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FIFTH
SECTION
CASE OF ISMAILOV v. UKRAINE
(Application
no. 17323/04)
JUDGMENT
STRASBOURG
27 November 2008
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 Ismailov v.
Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Rait Maruste, President,
Karel
Jungwiert,
Volodymyr Butkevych,
Renate
Jaeger,
Mark Villiger,
Isabelle
Berro-Lefèvre,
Mirjana Lazarova Trajkovska,
judges,
and Stephen Phillips,
Deputy Section
Registrar,
Having
deliberated in private on 4 November 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 17323/04) 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 Alim Ayderovich
Ismailov (“the applicant”), on 31 March 2004.
- The
applicant, who had been granted legal aid, was represented by
Mr A.L. Lesovoy, a lawyer practising in Simferopol. The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
- The
applicant alleged that he had been subjected to ill-treatment in
police custody and that the authorities had failed to carry out an
effective investigation in that regard. He relied on Articles 3 and
13 of the Convention.
- On
18 September 2007 the Court declared the application partly
inadmissible and decided to communicate the above complaints to the
Government. It also decided to examine the merits of the application
at the same time as its admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1976 and lives in Simferopol.
- On
the night of 14 to 15 March 2001 the applicant and three co-suspects
were arrested on suspicion of armed robbery. After the arrest the
applicant was taken into police custody at the Simferopol District
Police Station (“the Police Station”).
- According
to the applicant, during the time he was held in the Police Station,
from 15 to 18 March 2001, he was repeatedly punched and kicked by
several police officers for the purpose of extracting from him a
confession that he had committed the crime.
- On
18 March 2001 the applicant was brought before the prosecutor, to
whom he complained about the ill-treatment.
- On
the same day the applicant was taken to Simferopol City Hospital
No. 6 and to the Semashko Central Hospital, where the doctors
established that the applicant had suffered injuries to the soft
tissue of his head and sustained bruises on his face. The same day
the applicant was admitted to the Simferopol City Temporary Detention
Centre.
- On
19 March 2001 the applicant was examined by an expert of the Crimean
Bureau of Forensic Medical Examinations. During the examination the
applicant stated that the injuries had been inflicted on him by
police officers. The expert who examined him established that the
applicant had sustained bruises on the lower eyelids of both eyes and
on the left ear, with abrasions on the right temple and lower lip.
Those injuries cumulatively qualified as minor bodily injuries. The
expert assumed that the injuries could have been caused to the
applicant in the period between four and seven days before the
examination; however, the abrasion of the lower lip could have been
sustained two days before the examination. The expert further opined
that the injuries were caused by blunt objects with limited impact
surface, in this case possibly fists or booted legs.
- On
29 March 2001 another expert of the Crimean Bureau of Forensic
Medical Examinations examined the applicant and did not find any
injuries on him.
- In
letters of 29 and 31 May 2001 the Crimean Police Department, upon the
request of the applicant's mother, informed her that the internal
inquiry had not revealed any wrongdoing by the police officers with
respect to the applicant. Following these replies the applicant and
his relatives lodged a number of other complaints with various police
officials and prosecutors claiming that the applicant had been
ill-treated. Their complaints were dismissed as unsubstantiated.
- On
5 November 2002, after the conviction of the applicant and his three
co-defendants, the Zheleznodorozhnyy District Court of Simferopol
(the “Zheleznodorozhnyy Court”) issued a separate ruling,
noting that during the trial proceedings it had been established that
the defendants had not had any injuries when arrested and that the
applicant, Mr S. and Mr Sh. had sustained injuries while in police
custody. The court “brought to the attention” of the
Prosecutor of the Crimea that the three defendants had sustained
injuries during pre-trial proceedings and suggested that the
offenders be identified and punished.
- On
22 November 2002 an investigator of the Prosecutor's Office of the
Crimea (“the POC”) found no evidence of any wrongdoing on
the part of the police officers and decided not to institute criminal
proceedings against them.
- On
25 February 2003 the Tsentralnyy District Court of Simferopol (“the
Tsentralnyy Court”), upon the applicant's appeal, quashed the
decision of 22 November 2002 as unfounded and ordered further
investigation. The court stated, inter alia, that the
investigator had disregarded the fact, established by the
Zheleznodorozhnyy Court, that the injuries had been suffered by the
applicant in the Police Station and that no attempt had been made to
establish the circumstances in which those injuries had been caused.
- On
27 March 2003 the POC's investigator refused to institute criminal
proceedings in respect of the applicant's complaints, finding, in
particular, that the injuries sustained by the applicant in the
Police Station could have been self-inflicted and caused by impacts
against the wall.
- On
7 May 2003 the Tsentralnyy Court quashed the investigator's decision
of 27 March 2003, holding that the inquiry had been insufficient. The
court pointed out the following discrepancies in the inquiry:
- the
investigator had failed to establish the exact place in the Police
Station where the applicant had sustained the injuries; he did not
clarify whether the applicant had hit the wall himself or had been
made to hit the wall by others; he did not inspect the wall;
- the
investigator had closed the case against the police officers, whereas
the offence as such, committed by unknown persons, was still open for
investigation;
- the
investigator had failed to explain the inconsistency of his
conclusion with the medical expert's report of 19 March 2001, which
described a number of injuries to the applicant's head and which
stated that the injuries had been caused by blunt objects with a
limited impact surface, whereas the wall, having a flat surface,
could not qualify as such an object.
- On
19 May 2003 the POC instituted criminal proceedings in respect of the
applicant's complaints and transmitted the case to the
Zheleznodorozhnyy District Prosecutor's Office for investigation.
- On
20 November 2003 the investigator of the Zheleznodorozhnyy District
Prosecutor's Office terminated the investigation into the applicant's
alleged ill-treatment, finding that there was no evidence of any
crime having been committed. The investigator stated, in particular,
that the difference between the medical conclusions of 19 and 29
March 2001 could be explained by the fact that the applicant had
recovered by the latter date. The investigator did not provide any
explanation of how the applicant could have sustained the injuries
recorded by the expert on 19 March 2001 and established by the ruling
of the Zheleznodorozhnyy Court of 5 November 2002.
- On
3 December 2003 the applicant challenged the decision of 20 November
2003 before the court stating, in particular, that the investigator
had failed to establish how the injuries had been inflicted on the
applicant.
- On
23 March 2004 the Zheleznodorozhnyy Court upheld the decision of
20 November 2003, finding that the investigation had been
sufficient.
- On
27 April 2004 the Court of Appeal of the Crimea (the “Court of
Appeal”), following a hearing held in the absence of the
applicant and his representative, upheld the Zheleznodorozhnyy
Court's decision of 23 March 2004.
- The
applicant lodged an appeal in cassation, stating, inter alia,
that neither he nor his representative had been notified of the
hearing before the Court of Appeal.
- On
20 January 2005 the Supreme Court quashed the decision of the Court
of Appeal and remitted the case for a new appeal hearing, finding
that the applicant's representative had not been properly served with
the summons.
- On
26 April 2005 the Court of Appeal re-examined the applicant's appeal
in the presence of his representative and rejected it as
unsubstantiated.
- On
17 November 2005 the applicant's appeal in cassation was dismissed by
the Supreme Court as unfounded.
II. RELEVANT DOMESTIC LAW
- The relevant provision of the
Constitution reads 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.
...”
28. The relevant
provisions of the Code of Criminal Procedure read as
follows:
Article 4
The obligation to institute criminal
proceedings and investigate a crime
“The court, prosecutor or investigator must, to
the extent that it is within their power to do so, institute criminal
proceedings in every case where evidence of a crime has been
discovered, take all necessary measures provided by law to establish
whether a crime has been committed and the identity of the
perpetrators and punish them.”
Article 94
Grounds for instituting criminal
proceedings
“Criminal proceedings shall be instituted on the
following grounds:
(1) applications or communications from ...
individuals;
...
(5) direct detection of signs of a crime by a
body of inquiry or investigation, a prosecutor or a court.
A case may be instituted only when there is sufficient
evidence that a crime has been committed.”
Article 215
Challenging of the decision about
termination of the criminal proceedings
“The investigator's decision about termination of
the criminal proceedings can be appealed against to the
prosecutor...”
Article 236-5
Challenging of the decision about
termination of the criminal proceedings before the court
“The decision of the ... investigator about
termination of the criminal proceedings can be appealed against to
the district court...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE
CONVENTION
- The
applicant complained that he had been subjected to ill-treatment in
police custody and that the authorities had failed to carry out an
effective investigation into his allegations in that regard. He
relied on Article 3 and 13 of the Convention which read as
follows:
Article 3 (prohibition of torture)
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
Article 13 (right to an effective remedy)
“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.”
A. Admissibility
- The
Government submitted that the applicant had failed to exhaust
domestic remedies with respect to those complaints in so far as he
had not challenged before the prosecutor the decision of 20 November
2003 by which the criminal proceedings had been terminated. They
further contended that the applicant had submitted these complaints
to the Court when the proceedings before the domestic courts as to
the lawfulness of the decision of 20 November 2003 were still
pending.
- The
applicant insisted that there were no effective remedies to be
exhausted in his situation given that the investigation into his
allegations had been carried out superficially and inadequately.
- The
Court notes that the Government's objection is closely linked to the
applicant's complaints under Articles 3 and 13 of the Convention. In
these circumstances, it joins the objection to the merits of the
applicant's complaints.
- The
Court further notes that those complaints are not
manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention. It also notes that they are not inadmissible on any
other grounds. They must therefore be declared admissible.
B. Merits
1. The parties' submissions
- The
Government maintained that the applicant had not been subjected to
any ill-treatment, since the results of the domestic investigation
had proved that the applicant's injuries had been self-inflicted.
They further insisted that the investigation into the alleged
ill-treatment had been carried out thoroughly and comprehensively.
Accordingly, there had been no violation of Article 3 of the
Convention in its substantive or procedural limb and the applicant
had had at his disposal an effective domestic remedy as required by
Article 13 of the Convention.
- The
applicant disagreed, alleging that the material in the case file
unequivocally indicated that he had been ill-treated in the Police
Station. He referred, in particular, to the medical documents
describing when and how the injuries had been inflicted on him as
well as to the court ruling of 5 November 2002 establishing that
the injuries had appeared during his detention in police custody. He
further insisted that the investigation into the alleged
ill-treatment had not been prompt and thorough. In particular, the
criminal proceedings had been instituted more than two years after
the events complained of. At that time, however, much of the evidence
had been lost. The applicant emphasized that the domestic authorities
had in fact failed to provide a plausible explanation as to the cause
of his injuries and to identify and punish the persons guilty of the
crime as required by Articles 3 and 13 of the Convention.
2. The Court's assessment
(a) Alleged ill-treatment
(i) General principles established by the
Court's case-law
- The
Court reiterates that Article 3 of the Convention prohibits in
absolute terms torture and inhuman or degrading treatment.
Ill-treatment must attain a minimum level of severity if it is to
fall within the scope of Article 3. The assessment of this minimum 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. 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 Labita v. Italy [GC], no.
26772/95, 6 April 2000, §§ 119-20, ECHR 2000-IV).
- In
assessing evidence, the Court has generally applied the standard of
proof “beyond reasonable doubt” (see Ireland v. the
United Kingdom, judgment of 18 January 1978, Series A no. 25, pp.
64-65, § 161). However, proof may follow from the coexistence of
sufficiently strong, clear and concordant inferences or of similar
unrebutted presumptions of fact. Where the events in issue lie
wholly, or in large part, within the exclusive knowledge of the
authorities, as in the case of persons 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 Ribitsch v. Austria,
judgment of 4 December 1995, Series A no. 336, § 34,
and Salman v. Turkey [GC], no. 21986/93, § 100,
ECHR 2000-VII).
(ii) Application in the present case
- Turning to the facts of the case, the Court considers
that there is sufficient evidence in the case file (see paragraphs 9
and 10 above) to show that the applicant sustained injuries
which were serious enough to amount to ill-treatment falling within
the scope of Article 3 of the Convention. It remains to be
established whether the State authorities should be held responsible
under Article 3 for having inflicted these injuries.
- In
this connection the Court considers that the material before it shows
that the injuries were inflicted on the applicant when he was
detained in the Police Station. In particular, the Court has regard
to the expert's report of 19 March 2001 describing the time and
manner in which the injuries were inflicted (see paragraph 10 above)
which is consistent with the applicant's allegations, as well as to
the court ruling of 5 November 2002 establishing that the
injuries occurred when the applicant was detained in police custody
(see paragraph 13 above). The Court lastly notes that the Government
did not contest the fact that the injuries appeared on the applicant
when he was under the control of the State authorities. It therefore
has to be examined whether the authorities offered a satisfactory and
convincing explanation in respect of those injuries.
- The
Court notes, however, that the decision of 20 November 2003
by which the investigation into the ill-treatment was
terminated did not address the issue of how the injuries appeared on
the applicant. The previous decision of 27 March 2003, by which the
investigator refused to institute criminal proceedings, had relied on
the version that the injuries had been self-inflicted. This decision
was, however, quashed by the court for being unsubstantiated and
having manifest inconsistencies in that regard (see paragraphs 16 and
17 above).
- In
these circumstances the Court finds that the domestic authorities
failed to provide any plausible explanation as to how the applicant
sustained the injuries while in police custody. It follows that there
has been a violation of Article 3 of the Convention in its
substantive limb.
(b) Procedural obligation under Article 3 of the
Convention
(i) General principles established by the Court's
case-law
- The
Court reiterates that where an individual raises an arguable claim
that he has been seriously 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. As with an investigation under Article 2, such an
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 v. Bulgaria, judgment
of 28 October 1998, Reports of Judgments and Decisions
1998 VIII, p. 3290, § 102, and Labita, cited above,
§ 131).
- The
investigation into arguable allegations of ill-treatment must also 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, ECHR 1999-IV, §§ 104 et seq.,
and Gül v. Turkey, no. 22676/93, § 89,
14 December 2000).
(ii) Application in the present case
- The Court observes that a decision not to institute
criminal proceedings against the police officers was taken on two
occasions. These decisions, however, were quashed by the court,
following which the case was remitted for further inquiries. As a
result, it took about two years and two months from the time of the
alleged ill-treatment before the authorities eventually commenced the
criminal proceedings. This protraction, however, significantly
diminished the prospect of success of these proceedings. The Court
reiterates that, since remittal is usually ordered because of errors
committed by the authorities whose decisions are appealed against,
the repetition of such orders within one set of proceedings discloses
a serious deficiency (see, mutatis mutandis, Kozinets v.
Ukraine, no. 75520/01, § 61, 6 December
2007).
- The
Court further notes that on two occasions the domestic court found
serious omissions in the inquiries into the applicant's allegations
(see paragraphs 15 and 17 above). In particular, when remitting the
case for the second time, the domestic court indicated, inter
alia, that the investigator's version as to the origin of the
applicant's injuries had been evidently inconsistent with the medical
conclusions in that regard. Those inconsistencies, however, were not
subsequently removed by the investigation. Furthermore, the Court is
struck by the fact that the decision of 20 November 2003, by
which the criminal proceedings were terminated, did not provide any
explanation of the origin of the injuries. This decision was,
however, eventually upheld by the domestic courts. It appears
therefore that the domestic authorities, though faced with hard
evidence that the applicant had been the victim of violence in police
custody, did not make any serious attempt to investigate the
applicant's allegations.
- In
these circumstances the Court has strong doubts that any further
procedural steps taken by the applicant within the domestic
procedure, including those indicated by the Government, would have
rendered the investigation effective. Accordingly, the Court
dismisses the Government's objection as to the non-exhaustion of
domestic remedies, finding that the applicant, given his particular
situation, was absolved from pursuing any further channels.
- The
Court further holds that the domestic
authorities failed to carry out a prompt and thorough investigation
into the applicant's allegations about his alleged ill-treatment at
the Police Station. Therefore there has been a violation of
procedural limb of Article 3 of the Convention.
(c) Alleged violation of Article 13 of the Convention
- The
Court, having regard to its finding under Article 3 of the
Convention, considers that it is not necessary to examine whether in
this case there has also been a violation of Article 13 of the
Convention.
II. 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 50,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government submitted that this claim was
excessive and that there was no causal link between the alleged
violations and the non-pecuniary loss allegedly sustained, since the
applicant had failed to submit documents supporting such a claim.
- The
Court considers that the applicant clearly suffered some
non-pecuniary damage as a result of the violations found. Having
regard to its case-law in comparable cases and making its assessment
on an equitable basis, it awards the applicant EUR 6,500 in
respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant did not submit any claim under this head; the Court
therefore makes no award in this respect.
C. Default interest
- The
Court considers it appropriate that the default interest 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
- Decides to join to the merits the Government's
preliminary objection as to the exhaustion of domestic remedies in
respect of Articles 3 and 13 of the Convention; and dismisses it
after an examination on the merits;
- Declares the complaints under Article 3 and 13
of the Convention admissible;
- Holds that there has been a violation of Article
3 of the Convention under its substantive limb;
- Holds that there has been a violation of Article
3 of the Convention under its procedural limb;
- Holds that there is no need to examine the
complaint under Article 13 of the Convention;
- 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 6,500 (six
thousand five hundred euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage, to be converted into the national
currency of Ukraine 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 27 November 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Rait Maruste
Deputy Registrar President
