FOURTH SECTION

CASE OF BARYSHEVA v. UKRAINE

(Application no. 9505/12)

JUDGMENT

STRASBOURG

14 March 2017

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 Barysheva v. Ukraine,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
	Vincent A. De Gaetano, President,
	Ganna Yudkivska,
	András Sajó,
	Nona Tsotsoria,
	Krzysztof Wojtyczek,
	Iulia Motoc,
	Gabriele Kucsko-Stadlmayer, judges,
and Marialena Tsirli, Section Registrar,
Having deliberated in private on 21 February 2017,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 9505/12) 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, Ms Marina Vladimirovna Barysheva (“the applicant”), on 7 February 2012.
2.  The applicant, who had been granted legal aid, was represented by Ms Y.V. Zayikina, a lawyer practising in Kharkiv. The Ukrainian Government (“the Government”) were represented by their Agents, most recently Mr I. Lishchyna.
3.  On 24 August 2015 the application was communicated to the Government.
THE FACTS
I.  THE CIRCUMSTANCES OF THE CASE
4.  The applicant was born in 1982 and lives in Kharkiv.
A.  The first episode of alleged police ill-treatment, ensuing investigation and the first set of criminal proceedings against the applicant
5.  According to the applicant, on 31 January 2009 she was arrested by a group of police officers in a café, K., and detained without record at a police station until 2 February 2009. She further alleged that during her detention, she was beaten and threatened by the police officers, notably A.A., who tried to obtain false confessions from her concerning her and other persons’ involvement in drug dealing. According to the applicant, she did not seek any medical assistance upon her release because she intended to file an ill‑treatment complaint and expected to be instructed by the prosecutor’s office on how to document the injuries properly.
6.  According to the Government, on 31 January 2009 the police officers seized some heroin from the applicant, which was the basis for the institution of criminal proceedings against her and her eventual committal for trial. However, the applicant was neither arrested, nor detained by the police at that time.
7.  On 10 February 2009 the applicant complained about the incident to the prosecutor’s office.
8.  On 17 April 2009 this complaint was rejected as unsubstantiated.
9.  On 31 March 2010 Kyivskyy District Court in Kharkiv, which examined the criminal case against the applicant, ordered the prosecutor’s office to inquire into her ill-treatment complaint lodged again during the trial.
10.  On 23 April 2010 the Kyivskyy District Prosecutor’s Office in Kharkiv decided not to institute criminal proceedings in relation to the applicant’s ill-treatment allegations. As appears from that document, the applicant had stated to the prosecutorial authority that she and V.J. (her partner) had been arrested on 29 January 2009 and that she had been ill‑treated by police officers and detained without record until 31 January 2009. V.J., questioned by the prosecutor’s office in connection with the inquiry into the applicant’s complaints, had likewise alleged that both of them had been arrested on 29 January 2009 and that the applicant had been subsequently detained until 31 January 2009.
11.  The applicant appealed against this decision to the General Prosecutor’s Office, which forwarded the case-file materials back to the local prosecutor’s office with a view for them to be joined to the criminal investigation of the applicant’s complaint concerning the second ill‑treatment episode (see below).
12.  According to the applicant, on 18 June 2010 the Kyivskyy District Court in Kharkiv, to which the criminal case against her had been referred for examination, returned it for additional investigation.
13.  There is no further information concerning the final outcome or present status of the aforementioned case against the applicant.
B.  The second episode of alleged police ill-treatment, ensuing investigation, and the second set of criminal proceedings against the applicant
14.  At 9.42 p.m. on 25 June 2009 the applicant sought medical aid at Kharkiv City Clinical Hospital no. 4.
15.  At 10 p.m. on the same date she was examined by a medical professional in that hospital and diagnosed as suffering from concussion and chest, stomach, and knee-joint contusions. She refused to be admitted as an inpatient for treatment, which was recommended to her, and left the hospital.
16.  On 26 June 2009 a new set of criminal proceedings was instituted against the applicant on suspicion of selling opium to three men on 24 June 2009 and of storing a jar of opium in her house (“the second set of criminal proceedings”).
17.  On the same date the applicant complained to the Kharkiv Regional Department of the Interior that she had been ill-treated by the police. She submitted, in particular, that on 24 June 2009 four police officers had forced their way into her house without a court order, searching for drugs. Officer A.A. had hit the applicant on the head with the grip of his gun and had struck her several times in the face with his hand in the presence of the applicant’s two-year-old son, her partner, brother, and two guests. The police officers had then taken the applicant to the police station, where she had been held from about 2 p.m. on 24 June until 5.30 p.m. on 25 June 2009 without a formal arrest record being drawn up. During that period, officer A.A. had demanded that she confess to dealing drugs under the protection of another police officer, Y.B. As the applicant had protested, he had threatened and punched her on various parts of her body. She had been released at about 5.30 p.m. on 25 June 2009 after confessing to drug-related offences and signing various documents at the demand of A.A.
18.  According to the applicant, during her visit to the Department of the Interior, she had felt so unwell that an ambulance had been called and she had been admitted as an urgent case to Hospital no. 4.
19.  According to the Government, it could be seen from the hospital records that no ambulance had been called for the applicant and she had arrived at the hospital on her own. They submitted hospital records, according to which the applicant had come to the hospital on her own from her home and was registered by the reception desk at 9.27 p.m. It can also be seen from those records that between 26 June and 20 July 2009 the applicant received inpatient treatment for a moderately serious case of concussion, accompanied by a traumatic subarachnoid haemorrhage, epileptic syndrome and several other neurological conditions.
20.  On 15 July 2009 a medical expert, having examined the applicant, reported that she had bruises on her right leg and left hip, which could be classified as minor injuries and which could have been sustained between seven and fifteen days prior to the assessment. He further concluded that he was not competent to decide on the cerebral trauma, in particular, as he had not been provided with a comprehensive medical record.
21.  On 27 July 2009 another medical expert, after examining the applicant and various medical records, concluded that the applicant’s cerebral trauma could be classified as a moderately serious injury. He further reported that the trauma could have been sustained in the circumstances described by the applicant.
22.  In July 2009 the Kharkiv Regional Department of the Interior carried out an internal investigation into the applicant’s ill-treatment complaints.
23.  On 10 August 2009 a report summarising the results of the investigation was transferred to the Kharkiv city prosecutor’s office for review and follow-up. According to the findings contained in the report there were, in particular, irregularities in the visitors’ log and other police records, making it difficult to determine the exact time of the applicant’s presence in the police station on 24 and 25 June 2009.
24.  On an unspecified date the prosecutor’s office began a preliminary investigation into the applicant’s complaints, in the course of which a number of people were questioned as potential witnesses, including the police officers implicated by the applicant in her ill-treatment, the lay witnesses, who had signed the police report concerning seizure of opium from the applicant on 24 June 2009, the three men implicated in buying opium from the applicant, the applicant’s partner, brother, guests, and the applicant herself.
25.  During the questionings, the four police officers implicated by the applicant in the forced entry to her house and ill-treating her, denied this accusation. They maintained that the applicant had willingly allowed them to inspect her house after they had caught her selling opium to three men at the entrance. In the presence of two lay witnesses, syringes full of opium had been seized from the men on the spot and a jar filled with opium had been seized from the applicant’s garage following a search of her house. In connection with those seizures, the applicant had subsequently been taken in for questioning and had been at the police station on 24 and 25 June 2009, however, she had neither been arrested, nor held there overnight. The officers also submitted that it was known to them that the applicant sold drugs under the protection of police officer Y.B.
26.  Two men identified as the lay witnesses gave statements largely consistent with the police officers’ submissions.
27.  The three men identified by the police officers as the drug buyers denied buying any opium from the applicant and submitted that they had visited her that day to borrow some money. Later on, they had been arbitrarily caught by the police and made to write false confessions, admitting that they had bought opium from the applicant, on pain of criminal sanctions.
28.  The applicant herself, V.J. (her partner), A.B. (her brother), and two persons identified by the applicant as the guests present during the purported forced entry, gave statements similar to the ones the applicant had provided to the Department of the Interior on 26 June 2009. The applicant also submitted that there had been no lay witnesses present during the forced entry and search and that the jar and syringes with opium had been brought by the police officers and planted on her.
29.  On 18 September 2009 the Kharkiv city prosecutor’s office instituted criminal proceedings against “a group of unidentified police officers” suspected of abuse of authority accompanied by violence and the use of arms against the applicant on 24 June 2009.
30.  On 22 September 2009 the applicant joined those proceedings as an aggrieved party.
31.  On 1 March 2010, responding to a request from the applicant to be updated on the proceedings and to consult the case file, the Kharkiv city prosecutor’s office informed her that the investigation was in progress and that she would be able to consult the file after it had been completed.
32.  On 9 March 2010 a further medical report on the applicant was obtained, which stated that it was not possible to determine the gravity of her cerebral trauma, in particular because of the unavailability of her previous complete medical history. It also concluded that it was unlikely that the applicant’s injuries had been self-inflicted.
33.  On 8 December 2010 A.A. was indicted within the framework of the criminal proceedings concerning the applicant’s alleged ill-treatment. The three other police officers implicated by the applicant in assisting him on 24 June 2009 were referenced in the bill of indictment by name.
34.  On 9 December 2010 the investigator S. discontinued the second set of criminal proceedings against the applicant for want of any evidence that she had stored opium in her house or had sold it to anyone on 24 June 2009. In his decision, the investigator referred to various procedural irregularities in the collection of evidence by the police officers and discrepancies in the statements of the various persons questioned as witnesses, which he deemed irreconcilable. He further decided to transfer the file of the case against the applicant to the Kharkiv prosecutor’s office in order for it to be joined to the case concerning the applicant’s alleged ill-treatment.
35.  On 21 January 2011 a further medical report was obtained. It stated that it was not possible to determine the severity of the applicant’s cerebral injury because the medical history that had been provided to the expert writing the report had been incomplete, and because the applicant herself had not reported for an examination in person. It was also noted that, as regards the bruises which had been documented in July 2009, they could have been inflicted on the dates and in the manner reported by the applicant.
36.  On 11 August 2011 a further medical report, this time by a panel of three experts, was obtained, wherein the applicant’s cerebral trauma was classified as a minor injury, which could possibly have been sustained on 24 June 2009 and was unlikely to have been self-inflicted. It was further reported that the data concerning the other injuries (bruises and contusions) were inconclusive, but that based on the available information it was not improbable that the injuries had been self-inflicted.
37.  On 29 August 2011 the Kharkiv prosecutor withdrew the bill of indictment against officer A.A., noting that the three men earlier identified as the drug buyers and one of the two people identified as the applicant’s guests who had been present during the purported forced entry had retracted their testimony incriminating A.A. and his colleagues in the assault.
38.  On an unspecified date officer M.O., one of the four officers implicated by the applicant in the forced entry, appealed to the Kyivskyy District Court in Kharkiv, seeking the annulment of the decision to institute criminal proceedings.
39.  On 12 September 2011 the Kyivskyy District Court of Kharkiv allowed the appeal, referring the case for further preliminary inquiry. The court noted, in particular, that as the applicant’s complaint had been lodged against four named police officers, it had been wrong to institute proceedings into alleged abuse of office by a group of “unidentified officers”. Furthermore, while officer M.O. had de facto been implicated in the bill of indictment against officer A.A. as his accomplice, he had been given witness status only, which had restricted his procedural rights, including the right to defence.
40.  On various dates in September 2011 formal confrontations were organised between the applicant, two of the three men identified by the police as the “drug buyers”, and a woman identified by the applicant as one of her guests on 24 June 2009. During those confrontations, the applicant confirmed her previous testimony, while the other people maintained that because they had been regular clients of the applicant’s for drugs in 2009, they had earlier given statements in her favour for fear of reprisals from her and officer Y.B., who had protected her. In fact, the two men confirmed that they had bought opium from the applicant on 24 June 2009, while the woman maintained that she had not visited the applicant on that date and had not witnessed any forced entry by the police.
41.  V.J. (the applicant’s former partner) and A.B. (her brother), also questioned again in September 2011, confirmed their previous statements that they had witnessed a forced entry and assault on the applicant. Based on the case file, the second guest (the fourth person, who had earlier contended that he had witnessed the forced entry), was not questioned.
42.  On 26 November 2011 the Kharkiv prosecutor’s office refused to reopen the criminal investigation into the applicant’s ill-treatment complaints for want of any evidence that the police officers had committed a crime. They referred, in particular, to the retraction of several witness statements and to the re-classification of the applicant’s injuries as minor in the latest medical report. They further pointed out that, according to the experts’ findings, all of the applicant’s external injuries could technically have been self-inflicted. Accordingly, she could have lied to the police about her ill‑treatment to avoid charges of drug dealing.
43.  It appears that the applicant was not informed of the above decision in due time, as in 2012 the applicant’s lawyers unsuccessfully contacted the law-enforcement authorities to obtain information on whether there had been any progress in the proceedings.
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
44.  The applicant complained that on two occasions in 2009 she had been subjected to police ill-treatment and that her complaints had not been properly investigated. She referred to Articles 3 and 13 of the Convention in respect of the above complaints.
45.  The Court, which is master of the characterisation to be given in law to the facts of a case (see, among other authorities, 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 only, which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
A.  First episode of alleged ill-treatment
46.  The Government submitted that there had been no breach of Article 3, as there was no evidence that the applicant had been subjected to police ill‑treatment. They noted that, contrary to the applicant’s allegations, she had been neither ill-treated, nor detained on 31 January 2009. In their view, the applicant had ample opportunities to complain about the purported ill‑treatment and to document her injuries, if any, before 10 February 2009 (the date on which she had lodged her complaint with the prosecutor’s office). The applicant had failed to do so and to provide any evidence of ill‑treatment. Her relevant complaints had therefore been rightfully dismissed by the domestic authorities as unsubstantiated.
47.  The applicant submitted that by lodging an ill-treatment complaint within a week of her release from unrecorded detention, she had acted promptly. She also submitted that her failure to document her injuries was due to a lack of appropriate instructions from the prosecutor’s office, which could not be held against her.
48.  The Court notes that it has not been presented with any medical or other objective evidence that the applicant might have been ill-treated by the police in either January or February 2009. It further notes that her submissions before the Court concerning the timing of the ill-treatment are contradictory. While in her statement to the Court the applicant has indicated that she had been arrested on 31 January 2009 and detained until 2 February 2009, in her submissions to the Kyivskyy district prosecutor’s office she had indicated different dates (29-31 January 2009; see paragraph 10 above). The applicant has not explained this discrepancy to the Court. The Court considers that the applicant’s submissions are insufficiently consistent, detailed and corroborated by necessary evidence to raise an arguable claim that she might have been ill-treated by the police in January or February 2009.
49.  The applicant’s complaints concerning the first episode of alleged ill‑treatment and lack of appropriate investigation of her relevant allegations must therefore be rejected as manifestly ill-founded in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
B.  Second episode of alleged ill-treatment
1.  Admissibility
50.  The Government have not filed any objections concerning the admissibility of the present complaint.
51.  The Court considers 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.
2.  Merits
(a)  Submissions by the parties
52.  The applicant argued that on 24 June 2009 she had been assaulted by officer A.A. in her home, then detained without record until about 5.30 p.m. on 25 June 2009 and tortured with a view to extracting false confessions of drug dealing. She further noted that in order to give the appearance that she had not been detained, the police officers had on several occasions falsified her signature on the visitors’ log, as if she had been going in and out. Although the applicant had raised that argument before the investigative authorities, no graphologist had been asked to carry out an expert assessment. The applicant also submitted that in their decision of 26 November 2011 not to reinstitute criminal proceedings, the prosecutorial authorities had based their conclusion largely on testimony by the police officers implicated by her in the ill-treatment that had been taken at face value. In the applicant’s view, the domestic investigation of her ill-treatment complaint had been ineffective as it had not led to the punishment of A.A. and the other officers responsible for the offences of assault and torture.
53.  The Government alleged that there had been no breach of Article 3. Notably, after an exhaustive investigation, including the questioning of numerous witnesses and the examination of medical and other evidence, the competent domestic authorities had concluded that there was no ill‑treatment case to answer. The Government maintained that the records showing that the applicant had not been detained on either 24 or 25 June 2009 and had simply visited the police station on those dates, were accurate. They also contested the applicant’s submissions that she had been taken to hospital by ambulance on 26 June 2009.
(b)  The Court’s assessment
54.  The Court observes that on 25 June 2009, within several hours of the applicant’s encounter with the police, she was diagnosed with cerebral concussion and multiple contusions (see paragraph 15 above). Reviewing the facts of the present case in the light of its well‑established jurisprudence (see, in particular, Kozinets v. Ukraine, no. 75520/01, §§ 51-54 and 59-60, 6 December 2007), the Court considers that the injuries she complained about raised an arguable ill-treatment claim, triggering an obligation on the part of the national authorities to investigate them.
55.  At the same time, regard being had to the evidential gaps and contradictions in the domestic case file and in the factual submissions by the parties (see, in particular, paragraphs 18-19, 40-41 and 52-53 above), the Court finds it impossible to establish beyond a reasonable doubt that the applicant’s injuries were caused as alleged. For the reasons set out below, the Court considers that the difficulty in determining the substance of the applicant’s allegation of ill-treatment stems from the authorities’ failure to investigate her complaint effectively (see, in particular, Timofejevi v. Latvia, no. 45393/04, § 81, 11 December 2012 with further references).
56.  The Court notes in this regard that while the applicant reported her injuries on 26 June 2009, that is, within two days of the purported ill‑treatment incident, the ensuing investigation, which lasted for nearly two and a half years, did not result in the identification of the persons responsible for the injuries or the circumstances in which they had been sustained.
57.  The initial reaction by the competent authorities to the applicant’s complaint, while not particularly urgent, was nevertheless not marked by any excessive delay. Notably, the first medical reports were organised within several weeks of the incident (see paragraphs 20-21 above); numerous further steps, including questioning the applicant and all the key witnesses and examining the documentary evidence, were taken within two months (see paragraphs 22-28 above). Formal criminal proceedings were instituted within two and a half months (see paragraph 29 above).
58.  However, it appears that once instituted, the criminal proceedings turned into a series of repeated questionings and assessments by medical experts, which were organised at rather important intervals and concerned largely the same set of questions (see paragraphs 20, 21, 32, 35, and 36 above). The Government did not present any documents which could justify the importance of ordering repeated assessments or the two-year delay in taking the proceedings forward.
59.  The Court further observes that proceedings were instituted against a group of “unidentified police officers”, in spite of the fact that the names of the four officers implicated by the applicant in the incident of 24‑25 June 2009 had been known from the outset of the proceedings. It appears that none of the aforementioned police officers was suspended from duty for the period of the investigation. In that connection, the Court would once again underline the importance of the suspension from duty of an agent under investigation or on trial on charges of ill-treatment, as well as his or her dismissal if convicted (Abdülsamet Yaman v. Turkey, no. 32446/96, § 55, 2 November 2004).
60.  In conjunction with this, the Court notes that the final decision in the case – the decision of 26 November 2011 not to reinstitute the criminal proceedings – was taken on the basis of a possibility that the applicant’s bruises could technically have been self-inflicted, her cerebral injury had been “minor”, and that some of her witnesses had changed their testimony. The Court cannot overlook the fact that this decision does not provide any definite answer as to how the applicant’s injuries were inflicted. Likewise, it does not refute a probability (also mentioned by the medical experts) that the injuries in question could have resulted from police violence.
61.  Lastly, the Court reiterates that 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 v. Bulgaria, 28 October 1998, § 117, Reports of Judgments and Decisions 1998‑VIII, and Savitskyy v. Ukraine, no. 38773/05, § 114, 26 July 2012). It appears that the applicant in the present case was not provided with satisfactory updates on the status of the investigation or given any access to documents (see paragraphs 31 and 43 above).
62. The Court notes that in the case of Kaverzin v. Ukraine, (no. 23893/03, §§ 173-180, 15 May 2012) it found that the reluctance of the authorities to ensure a prompt and thorough investigation of ill-treatment complaints by criminal suspects 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 considers that the present case constitutes another regrettable example of that practice.
63.  The Court’s findings in paragraphs 58-62 above are sufficient for it to conclude that there has been a breach of Article 3 of the Convention in respect of the second episode of the applicant’s purported ill-treatment.
II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
64.  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
65.  The applicant claimed 20,000 euros (EUR) in respect of non‑pecuniary damage.
66.  The Government maintained that the claim was exorbitant and unsubstantiated.
67.  The Court, ruling on an equitable basis, awards the applicant EUR 7,500 in respect of non-pecuniary damage.
B.  Costs and expenses
68.  The applicant did not file any claim under this head. The Court therefore makes no award.
C.  Default interest
69.  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 second episode of purported police ill-treatment admissible and the remainder of the application inadmissible;

2.  Holds that there has been a violation of Article 3 of the Convention;

3.  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 7,500 (seven thousand five hundred 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;

4.  Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 14 March 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Marialena Tsirli	Vincent De Gaetano
	Registrar	President