SERIKOV v. UKRAINE - 42164/09 - Chamber Judgment [2015] ECHR 739 (23 Jul 2015)

In the case of Serikov v. Ukraine,

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

          Mark Villiger, President,
          Angelika Nußberger,
          Boštjan M. Zupančič,
          Ganna Yudkivska,
          André Potocki,
          Helena Jäderblom,
          Aleš Pejchal, judges,
and Claudia Westerdiek, Section Registrar,

Having deliberated in private on 30 June 2015,

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

PROCEDURE

1. The case originated in an application (no. 42164/09) 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 Sergey Sergeyevich Serikov (“the applicant”), on 29 July 2009.

2. The applicant was represented by Mr A.A. Kristenko, a lawyer practising in Kharkiv. The Ukrainian Government (“the Government”) were represented by their then Agent, Mr N. Kulchytskyy.

3. The applicant alleged that he had been ill-treated by police officers and that there had been no effective investigation in that regard.

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

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1991 and lives in Kharkiv.

A. The applicant’s arrest and subsequent events

6. On 16 May 2008 the applicant was arrested by police officers G. and B. of the drug crimes unit and taken to the Kharkiv City Police Department (“the police station”).

7. Officer G. drew up a report following the search of his personal effects, according to which a package containing a substance, later determined to be marijuana, was found on the applicant. The report, indicating that it was drawn up at 6.25 p.m. on 16 May 2008, was signed by the applicant and attesting witnesses L. and T.

8. According to the Government, when officers G. and B. began drawing up the above-mentioned report at the scene of the applicant’s arrest, the applicant attempted to escape. The officers then handcuffed him. The applicant was then taken to the police station where he and the attesting witnesses were questioned. At 10.05 p.m. the applicant was released having signed a note affirming that he had no complaints against the police.

9. According to the applicant, at the police station he was ill-treated to make him confess. In particular, he alleged that he was threatened with rape, kicked and hit on the head and torso, and threatened with weapons. He was subjected to a “Palestinian hanging”; with his hands cuffed behind his back he was raised to the height of one or one and a half metres and then dropped face down on the floor. He lost consciousness several times. When she arrived at the police station, the applicant’s mother found him with bruises on his face, a swollen chin and marks of handcuffs on his wrists.

10. At the police station the applicant wrote two notes addressed to the police dated 16 May 2008. In an “explanatory note” the applicant stated that he had acquired some marijuana for personal use and had had it when the police had stopped him. The applicant further stated that he had not been physically or psychologically pressured. In a separate note he stated that he had no complaints against the police and undertook to appear when summoned.

11. At 11.10 p.m. on 16 May 2008 an ambulance arrived at the police station and the applicant was examined by a paramedic, F. The paramedic noted in her report that the examination was completed at 11.40 p.m. According to the report, the applicant had no complaints and nothing abnormal was detected. According to the applicant, the head of the drug crimes unit, officer O.D., was present during this examination and spoke with the paramedic afterwards.

12. Following the applicant’s examination at the police station he and his mother went to the Kharkiv Regional Directorate of the Ministry of the Interior (“the Regional Directorate”), where they arrived at about 11.45 p.m. on 16 May 2008, and where the applicant lodged a complaint accusing police officers of ill-treatment.

13. Officer O.D. followed the applicant to the Regional Directorate and arranged for him to be examined by the medical expert on duty there.

14. At 00.47 a.m. on 17 May 2008 forensic medical expert A.P. examined the applicant at the Regional Directorate. According to his report, finalised on 29 May 2008, the expert had been called upon to determine the presence and seriousness of any bodily injuries. The applicant said to the expert that the police had grabbed him by the neck and arms at the time of the arrest and had handcuffed him. He complained of a headache and pain in his shoulders. The report recorded a haematoma of 1.5 cm in width on the applicant’s neck, a haematoma of 2 x 1.5 cm on the inner side of his left shoulder, and two strip-like bruises on his left wrist. The expert took the view that the injuries could have been inflicted on the date and under the circumstances described by the applicant, and that the bruises on his wrist could have been caused by handcuffs.

15. At 3.46 p.m. on 17 May 2008 the applicant sought medical aid at the Kharkiv City Hospital (“the hospital”) where he was diagnosed with concussion and contusion of the soft tissues of the head and the rib cage. Hospitalisation was recommended but the applicant refused.

16. On 19 May 2008 the applicant was examined by Dr M. at the Neurology, Psychiatry and Drug Addiction Institute of the Academy of Medical Sciences of Ukraine. He was diagnosed with a brain concussion of medium seriousness and numerous bruises on his arms, shoulder blades and spine.

B. Investigation into allegations of ill-treatment

17. On 17 May 2008 the applicant’s mother lodged a criminal complaint with the Kharkiv Regional Prosecutor’s Office (“the KRPO”) against the police officers. She alleged that excessive force had been used to arrest her son and that he had then been tortured, humiliated and threatened with rape at the police station.

18. On 21 May 2008 the KRPO requested an examination of the applicant and his medical documentation by forensic medical experts. On 29 May 2008 medical experts I.D. and I.P. examined the applicant and his medical documentation.

19. In the course of pre-investigation enquiries in respect of the allegations of ill-treatment, the KRPO obtained statements (written explanations) from a number of individuals. In particular, in his written explanation, Mr S.D., who had witnessed the applicant’s arrest, stated that at about 6.15 p.m. on 16 May 2008 a stranger, without introducing himself, had grabbed the applicant by the scruff of his neck or by the shirt collar and, threatening him with a gun, pulled him to a car. He and another stranger had then grabbed the applicant by the arms, searched him and put him into their car. Officers G. and B. stated that at the time of arrest the applicant had attempted to flee and had been handcuffed. They and officer O.D. insisted that the applicant had not been ill-treated in any way. Attesting witnesses L. and T. confirmed the statements by the police and stated that the applicant had attempted to flee while the search report was being drawn up. He had then been caught and handcuffed.

20. In his written explanation given to the KRPO on 28 May 2008 the applicant stated, in particular, that immediately after having stopped him a police officer had hit him on the head, stomach and ribs with the handle and muzzle of his gun. He had then been pulled by the arms to a police car. At the police station the police officers had pulled down his trousers and threatened him with rape, had subjected him to a “Palestinian hanging”, and dropped him to the floor, causing him to lose consciousness. When his mother had arrived at the police station entrance hall she had seen him with a bruised and swollen chin, haematomas and bruises on his head, arms and body.

21. On 6 June 2008 the KRPO, referring to the above-mentioned evidence, refused to institute criminal proceedings against the police officers for lack of a corpus delicti in their actions. The KRPO found that the applicant’s handcuffing was the only instance of the use of force in respect of the applicant and that it had been lawful under the Police Act of 20 December 1990 (“the Police Act”). The applicant’s injuries recorded at 00.47 a.m. on 17 May 2008 were consistent with the police officers’ statements concerning the applicant’s arrest and handcuffing. The KRPO also stated that the applicant’s and his mother’s allegations were not supported by any objective data other than their own statements. The applicant’s mother appealed.

22. On 24 June 2008 the applicant, in a written explanation to the Kharkiv Moskovskyy District Prosecutor’s Office (“the MDPO”), largely confirmed his earlier statements and added that in the police car on the way to the police station the police officers had repeatedly hit him on the head and torso.

23. On 4 July 2008 forensic medical experts completed their report requested by the KRPO on 21 May 2008 and based on their examination of the applicant on 29 May 2008. They noted that the applicant had complained to them that he had been hit with a gun on the head and torso during his arrest and then ill-treated at the police station. The experts recapitulated that at the time of previous medical examinations the applicant had had a brain concussion, haematomas on his neck and left shoulder, and bruises on his left wrist. They were of the opinion that the injuries were consistent with the applicant’s statements as to their origin.

24. On 12 August 2008 the Kharkiv Chervonozavodskyy District Court set aside the KRPO’s decision of 6 June 2008 and remitted the materials for additional inquiry. The court held, in particular, that the KRPO’s enquiries had failed to explain the applicant’s injuries recorded at 00.47 a.m. on 17 May 2008.

25. On 19 January 2009 the Kharkiv Moskovskyy District Court (“the District Court”), in the course of examination of a criminal case against the applicant for possession of drugs, ordered the MDPO to conduct, by 19 February 2009, an investigation into the applicant’s allegations of ill-treatment.

26. On 16 February 2009 (apparently due to a clerical error the text of the decision indicates 16 February 2008 as its date) the MDPO refused to institute criminal proceedings against the police officers on grounds similar to the KRPO’s decision. The applicant’s mother appealed.

27. On 30 March 2009 the District Court set aside the decision of 16 February 2009 and remitted the materials for additional inquiry. The court found, in particular, that the MDPO’s decision had fully replicated the KRPO’s decision of 6 June 2008, had not explained the reasons for which the MDPO had accepted the police officers’ version of events and had failed to explain how the applicant’s handcuffing could explain all his recorded injuries.

28. On 22 October 2009 the MDPO refused to institute criminal proceedings on grounds similar to the earlier decisions. It informed the District Court that by this decision it complied with the court’s ruling of 19 January 2009. The applicant’s mother appealed.

29. On 27 November 2009 the District Court set aside the decision of 22 October 2009 and remitted the materials for additional inquiry. The court held, in particular, that the pre-investigation enquiries had collected sufficient information that a crime had been committed. Further investigation into the origin of the applicant’s injuries required such investigative steps as a confrontation between the applicant and the police officers and a reconstruction of events, which could not be conducted within the framework of pre-investigation enquiries without the institution of criminal proceedings.

30. In the course of the subsequent round of pre-investigation enquiries the MDPO again obtained written explanations from the police officers and the attesting witnesses, who largely repeated their previous statements.

31. On 12 May 2010 the MDPO, referring to the evidence gathered, refused to institute criminal proceedings on grounds similar to the earlier decisions. The applicant’s mother appealed.

32. On 14 June 2010 the District Court set aside the decision of 12 May 2010 and remitted the materials for additional inquiry, holding that the MDPO had failed to comply with the court’s previous instructions.

33. In the course of the subsequent round of pre-investigation enquiries the MDPO obtained written explanations from several individuals. Dr M. stated, in particular, that the applicant’s injuries she had recorded on 19 May 2008 could have been sustained from 16 to 18 May 2008. The applicant’s mother largely repeated her allegations and stated that she and the applicant had travelled from the police station to the Regional Directorate in a neighbour’s car which had been followed by officer O.D.’s car.

34. On 25 June 2010 the MDPO refused to institute criminal proceedings against the police officers on grounds similar to the earlier decisions, referring in addition to the explanations collected in the course of the latest round of pre-investigative enquiries. The MDPO stated that the District Court’s rulings of 27 November 2009 and 14 June 2010 had been impossible to comply with since investigative actions indicated by the court could only be conducted once criminal proceedings had been initiated and not at the stage of pre-investigation enquiries. The applicant’s mother appealed.

35. On 27 August 2010 the District Court set aside the decision of 25 June 2010 and remitted the materials for additional inquiry. The court held in particular that the MDPO had failed to resolve the contradictions in the medical evidence. The MDPO had also failed to resolve the contradictions between the applicant’s, witness S.D.’s, and the police officers’ accounts of the circumstances of the use of force during the applicant’s arrest, which, in the court’s opinion, could explain the documented injuries.

36. In the course of the subsequent round of pre-investigation enquiries the MDPO obtained written explanations from paramedic F. She stated that she had not seen any signs of injury on the applicant on 16 May 2008. She had not been pressured by the police. The applicant himself had not voiced any complaints, but his mother had said that her son had been beaten up. She also stated that she was not a specialist in forensic medicine and could not speculate as to the origin of injuries which had been documented later.

37. On 18 October 2010 the MDPO requested an opinion of a forensic medical specialist on a number of questions concerning the applicant’s injuries, in particular whether his injuries, as recorded in the available medical documentation, could have been inflicted between 11.50 p.m. on 16 May 2008 and 00.47 a.m. on 17 May 2008.

38. On 25 October 2010 the MDPO refused to institute criminal proceedings. The MDPO noted, in particular, that the District Court, in the rulings of 27 November 2009, 14 June and 27 August 2010, had indicated the need to conduct certain investigative actions, namely confrontation between the applicant and the police officers and reconstruction of events with the participation of the applicant and forensic experts. The MDPO stated that these instructions had been impossible to comply with since such actions could only be conducted once criminal proceedings had been initiated and not at the stage of pre-investigation enquiries. The MDPO also stated that the applicant’s injuries recorded at 00.47 a.m. on 17 May 2008 were consistent with the police officers’ statements concerning the applicant’s arrest and handcuffing.

39. On 15 February 2011 the KRPO informed the MDPO that its decision of 25 October 2010 had been a “mere copy” of the decision of 25 June 2010 and had failed to comply with the District Court’s ruling of 27 August 2010. The KRPO directed the MDPO to fully comply with the District Court’s instructions. According to the Government, the MDPO had then conducted a new round of pre-investigation enquiries and as a result the decision of 25 October 2010 was allowed to stand.

40. On 28 February 2011 a forensic medical expert produced a report in response to the MDPO’s request of 18 October 2010 and based on the medical evidence available in the case file. The expert stated, in particular, that it could not be ruled out that the applicant’s documented injuries could have been inflicted between 11.50 p.m. on 16 May 2008 and 00.47 a.m. on 17 May 2008. The expert also took the opinion that the diagnoses of contusion of the soft tissues of the head and of the rib cage, numerous bruises of arms, shoulder blades and spine which had been noted by the hospital staff on 17 May 2008 and by Dr M. on 19 May 2008 had not been confirmed by objective forensic medical information or the results of any tests, and for these reasons could not be taken into account in the forensic medical analysis.

41. According to the applicant, he had first learned about the MDPO’s decision of 25 October 2010 from the Government’s observations in the present case.

42. On 23 July 2012 the applicant’s mother challenged the decision of 25 October 2010 before the District Court.

43. At the time of the most recent communication from the applicant the proceedings before the District Court were pending.

II. RELEVANT DOMESTIC LAW

44. Article 97 and other relevant provisions of the Code of Criminal Procedure of 28 December 1960 concerning pre-investigation enquiries can be found in the judgment in the case of Kaverzin v. Ukraine (no. 23893/03, § 45, 15 May 2012). The Code of Criminal Procedure of 28 December 1960 was in force at the material time and was repealed with effect from 19 November 2012.

45. The relevant provisions of the Police Act of 20 December 1990 concerning the use of force and handcuffs by the police can be found in the judgment in the case of Gordiyenko v. Ukraine, (no. 27620/09, §§ 65 and 66, 16 October 2014).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

46. The applicant complained that he had been ill-treated by police officers. He further complained that the domestic authorities had failed to investigate his allegations of ill-treatment effectively. He referred to Articles 3 and 13 of the Convention.

47. The Court, which is master of the characterisation to be given in law to the facts of the case, finds that the above complaints fall to be examined solely under Article 3 of the Convention under its substantive and procedural limbs (see, for example, Adnaralov v. Ukraine, no. 10493/12, § 36, 27 November 2014), which reads as follows:

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

A. Alleged ill-treatment of the applicant

1. Admissibility

48. The Government submitted that the applicant’s allegation that he had been beaten on 16 May 2008 was unfounded and his version of events was not supported by any evidence. The Government contested the applicant’s allegations of ill-treatment, arguing that they were inconsistent.

49. The Government stressed that paramedic F. had found no signs of injury on the applicant when she had examined him at the police station on 16 May 2008. The applicant’s mother, who had been present, had not complained about the quality of this examination. Neither paramedic F. nor, later that night, forensic expert A.P. had recorded the extensive injuries, in particular on the applicant’s face and hands, which he was alleged to have had when he had met his mother at the police station.

50. As to the bruise on the applicant’s wrist, it could be explained by the applicant’s handcuffing, which has been lawful under the Police Act. As to the other injuries recorded by forensic expert A.P., they could have been inflicted between 11.40 p.m. on 16 May 2008, that is to say when the applicant was examined by paramedic F., and 00.47 a.m. on 17 May 2008, when the applicant was examined by expert A.P. None of the medical opinions had identified the time when the haematomas recorded by A.P. had been inflicted, and therefore they could have been inflicted before the applicant’s arrest. As to the injuries recorded at the hospital on 17 May 2008 and in subsequent medical documentation, they could not serve as evidence that the applicant had suffered injuries while under the control of police officers.

51. The Government maintained that the material in the instant case did not provide an evidentiary basis sufficient to enable the Court to find “beyond reasonable doubt” that the applicant was subjected to the alleged ill-treatment.

52. The applicant insisted that his complaint was admissible.

53. The Court notes that the complaint of ill-treatment raises serious issues requiring an examination of the merits. Therefore, contrary to the Government’s submissions, the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It is not inadmissible on any other grounds. It must therefore be declared admissible.

2. Merits

(a) The parties’ submissions

54. The applicant submitted that the fact of his ill-treatment was sufficiently corroborated by the available evidence, in particular the medical evidence of injuries recorded after the applicant had left police custody. The domestic authorities had failed to provide any plausible explanation for his injuries. The applicant further argued that the ill-treatment he had suffered amounted to torture, in particular in view of his young age at the time, the prolonged and intentional nature of ill-treatment, and the fact that he had been subjected to humiliating acts and to “Palestinian hanging”.

55. The Government did not make any submissions on the merits of this complaint.

(b) Court’s assessment

(i) General principles

56. The Court reiterates that Article 3 of the Convention enshrines one of the most fundamental values of a democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim’s behaviour (see Kudła v. Poland [GC], no. 30210/96, § 90, ECHR 2000-XI).

57. In accordance with the Court’s case-law, Article 3 does not prohibit the use of force for the purposes of effecting an arrest. However, such force may be used only if indispensable and must not be excessive (see, for example, Ivan Vasilev v. Bulgaria, no. 48130/99, § 63, 12 April 2007).

58. In assessing evidence, the Court has adopted the standard of proof “beyond reasonable doubt”. According to its established case-law, proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Furthermore, it is to be recalled that Convention proceedings do not in all cases lend themselves to a strict application of the principle affirmanti incumbit probatio. Where the events in issue lie 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 and death occurring during that detention. The burden of proof in such a case may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, §§ 151 and 152, ECHR 2012, with further case-law references).

59. As to the burden of proof in cases of alleged ill-treatment during arrest, it is incumbent on the State to provide a plausible explanation of how the injuries were caused and to show that the use of force was not excessive, failing which a clear issue arises under Article 3 of the Convention. In determining whether there was a plausible explanation for the use of force and resulting injuries, attention should be paid to the adequacy of the domestic investigations carried out in respect of the allegations of ill-treatment (see, for example, Gordiyenko v. Ukraine, cited above, §§ 100 and 101).

(ii) Application of the above principles to the present case

(α) Whether the applicant sustained injuries in police custody

60. Turning to the present case, the Court observes that there is no evidence as to the applicant’s condition prior to his encounter with the police. In particular, there is nothing in the case file which would indicate that the applicant had any injuries prior to that encounter. The Court further notes that no medical examination of the applicant was performed upon his arrival at the police station. However, the medical expert documented certain injuries on the applicant’s body at 00.47 a.m. on 17 May 2008, within about an hour of his release from the police station.

61. In attempting to establish that the applicant had no injuries when he left police custody, the Government relied, in particular, on the report of the paramedic who examined the applicant immediately prior to his release from the police station. The paramedic did not record any injuries on the applicant’s body and stated that nothing abnormal was detected.

62. The Court notes, however, that the scope of the medical examination on that occasion must have been quite limited. It did not have as its aim documentation of the applicant’s injuries, but rather provision of emergency medical aid. As no such need might have been manifest at the time, the scope of the paramedic’s examination and her report were likely to have been limited to medical matters within her purview rather than documentation of all of the applicant’s injuries. The general formula she employed in her report (see paragraph 11 above) appears to support the conclusion that she limited her examination to the question of whether the applicant needed urgent medical help (compare with Gerashchenko v. Ukraine, no. 20602/05, § 84, 7 November 2013; Karabet and Others v. Ukraine, nos. 38906/07 and 52025/07, § 266, 17 January 2013; and Kobets v. Ukraine, no. 16437/04, § 47, 14 February 2008).

63. The Court observes, furthermore, that the same night, about an hour after the applicant left the police station, the forensic medical expert who examined the applicant with the specific purpose of documenting any possible injuries noted certain injuries on the applicant’s neck, shoulder and wrist. On that occasion the applicant referred to the use of force by the police in the course of his arrest and the expert was of the opinion that the injuries observed could have been inflicted under the circumstances described by the applicant. Neither of the parties cited any reasons for questioning the accuracy of this report.

64. The Government raised the possibility that the injuries recorded by the expert at 00.47 a.m. on 17 May 2008 could have been inflicted prior to the applicant’s arrest. However, none of the witnesses to the applicant’s arrest, including the police officers, indicated that the applicant had had any injuries before he encountered the police. Moreover, in the course of the domestic investigation the authorities insisted, on the contrary, that the injuries documented at 00.47 a.m. on 17 May 2008 were consistent with the police officers’ accounts of the applicant’s arrest and handcuffing (see paragraphs 21 and 38 above). Accordingly, the Court cannot accept the Government’s assertion as plausible (see Danilov v. Ukraine, no. 2585/06, § 64, 13 March 2014).

65. The Court also notes the Government’s argument that the applicant’s injuries, other than the bruise on his wrist, might have been caused in the period of time between about 11.40 p.m. on 16 May 2008 and about 00.47 a.m. on 17 May 2008, that is to say during the period when the applicant was at liberty. However, the Court observes that the Government did not explain how this might have occurred. In the absence of such an explanation and of any evidence to support the Government’s argument, the Court does not consider the argument plausible for the following reasons: According to the uncontested findings of domestic authorities, the applicant went straight from the police station to the Regional Directorate, where he arrived within about an hour, and there was no suggestion that any detour was made; moreover, officer O.D. followed the car in which the applicant was travelling on that occasion, was able to observe the applicant both at the police station and at the Regional Directorate, and yet signalled no change in the applicant’s appearance or the appearance of any new injuries on the applicant.

66. Having regard to all material before it, the Court considers it established that the applicant sustained haematomas on his neck and shoulder and a bruise on his wrist after his encounter with the police on 16 May 2008 and before he left police custody on that day.

(β) Explanation for the applicant’s injuries

67. In these circumstances the burden rests on the Government to provide a satisfactory and convincing explanation for the applicant’s injuries.

68. According to the Government, the applicant attempted to flee after the police had begun to draw up a report documenting his search. The applicant was then handcuffed.

69. The Court observes, however, that the applicant’s handcuffing could only explain the bruise on the applicant’s wrist. As to the other injuries, namely the haematomas on the applicant’s neck and shoulder, no specific explanation was ever provided by the authorities.

70. In these circumstances, and given that the burden lies with the State to provide a plausible explanation for injuries sustained by a person under the control of the police, the Court concludes that the Government have not satisfactorily established that the injuries sustained by the applicant were caused other than by ill-treatment on the part of the police.

71. The Court observes that in the present case there is no conclusive evidence concerning the circumstances in which the applicant was injured and in particular concerning the exact nature and degree of force used against the applicant. Nonetheless, the Court considers it established, given the above considerations, that the police bear the responsibility for the applicant’s injuries. This finding alone is sufficient for the Court to find a breach of Article 3 of the Convention, regardless of whether the applicant’s injuries were inflicted during his arrest or also during his subsequent questioning at the police station (see Kaverzin, cited above, § 120, and Sylenok and Tekhnoservis-Plus v. Ukraine, no. 20988/02, §§ 69 and 70, 9 December 2010). However, there are no elements in the case file which would enable the Court to find “beyond reasonable doubt” that the treatment the applicant suffered reached the level of “torture”.

72. For these reasons the Court finds it established that the applicant was subjected to ill-treatment for which the State must be held responsible and which must be classified as inhuman and degrading.

73. There has, therefore, been a violation of Article 3 under its substantive limb.

B. Effectiveness of the investigation

1. Admissibility

74. 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.

2. Merits

(a) The parties’ submissions

75. The applicant maintained that the domestic investigation into his allegations of ill-treatment had been ineffective, citing the prosecutors’ repeated refusals to initiate criminal proceedings and to remedy the defects identified by domestic courts.

76. The Government submitted that the domestic investigation complied with the requirements of Article 3. The prosecutor’s office which had dealt with the applicant’s complaint had been independent of the police. The authorities had taken all the necessary measures to establish the exact time when the applicant’s injuries had been caused, questioning a number of witnesses, including the applicant, the police officers, the witnesses to his arrest and medical specialists who had examined the applicant. The Government argued that the repeated decisions of the domestic courts to remit the materials for additional inquiry demonstrated the authorities’ will to conduct a complete and thorough investigation.

(b) The Court’s assessment

77. The Court reiterates that where an individual makes a credible assertion that he has suffered treatment infringing Article 3 at the hands of the police or other similar agents of the State, that provision, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention”, requires by implication that there should be an effective official investigation. As with an investigation under Article 2, such investigation should be capable of leading to the identification and punishment of those responsible (see Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000-IV).

78. Any investigation into serious allegations of ill-treatment must be both prompt and thorough. That means that the authorities must always make a serious attempt to find out what has happened and should not rely on hasty or ill-founded conclusions to close their investigation or to use as the basis for their decisions. They must take all reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony and forensic evidence. Any deficiency in the investigation which undermines its ability to establish the cause of injuries or the identity of the persons responsible will risk falling foul of this standard (see, for example, El-Masri, cited above, § 183).

79. As to the present case, the Court notes that the applicant and his mother lodged complaints about the applicant’s alleged ill-treatment a few hours after the alleged events. Moreover, several injuries were found on the applicant shortly after his release from police custody. The Court considers that in such circumstances the domestic authorities were under an obligation to carry out an effective investigation of the facts alleged by the applicant and his mother.

80. The domestic authorities initially took steps to verify the applicant’s allegations of ill-treatment and gathered a substantial amount of evidence to this end. Nevertheless, the applicant’s requests for the institution of criminal proceedings against the police officers were rejected on six occasions. Five of these refusals were subsequently set aside by domestic courts on the grounds that the prosecutor’s office had failed to establish the origin of the applicant’s injuries recorded at 00.47 a.m. on 17 May 2008, and then to take steps to resolve the contradictions in the evidence identified in the course of the pre-investigation enquiries.

81. In this respect the Court notes that the prosecutor’s office examined the complaints concerning the applicant’s alleged ill-treatment by means of repeated rounds of pre-investigation enquiries and no full-scale criminal investigation was ever initiated. This was true both for the complaint lodged by the applicant’s mother with the prosecutor’s office and for his complaint made to the trial court which examined the criminal case against him.

82. However, the Court has previously held in various contexts that this investigative procedure does not comply with the principles of an effective remedy, in particular because the enquiring officer can take only a limited number of procedural steps within that procedure (see, for example, Davydov and Others v. Ukraine, nos. 17674/02 and 39081/02, §§ 310-12, 1 July 2010; Savitskyy v. Ukraine, no. 38773/05, § 105, 26 July 2012; and Yevgeniy Petrenko v. Ukraine, no. 55749/08, § 67, 29 January 2015).

83. The Court observes that the shortcomings of this procedure manifested themselves in the particular circumstances of this case and were in fact evident to the domestic court. The repeated rulings issued by the District Court since 27 November 2009 required the prosecutor’s office to seek to resolve the contradictions in the collected evidence. In particular, in its ruling of 27 November 2009 the District Court stated that the contradictions could be resolved by way of a confrontation between the police officers and the applicant and a reconstruction of the events, investigative steps which could not be taken without the institution of criminal proceedings. However, the prosecutor’s office did not take the measures indicated by the domestic court. It is particularly notable in this respect that in its decisions not to institute criminal proceedings the prosecutor’s office explicitly acknowledged that such measures had not been taken because the investigative procedure chosen by them, the pre-investigation enquiries, did not allow for this (see paragraphs 38 and 34 above).

84. As a result, after repeated rounds of pre-investigation enquiries the contradictions between the applicant’s and the police officers’ versions of events were not resolved, even though domestic courts had identified specific investigative steps which could have been taken to resolve them.

85. Moreover, it appears that the domestic authorities took no investigative steps whatsoever between 12 August 2008 and 16 February 2009 and between 30 March 2009 and 22 October 2009, when the prosecutor’s office repeatedly refused to institute criminal proceedings against the police officers after previous such decisions had been set aside by the domestic court. In doing so, the domestic authorities failed to take any steps to comply with the domestic courts’ instructions.

86. Finally, it is also notable that on 21 May 2008 and 18 October 2010 the MDPO requested reports of medical specialists on the questions related to the applicant’s injuries but then decided to refuse to institute criminal proceedings against the police officers on 6 June 2008 and 25 October 2010, without waiting for the reports requested. No explanation was provided as to why the authorities, having believed the experts’ reports important to their enquiries, had not waited for them to be completed before deciding not to institute criminal proceedings. There is no indication that the authorities were guided in these decisions by any unexpected delays in the preparation of the reports or by any other relevant considerations. For the Court, this indicates that the authorities relied on hasty conclusions in refusing to institute criminal proceedings (compare with Drozd v. Ukraine, no. 12174/03, § 67, 30 July 2009; Gordiyenko, cited above, §§ 95-96; and A.N. v. Ukraine, no. 13837/09, § 68, 29 January 2015).

87. In the above circumstances the Court concludes that the domestic authorities did not ensure an effective investigation into the applicant’s allegations of ill-treatment.

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

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

89. 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

90. The applicant claimed 50,000 euros (EUR) in respect of non-pecuniary damage.

91. The Government considered that the claim was excessive.

92. The Court considers that the applicant must have suffered distress and anxiety on account of the violation found. Ruling on an equitable basis, as required by Article 41 of the Convention, it awards the applicant EUR 8,000 in respect of non-pecuniary damage.

B. Costs and expenses

93. The applicant also claimed 70,306.40 Ukrainian hryvnias for costs and expenses incurred before the Court, to be paid into the bank account of his representative.

94. The Government argued that the applicant had not substantiated all of the claimed expenses and that the claimed amount was excessive.

95. 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 are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 5,200 covering costs for the proceedings before the Court. This award is to be transferred into the bank account of the applicant’s representative.

C. Default interest

96. 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 application admissible;

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

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

4. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 8,000 (eight thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 5,200 (five thousand two hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be transferred directly to the bank account of the applicant’s representative;

(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;

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

Done in English, and notified in writing on 23 July 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Claudia Westerdiek Mark Villiger
Registrar President

	[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> SERIKOV v. UKRAINE - 42164/09 - Chamber Judgment [2015] ECHR 739 (23 Jul 2015) URL: http://www.bailii.org/eu/cases/ECHR/2015/739.html Cite as: [2015] ECHR 739