VITKOVSKIY v. UKRAINE - 24938/06 - Chamber Judgment [2013] ECHR 880 (26 September 2013)

In the case of Vitkovskiy v. Ukraine,

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

          Mark Villiger, President,
          Angelika Nußberger,
          Boštjan M. Zupančič,
          Ann Power-Forde,
          Ganna Yudkivska,
          Helena Jäderblom,
          Aleš Pejchal, judges,
and Claudia Westerdiek, Section Registrar,

Having deliberated in private on 3 September 2013,

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

PROCEDURE

The case originated in an application (no. 24938/06) 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 Ukrainian national, Mr Vikentiy Bronislavovich Vitkovskiy (“the applicant”), on 15 June 2006.

The Ukrainian Government (“the Government”) were represented by their Agent, Mr Nazar Kulchytskyy.

The applicant alleged, in particular, that he had been ill-treated by the police and that there had been no adequate domestic investigation of the matter. He also complained that he had been detained in poor conditions and without due medical care.

On 14 February 2012 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1980 and is currently serving a prison sentence in Kryvyy Rig following his conviction in criminal proceedings subsequent and unrelated to those examined in the present case.

A. Alleged ill-treatment of the applicant and its investigation

On 28 June 2004, at about 8 a.m., the applicant was questioned by police at Novomoskovsk Police Station in connection with a suspected attempted theft (see paragraph 20 below). The officers allegedly subjected him to ill-treatment to induce him to confess. Specifically, according to the applicant, they punched and kicked him, strangled him with a towel, put a gas mask on his face and made it difficult for him to breathe, as well as giving him electric shocks to the fingers and testicles. The applicant also allegedly had an injury to his chin, which caused extensive bleeding. He did not confess, however.

On 29 June 2004 the applicant complained to his mother that he had been ill-treated: she in turn raised a complaint with the prosecution authorities and requested a medical examination for him.

On 2 July 2004 a forensic medical expert examined the applicant and documented multiple bruises on both eyelids, the left temple, both earlobes, the chest, the knees, the left shoulder, and the left buttock, as well as sores on the chin, the wrists and the knees. The expert described the injuries as light, and concluded that they could have been inflicted on the applicant in the circumstances described by him. The injuries in question had originated from at least nine blows with blunt hard objects. No injuries were discovered on the applicant’s fingers or testicles.

By rulings of 14 July 2004 and 23 September and 1 December 2005, the Novomoskovsk Town Prosecutor’s Office refused to institute criminal proceedings against the police officers in connection with the applicant’s allegation of ill-treatment. All those rulings were quashed, either by a higher prosecution authority or by a court. The case file does not contain copies of any of those decisions.

On 17 February 2006 the Novomoskovsk Prosecutor’s Office issued another ruling refusing to open a criminal case regarding the matter. As noted therein, the Novomoskovsk Police Department had conducted an internal investigation. According to its conclusions issued on 7 July 2004, the applicant’s allegation was ill-founded. The prosecutor also referred to the verdict of 12 April 2005, by which the applicant had been found guilty of burglary and attempted theft (see paragraph 24 below). Furthermore, the investigator questioned the inmates with whom the applicant had been sharing a cell in the Novomoskovsk Temporary Detention Facility (ITT) from 28 June to 6 July 2004, according to whom he had behaved in an arrogant and aggressive manner.

On 25 September 2006 the Novomoskovsk Town Court (“the Novomoskovsk Court”) quashed the above ruling and directed the Novomoskovsk Prosecutor’s Office to carry out an additional investigation of the matter. It noted that the origin of the applicant’s injuries, the existence of which was not disputed, had never been established. The court criticised the prosecution authority in this connection for its failure to carry out a reconstruction of the events with the participation of the applicant and a forensic medical expert. Furthermore, the court noted that, although the prosecutor had referred to a conflict-like environment in the ITT, it was not clear what kind of conflicts, if any, had taken place involving the applicant, and whether they could have resulted in his injuries.

The Novomoskovsk Prosecutor’s Office appealed. In addition to reiterating the reasons given in the ruling of 17 February 2006, it submitted that no injuries to the applicant’s fingers and testicles had been discovered. As regards the injuries documented on 2 July 2004, in the prosecutor’s view they “could have been inflicted as a result of the legitimate application of a rubber truncheon and martial arts techniques to the applicant during his arrest”.

The applicant submitted objections to the above appeal. He noted in particular that the police officers who had arrested him on 27 June 2004 had stated on many occasions, including during the court hearings in his criminal case, that they had not deployed any force against him. Furthermore, they had admitted that they did not have their rubber truncheons with them when arresting the applicant, having left them in their vehicle. The applicant further argued that the Novomoskovsk Prosecutor’s Office could not ensure an independent investigation of his complaint, because of its closeness to the local police whose officers had allegedly ill-treated him.

On 8 December 2006 the Dnipropetrovsk Regional Court of Appeal upheld the judgment of 25 September 2006.

The applicant challenged the decisions of 25 September and 8 December 2006 before the Supreme Court in the part concerning assigning the additional investigation to the Novomoskovsk Prosecutor’s Office. He insisted that such an investigation could not be independent.

On 2 April 2007 the Supreme Court however declined jurisdiction over the case.

On 5 March 2007 the Novomoskovsk Prosecutor’s Office once again refused to open a criminal case against the police officers, having discerned no corpus delicti in their actions. It referred in particular to the findings of the police internal inquiry, according to which the applicant’s allegation was unsubstantiated. As regards the applicant’s injuries documented on 2 July 2004, the prosecutor concluded that they could have been inflicted “as a result of the legitimate application of a rubber truncheon and martial arts techniques to the applicant during his arrest”. It was also noted in the ruling that there was no evidence in support of the applicant’s allegation that he had been given electric shocks.

On 6 March 2007 the Dnipropetrovsk Regional Prosecutor’s Office upheld the above findings.

On 14 January 2010 the Novomoskovsk Prosecutor’s Office destroyed the investigation file following the expiry of its storage time-limits. It referred in this connection to some guidelines of the General Prosecutor’s Office of 2003.

B. Criminal proceedings against the applicant

1. The first set of proceedings

On 27 June 2004 a Ms R. called the police, complaining that somebody had climbed on to her balcony and entered her flat. She left the intruder inside her flat and made the telephone call from a neighbour’s flat. Having arrived at the scene the police discovered R.’s flat in a mess and the applicant inside with two pairs of gloves and a torch. Though he denied any ill intent and claimed to have entered the flat in question by mistake, he was arrested and taken to the police station. During his subsequent questioning during the morning of 28 June 2004 (after the applicant had spent a night in a cell in the police station), he did not confess to the attempted theft (see paragraph 6 above).

It appears from the case-file materials that on 28 June 2004 the applicant was charged with an administrative (minor) offence of petty hooliganism. There are no documents or comments by the parties in this regard.

As is confirmed by the documents in the file, the applicant was released on 11 July 2004. The grounds for his detention from 27 June to 11 July 2004, as well as the circumstances of his release, are unknown.

On 21 March 2005 the applicant was arrested again, with no further details available.

On 12 April 2005 the Novomoskovsk Court found the applicant guilty of burglary and attempted theft from R.’s flat and sentenced him to three years and eight months’ imprisonment. The court relied on the statements of the victim, who identified the applicant as the person she had seen climbing on to her balcony. The evidence also included depositions by R.’s neighbour and the arresting police officers, as well as the incident site inspection report and material evidence, namely the gloves and the torch. Lastly, the Novomoskovsk Court noted that there had been an investigation by the prosecution authorities as to the lawfulness of the police officers’ actions, with no violations established.

The case file contains a copy of the appeal lodged by the applicant’s mother, acting as his representative. It is not known whether the applicant or his lawyer introduced additional appeals. The applicant’s mother submitted that the applicant had seen an unknown person leaving the flat in question in a precipitate manner. This had made him (the applicant) think that something had happened in the flat and his help might be needed. He therefore went in, and a few minutes later was apprehended by the police. Another argument in the appeal was that there was not sufficient evidence to show that the applicant had attempted any theft. If this logic were followed, he could equally have been accused of contemplating murder or rape. The appeal did not mention the applicant’s alleged ill-treatment at the hands of the police.

On 23 September 2005 the Dnipropetrovsk Regional Court of Appeal (“the Court of Appeal”) upheld the judgment of 12 April 2005. The Court has not been provided with a copy of the appellate court’s ruling.

The applicant appealed on points of law. The case file does not contain a copy of this appeal.

On 15 December 2005 the Supreme Court found against the applicant.

2. The second set of proceedings

On 30 June 2006 the Novomoskovsk Court found the applicant, with some others, guilty of about ten counts of theft (eight of which had been committed between August and December 2004), and engagement of a minor in criminal activities, and sentenced him to five years’ imprisonment.

On 16 October 2007 the Court of Appeal quashed that judgment in the part concerning the applicant for some procedural irregularities, and remitted the case to the first-instance court for fresh examination.

On 27 November 2008 the Novomoskovsk Court delivered another judgment on the case, the findings of which were similar to those in the verdict of 30 June 2006. The applicant’s sentence was however reduced to three years and ten months’ imprisonment.

On 12 December 2008 the above judgment became final (it appears that there were no appeals).

On 3 January 2009 the applicant was released, having served his sentence.

C. Review of the applicant’s case (the first set of proceedings) following the decriminalisation of petty theft

In September 2006 the applicant sought to be relieved from the criminal liability imposed by the judgment of 12 April 2005, with a reference to the amendments to the Code of Administrative Offences of 30 June 2005 decriminalising petty theft.

On 13 March 2008 the Novomoskovsk Court rejected his claim. It noted that, in addition to the attempted theft of 27 June 2004, the applicant had also been accused of numerous other counts of theft. Accordingly, there was no reason to consider that on 27 June 2004 he had been attempting only petty theft.

On 13 June 2008 the Court of Appeal upheld the aforementioned decision. It also referred to the fact that on 27 June 2004 the police had discovered the applicant in R.’s flat with two pairs of gloves and a torch, with the flat in a mess, as an indication of the applicant’s intention to steal a considerable amount of property.

On 30 April 2009 the Supreme Court quashed those decisions and remitted the case to the first-instance court for fresh examination. It criticised the lower courts for going beyond the findings of the judgment of 12 April 2005. Thus, the Supreme Court noted that the first-instance court had wrongly referred to some additional charges of theft against the applicant not covered by the judgment in question. It also observed that that judgment had not made any assessment of the value of the property the applicant had attempted to steal, and therefore the appellate court had had no basis for its finding that he had in fact attempted a significant theft.

On 2 September 2009 the Novomoskovsk Court allowed the applicant’s claim. It noted that the impugned judgment of 12 April 2005 had not established the value of the property he had attempted to steal. It was therefore impossible to establish unequivocally whether or not the theft in question could be regarded as petty. Relying on the principle of presumption of innocence, the court stated that any doubts were to be interpreted in the applicant’s favour. As a result, the court relieved him of the penalty imposed by the judgment of 12 April 2005. As regards the applicant’s request that the conviction be removed from the official records, the Novomoskovsk Court held that in any event the applicant was regarded as having had no criminal conviction in this case.

D. Conditions of the applicant’s detention and related facts

1. Periods of the applicant’s detention in different detention facilities

From 28 June until his release on 11 July 2004 the applicant was detained in the Novomoskovsk ITT.

According to him, he was also held in the ITT during some unspecified periods later in 2005-2008, after he was re-arrested on 21 March 2005, when he was taken to Novomoskovsk to attend court hearings.

The only document in the case file regarding the applicant’s detention in the ITT after March 2005 is an information note issued by the local police on 17 August 2006 on three ambulance calls for him on 5, 22 and 27 June 2006 (see paragraph 63 below).

Under the archive extracts and other documents in the case file, from 28 March 2005 to 21 April 2007 and from 12 September 2007 to 3 January 2009 the applicant was detained in the Dnipropetrovsk Pre-Trial Detention Centre (SIZO), located thirty kilometres from Novomoskovsk. Although he was arrested on 21 March 2005 there is no information as to where he was detained until 28 March 2005.

From 21 April to 12 September 2007 the applicant was detained in Zhovti Vody Prison no. 26.

2. Material conditions of detention in the ITT

According to the applicant, in June and July 2004 he was detained in overcrowded cells infested with insects.

The applicant also made a general submission that the conditions of his detention in the ITT in 2005-2008 were unacceptable.

According to the Government’s account, the conditions in the ITT were quite adequate.

3. Material conditions of the applicant’s detention in the SIZO, and related events

The applicant alleged that he had been detained in a cell infested with insects and that the bed linen there was dirty and bedbug-infested.

According to the Government, the applicant was provided with bed linen in accordance with applicable regulations.

On 27 March and 3 April 2007 there were searches in his cell. As a result, the following items belonging to the applicant were discovered and seized: four sewing spools, adhesive tape, a plaster figurine of three monkeys, and prayer beads.

According to the applicant, the officers had left a mess behind them and some of his food had been spoiled.

As also alleged by the applicant in his submissions to the Court, during those searches the administration had seized his copy of the Code of Criminal Procedure and a notepad with some important contacts and notes.

The Government contested the veracity of this last submission.

4. Material conditions and alleged incidents during the applicant’s detention in the prison

The applicant described the conditions of his detention in the prison as follows. The prison was located in an uranium ore mining area, which in itself posed a serious risk to his health. Furthermore, prisoners had to work in difficult and dangerous conditions without receiving due remuneration. There were frequent electricity and water supply cuts. More precisely, electricity and water were available only for about two and a half hours per day, and there were only twelve water taps to accommodate the needs of about 140 prisoners. Showering was possible only once a week.

The applicant also alleged that the following incidents had taken place in the prison. On 9 May 2007 three prison guards had approached him, twisted his arms and handcuffed him “asking for some unspecified explanations”. Also, on 5 June 2007 the prison administration had seized his complaints to various authorities in a rude manner, using physical force.

The Government denied that any such incident had taken place.

Furthermore, according to them, electric power and water supply in the prison were centralised and provided round the clock. The applicant’s cell had a window and a lamp which provided sufficient light in the cell during the day and evening. Washing and laundry services were provided to the applicant once every seven days, with a mandatory change of linen, as well as disinfection and disinfestation of his personal clothes and bed linen in a disinfection chamber intended specially for that purpose.

5. The applicant’s complaints to the domestic authorities on the conditions of his detention and incidents in the SIZO and the prison

On 7 April 2007 the applicant complained to the Dnipropetrovsk Regional Prosecutor’s Office about the conditions of his detention in the SIZO and about the aforementioned searches. He noted, inter alia, that his notepad had gone missing after the search of 3 April 2007. According to him, the guards had not allowed him sufficient time for preparation (it was not specified what kind of preparation) and as a result he had left behind (it is not clear where) his copy of the Code of Criminal Procedure. He also complained that he had not had sufficient access to drinking water, and that there had been a smell of paint in his cell which had caused him headaches.

Following his transfer to the prison on 21 April 2007, the applicant additionally complained to the prosecution authorities about the conditions of his detention in the prison. He also complained that he had often been placed, both in the SIZO and in the prison, in a punishment cell, which he said was done for no reason.

On 6 June 2007 the applicant lodged a civil claim with the Zhovti Vody Court regarding the conditions of his detention. On 14 June 2007 the court declined civil jurisdiction over the case.

On 20 June 2007 the regional prosecutor’s office issued a ruling refusing to institute criminal proceedings in respect of the applicant’s complaints, having discerned no corpus delicti in the actions of the officials of the Dnipropetrovsk SIZO and the prison. It noted that, following the search in his cell, the SIZO administration had rightly seized the items, which were not permitted. While the applicant had indeed been disciplined on a number of occasions (three reprimands, an unscheduled tour of duty, and five days in a punishment cell in the SIZO, as well as fifteen days in a punishment cell in the prison), those measures had been taken following numerous breaches of the prison regime by him. No force had been used on the applicant. Lastly, the prosecutor noted that the applicant had submitted four complaints to the administration to be posted; these complaints had been dispatched without hindrance or delay.

On 30 January 2008 the State Department for Enforcement of Sentences wrote to the applicant, apparently in reply to his complaint, that he had breached the regulations concerning detainees’ correspondence by sending a complaint without informing the prison authorities. He was warned that should this happen again disciplinary measures would follow.

6. The applicant’s health and the medical care available to him in detention

(a) Factual information

Since 2000 the applicant has been suffering from duodenal and gastric ulcers, as well as from a prolapse of the mitral valve of the heart.

According to an information note issued by the local police on 17 August 2006 at the applicant’s request, he sought medical assistance in the ITT on 5, 22 and 27 June 2006 on account of stomach pains. As a result, an ambulance was called for him and he was provided with medical assistance for duodenal and gastric ulcers.

On 27 February 2012 the prison administration destroyed the applicant’s medical file, citing the expiry of the term of its storage.

(b) The parties’ accounts

According to the applicant, his health seriously deteriorated in detention owing, in particular, to the absence of any medical care and lack of appropriate nutrition. He stated that he was suffering from constant pain in the stomach, liver and pancreas.

The applicant further submitted that during his detention from 12 March 2005 to 4 January 2009 he had lost sixteen kilograms in weight.

The applicant also alleged that the prison authorities had accepted parcels of medication from his mother, but had never handed them over to him.

The Government mainly referred to the fact that the applicant’s medical file had been destroyed (see paragraph 64 above).

At the same time, they noted that, following the applicant’s transfer to the prison from the SIZO, he had been examined by medical staff over a period of five days. As a result, he was diagnosed with duodenal and gastric ulcers.

In reply to the above submission, the applicant contended that the prison was not equipped to carry out an adequate examination in view of his gastric problems.

Furthermore, according to the Government, the applicant had applied only once for medical assistance in detention. Namely, on 13 June 2007 he applied to a psychiatrist who diagnosed him with psychopathy.

The applicant denied ever having consulted a psychiatrist.

II. RELEVANT DOMESTIC LAW AND PRACTICE

Pursuant to Article 88 of the Criminal Code, those released from a penalty, or who have served a sentence for an action which has been decriminalised, shall be regarded as having no criminal convictions.

Article 185 § 3 of the Criminal Code provided for three to six years’ imprisonment as the penalty for theft with burglary at the material time.

Following the amendments to the Code of Administrative Offences in effect since 30 June 2005, petty theft became an administrative offence.

Section 11 of the Pre-Trial Detention Act and Article 115 of the Code on Enforcement of Sentences provide that everyday conditions of detention, in both pre-trial detention facilities and prisons, should meet sanitary and hygiene requirements.

Rules of conduct for detainees and convicts in pre-trial detention centres approved by Order no. 192 of the State Department of Enforcement of Sentences on 20 September 2000 (repealed on 18 March 2013) contained a detailed list of items permitted to be kept by detainees and convicts in their cells. This list included, in particular, personal papers and documents related to the criminal case. From 18 March 2013 onwards the approach was changed, and, instead of the list of permitted items, the Rules listed those prohibited.

The relevant extracts from the Instruction “On guarding and supervision of detainees held in pre-trial detention centres and prisons of the State Department for Enforcement of Sentences (Інструкція з організації охорони і нагляду за особами, які тримаються у слідчих ізоляторах і тюрмах Державного департаменту України з питань виконання покарань), approved by Order no. 6 of 20 September 2000 of the State Department for Enforcement of Sentences (a restricted document, the quoted extracts from which were submitted by the Government along with their observations) read as follows:

“8.7. Procedure for technical inspections and searches.

8.7.1 .... A technical inspection of each cell shall be conducted daily, while the inmates are absent from the cell ....

An inspection involves a thorough examination of window grids, shutters, walls, floor, ceiling, beds, tables, benches, sink fixtures, plumbing and water pipes.

8.7.2 At least once a week, cells shall be subjected to a control technical inspection ...

8.7.3 With the aim of detecting prohibited items, the authorities shall carry out scheduled searches of cells during the daytime ... Cells are to be searched in the absence of the inmates.

Each cell and its inmates shall be searched at least twice a month or regardless of the schedule if a need for such a search arises.”

Pursuant to Order no. 193 of 11 October 2006 of the State Department of Enforcement of Sentences “On Approval of the Instruction on Bathing and Laundry Services for Persons Detained in Prisons and Pre-Trial Detention Centres”, washing and laundry services shall be provided to detainees once every seven days with mandatory change of linen, disinfection (disinfestation) of their personal clothes and bed linen in a disinfection chamber intended specially for that purpose.

The legislation on the privacy of correspondence and exceptions in cases of prisoners is quoted in the judgment on the case of Chaykovskiy v. Ukraine, (no. 2295/06, §§ 37-40, 15 October 2009).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF ILL-TREATMENT OF THE APPLICANT AND THE INVESTIGATION THEREOF

The applicant complained that he had been ill-treated by the police and that there had been no effective domestic investigation of the matter. He relied on Article 3 of the Convention, which reads as follows:

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

A. Admissibility

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. The parties’ submissions

The applicant submitted that even though it was an established fact that he had been injured at the hands of the police, the authorities had never attempted to properly explain the origin of his injuries.

He further contended that the domestic investigation had been superficial and had lacked independence. The applicant noted in particular that he had never been questioned as the victim of the alleged ill-treatment. He also pointed out that, in spite of his numerous requests for the investigation to be assigned to a different prosecution authority, it had remained the responsibility of the Novomoskovsk Prosecutor’s Office, which the applicant considered to be too closely linked with the local police whom he had accused of ill-treating him.

The Government contested those arguments. While noting that the investigation file had been destroyed, they made a general statement that the domestic authorities had made all reasonable efforts to look into the applicant’s allegation, and there were no reasons for questioning their conclusion that it had proved unsubstantiated.

2. The Court’s assessment

(a) The applicant’s ill-treatment

As the Court has stated on many occasions, Article 3 of the Convention enshrines one of the core values of democratic societies (see, among many other references, Selmouni v. France [GC], no. 25803/94, § 95, ECHR 1999-V). Where allegations are made under this provision, the Court must conduct a particularly thorough scrutiny, and will do so on the basis of all the material submitted by the parties (see Matyar v. Turkey, no. 23423/94, § 109, 21 February 2002, and Ülkü Ekinci v. Turkey, no. 27602/95, § 136, 16 July 2002).

In assessing evidence, the Court adopts the standard of proof “beyond reasonable doubt”. Such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see, as a classic authority, Ireland v. the United Kingdom, cited above, § 161). Where the events in issue lie wholly or in large part within the exclusive knowledge of the authorities, as in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries occurring during such detention. The burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII).

Turning to the present case, the Court notes that five days after the applicant’s arrest, on 2 July 2004, the forensic medical examination discovered that he had extensive bruising on virtually all parts of his body: both eyelids, the left temple, both earlobes, the chest, the knees, the left shoulder, and the left buttock. Also, sores were discovered on his chin, wrists and knees. Although the expert categorised the injuries in question as “light”, he specified that they had originated from at least nine blows from blunt hard objects. He also confirmed that they could have been sustained in the circumstances described by the applicant (see paragraph 8 above).

Having regard to the applicant’s injuries as documented by the expert, the Court has no doubts that he suffered ill-treatment proscribed by Article 3 of the Convention, even in the absence of any evidence in support of his allegation that electric shocks had been given to his fingers and testicles.

The Court takes note of the applicant’s submission that the injuries in question had been inflicted on him by police during his questioning in the Novomoskovsk Police Station in the morning of 28 June 2004 (see paragraph 6 above). It further observes the absence of any explanation from the Government as to the origin of the applicant’s injuries (see paragraph 85 above). Given, however, their general reliance on the findings of the domestic investigation authorities, it can be presumed that the Government considered plausible the version that those injuries had originated from “legitimate application of a rubber truncheon and martial arts techniques to the applicant during his arrest [on 27 June 2004]” (see paragraphs 17 and 85 above).

The Court does not consider the authorities’ version to be plausible. It notes that their version was dismissed by the domestic courts in their decisions of 25 September and 8 December 2006, in particular because of the failure of the investigation to carry out a reconstruction of the events with the participation of the applicant and a forensic medical expert (see paragraphs 11 and 14 above).

In any event, even assuming that those injuries had indeed been sustained by the applicant during his arrest, no justification was apparently ever given for the deployment of such violence against the applicant.

The Court reiterates in this connection that in the process of arrest of a person any recourse to physical force which has not been made strictly necessary by his or her own conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3 of the Convention (see, mutatis mutandis, Ribitsch v. Austria, 4 December 1995, § 38, Series A no. 336, and, as a more recent reference, Sochichiu v. Moldova, no. 28698/09, § 33, 15 May 2012).

Given the authorities’ failure to account for the applicant’s injuries in the present case, the Court concludes that the State is responsible for his ill-treatment.

Accordingly, there has been a violation of Article 3 of the Convention under its substantive limb.

(b) Effectiveness of the investigation

The Court emphasises that where an individual raises an arguable claim that he or she has been seriously ill-treated by police in breach of Article 3, that provision requires by implication that there should be an effective official investigation 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, 28 October 1998, § 102, Reports 1998-VIII, and Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000-IV). The minimum standards of effectiveness defined by the Court’s case-law include the requirements that the investigation must be independent, impartial and subject to public scrutiny, and that the competent authorities must act with exemplary diligence and promptness (see, for example, Menesheva v. Russia, no. 59261/00, § 67, ECHR 2006-III).

In the present case the Court has found that the respondent State is responsible under Article 3 for the applicant’s ill-treatment (see paragraphs 94-95 above). The authorities therefore had an obligation to investigate it in compliance with the aforementioned effectiveness standards.

The Court notes that the applicant complained to the prosecuting authorities about ill-treatment on 29 June 2004. His allegations were supported by the forensic medical examination report of 2 July 2004.

Nevertheless, the city prosecution authority refused five times to open a criminal case regarding this matter, finding that there was nothing criminal in the actions of the police. Although each of the aforementioned decisions was quashed as not based on proper investigation, another such decision followed (see paragraphs 9-18 above).

The Court also observes that the applicant was never assigned victim status and was never questioned in that capacity.

Furthermore, the Court notes that the domestic investigation raises questions as regards its independence. Thus, in spite of the applicant’s numerous requests for it to be assigned to a different authority, the investigation remained the responsibility of the prosecutor’s office located in the same town as the police department whose officers the applicant was accusing of ill-treating him. Moreover, the prosecution authority in charge of the investigation expressly relied on the findings of the “internal investigation” by the police, according to which the applicant’s complaint was without foundation (see paragraphs 10 and 17 above).

In the light of the above considerations, the Court concludes that the applicant was denied a thorough, effective and independent investigation of his arguable claim that he had been ill-treated by the police. As the Court has held in its judgment concerning the case of Kaverzin v. Ukraine, this situation stems from systemic problems at the national level, allowing agents of the State responsible for such ill-treatment to go unpunished (no. 23893/03, 15 May 2012, §§ 169-182).

There has therefore also been a violation of Article 3 of the Convention under its procedural limb.

II. ALLEGED VIOLATIONS OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF CONDITIONS OF THE APPLICANT’S DETENTION

The applicant further complained under Article 3 of the Convention about the material conditions of his detention and of lack of adequate medical care and nutrition in the Novomovskovsk ITT, Dnipropetrovsk SIZO and Zhovti Vody prison no. 26.

A. Admissibility

1. Material conditions of detention in the Novomovskovsk ITT

(a) From 27 June to 11 July 2004

The Court notes that the applicant was released on 11 July 2004 following his detention in the Novomovskovsk ITT from 28 June 2004, whereas he introduced his application with the Court on 15 June 2006 (see paragraphs 1 and 39 above), which is more than six months later.

It follows that his complaint in this part should be rejected for non-compliance with the six-month rule pursuant to Article 35 §§ 1 and 4 of the Convention, even though the Government did not raise in their observations any objection in that regard (see, for example, Walker v. the United Kingdom (dec.), no. 34979/97, ECHR 2000-I, and Koval v. Ukraine (dec.), no. 65550/01, 30 March 2004).

(b) During unspecified periods after 21 March 2005

The Court notes that the applicant did not specify the periods of his detention in the ITT after his re-arrest on 21 March 2005; he merely submitted that it was when he was attending the Novomoskovsk Court hearings (see paragraph 40 and 45 above).

The Court next observes that, according to the documents in the case file, from 28 March 2005 the applicant was detained in the SIZO and the prison. More specifically, at the time when his case was examined by the Novomoskovsk Court he was being held in the SIZO located some thirty kilometres from that court (see paragraphs 24, 29 and 42 above).

Given the vagueness of his complaint regarding the conditions of his detention in the ITT, as well as the lack of any factual information in that regard, the Court rejects this complaint as manifestly ill-founded under Article 35 §§ 3 (a) and 4 of the Convention.

2. Material conditions in Dnipropetrovsk SIZO and Zhovti Vody prison no. 26, and medical care throughout the applicant’s detention

The Court notes that this part of the application 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. The parties’ submissions

The parties maintained their accounts as summarised in paragraphs 44-48, 53, 56 and 65-72 above.

As regards the applicant’s complaint regarding the conditions of his detention in the SIZO, the Government additionally noted that his similar complaint before the domestic authorities concerned some different aspects. Namely, they pointed out that the applicant had complained to the prosecution authorities that there was not sufficient access to drinking water and that there was a smell of paint, whereas in his application to the Court he had alleged that his cell was infested with insects and the bed linen was dirty.

2. The Court’s assessment

(a) Material conditions of detention in the SIZO

The Court has held on many occasions that 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. It follows that, after the Court has given notice of the applicant’s complaint to the Government, the burden is on the latter to collect and produce relevant documents. A failure on their part to submit convincing evidence on material conditions of detention may give rise to the drawing of inferences as to the well-foundedness of the applicant’s allegations (see Gubin v. Russia, no. 8217/04, § 56, 17 June 2010, and Khudoyorov v. Russia, no. 6847/02, § 113, ECHR 2005-X (extracts)).

The Court notes that in the present case the Government maintained that the applicant had been provided with bed linen in accordance with the applicable legal provisions (see paragraph 48 above). The Court is not convinced, however, that this generally worded statement suffices to refute the applicant’s allegation as to the poor sanitary conditions of his detention.

The Court also considers that the fact that the applicant raised some other complaints before the domestic authorities does not undermine the plausibility of his allegations before the Court as contended by the Government (see paragraph 112 above).

Furthermore, the Court notes that his submissions are consistent with the similar numerous cases concerning conditions of detention in Ukrainian pre-trial detention facilities (see, for example, Belyaev and Digtyar v. Ukraine, nos. 16984/04 and 9947/05, §§ 33-39, 16 February 2012, with further references).

The Court also finds that the conditions complained of, namely unsatisfactory hygiene of bed linen and insect infestation, went beyond the threshold tolerated by Article 3 of the Convention.

There has therefore been a violation of this provision.

(b) Material conditions of detention in the prison

The Court notes that the Government have not contradicted the applicant’s description of the available showers and water taps in a substantiated way. Neither have they proved that there was an uninterrupted water and electricity supply in the prison.

The Court has already criticised insufficient water supply in a detention facility as resulting in a dirty environment and arousing in a person a feeling of anguish (see, for example, Insanov v. Azerbaijan, no. 16133/08, § 126, 14 March 2013).

. There has therefore been a violation of Article 3 in this aspect.

The Court notes at the outset that about two weeks after the application was communicated to the Government with one of the questions concerning the applicant’s conditions of detention, the prison administration destroyed his medical file (see paragraphs 4 and 64 above).

While having no reasons to discern bad faith on the part of the authorities in this respect, the Court finds this particularly regrettable, as it would expect the respondent Government to take every reasonable measure to safeguard the evidence in the case once they are given notice.

The Court emphasises that Article 3 of the Convention imposes an obligation on the State to ensure, given the practical demands of imprisonment, that the health and well-being of a prisoner are adequately secured by, among other things, providing him with the requisite medical assistance (see Kudła v. Poland [GC], no. 30210/96, §§ 93-94, ECHR 2000-XI).

Turning to the present case, the Court is mindful of the vagueness of the applicant’s submissions, who did not specify the medical treatment and nutrition he had required but had not been provided with (see paragraph 65 above). At the same time, it is not in dispute between the parties that the applicant has a long history of duodenal and gastric problems, as well as a heart condition.

The Court is therefore satisfied that he did have particular medical and nutritional requirements which needed to be accommodated during his detention.

It appears that an ambulance was called for him on several occasions in June 2006 (see paragraph 63 above) on account of his stomach pains. Such sporadic and symptomatic responses to the apparent deterioration of his health cannot however be regarded as amounting to requisite medical assistance.

Furthermore, the Government have not shown that there was any medical attention given to the applicant’s health during his detention in the SIZO and in the prison. Neither have they provided any information as to whether any regard was given to his particular nutritional needs arising from his gastric problems. The fact that the applicant’s medical file has been destroyed by no means absolves the State of its obligation to account for his medical care in detention. Moreover, it gives reasons for the Court to make factual inferences in favour of the applicant’s allegation.

That being so, the Court considers that the applicant did not receive adequate medical care in detention.

There has therefore been a violation of Article 3 of the Convention on this account too.

III. ALLEGED VIOLATIONS OF ARTICLE 8 OF THE CONVENTION

The applicant complained, with reference to Article 3 of the Convention, about the searches of his SIZO cell on 27 March and 3 April 2007, as having allegedly resulted in the seizure of his personal belongings, namely his copy of the Code of Criminal Procedure with comments and his notepad with some telephone numbers and other important information, as well as that some of his food had been spoiled.

He further complained, also relying on Article 3 of the Convention, that the prison authorities had infringed his right of respect for his correspondence by withholding his letters containing complaints to various authorities on 5 June 2007.

The Court notes that a complaint is characterised by the matters alleged in it and not merely by the legal grounds or arguments relied on (see Şerife Yiğit v. Turkey [GC], no. 3976/05, § 52, 2 November 2010). Having regard to the essence of the applicant’s complaints in the present case, the Court finds it appropriate to examine both of them under Article 8 of the Convention, the relevant part of which reads as follows:

“1. Everyone has the right to respect for his private ... life ... and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

A. The parties’ submissions

The Government submitted that the applicant could not be regarded as having exhausted domestic remedies concerning this part of the application, as he failed to challenge, either before a higher-level prosecution authority or a court, the decision of the regional prosecutor’s office of 20 June 2007 (see paragraph 60 above).

In the alternative, the Government contended that the applicant’s complaints were to be dismissed as manifestly ill-founded.

They contested the veracity of his allegation about the seizure of his notepad and copy of the Code of Criminal Procedure. The Government submitted that the seizure of the sewing spools, adhesive tape, figurine of three monkeys and prayer beads complied with the safeguards enshrined in Article 8 of the Convention.

As regards the alleged interference of the prison administration with the applicant’s correspondence, the Government submitted that he had not provided sufficient details in support of this complaint. They made an analogy between this case and that of Visloguzov v. Ukraine, where the Court dismissed a similar complaint on that ground (no. 32362/02, § 83, 20 May 2010).

The applicant contested the Government’s arguments.

He submitted that he had made every effort to bring his grievances to the attention of the authorities and that, given their indifference and cynicism, he had considered it pointless to further challenge the prosecutor’s decision of 20 June 2007.

In his reply to the Government’s observations, the applicant maintained that the prison authorities had seized his copy of the Code of Criminal Procedure and his notepad, contrary to the domestic legislation and Article 8 of the Convention. He also submitted that the figurine of three monkeys and the prayer beads were religious objects associated with Buddhism and that their seizure was unlawful.

In substantiation of his complaint that his correspondence had been withheld on 5 June 2007, the applicant referred to the letter of 30 January 2008 from the State Department for Enforcement of Sentences, which noted that he had breached the regulations concerning detainees’ correspondence by sending a complaint without informing the prison authorities (see paragraph 61 above).

B. The Court’s assessment

The Court finds it unnecessary to deal with the Government’s objection as regards the supposed non-exhaustion of domestic remedies, since it considers that this part of the application should in any event be declared inadmissible for other reasons.

1. Cell searches

The Court notes that the applicant’s initial complaint concerning the searches in his cell on 27 March and 3 April 2007 was confined to the alleged seizure of his copy of the Code of Criminal Procedure and a notepad, as well as the spoiling of his foodstuffs, without mentioning the seizure of the prayer beads and the monkey figurine (see paragraph 132 above).

Accordingly, this last-mentioned complaint, which was raised for the first time only in reply to the Government’s observations in 2012 (see paragraphs 4 and 141 above) should be rejected as submitted outside the six-month time-limit.

As to the applicant’s allegation about the seizure of his copy of the Code of Criminal Procedure and his notepad, it appears from his related submissions to the domestic authorities that he had himself mislaid or forgotten those items somewhere (see paragraph 57 above). In so far as the applicant alleged that the impugned searches had resulted in the spoiling of some of his foodstuffs, he failed to submit any details in that regard.

The Court therefore rejects this complaint as manifestly ill-founded under Article 35 §§ 3 (a) and 4 of the Convention.

2. Alleged withholding of correspondence

The Court observes that the applicant did not specify what kind of correspondence had been withheld from him on 5 June 2007, apart from mentioning that it contained complaints to various authorities (see paragraph 133 above).

The Court further notes that Ukrainian legislation provides for automatic monitoring and censorship by the prison administration of all prisoners’ correspondence other than complaints to the Parliamentary Ombudsman, to the Court, to other relevant international organisations of which Ukraine is a member, and to prosecution authorities (follow the reference in paragraph 80 above).

It is to be emphasised that in cases arising from individual petitions the Court’s task is not to review the relevant legislation or a particular practice in the abstract. Instead, it must confine itself as far as possible, without losing sight of the general context, to examining the issues raised by the case before it. Here, therefore, the Court’s task is not to review, in abstracto, the compatibility with the Convention of the above legal provisions, but to determine, in concreto, the effect of the interference on the applicant’s right to respect for his correspondence (see, as a recent authority, Nejdet Şahin and Perihan Şahin v. Turkey [GC], no. 13279/05, §§ 68-70, 20 October 2011).

Furthermore, the Court has recognised in its case-law that some measure of control over prisoners’ correspondence is called for and is not of itself incompatible with the Convention (see Silver and Others v. the United Kingdom, 25 March 1983, § 98, Series A no. 61, and Boris Popov v. Russia, no. 23284/04, § 106, 28 October 2010).

In the absence of any details from the applicant as to the correspondence allegedly withheld from him, the Court cannot but conclude that this complaint has not been sufficiently developed and should be dismissed as manifestly ill-founded in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

The applicant complained under Article 6 § 1 of the Convention that his conviction on 12 April 2005 was unfair. Namely, he submitted that the courts had been formalistic and had found him guilty without any solid evidence against him. Furthermore, he complained that he could not effectively participate in the pleadings in the first-instance court, as he had been feeling unwell.

The applicant further complained that his detention under the aforementioned verdict had been unlawful and had amounted to inhuman and degrading treatment. He also complained that his work in the prison had been overly hard, dangerous and poorly paid.

The applicant next complained under Article 6 § 1 that the proceedings brought by him following the decriminalisation of petty theft had lasted a very long time and had been unfair. He additionally complained, with reference to Article 3 of Protocol No. 7, that he had received a criminal penalty for what had ceased to be a crime.

Lastly, the applicant complained, with reference to Article 13, that his complaints to various domestic authorities had not been successful.

In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

V. 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 2,170,000 euros (EUR) in respect of non-pecuniary damage.

The Government contested this claim as exorbitant and unsubstantiated.

Taking into account the nature of the violations found and ruling on an equitable basis, the Court awards the applicant EUR 9,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.

B. Costs and expenses

The applicant also claimed compensation for costs and expenses, without specifying its amount. Leaving this issue to the Court’s discretion, he noted that the compensation should cover various costs he had incurred during over six years of correspondence with the Court (copying, postage, stationery, translation of the Court’s letters into Russian, legal fees for his representation in the domestic proceedings, and so on).

The Government noted that the applicant had not submitted any documents proving that the costs referred to had been actually and necessarily incurred. They therefore invited the Court to reject this claim.

Regard being had to the information and documents in its possession, the Court rejects this claim.

C. Default interest

The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Declares the applicant’s complaints under Article 3 of the Convention about his alleged ill-treatment by the police and its domestic investigation, the material conditions of his detention in the Dnipropetrovsk SIZO and in Zhovti Vody prison no. 26, as well as the medical care available to him in detention, admissible and the remainder of the application inadmissible;

2. Holds that the applicant has been subjected to ill-treatment in police custody in violation of Article 3 of the Convention;

3. Holds that there has been a violation of Article 3 of the Convention on account of the lack of an effective investigation of the applicant’s allegation of ill-treatment by the police;

4. Holds that there has been a violation of Article 3 of the Convention on account of the material conditions of the applicant’s detention in the Dnipropetrovsk SIZO;

5. Holds that there has been a violation of Article 3 of the Convention on account of the material conditions of the applicant’s detention in Zhovti Vody prison no. 26;

6. Holds that there has been a violation of Article 3 of the Convention on account of the lack of adequate medical care for the applicant throughout his detention;

7. 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 9,000 (nine 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;

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

Done in English, and notified in writing on 26 September 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Claudia Westerdiek Mark Villiger
Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> VITKOVSKIY v. UKRAINE - 24938/06 - Chamber Judgment [2013] ECHR 880 (26 September 2013) URL: http://www.bailii.org/eu/cases/ECHR/2013/880.html Cite as: [2013] ECHR 880