European Court of Human Rights

 

 

 

FIFTH SECTION

 

 

 

 

 

 

 

CASE OF DANILOV v. UKRAINE

 

(Application no. 2585/06)

 

 

 

 

 

 

 

JUDGMENT

 

 

 

 

STRASBOURG

 

13 March 2014

 

 

 

 

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 Danilov v. Ukraine,

The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:

          Mark Villiger, President,
          Angelika Nußberger,
          Boštjan M. Zupančič,
          Ganna Yudkivska,
          Vincent A. De Gaetano,
          André Potocki,
          Aleš Pejchal, judges,
and Claudia Westerdiek, Section Registrar,

Having deliberated in private on 18 February 2014,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in an application (no. 2585/06) 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 Russian national, Mr Igor Vladimirovich Danilov (“the applicant”), on 30 December 2005.

2.  The applicant was represented by Mr V. Chernikov, succeeded by Mr V. Komarov, both lawyers practising in Moscow. The Ukrainian Government (“the Government”) were represented by their Agent, Mr N. Kulchytskyy.

3.  The applicant alleged, in particular, that he had been ill-treated by law-enforcement authorities and that no effective investigation of the relevant allegations had taken place.

4.  On 6 February 2012 the application was communicated to the Government.

5.  The Russian Government were invited to submit written comments, in accordance with Article 36 § 1 of the Convention, but declined to do so.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

6.  The applicant was born in 1967 in the Russian Federation and is currently serving a prison sentence in Ukraine.

7.  In December 2002 a group of officers from the State Security Service of Ukraine (“SSU”) and the “Berkut” special armed unit received a mission order to arrest several individuals, including the applicant, implicated in a number of crimes committed as members of a criminal association affiliated with the Odessa Komsomol (Young Communist League), including illegal arms handling, terrorism, assault and robbery with a view to preparing a communist revolution.

8.  At about 5 p.m. on 13 December 2002 six armed officers of the SSU and two officers of the “Berkut” unit arrived at a flat in Mykolayiv occupied at the material time by the applicant and three of his acquaintances, and ordered them to lie on the floor. Two of the applicant’s acquaintances complied with the order, while the applicant and another associate started shooting at the officers with firearms. As a result of the shooting, several officers sustained bodily injuries and damage to their protective gear. Having exhausted his cartridges, the applicant attempted to detonate an explosive. At this moment, the officers knocked him onto the floor, immobilised and handcuffed him.

9.  At about 11 p.m. on the same date an investigator with the Mykolayiv Regional Prosecutor’s Office drafted an arrest report, indicating that the applicant was suspected, in particular, of attempting to murder law-enforcement officers, that he had been notified of his procedural rights, including the rights to remain silent and to obtain legal assistance, and that he had expressed the wish to have a lawyer.

10.  At an unspecified time on the same date the applicant was referred to a forensic medical expert to determine the gravity of his bodily injuries. According to the applicant, the expert assessment was carried out on 13 December 2002. According to the Government, it was carried out the following day (14 December 2002). The assessment revealed that the applicant was suffering from a number of bruises and abrasions to his face, limbs, chest and knees, had swollen lips and a wound on his forehead. The expert qualified the injuries as “minor” and recorded that the applicant had complained of headaches and pain in his limbs and ribs and had explained that he had sustained his injuries when resisting arrest. In particular, he had fallen, had been beaten by the “Berkut” officers and had been subjected to martial arts.

11.  At an unspecified time on 13 December 2002 the applicant and his co-detainees were placed in police custody in the Leninskyy District of Mykolayiv.

12.  According to the applicant, in the evening of 13 December and the morning of 14 December 2002 he was beaten by police officers, possibly in retaliation for having wounded two officers from their unit earlier that year (on 22 November 2002). Subsequently, the officers questioned him concerning the offences of which he was suspected and solicited incriminating statements concerning a number of other individuals implicated in the revolutionary communist activity. As the applicant refused to cooperate, the officers resorted to various torture techniques. In particular, they suspended him head down from a crowbar by his hands, which were handcuffed behind his knees; beat him with rubber truncheons; stuck needles under his nails; put a gas mask on his face and interrupted his air flow; banged his head against the wall; and jumped on his chest.

13.  According to the Government, the applicant’s first questioning did not take place until the afternoon of 14 December 2002. It was conducted in the presence of Ch., who was admitted to the proceedings as the applicant’s legal-aid lawyer. They presented a copy of the police report made on that date. According to that report, which was co-signed by the applicant and Ch., in the course of questioning the applicant informed the investigative authorities that he had arrived in Ukraine in autumn 2002 to advance the revolutionary struggle of the working people against their capitalist exploitation, in particular, by distributing a newspaper and organising trade unions and strike committees. The applicant further acknowledged that he possessed various arms without a licence and had wounded two police officers of the Leninskyy police on 22 November 2002, when they had stopped him in the street and ordered him to empty his pockets. When asked about the origin of the injuries on his face, the applicant said that they had been caused during his arrest operation.

14.  On 20 December 2002 Ch. complained to the SSU investigator that the applicant’s health was deteriorating and demanded a medical assessment.

15.  On the same date the applicant was referred to a doctor and a neurologist of the SSU polyclinics. They noted, in particular, that the applicant’s ribs hurt when touched and that his wrists were swollen. The applicant was diagnosed with chest, face and knee contusions and was prescribed an x-ray. It was also recommended that the use of handcuffs should be limited and various medications were prescribed.

16.  On 26 December 2002 the applicant was again examined by a neurologist from the SSU polyclinics, who confirmed the above findings and prescribed further medication.

17.  On 29 December 2002 S., who replaced Ch. as the applicant’s lawyer, lodged a complaint with the prosecutor’s office alleging that the applicant had been beaten and tortured by Leninskyy police officers and demanding a criminal investigation of his bodily injuries.

18.  In January 2003 the Leninskyy police collected reports from eight police officers who had been on duty on 13 December 2002 by way of an internal investigation of the applicant’s ill-treatment allegations. Referring to those reports, in which the officers denied having witnessed or taken part in any ill-treatment, it was concluded that no ill-treatment had taken place. According to the applicant, neither he nor his lawyer had been informed of that investigation and its findings.

19.  On 3 January 2003 the applicant was examined by medical staff of the Mykolayiv pre-trial detention centre (SIZO) and in-patient treatment for pulmonary pneumonia was prescribed.

20.  On 13 January 2003 the prosecutor’s office refused to institute criminal proceedings in respect of the applicant’s alleged ill-treatment. It noted that the applicant had actively resisted his arrest, including by using a firearm, attempting to detonate an explosive and wounding some of the police officers. As the officers had had to break his violent resistance, there were no grounds for suspecting that the minor bodily injuries recorded by the forensic experts had resulted from the application of disproportionate force or from police ill-treatment. According to the applicant, neither he nor his lawyer had been apprised of that decision.

21.  On 14 January 2003 the applicant underwent a further forensic assessment to determine whether he was still suffering from bodily injuries and, if so, their origin and timing. The expert concluded that the applicant was suffering from several wounds and a number of abrasions on various parts of his body, which had resulted from impacts with blunt objects. However, she could not say precisely when the injuries had been sustained.

22.  On 15 January 2003 the applicant was examined by a doctor, who diagnosed him with suspected accumulation of blood in the pleural cavity (hemothorax), dystrophy and post-traumatic neuropathy of the wrists, and prescribed treatment.

23.  On 24 January 2003 the hemothorax diagnosis was confirmed by an X-ray and the applicant underwent a biopsy, after which his state of health slowly started to improve. Subsequently, on numerous occasions in January and February 2003 the applicant was examined by doctors, who prescribed treatment for his wrist, dystrophy and pulmonary problems.

24.  In February 2003 the applicant was transferred to the Odessa pre-trial detention centre (SIZO) no. 21 and subsequently placed in its medical unit for in-patient treatment of pneumonia. According to the applicant, his treatment was inadequate. In particular, the unit did not have the necessary antibiotics in stock and refused him an operation to remove a fractured rib fragment, which had allegedly pierced his lung.

25.  In April 2003 the applicant was released from the medical unit as his health had improved and placed in a regular SIZO cell. According to him, the SIZO was generally overcrowded and the sanitary conditions were poor.

26.  In April 2003 the applicant’s lawyer, S., was replaced by T., who lodged a fresh complaint with the prosecutor’s office demanding an investigation of the applicant’s purported ill-treatment in December 2002. He alleged that the applicant had not sustained any serious injuries in the course of his arrest, as once he had exhausted his cartridges, the trained officers, who had significantly outnumbered the two resisting suspects, had quickly immobilised him. On the other hand, once in custody, the applicant had been severely beaten up and tortured by the police officers. As a result, he had sustained serious injuries, including long-term impairment of the wrist nerve function and seven fractured ribs.

27.  On 24 April 2003 the applicant underwent a further forensic medical assessment, in which a board of experts was asked to determine whether the applicant was suffering from any illnesses at the material time and whether he was fit for detention. The board of experts concluded that the applicant had consolidated fractures of seven ribs and residual traces of pulmonary pneumonia. They further concluded that the applicant’s state of health in general was stable and that he did not need any medical intervention at the material time.

28.  On 7 May 2003 the prosecutor’s office again refused to institute criminal proceedings in respect of the applicant’s ill-treatment allegations, having found that there was no basis to conclude that his injuries had been indicative of ill-treatment or the application of disproportionate force by the arresting officers. The decision referred to the results of the internal investigation by the Leninskyy police in January 2003, to the findings of the medical experts who had qualified the applicant’s injuries as minor, and to the accounts of the arresting officers concerning the violent nature of the applicant’s resistance during his arrest. It was also noted that the applicant had not complained of purported ill-treatment until two weeks after the relevant events.

29.  On 27 May 2003 the applicant, along with ten other individuals implicated in criminal activity as members of the Komsomol group, was committed to stand trial before the Odessa Regional Court of Appeal (“the Regional Court”) acting as a first-instance tribunal.

30.  According to the applicant, on the trial days he was often summoned to an overcrowded transit area early in the morning and would sometimes have to wait for several hours before being transported to the court premises. Likewise, there would be a delay in transferring him from the transit box back to his regular cell upon his return. Catering arrangements were rarely made for the detainees on the days they were scheduled for court hearings. As a result, the applicant was always exhausted on the hearing days, which impeded his ability to concentrate during his trial.

31.  According to the Government, pursuant to the applicable regulations, the detainees scheduled for court hearings were always supplied with either a packed lunch or a hot lunch at the court building. There were no transportation delays or other inconveniences affecting the applicant’s concentration in a way which was incompatible with his effective participation in the trial.

32.  During the trial, the applicant acknowledged that he held revolutionary communist views and had taken part in some actions mistakenly qualified as robberies, as in fact they had been “expropriations” of property obtained by the capitalists by way of exploiting the working class, to be used for revolutionary purposes. He also acknowledged that he had handled firearms and explosives without a licence, had inflicted gunshot wounds on two police officers on 22 November 2002 and had violently resisted arrest. The applicant chose to remain silent concerning the details of robberies and other crimes with which he was charged, as they had been committed in association with other co-defendants. He also stated that he had been beaten and tortured by the police in December 2002, but that the ill-treatment had not influenced his testimonies or defence strategy.

33.  In November 2003 B., one of the applicant’s co-defendants, died in detention. Following his death, some of the defendants complained that B. had been tortured to death and demanded an investigation into his and the others’ alleged ill-treatment by the investigative authorities.

34.  The court ordered the prosecutor’s office to investigate those allegations. Following the investigation, the prosecutor’s office reported that there was no case to answer. In particular, B. had died of cancer and the applicant had been injured as a result of the application of reasonable force during his arrest.

35.  On 19 July 2004 the Regional Court convicted the applicant of distribution of materials propagating violent revolt against the constitutional order; membership of a criminal association; several armed robberies; attempted murder of police officers; smuggling; and illegal handling of firearms and explosives. The applicant was sentenced to fourteen years’ imprisonment. The court dismissed his allegations of ill-treatment as unsubstantiated, having accepted the findings of the prosecutor’s office that his injuries had been caused during his arrest.

36.  The applicant, represented by T., lodged a cassation appeal. According to an uncertified and unsigned copy of that appeal presented by the applicant to the Court, in his submissions before the Supreme Court he argued that he had been arbitrarily convicted of the robberies based on the inconsistent testimonies of his co-defendants. He further alleged that he had had no intent to kill the law-enforcement officers he had wounded, and that the motives for his participation in the revolutionary communist movement were benevolent and aimed at liberating the people from an oppressive political regime. He further reiterated his complaints of ill-treatment by the police and demanded a criminal investigation.

37.  On 29 September 2004 the applicant signed an affidavit that he had no claims against the Odessa SIZO administration or any inmates.

38.  On 26 July 2005 the Supreme Court upheld the applicant’s conviction and sentence in principle, having made some amendments to the text. It noted, in particular, that the applicant’s conviction was based on sufficient evidence, including testimonies by some of his co-defendants and victims of his crimes and that there was no case of ill-treatment to answer. The applicant’s conviction for distribution of propaganda was neither challenged nor reviewed.

39.  In November 2005 the applicant was transferred from the Odessa SIZO to the Perekhrestivka no. 56 correctional colony in the Sumy Region to serve his sentence.

40.  In October 2006 the applicant was again transferred to the Kryvyy Rig no. 80 correctional colony in the Dnipropetrovsk Region, at which a less strict regime was in place.

41.  On 30 October 2006 the administration of the Dnipropetrovsk SIZO, where the applicant had arrived by way of transit, registered the applicant’s intention to go on hunger strike.

42.  Following a medical report by the Dnipropetrovsk SIZO medical commission, which concluded that the applicant’s health was degenerating, he was force-fed on 8, 11, 12 and 14 November 2006.

43.  On 16 November 2006 the applicant arrived at the Kryvyy Rig Colony.

44.  On 17 November 2006 the applicant underwent a medical examination and was found to be suffering from dystrophy. He was also diagnosed with pancreatitis and heart and liver failure, and was prescribed in-patient treatment. On the same date the applicant stopped his hunger strike and continued to receive in-patient treatment for pancreatitis for most of December 2006.

45.  In December 2006 and January 2007 the Ukrainian authorities received several applications from Russian-based public interest groups concerning the applicant’s alleged ill-treatment by the prison authorities during his transit and on the day of his arrival at the Kryvyy Rig Colony. They noted, in particular, that according to their information, the prison authorities had arbitrarily refused to dispatch the applicant’s correspondence while he had been in transit. They continued that, in protest at this refusal, on 24 October 2006 the applicant had started a hunger strike, which had been neither registered nor medically monitored until 30 October 2006, thus leading to the deterioration of his health. Subsequently the applicant had been force-fed, which procedure had been degrading. Furthermore, following his arrival at the Kryvyy Rig Colony, the wardens had ordered him to mop the floors as a sign of his inferiority and subservience, notwithstanding his critical state of exhaustion. As the applicant had refused to comply with this order, the wardens had beaten him up and he had received no proper medical assistance.

46.  On 20 February and 6 April 2007 the applicant, questioned by an officer from the prosecutor’s office in connection with the above-mentioned applications, indicated in writing that he had no complaints against the prison authorities and that he had been satisfied with the quality of medical supervision and assistance provided to him.

47.  On 18 April 2007 the prosecutor’s office informed the Consulate of the Russian Federation that the applicant had no complaints concerning the conditions of his detention or the medical assistance available to him. In particular, he had undergone treatment for various diseases, including dystrophy, and his weight had increased from 44 to 53kg.

48.  In August 2007 several Russian-based public interest groups complained to the Ukrainian authorities that the prison administration had subjected the applicant to unfair treatment. In particular, his correspondence stored in his dresser had been arbitrarily seized.

49.  On 8 November 2007 the prosecutor’s office denied that there had been any breaches of the applicant’s rights by the prison administration. It acknowledged that the allegations that some letters from the applicant’s file had been missing were true. However, rather than having been seized by the administration, they had been mistakenly recycled by another prisoner, who had been cleaning the cell. The applicant himself had refused to pursue any claims against the administration.

50.  Between October 2007 and September 2008 the applicant received treatment for tuberculosis, which was subsequently considered cured.

51.  On 22 September 2008 the Dnipropetrovsk department for the enforcement of sentences informed the applicant’s lawyer that the applicant had received all the necessary medical treatment and at the material time his health was satisfactory.

52.  On 13 May 2009 the Regional Court refused to send the applicant’s lawyer in Russia copies of various documents from his case file, referring to the lack of necessary resources for copying and posting. It further notified the lawyer that he could study the case file in court and take any extracts he considered necessary, if he so wished.

53.  In August 2010 the applicant was transferred to the Petrivska no. 24 colony.

II.  RELEVANT DOMESTIC LAW

54.  Relevant domestic and international materials may be found in the text of the Court’s judgment in the case of Kaverzin v. Ukraine (no. 3893/03, §§ 44-45, 49-50, 55-64, 67 and 69-79, 15 May 2012).

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF THE APPLICANT’S ILL-TREATMENT IN DECEMBER 2002 AND INVESTIGATION OF THE RELEVANT ALLEGATIONS

55.  The applicant complained under Article 3 of the Convention that he had been beaten and tortured by the police on 13 and 14 December 2002. He also complained under Articles 3, 6 and 13 of the Convention that his relevant allegations had not been properly investigated.

56.  The Court, which is master of the characterisation to be given in law to the facts of the case (see e.g. Drozd v. Ukraine, no. 12174/03, § 49, 30 July 2009), finds that the complaints at issue fall to be examined under Article 3 of the Convention, which is the relevant provision and reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

A.  Admissibility

57.  The Government did not lodge any objections concerning the admissibility of this aspect of the case.

58.  The Court notes that this complaint 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

1.  Submissions by the parties

59.  The applicant maintained that he had suffered serious injuries as a result of his ill-treatment by the Leninskyy police. Having been beaten by numerous police officers, who had also jumped on his chest, he had sustained seven fractured ribs and a life-threatening pulmonary trauma, which had necessitated his prolonged hospitalisation. As a result of having been suspended for an extended period of time from a crowbar by his hands, which had been handcuffed behind his knees he had suffered long-term neural damage that had significantly impeded his ability to use his hands, such as for writing. The applicant maintained that those traumas could not have resulted from his arrest. During the arrest, trained officers had instantly knocked him onto the floor and handcuffed him to prevent him from detonating an explosive once he had exhausted his cartridges. From that moment on, he had been fully immobilised and the officers had ceased applying further force.

60.  The applicant also maintained that he had been unable to complain of his ill-treatment immediately, because he had been extremely vulnerable at the time and his legal-aid counsel had been a secret agent for the police. The applicant’s ill-treatment complaint had been lodged on the very day that this counsel had been replaced, which was within two weeks of the disputed ill-treatment. Thereafter, the authorities had made no meaningful effort to collect evidence and to include the applicant and his lawyers in the investigation. They had based their findings on inconsistent and superficial assessments by medical professionals lacking independence and on the accounts of the officers involved in the applicant’s arrest. Furthermore, the prosecutorial authorities had failed to communicate their decisions to the applicant in good time, which had prevented him from challenging them promptly. The judicial authorities likewise had made no meaningful efforts to establish the relevant facts, notwithstanding the fact that the applicant had raised his complaints repeatedly during his trial and in his cassation appeal.

61.  The Government contested the applicant’s allegations. Relying on the findings of the domestic prosecutorial authorities, they submitted that most of the injuries in dispute had been inflicted on the applicant as a result of proportionate force being applied to restrain him during his arrest. As regards the rib injuries, which had first featured in an expert assessment as consolidated fractures four months after the applicant’s arrest, the time of their infliction had never been established; it had probably predated the applicant’s arrest. The Government further argued that the allegations of ill-treatment had been part of the applicant’s defence strategy. In particular, he had not made them until several weeks after his arrest. The Government also maintained that, notwithstanding the delay in the submission of the relevant complaint by the applicant, the prosecutorial authorities had conducted an effective investigation, which had led to the establishment of the origin of the applicant’s injuries. The applicant had not appealed against those decisions. Accordingly, the relevant investigation materials had been archived and subsequently destroyed. Insofar as the applicant had reiterated his complaints during the judicial proceedings, the courts of two instances had examined them thoroughly and had rejected them as unsubstantiated.

2.  The Court’s assessment

(a)  Alleged ill-treatment

62.  In assessing evidence of ill-treatment, the Court has generally applied the standard of proof “beyond reasonable doubt” (see Ireland v. the United Kingdom, 18 January 1978, § 161, Series A no. 25). However, proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Where the events at issue lie wholly or in large part within the exclusive knowledge of the authorities, as in the case of those under 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 lying with the authorities to provide a satisfactory and convincing explanation (see Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII).

63.  Where the national authorities fail to conduct a thorough and independent medical examination before placing the applicant in detention, the Government cannot rely on that failure in their defence and claim that the injuries in question pre-dated the applicant’s detention in police custody (see, among other authorities, Korobov v. Ukraine, no. 39598/03, § 68, 21 July 2011). A medical examination, together with the right of access to a lawyer and the right to inform a third party of the detention, constitute fundamental safeguards against the ill-treatment of detained persons which should apply as from the very outset of deprivation of liberty. This would not only ensure the applicant’s rights but would also enable the respondent Government to discharge their burden of providing a plausible explanation for those injuries (ibid. 70). The Court also notes that Article 3 does not prohibit the use of force for the purposes of effecting an arrest. However, such force may be used only if indispensable and must not be excessive (see, among other authorities, Mikiashvili v. Georgia, no. 18996/06, § 70, 9 October 2012). In respect of a person deprived of his liberty, recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3 (see Ribitsch v. Austria, 4 December 1995, § 38, Series A no. 336).

64.  Turning to the facts of the present case, the Court notes that some of the applicant’s allegations concerning the injuries sustained at the hands of the police (such as those from the insertion of needles under his nails or from being starved of oxygen) are not supported by any documentary evidence. At the same time, it clearly follows from the case file that the applicant sustained a number of injuries as a result of his encounter with law-enforcement officers in December 2002. In particular, according to medical assessments, he had at least one wound and a number of abrasions and bruises on various parts of his body. He also sustained injuries to his wrists resulting in a long-term neural dysfunction of his hands and a serious chest injury, including seven fractured ribs. The Court cannot accept as plausible the Government’s allegation that the applicant’s ribs could have been fractured before his arrest. It notes in this respect that no materials have been presented to corroborate this version, which was also never explored by the domestic investigative authorities (see Holodenko v. Latvia, no. 17215/07, § 67, 2 July 2013 and by contrast, Lobanovs v. Latvia (dec.), no. 16987/02, 28 September 2010). Those injuries were sufficiently serious to bring the applicant’s complaint within the meaning of Article 3 of the Convention.

65.  In determining whether the State authorities were liable under Article 3 of the Convention for the applicant’s injuries, the Court accepts that the applicant might have sustained a number of them, such as bruises and abrasions, as a result of the application of force to restrain his vigorous resistance against his arrest. At the same time, given the nature, gravity and dispersed location of the injuries at issue and the materials on file concerning the deployment of the arrest operation, the Court is not convinced that all of them could be caused by the application of proportionate force necessary to restrain the applicant. It notes, in particular, that the account of the arrest operation presented by the Government, who relied on the findings of the domestic investigation, is very general. It does not determine the sequence of events, the manner in which the injuries were inflicted or the individual roles of the particular officers in restraining the applicant. Likewise, it does not explain which specific techniques were applied and how they correlated with the applicant’s particular actions (see e.g. Vasiliy Ivashchenko v. Ukraine, no. 760/03, §§ 80-82, 26 July 2012 Klaas v. Germany, 22 September 1993, §§ 13, 17 and 30-31, Series A no. 269). According to the applicant, after he had exhausted his cartridges, the officers had swiftly knocked him to the floor and immobilised him without a significant struggle. Regard being had to this account and the fact that there were eight trained and well-equipped officers to restrain two resisting suspects, the Court is not convinced that such major injuries as seven fractured ribs leading to an accumulation of blood in the applicant’s pleural cavity resulted from the application of proportionate force during arrest. The applicant’s version, according to which his ribs were broken as a result of being beaten up after he had been handcuffed, can therefore not be ruled out.

66.  Most importantly, the application of proportionate force during arrest cannot explain the severe injuries to the applicant’s wrists, which appear to have resulted in a long-term neural dysfunction of his hands. The domestic investigation was silent on their origin. According to the applicant, after taking him to the police station, the police officers suspended him from a crowbar with his handcuffed hands behind his knees. Lacking any plausible alternative version concerning the applicant’s wrist injuries and having regard to the fact that his knee joints were also injured, the Court considers that the applicant’s account can be accepted.

67.  In sum, although the Court has no facilities to determine the exact timing of the applicant’s injuries, the venue or the manner in which they were inflicted, in view of their nature, gravity and dispersed location, as well as the Government’s failure to present a thorough and detailed account justifying them by the applicant’s own actions, the Court considers that the State’s responsibility for the applicant’s inhuman and degrading treatment is engaged.

68.  There has therefore been a breach of Article 3 of the Convention.

(b)  Alleged ineffectiveness of the investigation

69.  The Court reiterates that where an individual raises an arguable claim that he has been ill-treated by the State authorities in breach of Article 3, that provision, read in conjunction with the State’s general duty under Article 1 of the Convention, requires by implication that there should be an effective official investigation. For the investigation to be regarded as “effective”, it should in principle be capable of leading to the establishment of the facts of the case and to the identification and punishment of those responsible. The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony, forensic evidence, and so on. Any deficiency in the investigation which undermines its ability to establish the cause of injuries or the identity of the persons responsible will risk falling foul of this standard, and a requirement of promptness and reasonable expedition is implicit in this context (see, among many authorities, Assenov and Others v. Bulgaria, judgment of 28 October 1998, Reports 1998-VIII, §§ 102 et seq., and Savitskyy v. Ukraine, no. 38773/05, § 99, 26 July 2012). For an investigation to be effective, those responsible for and carrying out the investigation must be independent and impartial, in law and in practice. This means not only a lack of hierarchical or institutional connection with those implicated in the events but also a practical independence (see, for example, Kolevi v. Bulgaria, no. 1108/02, § 193, 5 November 2009). Moreover, the notion of an effective remedy in respect of an allegation of ill-treatment also entails effective access for the complainant to the investigation procedure (see Assenov and Others, cited above, § 117).

70.  Having carefully studied the case-file materials in light of the observations provided by the parties, the Court finds that the investigation of the applicant’s ill-treatment allegations did not meet the minimum effectiveness standards. Firstly, the prosecutorial authorities based their findings largely on the accounts of the officers implicated in the events taken at face value. The case-file materials disclose no meaningful effort on their behalf to verify or disprove the applicant’s account of events, including by thoroughly questioning him, organising confrontations or posing specific questions to the independent medical experts. Secondly, the investigation lacked independence, as in rejecting the applicant’s allegations that he had been ill-treated by the Leninskyy police, the prosecution relied largely on the results of an internal investigation conducted by the Leninskyy police itself. Thirdly, the investigation was marked by various delays in communicating to the applicant and his lawyers the decisions taken, which significantly impeded their ability to take part in the investigation at issue and to lodge timely appeals. Delays were likewise present in the taking of evidence. For instance, the fact that the applicant had seven fractured ribs was not established until four months after his arrest, although he had complained about pain in the rib area as of the first medical assessment within twenty-four hours of his arrest. In the Court’s view, the State authorities’ failure to ensure that the applicant’s injuries were comprehensively and thoroughly assessed immediately following his arrest and subsequently immediately following his complaints concerning ill-treatment by the police, as well as to question promptly all the parties involved, irretrievably prejudiced their ability to establish the relevant facts.

71.  Overall, it appears that the manner in which the authorities approached the investigation of the applicant’s complaints was aimed at exculpating the suspected officers, rather than at establishing the objective circumstances in which his injuries had been sustained.

72.  In a number of other cases against Ukraine the Court has already condemned patterns of investigation similar to the one in the present case (see, inter alia, Drozd v. Ukraine, no. 12174/03, §§ 68-71, 30 July 2009; Savitskyy v. Ukraine, no. 38773/05, §§ 121-22, 26 July 2012; and Grinenko v. Ukraine, no. 33627/06, § 62, 15 November 2012). In the case of Kaverzin v. Ukraine (no. 23893/03, §§ 173-80, 15 May 2012) the Court has recently found that reluctance of the authorities to ensure that a prompt and thorough investigation of the ill-treatment complaints by the criminal suspects was carried out constituted a systemic problem within the meaning of Article 46 of the Convention. In view of the circumstances of the present case and its earlier case-law, the Court concludes that in the present case, too, no serious effort has been made to investigate the allegations of ill-treatment made by the applicant.

73.  It follows that there has been a breach of Article 3 of the Convention in respect of investigating the applicant’s complaints concerning his purported ill-treatment in December 2002.

II.  ALLEGED VIOLATIONS OF ARTICLES 3 AND 13 OF THE CONVENTION ON ACCOUNT OF THE CONDITIONS OF DETENTION AND LACK OF EFFECTIVE REMEDIES FOR THE RELEVANT COMPLAINTS

74.  The applicant also invoked Article 3 of the Convention in respect of the conditions of his detention, including lack of personal space, poor sanitary arrangements, medical assistance, and various actions of the authorities in the Odessa SIZO, in transit to the Kryvyy Rig Colony and upon his arrival to the latter. He further complained under Article 13 of the Convention that he had had no effective remedies with respect to the above complaints. The latter provision reads as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

75.  The Government alleged that the applicant had not made an arguable claim concerning the incompatibility of the conditions of his detention with Article 3 of the Convention. His complaints under Article 13 were therefore likewise unsubstantiated. They noted, in particular, that, as regards the conditions of detention in the Odessa SIZO, the applicant’s complaint was very general. He had neither described in detail the conditions in which he had been detained, nor elaborated on the nature and extent of the distress he had suffered. Likewise, he had not elaborated on the conditions of his detention during transit to the Kryvyy Rig Colony. They further contested the applicant’s allegation that the prison authorities had refused to dispatch his mail and submitted that the applicant had first deposited his hunger-strike declaration on 30 October 2006. He had been medically supervised as from that date. Following a proper medical report concluding that his health had deteriorated, the applicant had been force-fed from 8 to 15 November 2006. He had not complained about the manner in which he had been force-fed. Lastly, as regards the conditions of detention in the Kryvyy Rig Colony, the applicant had not lodged any relevant complaints either with the domestic authorities or with the Court. This part of the application was therefore incompatible ratione personae with the Convention provisions.

76.  The applicant disagreed. He maintained that the treatment to which he had been subjected in the Odessa SIZO, during his transit to the Kryvyy Rig Colony and upon his arrival there had been incompatible with Article 3 of the Convention and that he had had no effective remedies for his complaints within the meaning of Article 13 of the Convention. He referred to numerous internet and other public sources describing conditions of detention and transport of prisoners in Ukraine and argued that this information was sufficient to draw the conclusion that those conditions were incompatible with Article 3 of the Convention and were indicative of a structural problem. He also noted that while he himself could no longer recall the details of his stay in the Odessa SIZO, the cells had been overcrowded, the sanitary arrangements and medical assistance had been poor. Relevant descriptions should have been provided by some of his co-defendants in the criminal proceedings, who had also complained to the Court about the conditions of their detention in that facility.

77.  The Court notes firstly that the applicant’s complaints concerning his purported ill-treatment in the Kryvyy Rig Colony were clearly formulated in his submissions before the Court. They can therefore not be rejected as incompatible ratione personae.

78.  The Court next reiterates that in order to fall under Article 3 of the Convention, ill-treatment must attain a minimum level of severity. The assessment of this minimum level of severity 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 gender, age and state of health of the victim (see Valašinas v. Lithuania, no. 44558/98, §§ 100-101, ECHR 2001-VIII). Cases concerning allegations of inadequate conditions of detention do not lend themselves to a rigorous application of the principle affirmanti incumbit probatio (he who alleges something must prove that allegation) because in such instances the respondent Government alone have access to information capable of corroborating or refuting these allegations (see, for example, Aden Ahmed v. Malta, no. 55352/12, § 89, 23 July 2013). Accordingly, the Court is mindful that the applicants might experience certain difficulties in procuring evidence to substantiate a complaint in that connection. Nevertheless, in such cases applicants may well be expected to submit at least a detailed account of the facts complained of and provide - to the greatest possible extent - some evidence in support of their complaints (see Visloguzov v. Ukraine, no. 32362/02, § 45, 20 May 2010 and Ukhan v. Ukraine, no. 30628/02, § 64, 18 December 2008).

79.  In the Court’s opinion, this requirement has not been met in the present case, as the applicant’s complaints have been limited to vague and general statements, which do not enable it to conclude that his suffering reached the threshold of severity required by Article 3 of the Convention.

80.  In particular, as regards the applicant’s stay in the Odessa SIZO, while complaining about overcrowding and poor sanitary conditions, the applicant did not specify in which cells he had been held and how many inmates he had been held with during specific periods of time; nor did he describe the sanitary conditions in those cells and how they had affected him personally. It also appears from the case file that the applicant received medical treatment for his pulmonary problems in the SIZO, as a result of which his state of health improved. His medical history does not indicate any lasting consequences of the hemothorax or pneumonia treated in the Odessa SIZO. As regards other health conditions, the applicant did not provide any details concerning the medical assistance received or denied. Regard being had to the general improvement of the applicant’s health during his stay in the Odessa SIZO and lack of details in his description of his treatment sequence, it is not clear in which way the medical assistance provided to him in the Odessa SIZO fell short of Article 3 requirements.

81.  As regards the alleged ill-treatment in transit to the Kryvyy Rig Colony, the applicant’s complaint is largely limited to an allegation that the prison authorities had refused to dispatch his correspondence and had delayed registration of his hunger strike. These allegations are denied by the Government and not supported by any evidence. Insofar as the public interest groups raised them before the domestic prosecutorial authorities on the applicant’s behalf, he refused to pursue them (see paragraph 46 above). The applicant also noted that he had been force-fed, but provided no description of the force-feeding procedure or his personal suffering in connection with the manner in which he had been force-fed (compare and contrast, Nevmerzhitsky v. Ukraine, no. 54825/00, § 78, ECHR 2005-II (extracts)).

82.  As regards the alleged ill-treatment in the Kryvyy Rig Colony, the applicant’s factual description is limited to an allegation of a purportedly degrading coercion to mop the floor on the day of his arrival; his alleged beating by the guards as a consequence of his refusal; a one-day delay in his medical examination following his arrival; and one instance of disappearance of his correspondence, which, according to the authorities’ findings, had been mistakenly recycled by an inmate (see paragraph 49 above). It is notable that, based on the file, the applicant never raised these complaints before the competent domestic authorities. While a number of complaints were lodged by civil activists on his behalf, the applicant himself, questioned by the prosecutor’s office, declined to pursue them in his own name.

83.  Given the lack of detail in the applicant’s factual account, the evidence provided and the applicant’s conduct at the domestic level, the Court is unable to conclude that the treatment complained of caused him suffering that reached the threshold of severity required to bring the matter within the ambit of Article 3 of the Convention (see e.g. Kobernik v. Ukraine, no. 45947/06, § 37, 25 July 2013 and Ukhan, cited above, §§ 65-66).

84.  The Court finds therefore that the applicant has not made out an arguable claim concerning his purported ill-treatment in the Odessa SIZO, during his transit to the Kryvyy Rig Colony or upon his arrival thereto.

85.  This part of the application must therefore be rejected as inadmissible in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

86.  Regard being had to the above findings, the applicant’s complaint under Article 13 of the Convention with respect to the unavailability of domestic remedies for the aforementioned allegations must likewise be rejected as inadmissible in accordance with Article 35 §§ 3 (a) and 4 of the Convention (see Logvinenko v. Ukraine, no. 13448/07, § 82, 14 October 2010).

III.  ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

87.  The applicant complained that his right to defence had been breached in that he had had no access to a lawyer of his choosing immediately following his arrest. Furthermore, his ability to participate in his trial had been impeded as a result of the conditions of his detention and the transport and catering arrangements on trial days, as well as the fact that he had had insufficient time to study the case-file materials and consult his lawyer. He invoked Article 6 §§ 1 and 3 (b) and (c) of the Convention, which, insofar as relevant, read as follows:

“1.  In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...

3.  Everyone charged with a criminal offence has the following minimum rights:

...

(b)  to have adequate time and facilities for the preparation of his defence;

(c)  to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; ...”

88.  The Government contested those allegations. They noted, in particular, that the applicant had not raised the above complaints in his cassation appeal lodged with the Supreme Court and had thus failed to exhaust the available domestic remedies. They further noted that the complaint was in any event manifestly ill-founded, as the applicant had been legally represented as of his first questioning and had had ample opportunities to consult his lawyers and the case-file materials during the proceedings. They also argued that the applicant’s complaints concerning the impact of the conditions of his detention and transport on his ability to participate effectively in the trial had been vague, general and not supported by any evidence. In fact, it appeared from the trial transcript that during the trial the applicant had been very active in questioning witnesses and lodging procedural requests. Again, he had not raised any complaints in this respect during his trial.

89.  The applicant disagreed. He submitted that he and his co-defendants had actively complained about the breaches of their procedural rights during the trial and in their submissions before the Supreme Court. However, their efforts had been futile, as their procedural complaints had been ignored.

90.  The Court does not find it necessary to deal with the Government’s objection as to the exhaustion of domestic remedies, as it considers that this part of the application is anyway inadmissible for the following reasons. As it appears from the case-file materials the applicant was not questioned immediately after his arrest in the late afternoon on 13 December 2002 and there is no evidence that any questioning took place prior to the afternoon of 14 December 2002. That questioning, according to the Government, was in the presence of the appointed lawyer, and thereafter the lawyer participated in the procedural steps conducted with the applicant. Therefore, the applicant did not provide sufficient substantiation to his complaints under this head.

91.  Regard being had to the applicant’s failure to present details and documentary evidence in support of his allegations, this part of the application is unsubstantiated and must be declared inadmissible, pursuant to Article 35 §§ 1, 3 (a) and 4 of the Convention.

IV.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION

92.  The Court notes that on various dates the applicant lodged a number of other complaints under Articles 2, 3, 5, 6, 8, 9, 10, 13, 14 and 34 of the Convention with respect to the facts of the present case.

93.  Having considered these complaints in the light of all the material in its possession, the Court finds that, in so far as the matters complained of are within its competence, they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention.

94.  It follows that this part of the application must be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

V.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

95.  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

96.  The applicant claimed 25,000 euros (EUR) in respect of non-pecuniary damage.

97.  The Government alleged that this claim was exorbitant and unsubstantiated.

98.  The Court considers that the applicant suffered considerable anguish and distress on account of the facts giving rise to the finding of the violations of Article 3 of the Convention in the present case. Ruling on an equitable basis, the Court awards the applicant EUR 12,000, plus any tax that may be chargeable thereon, in respect of non-pecuniary damage.

B.  Costs and expenses

99.  The applicant also claimed 4,045.60 Russian roubles (RUB) for postal expenses and RUB 33,000 in legal fees on his behalf and on behalf of his three co-defendants in the criminal proceedings (Messrs A. Yakovenko, I. Romanov and B. Zinchenko), who had also lodged applications with the Court and had initially been represented by Mr V. Chernikov and subsequently by Mr V. Komarov, lawyers practicing in Moscow. By way of justification of the postal expenses, the applicant presented postal receipts. One of these receipts indicated that the payment had been made by Mr G. Zhuravlev, several others that the payments had been made by Mr V. Komarov, and the remaining receipts did not indicate the payer.

100.  By way of justification of the legal fees, the applicant presented a copy of the first page of a contract for legal services of 20 January 2009 concluded between the lawyer Mr V. Komarov and an individual, Mrs G., for representation of the applicant and his co-defendants listed above in exchange for consideration of RUB 30,000, excluding expenses which were also to be paid by Mrs G. In addition, the applicant also maintained that RUB 3,000 had been paid to lawyer Mr G. Zhuravlev in connection with gathering evidence concerning his state of health.

101.  The Government submitted that they would leave it to the Court’s discretion to decide on the postal expenses. As regards legal fees, they challenged the validity of the contract concluded by Mrs G. on the applicant’s and his co-defendants’ behalf. In particular, they noted that only the first page of the contract, which contained no signatures, had been provided. Moreover, no power of attorney or any other document authorising Mrs G. to conclude a contract for the applicant’s or his co-defendants’ legal representation had been submitted. They also noted that the relevant documents were insufficiently detailed and that in respect of the payment to Mr G. Zhuravlev, neither an invoice, nor any contract whatsoever had been provided.

102.  The Court observes that, based on the documents provided, it is not apparent that the applicant has borne any legal fees, postal or other expenses in connection with the present application or that he has an outstanding obligation in this regard to Mr Komarov, Mrs G. or any other individual or entity. It further notes that, according to its case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court is unable to determine the amount of fees and expenses paid or owed by the applicant. It therefore makes no award.

C.  Default interest

103.  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,

1.  Declares the complaints concerning the applicant’s ill-treatment in December 2002 and the ineffective investigation into the respective allegations admissible and the remainder of the application inadmissible;

 

2.  Holds that there has been a violation of Article 3 of the Convention in its substantive limb;

 

3.  Holds that there has been a violation of Article 3 of the Convention in its procedural limb;

 

4.  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 12,000 (twelve thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State 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;

 

5.  Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 13 March 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Claudia Westerdiek                                                                Mark Villiger
       Registrar                                                                              President