armed resistance.
Pursuant
to paragraph 5 of Article 116, prisoners may seek, at their own or at
their relatives’ expense, medical assistance, including
treatment, from civilian medical institutions. In such cases, medical
assistance is to be provided at the medical unit of the colony in
which the prisoner is serving his/her sentence, under the supervision
of the colony’s medical staff.
D. Prosecution Service Act 1991
According to Section 6 of the Prosecution Service Act,
the prosecution service constitutes an integrated centralised system
headed by the General Prosecutor of Ukraine and based on the
principle of hierarchical subordination.
E. Detection and Search Act 1992
The
Detection and Search Act provides a legal basis for various measures
which may be used by the police, secret service and several other
law-enforcement bodies in order to collect and record information
about unlawful activities. These measures include questioning
individuals upon their consent, secretly collecting data concerning
crimes, using undercover agents, personal surveillance and so forth.
Law-enforcement authorities entrusted with detection and search
functions are required to follow prosecutors’ instructions.
F. Internal Regulations of the Penitentiary
Institutions, approved by the State Department for the Execution of
Sentences on 25 December 2003 (Order No. 275)
The
rules governing the detention of prisoners sentenced to life
imprisonment subject them to special restrictions as regards the
material conditions of their detention, activities and opportunities
for human contact, which include permanent separation from the rest
of the prison population, limited visiting entitlements, a
prohibition on communication with other prisoners, and being escorted
by three wardens with a guard dog and handcuffed with their arms
behind their back whenever they are taken out of their cell
(regulations 23-25). On 9 November 2004 regulation 8 has been amended
to include the requirement that doors to walking areas in the sectors
for prisoners sentenced to life imprisonment should be equipped with
special windows allowing putting on and off handcuffs on prisoners.
Pursuant
to regulation 94, prisoners sentenced to life imprisonment receive
medical aid, as a rule, in their cells in the presence of at least
three guards. Such prisoners are to be transferred to a medical
institution run by the State Department for the Execution of
Sentences, or to a regular medical centre, if they need urgent
medical aid.
Annex
9 to the Regulations states that people detained in penitentiary
institutions are not allowed to keep in their possession any
medicines or medical items.
G. Instruction on the Supervision of Prisoners Serving
Sentences in Penitentiary Institutions, approved by the State
Department for the Execution of Sentences on 22 October 2004 (Order
No. 205)
The
instruction is a classified (non-public) document. An extract from it
(paragraph 30.9) submitted by the Government provides as follows:
“When prisoners sentenced to life imprisonment are
taken out of their cells, the junior warden shall open the first door
from the corridor side of the [door] and order the prisoners to come
up to the door and turn round, facing toward the opposite wall and
holding their hands behind their backs, and then, through the
opening, handcuff the prisoners. Having handcuffed all the prisoners
and having made sure that they have stepped back [against] the
opposite wall, the warden shall [then] open the internal door. After
the prisoners have been taken out from their cells, they shall
undergo a partial search with the use, if necessary, of technical
means of detection and control. The aforementioned category of
prisoners are [to be] taken from their cells one after another,
escorted by two officers from the administration and a junior warden
with a guard dog.
When escorting a prisoner sentenced to life
imprisonment, one junior warden shall walk ahead of him, surveying
the route. The prisoner shall follow two to three metres behind. The
rest of the escorting junior wardens shall follow the prisoner one
metre behind. The movement of life-term prisoners is organised under
the personal control of the on-duty assistant to the prison governor,
or his deputy, who, in all instances, shall follow in the rear.”
III. RELEVANT DOMESTIC PRACTICE
A. Reports of the
Parliamentary Commissioner for Human Rights (Ombudsman) concerning
the human rights situation in Ukraine
In
the 2000-2001 report the Ombudsman described the problem of
ill-treatment in the course of pre-trial investigations as a systemic
one. In particular, she noted that:
“...[P]eople [arrested by the police] are being
beaten, humiliated, [and] tortured during the first hours following
arrest in order to extract confessions or statements incriminating
others. Torture and cruel and degrading treatment of citizens in the
premises of the police at pre-trial stages of criminal proceedings
are widespread and systemic. [This] gives evidence of brutal
violations of human rights and abuse of power.”
According
to the Ombudsman, the fact that police officers were required to
increase the percentage of solved crimes, while investigators were
required to increase the number of cases referred to the courts for
trial, contributed to the use of torture. As she put it in the
report, “the lack of investigators’ qualification in the
situation when courts often accept a suspect’s confession as
sufficient proof [of his guilt] [gave motivation] for law-enforcement
officers to rapidly [extract confessions]...”
The
Ombudsman also noted the lack of adequate action on the part of
prosecutors as regards allegations of torture by the police, the
prosecutors’ inquiries often being perfunctory and seriously
protracted. She further observed that, when such cases reached the
courts, the latter were in general hesitant to apply adequate
sanctions against police officers responsible for torture and other
forms of ill-treatment. According to the Ombudsman, in 2000 out of 55
police officers found guilty of such crimes only 22 were sentenced to
imprisonment.
In
her subsequent yearly reports concerning the human-rights situation
in Ukraine, the Ombudsman made similar observations regarding the
problem of ill-treatment by the police. For instance, in the 2010
report she noted that (extracts from paragraph 2.3 of the report):
“...[L]aw-enforcement authorities beat individuals
in order to extract confessions, to improve solved crimes’
rates, to extort bribes, or to steal [individuals’ property].
The majority of such incidents take place in the
premises [of law-enforcement authorities]. Unfortunately, torture
takes place in all regions of Ukraine, which is evidenced by the
results of [the Ombudsman’s] work, information from
prosecutors, human rights defenders, the Ministry of Interior, and
court verdicts. [Such incidents] happen in different places, with
different individuals, and in different circumstances. However, it is
perhaps commonplace [...] that an individual in [Ukraine] may not
feel free [and] protected from the criminal acts of State agents.
...
Unfortunately, ill-treatment by law-enforcement
authorities has taken on very brutal forms and has increasingly
resulted in detainees’ deaths. In 2008 police officers tortured
four people to death, in 2009 three, and in 2010 eight!”
In
the 2011 report the Ombudsman named the problem of ill treatment
as one of the top priorities in her work, noting that a third of
about 5,000 complaints, which were being lodged with her office
against police officers every year, concerned that problem. The
Ombudsman considered that, in order to eradicate torture in police
custody, it was necessary “to liquidate corruption in that
body, to change the evaluation of police officers’ work
[currently] based on the number of solved crimes, to put an end to
[the practice of] abusing arrests and administrative detention, to
provide arrested people with the possibility of obtaining assistance
of a lawyer, to keep record and statistics of incidents of
application of physical violence, to create an appropriate mechanism
of investigation of complaints of torture, and [to establish] the
national mechanism of prevention of torture” (section 3.4 of
the report).
B. 2011
report of the Association of Ukrainian Monitors on Human Rights
Conduct in Law Enforcement
The
report is based upon a detailed analysis of information concerning
the human rights’ observance by the Ukrainian police in 2011,
which includes official statistics, normative acts, observations by
non governmental organisations, individual complaints and mass
media publications. According to the report, in 2011 alone about
980,200 persons were ill-treated by the police, of which 35 persons
died. There were about 1,300 official complaints of ill-treatment by
the police lodged with the authorities during that year and only
about 5% of them were found substantiated. Prosecutors opened 5
criminal cases against police officers on charges of torture and 15
cases on charges of infliction of bodily injuries and murder by
agents of the police.
The
report also contains the following extract from an unpublished letter
of the Ministry of Interior dated 24 January 2011:
“...Numerous complaints against police officers
provide evidence that the aims, methods and practice of law
enforcement authorities have not changed. Repression, disrespect of
citizens’ rights, freedoms and interests prevail in particular
through [resort to] torture, inhuman or degrading treatment, physical
and psychological pressure on suspects. Besides, because of the low
level of professionalism of a large number of police officers and
[their] lack of skills [to employ detention and search techniques] as
envisaged by law, they use prohibited methods of [police] inquiry...”
C. Domestic
decisions submitted by the Government
The
Government submitted copies of decisions concerning complaints of
police ill-treatment made by two private individuals, V. P. and I.
P., who had been arrested by the police on 2 April 2009 and released
on the same day. The police had allegedly tried to coerce the
complainants to confess to certain criminal acts. As established by
medical examinations upon their release from police custody, the
complainants had been injured either on that date or several days
before.
The
copies included two prosecutors’ decisions rejecting the
complaints, which were subsequently quashed by higher prosecutors and
a court. The court found that the prosecutors’ inquiry had not
been full and objective and that they should have questioned several
more people, including one of the complainants, and should have
examined certain medical documents. The third decision issued by the
prosecutors contained reference to the medical documents indicated by
the court and to statements obtained from one of the people mentioned
in the court’s decision. It was concluded that the allegations
were unfounded and that the complainants had been injured before
their arrest. It is unknown if the latter finding was challenged
before the courts.
IV. Relevant Council of Europe MATERIAL
A. Reports of the European Committee for the Prevention
of Torture and Inhuman or Degrading Treatment or Punishment (CPT)
On
1 December 2004 the CPT published a report on its visit to
Ukraine from 24 November to 6 December 2002. The relevant parts
of the 2004 report read as follows:
“...
2. Torture and other forms of ill-treatment
17. The treatment of persons deprived of
their liberty by members of the operational services of [the police]
remains a source of grave concern for the CPT, four years after its
first visit to Ukraine. Once again, widespread allegations of
physical ill-treatment have been received, at the time of
apprehension and in particular during questioning.
...
18. There is no need here to set out the
alleged forms of physical ill-treatment, as they are similar to those
described in paragraph 18 of the report on the 2000 visit. As in the
past, in many cases, the severity of the ill-treatment alleged was
such that it could be considered as amounting to torture.
...
20. In the light of the information at its
disposal, the CPT can only reach the same conclusion as it had in
1998 and 2000, namely that persons deprived of their liberty by [the
police] run a significant risk of being physically ill-treated at the
time of their apprehension and/or while in the custody of [the
police] (particularly when being questioned), and that on occasion
resort may be had to severe ill-treatment/torture.
The 2002 visit showed that progress in implementing the
recommendations made by the CPT in its previous report, aimed at
introducing a strategy to prevent ill-treatment, has been slow...
22. It is axiomatic that one of the most
effective means of preventing ill-treatment of persons deprived of
their liberty lies in the diligent examination by the relevant
authorities of all complaints of such treatment brought before them
and, where appropriate, the imposition of a suitable penalty. This
will have a very strong deterrent effect. Conversely, if the relevant
authorities do not take effective action upon complaints referred to
them, those minded to ill-treat persons deprived of their liberty
will quickly come to believe that they can act with impunity.
23. In this respect, it must unfortunately be
pointed out that, once again, the CPT’s delegation heard
allegations to the effect that prosecutors and judges paid little
attention to complaints of ill-treatment - even when the person
concerned displayed visible injuries.
In this context, the figures transmitted by the
Ukrainian Prosecutor General’s Office speak volumes. It seems
that over the first 10 months of 2002, the Ukrainian prosecutors did
not initiate any criminal proceedings against law enforcement
officials under Articles 126 (assault and battery) and 127 (torture)
of the Criminal Code.”
The
CPT made similar findings regarding allegations of ill-treatment by
the police and lack of effective investigation in the reports on its
visits to Ukraine from 9 to 21 October 2005 (paragraphs 15-38 of the
2005 report) and from 9 to 21 September 2009 (paragraphs 12-25 of the
2009 report). In the preliminary observations concerning its visit to
Ukraine from 29 November to 6 December 2011, published on 12
March 2012, the CPT noted that “the phenomenon of police
ill-treatment [remained] widespread and that persons [ran] a
significant risk of being subjected to ill-treatment while in the
hands of the police (in particular, when they [did] not rapidly
confess to the criminal offence(s) of which they [were] suspected)”.
During
the 2005 visit the CPT delegation also inspected Temnivka Colony No.
100 for men, including the unit for men sentenced to life
imprisonment, and the temporary unit for women sentenced to life
imprisonment at Kharkiv Colony No. 54. The CPT made the following
findings concerning certain aspects of the conditions of detention of
prisoners sentenced to life imprisonment (paragraph 113 of the 2005
report):
“...[W]hereas the unacceptable practice of
systematic handcuffing whenever a prisoner was taken out of a cell
has at last been abolished for women, the Ukrainian authorities have
still not ceased this practice for men.
More generally, the attitude towards this category of
prisoners at Colony No. 100 was extremely security-oriented, with
staff constantly stressing their ‘dangerousness’. In
addition, the delegation noticed a wire cage in the staff office, in
which the prisoners said they were systematically locked when
interviewed by members of staff...”
The
CPT called upon the Ukrainian authorities to abolish “the
practice of systematically handcuffing men whenever they are taken
out of their cell ... with immediate effect”.
B. Reports by the Commissioner for Human Rights, Mr
Thomas Hammarberg on his visits to Ukraine
On
26 September 2007 the Commissioner for Human Rights published a
report on his visit to Ukraine from 10 to 17 December 2006, in which
he inter alia noted that “practically all [his]
interlocutors, including heads of parliamentary political groups,
representatives of law enforcement and civil society confirmed that
torture was widespread in Ukraine” (paragraph 44 of the report
of 26 September 2007). During his visit to Ukraine in November 2011,
the Commissioner for Human Rights made the following observations in
that context (paragraph 93 of the report published on 23 February
2012):
“Ill-treatment by police in custody is a
persistent problem in Ukraine, which has been raised in a number of
reports of the Council of Europe Committee for the Prevention of
Torture. Reports by international non-governmental organisations
suggest that the phenomenon is fed by a culture of police impunity.
Complainants who make well-founded allegations of serious abuses
often receive the standard response that “there is no evidence
of a crime”. The vast majority of cases, however, both grave
and minor, are not reported to the authorities at all because the
victims fear retaliation by the police, or have no faith that any
action will be taken.”
C. Recommendation Rec(2006)2 of the Committee of
Ministers to member states on the European Prison Rules, adopted on
11 January 2006 (Appendix)
The
relevant extracts from the Appendix to the Recommendation, adopted at
the 952nd meeting of the Committee of Ministers, read as follows:
“...
Instruments of restraint
68.1 The use of chains and irons shall be
prohibited.
68.2 Handcuffs, restraint jackets and other
body restraints shall not be used except:
a. if necessary, as a precaution
against escape during a transfer, provided that they shall be removed
when the prisoner appears before a judicial or administrative
authority unless that authority decides otherwise; or
b. by order of the director, if other
methods of control fail, in order to protect a prisoner from
self injury, injury to others or to prevent serious damage to
property, provided that in such instances the director shall
immediately inform the medical practitioner and report to the higher
prison authority.
68.3 Instruments of restraint shall not be
applied for any longer time than is strictly necessary.
68.4 The manner of use of instruments of
restraint shall be specified in national law...”
D. Observations and decisions of the Committee of
Ministers concerning the execution of judgments relating to the
issues of ill treatment by the police and lack of effective
investigation
At
a number of its meetings the Committee of Ministers has considered,
pursuant to Article 46 § 2 of the Convention, the
measures adopted by the Government of Ukraine with a view to
complying with the Court’s judgments concerning the issues of
inhuman and degrading treatment of applicants and/or the absence of
an effective remedy whereby complaint might be made and a lack of
procedural safeguards in police custody.
For
instance, during the 1100th meeting on 1-2 December 2010 eight such
judgments were put on the Committee’s agenda, namely Afanasyev
v. Ukraine (no. 38722/02, 5 April 2005), Kozinets v.
Ukraine (no. 75520/01, 6 December 2007), Kobets v. Ukraine
(no. 16437/04, 14 February 2008), Ismailov v. Ukraine (no.
17323/04, 27 November 2008), Spinov v. Ukraine (no. 34331/03,
27 November 2008), Suptel v. Ukraine (no. 39188/04,
19 February 2009), Vergelskyy v. Ukraine (no. 19312/06,
12 March 2009) and Drozd v. Ukraine (no. 12174/03, 30 July
2009).
According
to the material of the meeting (see document CM/Del/OJ/DH(2010)1100),
the Ministers’ Deputies noted that since the events described
in the judgments the Ukrainian authorities had adopted a number of
measures to prevent new, similar violations. However, in spite of
those measures, “the infliction of deliberate physical
ill-treatment of detainees by police officers on duty, remains
widespread in Ukraine”. The Deputies further noted that a
comprehensive “action plan/action report” was awaited
from Ukraine, which should contain details of the measures envisaged
or taken to combat abuse in police custody and the evaluation of how
these measures addressed the violations found by the Court.
Therefore,
the consideration of the matter was postponed pending the submission
of the “action plan/action report” by the Ukrainian
Government.
E. Guidelines of the Committee of Ministers of the
Council of Europe on eradicating impunity for serious human rights
violations
At
its 1110th meeting on 30 March 2011 the
Committee of Ministers adopted the guidelines setting out concrete
measures which the member states should adopt to ensure that those
responsible for acts amounting to serious human rights violations
(including violations of Articles 2, 3, 4 and 5 of the Convention)
were held to account for their actions and that victims of human
rights violations had the right to an effective remedy.
V. Other Relevant international material
A. Concluding observations of the
United Nations Human Rights Committee and conclusions and
recommendations of the United Nations Committee against Torture
Concern
about the “persistence of
widespread use of torture” was expressed by the
UN Human Rights Committee in its concluding observations concerning
Ukraine published in November 2001.
At
its thirty-eighth session (30 April – 18 May 2007) the UN
Committee against Torture considered the
fifth periodic report concerning Ukraine. The relevant extracts from
its conclusions provide as follows:
“...
9. The Committee is deeply concerned at allegations of
torture and ill-treatment of suspects during detention, as well as
reported abuses during the period between apprehension and the formal
presentation of a detainee to a judge, thus providing insufficient
legal safeguards to detainees...
10. The Committee is concerned by the failure
to initiate and conduct prompt, impartial and effective
investigations into complaints of torture and ill-treatment, in
particular due to the problems posed by the dual nature and
responsibilities of the General Prosecutor’s office, (a) for
prosecution and (b) for oversight of the proper conduct of
investigations. The Committee notes the conflict of interest between
these two responsibilities, resulting in a lack of independent
oversight of cases where the General Prosecutor’s office fails
to initiate an investigation. Furthermore, there is an absence of
data on the work of the General Prosecutor’s office, such as
statistics on crime investigations, prosecutions and convictions, and
the apparent absence of a mechanism for data collection...
11. The Committee is concerned at the current
investigation system in which confessions are used as a principal
form of evidence for prosecution, thus creating conditions that may
encourage the use of torture and ill-treatment of suspects. The
Committee regrets that the State party did not sufficiently clarify
the legal provisions ensuring that any statements which have been
made under torture shall not be invoked as evidence in any
proceedings, as stipulated in the Convention...”
B. Extracts from the reports of
the International Helsinki Federation for Human
Rights and Amnesty International concerning
Ukraine
In
its 2002 report on human rights violations, the
International Helsinki Federation for Human Rights made
the following observations in respect of Ukraine:
“...[T]he pattern of torture and ill-treatment by
law enforcement officials continued to persist from previous years,
with the perpetrators rarely being brought to justice. Police
officers reportedly punched, hit and kicked detainees and used
various torture techniques on them, including suffocation.
Once initiated, investigations into cases of alleged
abuse by police officers were slow and inconclusive. According to the
Government, about 185 cases of abuse by law enforcement officials
were reported, while about 200 police members were charged with such
crimes in 2000. During 2001 the Parliamentary Committee on Human
Rights reportedly received more than 300 complaints concerning human
rights abuses by law enforcement officials, and 50 of them dealt with
physical and psychological violence.
...”
Amnesty
International’s 2001 report referred to “widespread and
persistent allegations of torture and ill-treatment of detainees by
law enforcement”. Subsequent reports contained similar
observations.
In
a recent publication concerning the issue, Blunt Force: Torture
and Police Impunity in Ukraine (12 October
2011), Amnesty International noted that:
“...
According to some estimates, hundreds of thousands of
people in Ukraine may be victims of police abuses each year.
Violations range from minor infringements of the criminal procedural
code, to racial abuse, extortion, torture and other ill-treatment,
and deaths in custody.
These abuses are encouraged by a culture of impunity for
the police in Ukraine. Complainants who make well-founded allegations
of serious human rights abuses all too often receive the standard
response “there is no evidence of a crime”. The vast
majority of cases, however, both grave and minor, are not reported to
the authorities at all because victims fear retaliation by the
police, or have no faith that any action will be taken.
...”
It
was concluded that “three key problems must be addressed [by
the Ukrainian Government] as a priority – the lack of regular
detention monitoring, the lack of independent investigations, and a
reluctance to prosecute police officers”.
THE LAW
I. SCOPE OF THE CASE
The
Court notes that, after the communication of the case to the
respondent Government, the applicant complained that he could not
obtain the assistance he needed for his everyday activities as he had
no money to hire an assistant. He referred to the National Pension
Fund’s refusal to pay him disability allowance on the grounds
that he was a prisoner.
In
the Court’s view, the applicant’s later allegations are
not an elaboration of his original complaints to the Court, which
were lodged approximately six years earlier and on which the parties
have commented. The Court considers, therefore, that it is not
appropriate to take these matters in the context of the present case
(see Piryanik v. Ukraine, no. 75788/01, § 20,
19 April 2005).
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
The
applicant complained that he had been tortured
by the police during his time in police custody and that his
allegation of torture had not been duly examined. In particular, he
argued that the prosecutors had arbitrarily limited their inquiry to
the question of the lawfulness of the police’s use of force
against the applicant during his arrest.
He
further complained that the authorities had not provided him with
adequate medical treatment, as a result of which he had become
disabled.
According
to the applicant, the conditions of his detention in Dnipropetrovsk
Colony had been degrading, seeing in particular that he had been
handcuffed at all times when he had been allowed to leave his cell.
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.”
The
Court notes that the applicant’s complaints under Article 3 of
the Convention essentially concern several distinct groups of issues,
namely: (i) the alleged police torture of the applicant and
ineffective investigation of his complaints in that regard; (ii) the
alleged inadequacy of the medical assistance provided to the
applicant; and (iii) the allegedly unacceptable conditions of the
applicant’s detention in Dnipropetrovsk Colony. The Court will
deal with these matters in turn.
A. The alleged police torture and ineffective
investigation
1. Admissibility
The
Government argued that the applicant’s complaint of police
torture must be rejected for non exhaustion of domestic remedies
pursuant to Article 35 § 1 of the Convention, as he had not
challenged the decision of 26 January 2001 either before the higher
prosecutorial authorities or the courts. Relying on the Court’s
judgments in Naumenko v. Ukraine (no. 42023/98, 10
February 2004) and Yakovenko v. Ukraine (no. 15825/06, 25
October 2007), the Government stated that an appeal to prosecutors
and the courts had to be regarded as an effective remedy in the
applicant’s situation. In reply to the Court’s question
concerning the practice of the domestic authorities dealing with
similar complaints of ill-treatment, the Government submitted copies
of several decisions concerning two individual complainants issued by
the prosecutors and the courts (see paragraphs 61-62 above).
According
to the Government, the applicant’s complaint to the trial court
had not dispensed him from the obligation to exhaust the remedy
envisaged by Article 236-1 of the Code of Criminal Procedure. The
applicant had failed to substantiate his argument that the trial
court had not been competent to review the merits of the decision of
26 January 2001. As he had not pursued the procedure under Article
236-1 of the Code of Criminal Procedure, the applicant could not
claim its ineffectiveness.
The
Government expressed the view that the Court’s possible
consideration of the applicant’s complaint under Article 3 of
the Convention would be in conflict with the principle of subsidiary
of the Convention system.
The
applicant disagreed.
The
Court reiterates that the requirement that an applicant must first
make use of domestic remedies before applying to the Court is an
important aspect of the machinery of protection established by the
Convention, which is subsidiary to the national systems safeguarding
human rights (see Akdivar and Others v. Turkey, 16 September
1996, § 65, Reports of Judgments and Decisions 1996 IV,
and, for recent authority, A, B and C v. Ireland [GC], no.
25579/05, § 142, 16 December 2010). To this end, Article 35 §
1 of the Convention affords the national authorities, primarily the
courts, the opportunity to prevent or put right alleged violations of
the Convention before those allegations are submitted to the Court.
However, the only remedies to be exhausted are those which are
effective and available in theory and in practice at the relevant
time. In particular, the remedies must be capable of providing
redress in respect of applicants’ complaints and of offering
reasonable prospects of success (see Scoppola v. Italy (no.
2) [GC], no. 10249/03, § 71, 17 September 2009).
Even
where a remedy is normally available in the domestic system, there
may be special circumstances dispensing an applicant from the
obligation to avail him or herself of it (see, for instance, Sejdovic
v. Italy [GC], no. 56581/00, § 55, ECHR 2006 II).
Furthermore, the rule is inapplicable where an administrative
practice consisting of a repetition of acts incompatible with the
Convention and official tolerance by the State authorities has been
shown to exist, and is of such a nature as to make proceedings futile
or ineffective (Aksoy v. Turkey, 18 December 1996, § 52,
Reports of Judgments and Decisions 1996-VI).
Turning
to the circumstances of the present case, the Court notes that the
applicant raised his complaint of police torture before a prosecutor
within a relatively short period of time after the alleged events.
The prosecutor found that the applicant’s injuries had resulted
from the legitimate and proportionate use of force by police officers
in the course of the applicant’s arrest and refused to initiate
criminal proceedings against the police officers. About ten months
later the applicant raised the complaint of police torture before the
trial court. The court, relying exclusively on the prosecutor’s
findings, rejected the applicant’s complaint as
unsubstantiated.
The
Government suggested that the applicant had been required to
challenge the prosecutor’s decision before higher prosecutors
or through the relevant court procedure envisaged by Ukrainian
legislation, instead of waiting to raise his complaint before the
trial court.
The
Court will examine the effectiveness of those avenues in detail.
The
Court observes that in a previous case against Ukraine it considered
that an appeal to hierarchically superior prosecutors concerning
irregularities in an inquiry into complaints of police torture was in
principle an effective remedy (see Naumenko, cited above, §
138). In several other cases the Court has also found that
prosecutors’ refusals to start criminal investigations into
similar complaints could be further appealed to the courts under the
procedure envisaged by Article 236-1 of the Code of Criminal
Procedure, which in principle fulfilled the requirements of a remedy
that it is necessary to exhaust under Article 35 § 1
of the Convention (see Yakovenko, cited above, §§
70-71; Koktysh v. Ukraine, no. 43707/07, § 81,
10 December 2009; and Naydyon v. Ukraine, no. 16474/03, §
46, 14 October 2010). The Court’s findings were mainly based on
the argument that under the latter procedure the domestic courts had
the power to examine all relevant evidence, to overturn a
prosecutor’s decision and to initiate investigations.
Therefore, the applicants’ complaints of ill-treatment and
ineffective investigation were rejected for non exhaustion of
domestic remedies, as they had failed to raise them before the courts
(see Yakovenko, cited above, § 73; Koktysh, cited
above, § 82; and Naydyon, cited above).
However,
in a number of other cases against Ukraine in which the applicants
had appealed to higher prosecutors and/or to the courts against
refusals to investigate their allegations of police ill-treatment,
the Court noted that such appeals had not rendered the official
inquiry effective. In particular, having regard to the Court’s
findings in Kozinets (cited above, §§ 61-65),
Kobets (cited above, §§ 53-57), Ismailov (cited
above, §§ 44-47), Spinov (cited above, §§
56-58), Vergelskyy (cited above, §§ 98-103), Drozd
(cited above, § 67), Bilyy v. Ukraine (no.
14475/03, §§ 70-71, 21 October 2010), Samardak v.
Ukraine (no. 43109/05, §§ 44-48, 4 November 2010),
Kovalchuk v. Ukraine (no. 21958/05, §§ 66-70, 4
November 2010), Sylenok and Tekhnoservis-Plus v. Ukraine (no.
20988/02, §§ 75-77, 9 December 2010), Dushka v. Ukraine
(no. 29175/04, §§ 56-61, 3 February 2011), Bocharov v.
Ukraine (no. 21037/05, §§ 57-60, 17 March 2011),
Nechiporuk and Yonkalo v. Ukraine (no. 42310/04, §§
162-164, 21 April 2011), Korobov v. Ukraine (no.
39598/03, §§ 79-83, 21 July 2011), Oshurko v. Ukraine
(no. 33108/05, §§ 89-91, 8 September 2011), and
Teslenko v. Ukraine (no. 55528/08,
§§ 107-119, 20 December 2011), it appears that,
although the prosecutors and the courts dealing with complaints of
inadequate official inquiry indicated, often repeatedly, the
necessary actions to be taken during a fresh (or the pending)
inquiry, such instructions were not followed diligently or completely
disregarded. This often resulted in the lengthy and repeated
re-examinations of such complaints by the prosecutors and the courts,
though without any meaningful effect (see, for instance, Vergelskyy,
cited above, §§ 98-99).
The
domestic decisions submitted by the Government in support of their
non-exhaustion argument do not dispel these doubts. In the cases to
which they relate, the domestic court’s specific instruction to
question several individuals during a fresh inquiry was only partly
followed. In particular, the investigators did not question all the
people mentioned in the court’s decision.
The
Court further notes that, in general, domestic courts are not
competent to pursue an independent investigation or to make any
findings of fact under the procedure established by Article 236-1 of
the Code of Criminal Procedure (see paragraph 45 above, and
Yakovenko, cited above, § 70).
In
the light of the foregoing and in particular given the recent
extensive case-law on the matter (see paragraph 94 above), the Court
concludes that the procedures of appeal to hierarchically superior
prosecutors and to the courts have not been proved to be capable of
providing adequate redress in respect of complaints of ill-treatment
by the police and ineffective investigation.
Accordingly,
the Court finds that in the present case the applicant was not
required to avail himself of the appeal procedures and that the
Government’s objection in this respect must be rejected.
The
Court notes that the applicant took sufficient steps at the domestic
level to bring his complaints of police torture to the attention of
the national authorities. He therefore complied with the requirement
of exhaustion of domestic remedies under Article 35 § 1 of the
Convention (see Sylenok and Tekhnoservis-Plus, cited above, §
76). The Court also notes that the fact that the complaints were
rejected by the prosecutor on 26 January 2001 did not prevent
the domestic courts from examining them on the merits in the course
of the applicant’s trial (see paragraphs 41 and 43). In these
circumstances, the applicant reasonably waited for the completion of
the trial to raise the complaints before the Court and accordingly
complied with the six-month rule provided for in Article 35 § 1
of the Convention.
The
Court further finds that this part of the application is not
manifestly ill-founded within the meaning of Article 35 § 3 (a)
of the Convention. It is not inadmissible on any other grounds. It
must therefore be declared admissible.
2. Merits
a. The parties’ submissions
The
applicant complained that he had been tortured
by the police with the aim of extracting a confession from him and
that there had been no effective investigation into this matter.
Relying
on the prosecutor’s findings of 26 January 2001, the Government
argued that the applicant’s allegation of police torture with
the purpose of coercing him to confess was unsubstantiated. They
further argued that the State had complied with its obligation under
Article 3 of the Convention to carry out an investigation into the
allegation.
The
Government noted that the applicant’s injuries, which had been
revealed during medical examinations in January 2001, had resulted
from the legitimate and proportionate use of force by police officers
in the course of the applicant’s arrest.
According
to the Government, the State had complied with its obligation under
Article 3 of the Convention to carry out an investigation into an
arguable complaint of torture.
b. The Court’s assessment
The
Court observes that the applicant’s complaints concern both the
substantive and procedural aspects of Article 3 of the Convention. As
regards the former aspect, the Court notes that it is common ground
between the parties that the injuries complained of, in particular
the applicant’s eye injury, were sustained during the
applicant’s encounter with the police. The injuries, though
initially classified as minor, were substantial and serious enough to
amount to the treatment prohibited by Article 3 of the Convention
(compare and contrast with Spinov, cited above, § 50, and
also see Oshurko, cited above, §§ 71-72).
Thus,
the applicant’s complaint of torture by the police, which he
duly raised at the domestic level (see paragraph 99 above), was prima
facie arguable and, given the Court’s settled case-law on the
matter, the authorities were required to conduct an effective
official investigation (see Assenov and Others v. Bulgaria, 28
October 1998, § 102, Reports of Judgments and Decisions
1998 VIII).
The
Court is sensitive to the subsidiary nature of its task and
recognises that it must be cautious in taking on the role of a
first-instance tribunal of fact where this is not rendered
unavoidable by the circumstances of a particular case (see, for
example, McKerr v. the United Kingdom (dec.), no. 28883/95, 4
April 2000). Therefore, the Court considers it appropriate to examine
first whether the applicant’s complaint was adequately
investigated by the authorities. Subsequently, it will turn to the
question of whether the alleged ill-treatment took place, regard
being had to the relevant domestic findings.
i. The alleged failure to investigate the
applicant’s complaint of torture by the police
The
Court reiterates that Article 3 of the Convention requires that an
investigation into arguable allegations of ill-treatment must be
thorough. This means that the authorities must always make a serious
attempt to find out what happened and should not rely on hasty or
ill-founded conclusions in order to close their investigation or as
the basis of their decisions (see Assenov and Others, cited
above, §§ 103 et seq.). They must take all reasonable steps
available to them to obtain evidence concerning the incident,
including, inter alia, eyewitness testimony and forensic
evidence (see Tanrıkulu v. Turkey [GC], no. 23763/94, §§
104 et seq., ECHR 1999 IV, and Gül v. Turkey, no.
22676/93, § 89, 14 December 2000).
The
investigation should be 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, cited above, § 102, and
Labita v. Italy [GC], no. 26772/95, 6 April 2000, § 131,
ECHR 2000-IV).
As
regards the circumstances of the present case, the Court observes
that an inquiry was carried out by a prosecutor after he had noted,
during the applicant’s questioning on 15 January 2001,
that the applicant had been injured (see paragraphs 9-11 above). It
was completed within a relatively short period of time. In the course
of the inquiry relevant medical information was obtained and written
explanations were given by the police officers who had taken part in
the applicant’s arrest. This evidence, along with the
applicant’s statements given during his questioning on
15 January 2001, formed the basis for the prosecutor’s
decision not to institute criminal proceedings against the police
officers. The prosecutor found that some of the applicant’s
injuries had been caused during his arrest and that some had been
caused by insects.
Although
it is in the first place for the national authorities, in this case
for the prosecutor, to assess the relevant evidence and to draw
conclusions on the basis of such assessment, the Court cannot
disregard the fact that the prosecutor’s findings lack
important details and relevant substantiation.
In
particular, the prosecutor did not establish the course of events and
the way the injuries had been inflicted on the applicant. His
findings that “[the applicant] had attempted to resist”,
that “there had been measures of physical restraint [used
against him]”, and that “[the applicant’s injuries]
were caused by blunt solid objects” are very vague and
confusing.
The
Court further notes that the applicant’s alleged torture after
his arrest was not specifically addressed in the prosecutor’s
decision. It appears that the prosecutor did not consider it
necessary to inquire into that matter and relied on the applicant’s
initial statement denying any ill-treatment, in spite of the
applicant’s more recent, at the time, submissions to the
contrary (see paragraphs 14-15 above).
In
any event, even assuming the applicant was injured because the police
tried to break his resistance to arrest, the prosecutor made no
attempt to look into the questions of the lawfulness and
proportionality of the force used against the applicant.
Given
the shortcomings in the prosecutor’s inquiry noted above, the
Court finds that it was not thorough and thus fell short of the
requirements of Article 3 of the Convention.
The
applicant’s repeated complaints to the courts dealing with his
criminal case that his confessions had been obtained through torture
did not lead to an examination of the matter, either in the context
of an assessment of the admissibility of the applicant’s
self-incriminating statements or through a separate inquiry. The
courts rejected the complaints as unsubstantiated, having fully
relied on the prosecutor’s decision of 26 January 2001.
The
inquiry carried out by the prosecutor’s superior in 2005 was
not a serious attempt to re-examine the matter, as it was confined to
studying the materials of the previous inquiry completed about four
years before (see paragraph 34 above).
In
the light of the foregoing, the Court considers that the domestic
authorities did not fulfil their obligation to investigate the
applicant’s complaints of torture. Accordingly, there has been
a violation of Article 3 of the Convention.
ii. The alleged ill-treatment by the
police
Turning
to the substantive aspect of the applicant’s complaint, the
Court notes that in assessing evidence in a claim of a violation of
Article 3 of the Convention the standard of proof “beyond
reasonable doubt” must be applied (see Ireland v. the United
Kingdom, 18 January 1978, § 161, Series A no. 25, and Avşar
v. Turkey, no. 25657/94, § 282, ECHR 2001 VII
(extracts)). Such proof may, however, follow from the coexistence of
sufficiently strong, clear and concordant inferences or of similar
unrebutted presumptions of fact (see Labita, cited above, §
121). 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. Indeed,
the burden of proof may be regarded as resting on the authorities to
provide a satisfactory and convincing explanation (see Ribitsch v.
Austria, 4 December 1995, § 34, Series A no. 336, and Salman
v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII).
The
Court observes that in the present case there is no conclusive
evidence concerning the circumstances in which the applicant was
injured and in particular concerning the exact nature and degree of
force used against the applicant. Nonetheless, the Court considers it
established, given the relevant medical evidence and the parties’
submissions, that the police bear the entire responsibility for the
applicant’s injuries. This finding alone is sufficient for the
Court to find a breach of Article 3 of the Convention, regardless of
whether the applicant’s injuries were inflicted during his
arrest or also during his subsequent questioning at the police
station (see Sylenok and Tekhnoservis-Plus, cited above, §§
69-70).
However,
the Court cannot disregard the information which, at least to some
extent, suggests that the applicant’s injuries were not
inflicted exclusively at the moment of his arrest on 12 January 2001.
In this regard, the Court attaches particular importance to the
medical expert’s observations on 19 January 2001 that some of
the applicant’s injuries were three to four days’ old,
i.e. inflicted on 14 or 15 January 2001 (see paragraph 12 above). The
bleeding into the applicant’s eyeball was not noted during the
applicant’s first medical examination on 13 January 2001 and
was still found to result from a penetrating wound (see paragraphs 8,
12 and 21 above).
The
Court also notes that the applicant continuously insisted, though
without providing all the relevant details, that he had been tortured
by the police after his arrest, while the Government failed to refute
these allegations by substantiated arguments.
In
these circumstances, the Court finds that the applicant’s
allegations under Article 3 of the Convention of beatings by the
police after his arrest, as raised before the Court, are plausible
overall, being both corroborated by the documentary evidence and
supported by factual inferences (see Teslenko, cited
above, §§ 91-97). In particular,
the Court considers that the nature and particular gravity of the
applicant’s injuries demonstrates that they were inflicted on
the applicant deliberately. The aim of the applicant’s
ill-treatment was to cause him severe pain and suffering in order to
extract from him a confession that he had committed the crimes of
which he was suspected.
In
the light of the high standard being set in the area of the
protection of human rights and fundamental liberties and the
inevitably greater firmness being required in assessing breaches of
the fundamental values of democratic societies (see Selmouni v.
France [GC], no. 25803/94, § 101, ECHR 1999 V; Korobov,
cited above, § 73; and Teslenko,
cited above, §§ 99-102) the Court
finds that the ill-treatment to which the applicant was subjected in
police custody must be classified as torture, given the gravity of
the applicant’s injuries and the intentional character of their
infliction.
Accordingly,
the Court holds that that there has been a violation of Article 3
of the Convention in this regard.
B. Alleged inadequacy of the medical assistance
provided to the applicant and the applicant’s ability to serve
his prison sentence
The
applicant complained that the authorities had not provided him with
adequate medical assistance in respect of his eye injury.
1. Admissibility
Relying
on the Court’s decisions in Kalashnikov v. Russia
(no. 47095/99, ECHR 2002 VI), Khokhlich v. Ukraine (no.
41707/98, 29 April 2003), Melnik v. Ukraine (no.
72286/01, 28 March 2006), Vinokurov v.
Ukraine and Russia ((dec.), no. 2937/04, 16 October
2007), and Aliev v. Ukraine (No. 2) ((dec.), no.
33617/02, 14 October 2008),
the Government argued that by the terms of Article 35 § 1
of the Convention the applicant had been required
to raise the complaint of inadequate medical assistance before the
national authorities so that they could have had an opportunity to
investigate the conditions of the applicant’s detention and, if
his complaint had been found to be well-substantiated, to suggest
ways of improving the situation. In particular, they submitted that
the applicant had been obliged to complain to the prosecution
service, under the Prosecution Service Act, or to the civil courts by
lodging a claim against the relevant authorities under Articles
440-1, 442 or 455 of the Civil Code 1963, which had been in force at
the material time.
In
this context, the Government noted that the applicant had failed to
raise, through one of these procedures, the complaint of lack of
medical assistance in the ITT and in Kharkiv SIZO. Thus, he could not
be regarded as having exhausted domestic remedies in respect of the
relevant part of the complaint.
The
Government further argued that the complaint of failure to provide
the applicant with adequate medical treatment, in so far as it
concerned the applicant’s detention in the ITT and in Kharkiv
SIZO, had been introduced out of time. According to them, the
six-month period, provided for in Article 35 § 1 of the
Convention, had started to run from 23 January 2001, as regards
the applicant’s detention in the ITT, and from 23 February
2001, as regards his detention in Kharkiv SIZO.
The
Court notes that it has rejected the Government’s similar
objections based on the non-exhaustion argument in a number of other
cases against Ukraine where applicants’ complaints concerned
lack of adequate medical treatment in detention. In those cases the
Court found that such complaints pointed to problems of a structural
nature in the domestic penal system (see, for instance, Melnik,
cited above, §§ 69-71; Koktysh, cited above, §
86; Pokhlebin v. Ukraine, no. 35581/06, §§ 41-42, 20
May 2010; and Logvinenko v. Ukraine, no. 13448/07, §§
57-58, 14 October 2010).
In
the present case, the Court considers that the matters raised by the
applicant under this head are also of a structural nature. It
observes that the authorities were well aware of the applicant’s
medical situation and his needs (see paragraphs 12, 18 and 19 above).
Thus, it dismisses the Government’s objection as to
non-exhaustion of remedies in this respect.
The
Court further notes that the applicant’s allegation of the
inadequacy of the medical assistance provided to him in detention
concerns a continuing situation. Therefore, the Court rejects the
Government’s argument that the complaint concerning a part of
the period of the applicant’s detention had been lodged out of
time (see Logvinenko, cited above, § 60).
The
Court further finds that this part of the application is not
manifestly ill-founded within the meaning of Article 35 § 3 (a)
of the Convention. It is not inadmissible on any other grounds. It
must therefore be declared admissible.
2. Merits
a. The parties’ submissions
According
to the applicant, his disability had resulted from a lack of adequate
and, in particular, timely medical treatment. In his view, his eye
injury had not been correctly diagnosed in January 2001, which had
consequently resulted in the failure to adequately treat it. The
applicant argued that once the doctors had discovered the injury he
should have been taken to a hospital and examined by a doctor
specialising in this type of health problem.
Without
prejudice to their argument concerning the inadmissibility of this
part of the application, the Government contended that the applicant
had been provided with adequate medical assistance for his health
problems. In particular, the Government noted that while in detention
the applicant had been examined by various doctors, including some
from outside the detention facilities. The treatment prescribed by
the doctors had been given to the applicant by prison medical staff.
The
Government further noted that during his detention in Dnipropetrovsk
Colony the applicant had not availed himself of the opportunity to
obtain, at his own expense, specialised treatment outside the colony,
of which he had been duly informed by the authorities. He had also
repeatedly refused examinations by an ophthalmologist (see paragraph
24 above).
The
Government argued that the applicant’s allegation that his
health had deteriorated, in that he had become blind, because of
inadequate treatment was not supported by his medical records.
b. The Court’s assessment
The
Court reiterates that it is the duty of the State to provide the
requisite medical assistance in detention (see, for instance, Ukhan
v. Ukraine, no. 30628/02, §§ 72-74, 18
December 2008, with further references). In
determining whether the authorities have discharged their health-care
obligations vis-à-vis a detainee in their charge, the
Court’s task is to assess the quality of the medical services
provided to the detainee in the light of his state of health and “the
practical demands of imprisonment” and, if he or she has been
deprived of adequate medical assistance, to ascertain whether this
amounted to inhuman and degrading treatment contrary to Article 3
of the Convention (see Sarban v. Moldova, no. 3456/05, §
78, 4 October 2005; Aleksanyan v. Russia, no.
46468/06, § 140, 22 December 2008; and Yevgeniy
Alekseyenko v. Russia, no. 41833/04,
§ 104, 27 January 2011).
In
the present case, the Court notes that the applicant suffered an eye
injury, for which the authorities were responsible, and eventually
lost his eyesight. The injury was noted by doctors on 19 January
2001, about a week after he had allegedly received it. About a month
later the doctors established that the applicant had lost his
eyesight. In the meantime, he was not given any treatment for the
injury. Nor was he examined by an ophthalmologist. Specialised
examinations and treatment of the applicant only started in September
2001.
In
the light of the particular circumstances of the case, the Court
considers it justified to separately assess the authorities’
compliance with the Article 3 requirements during the applicant’s
detention between January and September 2001 and during his
subsequent detention. As regards the latter period, the Court notes
that its assessment may not concern the period after he was moved
from Dnipropetrovsk to Vinnytsya Colony on 3 December 2008,
given the absence of submissions by the applicant in that regard (see
paragraph 32 above).
i. The alleged failure to provide the
applicant with adequate medical assistance between January and
September 2001
At
the outset, the Court does not find it feasible, given the limited
information in its possession, to establish whether the applicant’s
loss of sight resulted from the alleged inadequacy of the medical
assistance provided to him or whether it was an inevitable
consequence of his eye injury.
However,
the Court attaches particular importance to the fact that the
applicant’s eye injury was not addressed by the authorities for
over half a year from the time it was discovered in January 2001. The
Government did not submit any explanation for the delay in providing
the applicant with the requisite medical assistance.
Without
prejudging the question of whether the failure to provide the
applicant with any specialised treatment for such a prolonged period
of time could have compromised any subsequent efforts to improve the
applicant’s state of health, the fact that the authorities
failed to react promptly to the applicant’s eye injury and to
the deterioration of his heath is sufficient to enable the Court to
conclude that the applicant was not provided with adequate medical
treatment in detention prior to September 2001.
There has accordingly been a violation of Article 3
of the Convention as regards the lack of adequate medical assistance
for the applicant’s eye injury between January and September
2001.
ii. The alleged failure to provide the
applicant with adequate medical assistance from September 2001 to
December 2008
As
regards the subsequent period of the applicant’s detention,
concerning which the parties provided relevant information, the Court
observes that the applicant was examined by doctors, including an
ophthalmologist, on a number of occasions and that he received some
medical treatment in respect of his loss of sight. The applicant did
not challenge, in a clear and substantiated way, the adequacy of such
treatment and did not suggest that he had been denied access to
alternative treatment to address his health problem.
As
regards the latter issue, the Court notes that the applicant did not
demonstrate that the fact that his mother was not allowed to supply
him with unspecified medications had led to any detrimental effect on
his health (see paragraph 25 above and Vergelskyy, cited
above, §§ 89-91) The argument that the applicant should
have been transferred to a specialised prison for disabled prisoners
is also vague and lacks detail.
On
the whole, the Court notes that the authorities cannot be reproached
for addressing the applicant’s medical needs inadequately
during the period in question and that there are no medical records
suggesting that the applicant was not fit to continue serving his
prison sentence.
In
light of the foregoing, the Court holds that there has been no
violation of Article 3 of the Convention as regards the medical
assistance provided to the applicant from September 2001 to December
2008.
C. Conditions of detention in Dnipropetrovsk Colony
The
applicant complained about the conditions of his detention in
Dnipropetrovsk Colony. The complaint principally concerned the use of
handcuffs on the applicant. However, in his submissions before the
Court the applicant also referred to some other issues relating to
the conditions of his detention in that colony (see paragraphs 27-28
above).
The
Court will deal with these matters separately.
1. Use of handcuffs
a. Admissibility
The
Court notes that the complaint of the use of handcuffs is not
manifestly ill-founded within the meaning of Article 35 § 3 (a)
of the Convention. It further notes that it is not inadmissible on
any other grounds. It must therefore be declared admissible.
b. Merits
The
applicant complained that in Dnipropetrovsk
Colony he had been handcuffed every time he had left his cell. The
applicant also submitted that he had been handcuffed during short
family visits, despite the fact that this had been contrary to
Article 106 of the Code on the Execution of Sentences.
The
Government contended that the use of handcuffs on the applicant at
Dnipropetrovsk Colony had not constituted inhuman or degrading
treatment. According to them, the use of handcuffs when escorting the
applicant within the colony had been an unavoidable aspect of the
suffering and humiliation inherent in his lawful detention resulting
from him being sentenced to life imprisonment. The Government further
argued that the applicant’s allegation of the use of handcuffs
during daily walks was not supported by any evidence. They also noted
that handcuffing during daily walks was not envisaged by the relevant
regulations.
The
Court reiterates that ill-treatment must attain a minimum level of
severity if it is to fall within the scope of Article 3 of the
Convention. The assessment of this level is relative: it depends on
all the circumstances of the case, such as the duration of the
treatment, its physical and mental effects and, in some cases, the
sex, age and state of health of the victim (see, among many other
authorities, Kudła v. Poland [GC], no. 30210/96, §
91, ECHR 2000 XI, and Peers v. Greece, no. 28524/95, §
67, ECHR 2001-III).
Although
the purpose of such treatment is a factor to be taken into account,
in particular whether it was intended to humiliate or debase the
victim, the absence of any such purpose does not inevitably lead to a
finding that there has been no violation of Article 3 (see Peers,
cited above, § 74).
The use of instruments of restraint, including
handcuffs, does not normally give rise to an issue under Article 3 of
the Convention where the measure has been imposed in connection with
lawful detention and does not entail the use of force, or public
exposure, exceeding what is reasonably considered necessary (see
Gorodnitchev v. Russia, no. 52058/99, § 108, 24 May 2007,
and Kucheruk v. Ukraine, no. 2570/04, § 139, ECHR
2007 X). In such matters, it is important to consider the danger
of the person’s absconding or causing injury or damage (see
Raninen v. Finland, 16 December 1997, § 56, Reports
of Judgments and Decisions 1997 VIII; and Kashavelov v.
Bulgaria, no. 891/05, § 39, 20 January
2011).
The
Court observes that the applicant was found by the domestic courts to
be exceptionally dangerous to society (see paragraph 39 above). He
was responsible for the murder of seven people, three of whom were
police officers. The officers were killed by the applicant when they
tried to stop him committing crimes. The Court considers that the
applicant’s criminal record arguably called for his placement
under conditions of the highest level of security.
However,
the question which must be addressed is whether specific measures
applied to the applicant under such conditions, in particular the
applicant’s handcuffing, were justified given his personal
situation.
In
this context, the Court notes that the applicant was handcuffed
whenever he was taken out of his cell. Although it appears that the
applicant’s handcuffing during daily walks at Dnipropetrovsk
Colony was discontinued at some point in 2005 (see paragraph 30
above), he was still subjected to this measure of restraint during
his being escorted and during family visits.
Turning
to the applicant’s personal situation, the Court notes that
when he was placed in Dnipropetrovsk Colony he was completely blind
and, according to his medical records, required outside assistance to
manage aspects of daily life (see paragraph 21 above). There is no
information to suggest that the applicant tried to escape or behaved
violently during his pre-trial detention in Kharkiv and Khmelnytsk
SIZOs or subsequently in Dnipropetrovsk Colony.
Given
the applicant’s personal situation and also the practical
arrangements for his being escorted – the applicant being
followed by three wardens with a dog – the Court considers that
the use of handcuffs on the applicant during his detention in the
colony could not be justified by security reasons (see,
mutatis mutandis, Avcı and Others v. Turkey,
no. 70417/01, §§ 39-43, 27 June 2006).
The
Court further considers that the applicant’s handcuffing, both
in principle and in particular as regards the manner in which the
restraint was used on him in Dnipropetrovsk Colony – with his
hands behind his back, in spite of the applicant’s limited
autonomy due to complete blindness – caused him suffering and
humiliation beyond that inevitably connected with a particular form
of legitimate punishment (see, mutatis mutandis, Kudła,
cited above, §§ 92-94, and Okhrimenko
v. Ukraine, no. 53896/07, § 98,
15 October 2009).
In
the light of the foregoing, the Court does not find it necessary to
determine whether, as the applicant argued, his handcuffing during
family visits had been contrary to the relevant domestic regulations.
Nonetheless, the Court notes that the regulations required the
authorities to use the impugned measure of restraint on all
life-sentenced men, without giving consideration to their personal
situation and the individual risk they might or might not present.
Furthermore, the practice of systematically handcuffing all
life-sentenced men whenever they were taken out of their cell is also
evidenced by the findings made by the CPT following its visit to a
colony in Ukraine in October 2005, when the applicant was serving his
sentence under similar conditions in Dnipropetrovsk Colony.
Accordingly,
the Court finds that the use of handcuffs on the applicant in
Dnipropetrovsk Colony constituted inhuman and degrading treatment and
that there has been a violation of Article 3 of the Convention in
this respect.
2. Other issues relating to the conditions of the
applicant’s detention in Dnipropetrovsk Colony
According
to the applicant, further restrictions were applied to him in
Dnipropetrovsk Colony, which included the allegedly unlawful denial
of extended daily walks, a lack of ventilation in the cells, the
authorities’ refusal to allow him to make phone calls, and
delayed dispatch of his letters.
The
Court notes that, although in cases concerning complaints about
detention conditions it has not always required that an applicant
support each and every allegation with documentary evidence,
recognising that relevant information and the possibility of
investigating the facts in such cases lie primarily in the hands of
the authorities, in order for the Court to reverse the burden of
proof and examine the merits of the complaints, they must at least
have been clearly and consistently formulated (see Ukhan,
cited above, §§ 64-66).
The
Court observes that the majority of the applicant’s submissions
concerning this part of the case were limited to vague and general
statements. He did not provide the requisite details or
substantiation. The applicant also failed to demonstrate what the
nature and extent of his suffering because of the impugned
restrictions had been and whether his suffering had reached the
threshold of severity bringing the matter within the ambit of Article
3 of the Convention.
On
the whole, the Court finds that the above matters, as raised by the
applicant in this part of the case, 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 is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3 (a)
and 4 of the Convention.
III. APPLICATION OF ARTICLE 46 OF THE CONVENTION
Article
46 of the Convention provides:
“1. The High Contracting Parties
undertake to abide by the final judgment of the Court in any case to
which they are parties.
2. The final judgment of the Court shall be
transmitted to the Committee of Ministers, which shall supervise its
execution.”
The
Court reiterates that Article 46 of the Convention, as interpreted in
the light of Article 1, imposes on the respondent State a legal
obligation to implement, under the supervision of the Committee of
Ministers, appropriate general and/or individual measures to secure
the right of the applicant which the Court found to be violated. Such
measures must also be taken in respect of other people in the
applicant’s position, notably by solving the problem that has
led to the Court’s findings (see Scozzari and Giunta v.
Italy [GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000
VIII).
In
order to facilitate the rapid and effective enforcement of its
judgments finding a violation of the Convention and to assist the
respondent State to fulfil its obligations under Article 46, the
Court must indicate, as precisely as possible, what it considers to
be the problem that has led to the Court’s finding. If the
problem appears to be of a systemic character and has given rise or
is likely to give rise to numerous applications, the Court may be
required to identify the source of that problem (see, mutatis
mutandis, Broniowski v. Poland [GC], no. 31443/96, §§
189-194, ECHR 2004 V; Hutten-Czapska v.
Poland [GC] no. 35014/97, § 232,
ECHR 2006-VIII; Greens and M.T. v. the United Kingdom,
nos. 60041/08 and 60054/08, § 107, ECHR 2010 (extracts);
and, with respect to Ukraine, Yuriy Nikolayevich Ivanov v.
Ukraine, no. 40450/04, § 80, 15 October 2009; Kharchenko
v. Ukraine, no. 40107/02, § 101, 10
February 2011; and Balitskiy v. Ukraine, no.
12793/03, § 54, 3 November 2011).
The
Court notes that a part of the present case concerns recurring
problems underlying frequent violations of Article 3 of the
Convention by Ukraine. In particular, in about 40 of its judgments
the Court has found that the Ukrainian authorities were responsible
for ill-treatment of people in police custody and that no effective
investigation was conducted into allegations of such ill-treatment
(see, for instance, the cases to which reference is made at paragraph
94 above). More than 100 other cases raising those issues are
currently pending before the Court.
The
Court further notes that the above-mentioned
violations were neither prompted by isolated incidents, nor were
attributable to a particular turn of events, but were the consequence
of regulatory shortcomings and the administrative conduct of the
authorities with regard to their obligations under Article 3 of the
Convention.
174. In
particular, given the Court’s relevant case-law, criminal
suspects appear to be one the most vulnerable group of victims of
ill-treatment by the police. Ill-treatment often
took place in the first days of victims’ detention, during
which they did not have access to a lawyer, and their injuries were
not properly noted or not recorded at all. Although it could
not be established in every such case that the ill-treatment was
aimed at extracting a confession, a link between the victims’
ill-treatment and the authorities’ goal of collecting
incriminatory evidence could not be ruled out (see,
for instance, Vergelskyy, cited above, § 108;
Samardak, cited above, § 36;
Kovalchuk, cited above, § 60;
Bocharov, cited above, §
47; and Korobov, cited above, §
73). As it has been noted in some of
the reports and observations concerning the issue of ill-treatment in
Ukraine, the evaluation of police officer’s work based on the
number of solved crimes has been one of the factors contributing to
the use of torture against criminal suspects (see, for instance,
paragraphs 56 and 59 above).
175. Another
common factor leading to the violation of Article 3 of the Convention
in the present case and in the cases with which the Court has dealt
in the past is the prosecutors’ reluctance to take all
reasonable steps, in a prompt and expeditious manner, to establish
the facts and circumstances pertinent to complaints of ill-treatment
and to secure relevant evidence. In their inquiries, prosecutors
rarely went further than obtaining explanations from police officers.
The police officers’ version of events prevailed and no effort
was made to verify it through other means of inquiry.
The
Court considers that such reluctance on the part of prosecutors, in
particular in situations where criminal suspects were allegedly
ill-treated with the aim of extracting a confession, could be
explained, at least to a certain extent, by prosecutors’
conflicting tasks in criminal proceedings – prosecution on
behalf of the State and supervision of the lawfulness of pre trial
investigations (see, mutatis mutandis, Nevmerzhitsky v.
Ukraine, no. 54825/00, § 116, ECHR 2005 II (extracts);
Salov v. Ukraine, no. 65518/01, § 58, 6 September
2005; Merit v. Ukraine, no. 66561/01, § 63, 30 March
2004; Melnik, cited above, § 69; Koval v. Ukraine,
no. 65550/01, § 95, 19 October 2006; reports by the
Ukrainian Ombudsman at paragraphs 55-59 above and the relevant
observations of the UN Committee against Torture at paragraph 75
above). Since confessions have often constituted one of the principal
pieces of evidence in criminal proceedings, it cannot be ruled out
that prosecutors have not been interested to conduct full-scale
investigations that would be potentially capable of undermining the
reliability of such evidence.
Appeals
to courts against prosecutors’ refusals to investigate, either
on the basis of the separate procedure provided for under Article
236-1 of the Code of Criminal Procedure or in the course of legal
argument concerning the admissibility of evidence at trial, have not
resulted in the required improvement in the prosecutors’
inquiry. Trial judges would rarely give an independent assessment of
the
reliability of evidence allegedly obtained under duress if such
allegations were rejected by prosecutors.
The
present case, along with similar previous cases against Ukraine in
which the Court has found a procedural breach of Article 3 of the
Convention, also demonstrates that, in spite of the general legal
prohibition of torture and inhuman and degrading treatment in
Ukraine, in practice agents of the State responsible for such
ill-treatment have commonly gone unpunished (see, in particular,
Teslenko, cited above, § 116).
The lack of any meaningful efforts on the part of the authorities in
this regard perpetuates a climate of virtually total impunity for
such acts.
179. The
systemic character of the above issues is further evidenced by
reports and observations concerning the human rights situation
in Ukraine obtained from domestic authorities and various national
and international organisations (see paragraphs 55-60, 63, 64, 74-79
above). Moreover, given the most recent reports and, in particular,
the Committee of Ministers’ records concerning the execution of
the Court’s judgments addressing the issues (see paragraphs
71-72 above), they have remained unresolved.
Accordingly,
the Court finds that the situation in the present case must be
characterised as resulting from systemic problems at the national
level which, given the fundamental values of democratic society they
concern, call for the prompt implementation of comprehensive and
complex measures.
In the present case, the Court is not in a position
to determine the general and individual measures to be implemented by
Ukraine in order to comply with the judgment. It falls to the
Committee of Ministers, acting under Article
46 of the Convention, to address the
issue of what – in practical terms – may be required of
the respondent State by way of compliance (compare and contrast with
Abuyeva and Others v. Russia, no. 27065/05,
§§ 240-243, 2 December 2010).
Nevertheless,
the Court considers it necessary to stress that
Ukraine must urgently put in place specific reforms in its legal
system in order to ensure that practices
of ill-treatment in custody are eradicated,
that effective investigation is conducted in accordance with Article
3 of the Convention in every single case
where an arguable complaint of ill-treatment is raised and that any
shortcomings in such investigation are effectively remedied at the
domestic level. In so doing, the Ukrainian authorities should
have due regard to this judgment, the Court’s relevant case-law
and the Committee of Ministers’s relevant
recommendations, resolutions and decisions.
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 100,000 euros (EUR) in
compensation for mental and physical suffering.
The
Government contested the claim.
Taking
into account the gravity and the number of violations found in the
present case and making its assessment on an equitable basis, the
Court awards the applicant EUR 40,000 in respect
of non-pecuniary damage.
B. Costs and expenses
The
applicant did not submit a claim for costs and
expenses; the Court therefore makes no award in this respect.
C. Default interest
The
Court considers it appropriate that the default interest rate should
be based on the marginal lending rate of the European Central Bank,
to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the applicant’s complaints under
Article 3 of the Convention concerning the alleged torture by the
police, ineffective investigation, lack of adequate medical
assistance, and use of handcuffs in Dnipropetrovsk Colony admissible
and the remainder of the application
inadmissible;
Holds that there has been a violation of Article
3 of the Convention as regards the applicant’s torture by the
police;
Holds that there has been a violation of Article
3 of the Convention as regards the failure of the authorities to
conduct an effective investigation into the applicant’s
complaint of torture;
Holds that there has been a violation of Article
3 of the Convention as regards the lack of adequate medical
assistance for the applicant’s eye injury between January and
September 2001;
Holds that there has been no violation of
Article 3 of the Convention as regards the alleged lack of adequate
medical assistance during the applicant’s detention from
September 2001 to December 2008;
Holds that there has been a violation of Article
3 of the Convention as regards the use of handcuffs on the applicant
in Dnipropetrovsk Colony;
Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 40,000
(forty thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage, to be converted into Ukrainian
hryvnias at the rate applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses the remainder of the applicant’s
claim for just satisfaction.
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
