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FIFTH
SECTION
CASE OF KOVALCHUK v. UKRAINE
(Application
no. 21958/05)
JUDGMENT
STRASBOURG
4 November
2010
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 Kovalchuk v.
Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Renate
Jaeger,
Karel Jungwiert,
Mark
Villiger,
Mirjana Lazarova Trajkovska,
Zdravka
Kalaydjieva,
Ganna Yudkivska, judges,
and
Claudia Westerdiek, Section
Registrar,
Having
deliberated in private on 12 October 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 21958/05) 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 Vladimir Vasilyevich
Kovalchuk (“the applicant”), on 27 May 2005.
- The
applicant, who had been granted legal aid, was represented by
Mr O.V. Komnatskyy, a lawyer practising in Zhytomyr,
Ukraine. The Ukrainian Government (“the Government”) were
represented by their Agent, Mr Y. Zaytsev.
- The
applicant alleged, in particular, that he was ill-treated by the
police in order to extract a confession of a murder from him and that
there was no effective investigation into his complaint relating to
the ill-treatment he suffered.
- The
applicant having died on 27 October 2007, his mother, Mrs Ganna
Sergiyivna Kovalchuk, informed the Court of her wish to pursue the
application.
- On
4 December 2008 the President of the Fifth Section decided to give
notice of the application to the Government. It was also decided to
rule on the admissibility and merits of the application at the same
time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1974 and lived in Zhytomyr.
A. The applicant’s detention and alleged
ill-treatment
- At
about 11 p.m. on 6 September 2002 two police officers, responding to
a call from the applicant’s girlfriend’s sister, brought
the applicant to the Zhytomyr Detoxification Centre for treatment of
severe alcohol intoxication. A medical employee who examined him
recorded that the applicant had several abrasions on his buttocks.
- At
7.58 a.m. on 7 September 2002 the applicant was released.
- Later
that day he was arrested and detained by the police on a charge of
disobeying a police officer. Two records of his arrest were drawn up
by two different police officers, both indicating the time of the
arrest as 6 p.m. At an unspecified time on the same date a doctor
certified that the applicant had no bodily injuries.
- On
the same date an ambulance was called to the police station in
connection with the deterioration of the applicant’s health and
apparent loss of consciousness. The ambulance records note that the
call was registered at 4.05 p.m. Upon arriving at the police station,
the ambulance team found the applicant conscious but in a very
agitated state and trembling. In addition, he had haematomas on his
buttocks. He was diagnosed as suffering from alcohol withdrawal,
given medication and left in the police station.
- On
9 September 2002 the Korolyovsky District Court of Zhytomyr convicted
the applicant of disobeying a police officer and ordered his
detention for ten days. At an unspecified time during his detention
the applicant was questioned as a witness concerning the murder of a
Mr K., whose body had been found on 7 September 2002 in the vicinity
of the applicant’s house. On 9 September 2002 he confessed to
the murder.
- On
10 September 2002 the applicant, who had still not been officially
charged, participated as a witness in a reconstruction of the crime
scene. In the course of the reconstruction he showed in detail how he
had killed Mr K.
- On
the same date an ambulance was called again and the applicant was
transferred to the detoxification centre, where he was diagnosed as
suffering from “psychotic and behavioural disorders, [a] state
of delirious withdrawal from alcohol, [and] hallucinations”. In
addition, he was found to have sustained haemorrhages on his
shoulders, legs and buttocks. On 13 September 2002 the applicant
was returned to the police station.
- By
20 September 2002 the applicant had obtained a lawyer in connection
with possible murder charges against him, had retracted his
confession – alleging that it had been given under duress –
and had denied any involvement in the killing of Mr K.
- At
6 p.m. on 20 September 2002 the applicant was released following the
expiration of the term of his detention.
- At
8.10 p.m. on the same day the applicant was arrested again on a
charge of having committed a breach of the peace (in particular, for
urinating in public and swearing) and, pursuant to a court order
issued on 23 September 2002, was again remanded in custody for
eight days starting from the date of his arrest.
- On
28 September 2002 he was released.
- On
1 October 2002 the applicant underwent a medical assessment in the
course of which he was found to be suffering from two surface wounds
(on the left shoulder and the left buttock) which qualified as minor
bodily injuries.
- On
2 October 2002, following complaints by his girlfriend about his
aggressive behaviour, the applicant was arrested for the third time
on a charge of disobeying a police officer and remanded in custody
for ten days by a court order issued on 3 October 2002. On 12 October
2002 the applicant was released.
- On
15 October 2002 the applicant was admitted to hospital on account of
his complaints of general weakness, vertigo, pain in the legs and
chest, unpleasant sensations inside his anus, constipation and
coughing. Based on his complaints, he was diagnosed as suffering from
a combination of haemorrhoids, ulcers, several other digestive
disorders, pyelonephritis, asthenia and the after-effects of bodily
contusions. The applicant remained in hospital until 23 October 2002.
- In
December 2002 the criminal proceedings against the applicant were
discontinued for want of evidence of his involvement in the murder of
Mr K.
- In
November 2003 the applicant underwent a fresh medical assessment in
respect of his injuries sustained in September 2002. Following an
assessment of the medical documents and the applicant’s state
of health at the material time, the panel of experts conducting the
assessment concluded that it was not improbable that on or around
8 September 2002 he had sustained minor bodily injuries (bruises
and abrasions on his buttocks, shoulders and legs). However, noting
the lack of detail in the relevant records, the experts were unable
to assess the means by which the injuries had been inflicted. They
further found no objective evidence of any mechanical intrusion into
the applicant’s anus, no causal connection between the above
injuries and other health disorders (including the applicant’s
haemorrhoids, digestive and kidney problems, which had been found to
have probably developed prior to his detention) and noted that the
diagnosis of 15 October 2002 concerning the after-effects of bodily
contusions had been subjective and unsupported by any evidence.
- In
January 2004 the applicant was examined by specialists from the State
Institute for Rehabilitation of the Disabled, who refused to grant
him invalid status. However, the panel of specialists diagnosed him
as suffering from a number of chronic physical conditions (including
haemorrhoids, ulcers, hepatitis and myocardiopathy) as well as from
the “after-effects of a head injury sustained in 2002 in the
form of arachnoiditis” (inflammation of a membrane surrounding
and protecting the nerves of the central nervous system).
- The
applicant was subsequently awarded invalidity status on account of
the above illnesses.
- On
27 October 2007 the applicant died of acute heart and pulmonary
failure aggravated by bronchopneumonia.
B. Investigation of the applicant’s ill-treatment
complaint
- On
24 September and 9 October 2002 Mrs Kovalchuk complained to the
Zhytomyr Regional Prosecutor’s Office that between 7 and 9
September 2002 her son had been ill-treated by police officers in
order to extract a confession of Mr K.’s murder from him. In
particular, they had beaten him, hung him from a pipe while
handcuffed and inserted a truncheon into his anus.
- On
15 October 2002 the acting chief of the Zhytomyr Department of
Interior rejected her complaints as unsubstantiated. He noted, in
particular, that the applicant had given a vague and inconsistent
account of the purported ill-treatment and was unable to identify the
police officers involved or the location in which he had supposedly
been ill-treated.
- On
25 November 2002 the chief of the Zhytomyr Department of the
Interior, having conducted a further investigation following
Mrs Kovalchuk’s subsequent complaints, discovered that the
applicant’s and the police officers’ respective accounts
of events could not be reconciled. In particular, according to the
applicant, four unidentified police officers had severely beaten him
and stuck objects into his anus, demanding that he confess to the
killing. The investigator in Mr K.’s case admitted having
questioned the applicant about the killing, but denied that any
pressure had been applied to him. The Department transferred the
investigation materials to the prosecutor’s office for further
enquiries.
- On
several occasions (25 December 2002, 31 March 2003 and 2 September
2003) the Korolyovsky District Prosecutor’s Office refused to
institute criminal proceedings in respect of the applicant’s
complaints of ill treatment, having found no evidence of any
wrongdoing by the police.
- These
decisions were subsequently annulled by the supervising prosecutorial
authorities (on 14 March, 14 May and 3 September 2003), finding that:
the enquiries had been insufficient; various important witnesses had
not been questioned; inconsistencies between various testimonies had
not been reconciled; medical evidence had not been duly collected and
examined; and no plausible explanation for the applicant’s
injuries had been proposed.
- On
11 September 2003 the Korolyovsky District Prosecutor’s Office
again refused to institute criminal proceedings. The applicant was
not informed about this decision.
- On
14 October 2004, following enquiries made by Mrs Kovalchuk, she
obtained a full copy of the decision of 11 September 2003 and
subsequently appealed against it on the applicant’s behalf to
the Bogunsky District Court of Zhytomyr.
- On
9 November 2005 the Bogunsky District Court allowed the applicant’s
claims and set aside the decision of 11 September 2003. It found, in
particular, that the investigation had failed to analyse the
conclusions of the medical assessment completed in November 2003 and
to question several important witnesses (specifically, the
applicant’s fellow inmates).
- On
27 December 2005 the Korolyovsky District Prosecutor’s Office
took a fresh decision not to institute criminal proceedings.
- On
16 November 2006 the Bogunsky District Court set aside the above
decision, having found that its previous instructions had not been
properly followed.
- On
23 June 2008, having questioned several additional witnesses, the
Korolyovsky District Prosecutor’s Office decided that the
applicant’s injuries had been caused by a fall related to an
epileptic seizure resulting from the excessive consumption of
alcohol.
- On
12 August 2008 the Bogunsky District Court set aside this decision,
having found that several important witnesses (specifically, the
applicant’s fellow inmates) had still not been questioned.
- On
18 September and 30 November 2008 the prosecutor’s office took
fresh decisions not to institute criminal proceedings into the
applicant’s alleged ill-treatment which were set aside by the
supervising prosecutors on 30 September and 8 December 2008
respectively, each decision making reference to there having been
insufficient investigation of the matter.
- On
26 January 2009 a fresh decision not to institute criminal
proceedings was taken, relying, in particular, on the impossibility
of collecting further evidence because of the death or relocation of
numerous witnesses, the inability of the remaining witnesses to
recall details and the destruction of relevant documentary records.
- On
30 March 2009 the Bogunsky District Court set aside this decision
following an appeal by Mrs Kovalchuk. The court noted, in particular,
that the case file contained two reports concerning the applicant’s
arrest on 7 September 2002 which had been made by two different
police officers and instructed the investigator to clarify the
situation.
- On
1 October 2009 the Bogunsky District Court annulled a further
decision of the prosecutor’s office not to institute criminal
proceedings, dated 28 May 2009, having found that the situation
relating to the arrest reports had not been clarified and that no
determination of why the applicant had been questioned about Mr K.’s
murder during his detention and the circumstances in which he had
suffered bodily injuries had taken place.
- On
26 November 2009 a fresh decision was taken not to institute criminal
proceedings. The investigating authorities noted, inter alia,
that the applicant’s accounts of the relevant events had been
inconsistent and that on several occasions he had changed his story.
In particular, he had initially alleged that he had been beaten by a
rubber truncheon but subsequently insisted that the officers had
punched and kicked him. In addition, on 17 March 2003 he had
asserted that he had no claims against the police at all and did not
share his mother’s view about the necessity of an
investigation.
- On
12 March 2010 the Bogunsky District Court upheld the above decision.
- Mrs
Kovalchuk appealed, noting, in particular, that in addition to its
failure to establish those responsible for her son’s injuries,
the investigation had failed to reconcile a number of factual
inconsistencies. For instance, according to the relevant records, an
ambulance was first called to the police station to assist the
applicant at 4.05 p.m. on 7 September 2002, whereas according to both
the reports concerning the applicant’s arrest and the court
decision of 9 September 2002, the applicant had not been arrested
until 6 p.m. Furthermore, according to statements by Mrs T.I.,
the applicant’s acquaintance, she had already seen the
applicant in the police station at noon on 7 September 2002 and had
also witnessed an ambulance arriving to help him twice on that day.
- On
31 March 2010 the Zhytomyr Regional Court of Appeal quashed the
Bogunsky District Court’s ruling, set aside the decision of 26
November 2009 and remitted the complaint of ill-treatment for further
investigation. The court noted that previous instructions of judicial
authorities had not been followed and ordered that the investigation
determine, in particular: (i) where, in what circumstances, and
by whom bodily injuries had been inflicted on the applicant “having
regard to the fact that on 7 September 2002 he had been examined by a
doctor who had not recorded any injuries”; (ii) why there were
two different reports on the applicant’s arrest; (iii) why the
applicant had been questioned as a witness about Mr K.’s murder
while detained in custody for an unrelated administrative offence;
and (iv) why he had confessed to a killing of which he had been
innocent. The Court of Appeal also ordered that the statements of Mrs
T.I. concerning the circumstances in which she had seen the applicant
on 7 September 2002 be re-examined.
- According
to the case file, the investigation of the applicant’s
complaint of ill-treatment is currently pending.
II. RELEVANT DOMESTIC LAW
- The
relevant domestic law can be found in the judgment in the case of
Kozinets v. Ukraine (no. 75520/01, §§ 39-42, 6
December 2007).
THE LAW
I. PRELIMINARY
OBSERVATION
- The
applicant
died on 27 October 2007, while the case
was pending before the Court (see paragraph 4 above). It has not been
disputed that his mother is entitled to pursue the application on his
behalf and the Court sees no reason to hold otherwise (see
Toteva v. Bulgaria,
no. 42027/98, § 45, 19 May 2004, and Yakovenko
v. Ukraine, no. 15825/06, § 65,
25 October 2007).
II. ALLEGED VIOLATIONS OF ARTICLE 3 OF THE CONVENTION
- The applicant complained that he had been ill-treated
by police officers whilst in custody in September 2002, contrary to
Article 3 of the Convention. He further complained under Article 13
of the Convention that there was no effective investigation into his
complaint of ill-treatment and that he therefore lacked an effective
remedy in respect of the aforementioned violation.
- The relevant Articles of the Convention read as
follows:
Article 3
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
Article 13
“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.”
- The
Court is of the opinion that it is appropriate to examine the
applicant’s complaint of inadequate investigation into his
allegations of ill-treatment under the procedural limb of Article 3
of the Convention (see Kozinets v. Ukraine, cited above, §
44).
A. Admissibility
- The
Government submitted that the applicant’s complaint of
ill-treatment was premature, as the relevant domestic investigation
was still under way.
- The
applicant insisted that the investigation was ineffective and that he
was, therefore, excused from the requirement to await its results.
- The
Court considers that the Government’s objection raises an issue
which falls to be examined under Article 3 of the Convention together
with the complaint of the ineffectiveness of the investigation, and
accordingly joins it to the merits of the applicant’s
complaint.
B. Merits
1. Concerning the alleged ill-treatment of the
applicant
- According
to the applicant, the case file contained sufficient evidence that
his injuries had been inflicted by the police during his detention.
In particular, the Government had failed to provide a plausible
alternative explanation as to why he had confessed to a killing of
which he had been innocent, and why he had become permanently
disabled and eventually died within several years of his release.
- According
to the Government, it has not been possible to assess the
truthfulness of the applicant’s allegations concerning his
ill-treatment by police officers in September 2002, as the domestic
investigation into these allegations is still pending.
- Applying
the general principles determined in its case-law (see, for example,
Vergelskyy v. Ukraine, no. 19312/06, § 106, 12 March
2009) to the facts of the present case, the Court notes that the case
file contains conflicting and incomplete information, making it
impossible to determine the exact nature, gravity and timing of most
of the bodily injuries complained about. In particular, it is not
possible to determine with sufficient precision whether the applicant
had suffered any bodily injuries – in particular, abrasions on
his buttocks – before his arrest (see paragraphs 7, 9 and 45
above); whether he had had any objects inserted into his anus during
his detention; or whether he had sustained the two wounds recorded in
the medical assessment of 1 October 2002 during his detention or
after his release. Nor it is possible to establish whether the
applicant had in fact sustained a head injury during his detention
and, if so, whether his permanent disability, which had developed
several years after his release, could be connected to it.
- The
Court notes in this regard that it was Mrs Kovalchuk who had insisted
that the applicant had been physically ill-treated. In contrast, the
applicant himself took no independent action, had produced vague
statements in which he could not point to any particular place in
which the ill-treatment took place or identify any particular police
officer who had subjected him to such treatment, and had modified his
statements over time (see paragraphs 27-28 and 42 above).
- The
only injuries whose infliction while in detention appears
sufficiently established by evidence (see paragraphs 13 and 22 above)
are the leg and shoulder haematomas. Even assuming that these
injuries resulted not from beatings, as suggested by Mrs Kovalchuk,
but from the applicant’s sudden fall and epileptic seizures in
connection with alcohol withdrawal symptoms (see paragraph 36 above),
the Court considers that, having failed to provide a detailed account
of the circumstances in which these injuries had appeared and
evidence that the State agents under whose control the applicant had
been at the time could not have reasonably foreseen and prevented
them, the State remains responsible for the injuries at issue (see
Lotarev v. Ukraine, no. 29447/04, §§ 83-84,
8 April 2010).
- In addition, the Court refers to the findings of the
domestic courts (see paragraphs 41 and 45 above) and finds it
remarkable that on 9 September 2002, the third day of his
detention, the applicant confessed to a murder of which he was
innocent (see paragraphs 11 and 21 above). Furthermore, on 10
September 2002 the applicant actively participated in a
reconstruction of the crime scene and gave a detailed explanation of
his purported participation in the murder. Noting that later on the
same day the applicant was hospitalized in a delirious state, a
strong suspicion arises that even if they did not instigate the
applicant’s psychotic fit, the police at least took advantage
of his vulnerable emotional state and pressured the applicant into
giving a false confession. This suspicion is confirmed by the
apparent lack of procedural guarantees surrounding the applicant’s
interrogation, as he was questioned as a witness rather than as a
suspect and in the absence of a lawyer. This, in conjunction with
other irregularities surrounding the applicant’s detention in
custody, in particular, the two conflicting records of his arrest on
7 September 2002 and ambiguous evidence concerning the actual time of
his detention in custody (see paragraphs 9, 10, 44 and 45 above),
gives rise to a strong suspicion that regardless of whether the
police resorted to physical violence, they used the applicant’s
arrest as a pretext to break his resistance in order to obtain
self-incriminating statements.
- The Court finds that such a practice is contrary to
Article 3 of the Convention (see, mutatis mutandis, Jalloh
v. Germany [GC], no. 54810/00, § 82, ECHR 2006 IX,
and Gäfgen v. Germany [GC], no.
22978/05, § 131, ECHR 2010 ...) and, especially
given the applicant’s vulnerable state of health at the time of
his detention in custody, qualifies as inhuman and degrading
treatment.
- In the light of the above, the Court concludes that
there has been a breach of Article 3 of the Convention in respect of
the applicant’s ill treatment.
2. Concerning the effectiveness of the investigation of
the applicant’s ill-treatment complaint
- The
applicant submitted that the investigation of his ill-treatment
complaint was ineffective.
- The
Government objected to this submission. According to them, the
authorities have been doing everything in their power to investigate
the applicant’s complaint of ill-treatment.
- The
Court reiterates that where an individual raises an arguable claim
that he has been seriously ill-treated by 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 (see Assenov and Others v. Bulgaria,
judgment of 28 October 1998, Reports of Judgments and Decisions
1998 VIII, p. 3290, § 102).
- As
regards the circumstances of the present case, the Court notes at the
outset that although the applicant first lodged his complaint of
ill treatment (through his mother) on 24 September 2002, within
two weeks of the alleged ill-treatment, the investigation, which has
lasted eight years, has not established the circumstances surrounding
his complaint and has not found those (if any) responsible for his
injuries.
- The
Court further notes that the investigation was closed on a number of
occasions, as the prosecutor was not able to detect evidence of
ill-treatment. All of the decisions to close the investigation were
subsequently set aside by administrative or court order, as the
prosecutor’s office had failed to employ all the means
available to them to establish the circumstances surrounding the
applicant’s complaint. In their decisions the supervising
prosecutorial authorities and the courts expressly pointed to a
number of measures which could have been taken, also noting that
their previous instructions had not been fully complied with (see
paragraphs 30, 33, 35, 37, 40, 41 and 44 above). In spite of this,
the investigation was subsequently closed on a number of occasions
without further substantive measures having been taken.
- Per
the decision of 26 January 2009 to close the investigation, various
sources of evidence were no longer available on account of the lapse
of time. In particular, some witnesses had died, moved away or could
no longer recall details of the events, and relevant documents had
been destroyed. Most importantly, the applicant himself had died. In
these circumstances, the Court does not have reason to believe that
yet another reopening of the investigation would redress the earlier
shortcomings and render the investigation effective.
- The
Court finds that the factual circumstances surrounding the
investigation of the applicant’s complaint of ill-treatment in
the present case are similar to the situations in which it has found
violations in a number of recent cases (see, inter alia,
Mikheyev v. Russia, no. 77617/01, §§ 112-113 and
120-121, 26 January 2006; Kobets v. Ukraine, no. 16437/04, §§
53-56, 14 February 2008; and Vergelskyy
v. Ukraine, cited above, §
102).
70. In
the light of the circumstances of the present case and its settled
case-law, the Court concludes that there has been a
violation of Article 3 of the Convention on account of the
ineffective investigation of the applicant’s complaint of
ill-treatment whilst in custody. It follows that the Government’s
objection (see paragraph 52 above) must be dismissed.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant also complained under Article 5 §§ 1 and 3 of the
unlawfulness of his detention in 2002, and under Article 6 § 3
(c) about not having been assigned a lawyer when questioned in
connection with the killing of Mr K.
- Having
considered the applicant’s submissions 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.
- It
follows that this part of the application must be declared
inadmissible as being manifestly ill-founded, pursuant to Article 35
§§ 3 and 4 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- Mrs
Kovalchuk claimed 100,000 euros (EUR) in respect of non pecuniary
damage.
- The
Government contended that the present application concerned a
non-transferable right. Consequently, the applicant having died, his
mother could not claim any compensation.
- In
the light of the principles developed in its jurisprudence, the Court
finds that the applicant’s mother, who took up the domestic and
Convention proceedings in the applicant’s stead, can claim
compensation on the deceased applicant’s behalf (see, inter
alia, Lukanov v. Bulgaria, 20 March 1997, § 53,
Reports 1997 II; Toteva, cited above, §
71; and Yakovenko, cited above, § 134).
- Taking
the nature of the violations found into account and ruling on an
equitable basis, the Court awards Mrs Kovalchuk EUR 10,000 in respect
of non-pecuniary damage.
B. Costs and expenses
- Mrs
Kovalchuk also claimed 6,595.98 hryvnyas (UAH) for costs and
expenses. She presented supporting invoices for the following
amounts: copying services – UAH 1,164.51; translation
services – UAH 270; postage – UAH 1,453.31; medical
expenses – UAH 645.28; bank charges – UAH 10.00;
court fees – UAH 19.00; and expenses related to the applicant’s
funeral – UAH 3,011.88.
- The
Government considered that this claim was unsubstantiated.
- According
to the Court’s 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 were
reasonable as to quantum. In the present case, noting the documents
in its possession and the above criteria, the Court finds no causal
link between the present proceedings and the unspecified medical
expenses, court fees and expenses related to the applicant’s
funeral. It therefore rejects this part of the claim. However, the
Court awards the applicant EUR 290 to cover the costs claimed under
other heads.
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
- Holds that the applicant’s mother, Mrs
Ganna Sergiyivna Kovalchuk, has standing to continue the present
proceedings in the applicant’s stead;
- Decides to join to the merits the
Government’s objection as to the exhaustion of domestic
remedies in respect of the applicant’s complaint under Article
3 of the Convention concerning his alleged ill-treatment by the
police officers and dismisses it after having examined the merits of
that complaint;
- Declares the complaints concerning ill-treatment
in police custody and ineffective investigation of the applicant’s
respective complaint admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
3 of the Convention on account of the inhuman and degrading treatment
suffered by the applicant at the hands of the police;
5. Holds that there has been a violation of Article
3 of the Convention on account of the ineffective investigation of
the applicant’s complaint of ill-treatment by police officers;
- Holds
(a) that
the respondent State is to pay the applicant’s mother,
Mrs Ganna Sergiyivna Kovalchuk, within three months from
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 10,000 (ten thousand
euros) in respect of non pecuniary damage and EUR 290 (two
hundred and ninety euros) in respect of costs and expenses plus any
tax that may be chargeable to her on the above amounts, to be
converted into the national currency of Ukraine at the rate
applicable on 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 amounts 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 claim for just
satisfaction.
Done in English, and notified in writing on 4 November 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
