KAPUSTYAK v. UKRAINE - 26230/11 (Judgment (Merits and Just Satisfaction) : Court (Fifth Section)) [2016] ECHR 245 (03 March 2016)

In the case of Kapustyak v. Ukraine,

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

          Angelika Nußberger, President,
          Ganna Yudkivska,
          André Potocki,
          Faris Vehabović,
          Síofra O’Leary,
          Carlo Ranzoni,
          Mārtiņš Mits, judges,
and Claudia Westerdiek, Section Registrar,

Having deliberated in private on 9 February 2016,

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

PROCEDURE

1. The case originated in an application (no. 26230/11) 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 Petr Petrovich Kapustyak (“the applicant”), on 20 April 2011.

2. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr B. Babin, of the Ministry of Justice.

3. The applicant alleged, in particular, that he had been subjected to ill-treatment by the police, that his complaints in this respect had not been duly investigated and that he had not had a fair trial because the domestic courts had refused to call a number of witnesses.

4. On 1 December 2014 the above complaints were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1982 and is currently detained in Gorodyshche prison.

A. Events of 30 November 2008 and their aftermath

6. On 30 November 2008 the applicant, Mr A.S. and Mr V.S. broke into the home of Mr N., a local businessman, which was located in the Pustomyty District. The applicant had four prior convictions for theft, burglary, robbery and carjacking. According to the findings of the domestic court that subsequently convicted the applicant, Mr N. had fought with the intruders and, unable to overcome his resistance otherwise, they had stabbed him to death. As a result of the attack Ms P., N.’s wife, sustained injuries of medium severity. Numerous valuables and documents were stolen, including some jewelry, a reserve officer’s card belonging to N. and certificates showing his achievements in sports.

7. On 1 December 2008 the Pustomyty District police instituted criminal proceedings in connection with the incident.

8. On 5 December 2008 V.S. was arrested and questioned. He stated that the applicant had stabbed N. in the course of the burglary. V.S. had hit Ms P., who had tried to come to N.’s rescue.

B. The applicant’s arrest and the pre-trial investigation

9. At around 9 p.m. on 5 December 2008 I.Kot., V.Ye., I.G. and R.D., detectives from the Lviv Regional Police, located the applicant in Chervonograd and apprehended him in the street. According to the subsequent submissions of the applicant and the detectives to the domestic authorities, the applicant attempted to flee; in order to stop him from fleeing the detectives tripped him up, he fell on the asphalt pavement and was then handcuffed. According to the applicant, after he had been handcuffed the police officers continued to hit and kick him.

10. The applicant also claimed that following his arrest he had been ill-treated by the police in order to extract his confession.

11. At 10.30 a.m. on 6 December 2008 an arrest report was drawn up by the Pustomyty Police. According to a document provided by the Government, at the same time the applicant was admitted to the Lviv temporary detention facility (ізолятор тимчасового тримання, “the ITT”).

12. On the same day an investigator, K., asked a forensic medical expert to record any injuries on the applicant’s body and to provide an expert opinion as to when and how they had been inflicted.

13. On the same day the forensic medical expert, G. (referred to as Mr H. by the Government), issued a report stating that the applicant had the following injuries: a bruise on his forehead and, overlapping it, four long, deep, vertical parallel scratches; bruises on the bridge of his nose, his chin, wrists and neck; nine small bruises on the fingers of his right hand; and swelling of the back of his right hand. The bruises on his wrists were soft and pink in colour. The other bruises were covered in dry scabs. The expert classified the injuries as minor and expressed the opinion that they could have been inflicted on 30 November 2008. According to the report, the applicant explained to the expert that he had injured his face and hands when he fell trying to run away from the police.

14. At 2.30 p.m. on the same day K., the investigator from the Pustomyty Police, questioned the applicant as a suspect. The applicant stated that on 29 November 2008 he had agreed with V.S.’s proposal to burgle Mr N.’s home. The applicant had not taken a knife with him and had not seen V.S. or A.S. do so. Once they had broken into the house, the applicant switched off the television set N. had been watching, while V.S. and A.S. started punching N. Hearing N.’s screams, P. tried to enter the room, and the applicant hit and kicked her. Afterwards the applicant kicked N. three or four times. While the others continued hitting N., the applicant started looking for money, then took a knife from V.S. and cut some paintings out of their frames. He also took other valuables from the house.

15. At 9.22 p.m. on the same day, following the applicant’s complaint about his health, an ambulance was called to the ITT for the applicant. The ambulance staff noted that the applicant had bruises on his face and right hand, and was suffering from concussion, hypertension and an oedema.

16. On 8 December 2008 the applicant was charged with aggravated burglary and infliction of grievous bodily harm resulting in the death of the victim. Questioned on the same day as an accused, the applicant confirmed the account of events he had given on 6 December 2008 and added that he had seen V.S. hitting N. but not stabbing him. The applicant reiterated that he had not stabbed N. and had had no intention of murdering him. He had used the knife to cut paintings out of their frames. Prior to the burglary V.S. had promised that he would take it upon himself to force N. to give up the money.

17. On 9 December 2008 the applicant was examined by medical staff on his admission to the Lviv pre-trial detention centre (слідчий ізолятор, hereinafter “the SIZO”). According to a certificate issued by the SIZO on 20 January 2015, the applicant did not raise any complaints during that examination.

18. In the period from 5 February to 8 July 2009 the police took the applicant from the SIZO at least eight times in order to carry out investigative measures with him.

19. On 6 February 2009 Mr Ch. was appointed as the applicant’s defence counsel. On the same day the applicant was questioned in Ch.’s presence. The applicant confirmed the account of events he had given on 6 and 8 December 2008, including the statement that at N.’s house he had used the knife to cut paintings out of their frames, and added that there had been no plan to murder N. but simply to burgle his house. When he and his co-defendants had learned that N. would be home, the plan had been simply to tie him up.

20. According to the Government, on 6 February 2009 the applicant was familiarised with the medical expert’s report of 6 December 2008 and made no comments or requests.

21. On 18 March 2009, having examined the applicant as an inpatient, a panel of psychiatric experts issued a report concluding that the applicant was not suffering from a mental illness. In discussing the applicant’s mental health history the experts noted that in October 2008 he had been involved in a fight, suffered a blow to the head and had received outpatient treatment for the injury. On 17 April 2009 the applicant and his lawyer signed a statement confirming that they had examined the report and had no comments or requests to make.

22. On 7 May 2009 the applicant was questioned again in the presence of his lawyer. He reiterated his earlier statement. In the course of the questioning the investigator asked the applicant why he had not initially joined his co-defendants in attacking N. The applicant refused to answer.

23. In the course of the pre-trial investigation A.S. stated that it had been the applicant who had stabbed N. In the course of a confrontation between the applicant and A.S., the latter reaffirmed his statement. The applicant denied A.S.’s allegations but refused to testify.

24. P. stated that it had been V.S., and not the applicant, who had attacked and hit her.

25. Ms I.M. stated that on 1 December 2008 the applicant had given her a mobile phone and a silver chain which he had stolen from N. and P.

C. Trial

26. On 30 July 2009 the case against the applicant and his co-defendants, A.S. and V.S., was sent for trial to the Lviv Regional Court of Appeal (“the Court of Appeal”), sitting as a trial court.

27. On 16 November 2009 the trial court informed the applicant that the question of whether an additional psychiatric examination should be ordered would be examined in the course of the trial.

28. The applicant pleaded guilty to the charge of theft of documents, guilty in part to the charge of aggravated burglary, and not guilty to the charge of murder. He refused to testify at length, but in response to a question stated that he had used a knife to cut the paintings out of their frames at the victims’ house. V.S. pleaded guilty to the charge of aggravated burglary and A.S. pleaded guilty to that charge in part. They largely reiterated the statements they had given during the pre-trial investigation concerning the applicant’s role in the crime, in particular stating that they had not stabbed N. and had seen the applicant, knife in hand and covered in blood, lead N., also covered in blood, to a safe to extract N.’s money. V.K. also stated that the applicant had told him that he had stabbed N.

29. Ms M.M. and Ms A.V. testified that late on the night of the murder the defendants had left the house where they had been staying together. A.S. had been carrying a knife. The defendants had then returned with various objects, including paintings and documents. M.M. testified that she had seen blood on the applicant’s clothes when he returned that night. A.V. also testified that when the applicant had returned, he had given her his clothes and had instructed her to burn them. However, she had left the clothes in the house.

30. Two other witnesses testified that on 5 December 2008 they had witnessed the owner of the house in question handing over to the police a bag of clothes which had been left there by the defendants. According to DNA expert reports, the applicant’s hair and blood possibly originating from the victims were found on the clothes in the bag.

31. On 11 March 2010 the applicant asked the trial court to call G., the medical expert, as a witness, on the grounds that in her report of 6 December 2008 she had failed to specify exactly when the injuries had been inflicted on the applicant. In support of his request he stated that he had been ill-treated in the course of and following his arrest. The applicant also asked for I.Ku., an investigator from the Pustomyty Police to be called as a witness, arguing that his statements during the pre-trial investigation were untrue and had been dictated to him and given under pressure. He also asked for police detectives I.Kot., V.Ye., I.G. and R.M. of the Lviv Regional Police to be called as witnesses, arguing that they had ill-treated him in the course of arrest and in the course of his initial interrogation, causing the injuries recorded in the medical expert’s report of 6 December 2008. The trial court refused those requests. According to the Government, the grounds for the refusal were that the trial court had in its possession the transcripts of the interviews with the police officers in question conducted during the pre-trial investigation. Moreover, the trial court considered that the applicant’s allegations of ill-treatment had already been examined within the framework of pre-investigation enquiries, in the course of which no corroboration of the applicant’s allegations had been found.

32. On 25 March 2010 the trial court convicted all three applicants of murder, of aggravated burglary, and of theft of documents. In respect of the conviction for murder the applicant was sentenced to life imprisonment with confiscation of all of his property, V.S. to thirteen years’ and A.S. to twelve years’ imprisonment. Additional prison sentences were imposed in respect of the other charges but because of the sentencing rules, the overall sentences imposed were the same as the sentences for murder.

33. The court found it established that the applicant and his two co-defendants, A.S. and V.S., had committed aggravated burglary of Mr N. and Ms P. While it was the applicant who had stabbed N. to death, all the defendants had used violence against N. to overcome his resistance and so were guilty of his murder. As evidence of the applicant’s guilt the court referred to the testimony of the co-defendants, of Ms P., Ms I.M., Ms M.M., Ms A.V. (see paragraphs 24, 25 and 29 above), and of a number of other witnesses who had described how the defendants had disposed of their clothing and of the objects taken from the victims’ house. The court also relied on physical and expert evidence. In reaching its finding that it had been the applicant who had stabbed N., the court referred to the testimony of his co-defendants, noting that it was consistent with P.’s testimony to the extent that all three had testified, contrary to the applicant, that it was V.S., and not the applicant, who had attacked P. The court also referred to the DNA expert evidence which had found blood, possibly originating from N., on the trousers worn by the applicant on the night of the murder and seized by the police at the house where the applicant had left them. The court also referred to the applicant’s admission during the pre-trial investigation that he had used the knife, that is the murder weapon, to cut paintings out of their frames.

34. On 18 January 2011 the Supreme Court upheld the applicant’s conviction and mitigated his sentence to fifteen years’ imprisonment.

D. Investigation into the applicant’s allegations of ill-treatment

1. Pre-investigation enquiries under the Code of Criminal Procedure of 1960

35. On 12 July 2009 the applicant wrote to the head of the Security Service of Ukraine in the Lviv Region complaining that he had been ill-treated in the course of his arrest and afterwards by the police. In particular, he stated that on the day of his arrest he had been going to a meeting with a certain Ms Z. when he had been approached by a stranger, who had turned out to be a police officer. Thinking that the stranger was trying to steal his phone, the applicant started running away. However, other officers tripped him up. He fell and the officers started kicking and punching him. The police officers continued to kick him once he was in their car and subsequently, in the place to which he was taken after his arrest.

36. On 24 July 2009 the Chervonograd prosecutor’s office and on 27 August 2009 the Pustomyty prosecutor’s office refused to institute criminal proceedings in connection with the applicant’s complaint.

37. On 26 February 2010 the Lviv regional prosecutor’s office (“the LRPO”) quashed the decisions of 24 July and 27 August 2009 and remitted the case to the Chervonograd and Pustomyty prosecutors for further examination. The LRPO concluded that the pre-investigation enquiries had been incomplete. The LRPO indicated that the Chervonograd prosecutor’s office should undertake a number of additional measures to establish the circumstances of the incident, most notably: (i) interview Ms Z. whom the applicant had been going to meet when he had been arrested; (ii) identify the ambulance staff who had visited the applicant on 6 December 2008 and interview them; (iii) interview the forensic medical expert to find out whether the injuries observed by the expert on the applicant on 6 December 2008 were consistent with the applicant’s allegations of ill-treatment.

38. On 26 March 2010 the Chervonograd prosecutor’s office again refused to institute criminal proceedings against detectives I.Kot., V.Ye., I.G., R.M. of the Lviv Regional Police. The decision was based on the statements of the police detectives and the expert report of 6 December 2010. The detectives had stated that they had tripped up the applicant while he had been attempting to escape. The prosecutor’s office concluded that that fall explained the applicant’s injuries. On 28 March 2012 the Chervonograd Court upheld that decision, rejecting as unsubstantiated the applicant’s argument that his injuries had resulted from ill-treatment.

39. On 31 March 2010 the Pustomyty prosecutor’s office refused to institute criminal proceedings against the investigator I.Ku. and two other officers of the Pustomyty Police. The decision was based on the interviews with the officers. The prosecutor’s office also referred to the ITT records and an unspecified forensic medical expert report, according to which the applicant had had no injuries at the relevant time. The applicant was informed of that decision on 5 May 2011.

40. On an unspecified date the decision of 31 March 2010 was overruled.

41. On 18 May 2012 the Pustomyty prosecutor’s office again refused to institute criminal proceedings against the police officers of the Pustomyty Police and of the Lviv Regional Police for lack of corpus delicti in their actions. The decision was based on the statements of the officers, who had denied the applicant’s allegations.

42. On 20 June 2013 the Pustomyty District Court quashed the decision of 18 May 2012. The court found numerous omissions in the pre-investigation inquiry, in particular that the authorities had failed to explore under what circumstances an ambulance had been called for the applicant while he had been in the ITT; they had also failed to examine the records from the facilities where the applicant had been detained.

2. Investigation under the Code of Criminal Procedure of 2012

43. On 19 November 2012 a new Code of Criminal Procedure came into force. Under the new Code an investigation is commenced by creating an entry in the Unified Register of Pre-Trial Investigations (“the Register of Investigations”) (see paragraph 51 below).

44. On 15 March 2013 the Chervonograd Court granted the applicant’s claim and ordered the Chervonograd prosecutor’s office to create an entry in the Register of Investigations in order to investigate the applicant’s allegations of ill-treatment.

45. On 20 March 2013 the entry was created.

46. On 21 March 2013 the Chervonograd prosecutor’s office decided to discontinue the investigation. On an unspecified date the Chervonograd Court overruled that decision.

47. On 2 July 2013 the Chervonograd prosecutor’s office reopened the investigation and the applicant was questioned. He insisted that he had been ill-treated by police detectives I.Kot., V.Ye., I.G. and R.M. in the course of his arrest and on the way to the Pustomyty police station, where his arrest had been recorded. The police detectives were interviewed and denied any ill-treatment, insisting that the applicant had been injured when he had fallen while trying to flee.

48. On 24 September 2013 the Chervonograd prosecutor’s office decided to discontinue the investigation for lack of corpus delicti in the actions of detectives I.Kot., V.Ye, I.G. and R.M. The decision referred to an earlier decision of July 2009 to refuse to institute criminal proceedings, according to which the applicant had fallen while trying to flee from the police. As a result, he had sustained concussion and bruises. The decision also referred to a number of pieces of evidence supporting that version of events, most notably the statements of the police officers and the medical expert’s report of 6 December 2008.

49. The decision of 24 September 2013 was upheld by the Chervonograd Court on 7 February 2014 and by the Court of Appeal on 11 March 2014.

II. RELEVANT DOMESTIC LAW AND PRACTICE

50. The provisions of the Code of Criminal Procedure of 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).

51. The Code of Criminal Procedure of 28 December 1960 was repealed with effect from 19 November 2012 when the new Code of Criminal Procedure of 2012 came into force. The new Code abolished the stage of pre-investigation enquiries. The relevant provisions of the new Code can be found in the decision Nagorskiy v. Ukraine (no. 37794/14, § 38, 4 February 2016).

THE LAW

I. SCOPE OF THE CASE

52. In his reply to the Government’s observations, the applicant submitted new complaints. He alleged that the conditions of his detention in the prisons where he had been held in the period after his conviction and until its review by the Supreme Court and in 2012 had been unacceptable. He further complained that the domestic courts had extended his pre-trial detention in his absence and had failed to provide him with copies of relevant orders. He also alleged that in 2010 the detention facility administration had interfered with his correspondence with his lawyer concerning his complaint against the police. The Court notes that these new, belated complaints are not an elaboration of the applicant’s original complaints, on which the parties have commented. The Court considers, therefore, that it is not appropriate now to take up these matters in the context of the present case (see Khomullo v. Ukraine, no. 47593/10, § 40, 27 November 2014).

II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

53. The applicant complained that he had been ill-treated by the police and that there had been no effective investigation of his complaint in this respect. 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. The parties’ submissions

54. The Government submitted that the applicant had tried to run away from the police and had fallen on the asphalt pavement. In view of his conduct, the applicant had been handcuffed. The applicant had not voiced any complaints either to the medical staff at the ITT or to the medical expert who had examined him on 6 December 2009. Nor had he complained to the SIZO medical staff upon admission to the SIZO on 9 December 2008, even though from that time on, he had no longer been under the control of the police and had had no reason to fear reprisals. The medical expert had noted that the injuries she had observed on the applicant on 6 December 2009 could have been inflicted on 30 November 2008. Moreover, in view of the results of the psychiatric examination, which the applicant had undergone during the pre-trial investigation, he could well have suffered the concussion before his arrest. The applicant and his defence counsel, having examined the medical expert’s report of 6 December 2009 and the results of the psychiatric examination of 18 March 2009, had not raised any objections. The Government also questioned the applicant’s allegation that the supposed reason for the alleged ill-treatment had been to extract a confession from him. They submitted that in the course of his trial, the applicant had never altered his account of the events at the victims’ house which he had originally given to the police on 6 December 2008. In view of these considerations, the Government maintained that the applicant’s complaint under the substantive limb of Article 3 was manifestly ill-founded.

55. Concerning the procedural limb of Article 3, the Government submitted that the investigation had been effective and there had been no violation of this aspect of Article 3. They submitted in particular that the prosecution authorities had conducted enquiries into the applicant’s allegations, in the course of which they had had regard to the results of the medical examination of 6 December 2008, and had interviewed the police officers concerned and the applicant. The police officers had not disputed the fact that they had tripped up the applicant, as a result of which he had fallen on the asphalt, and used handcuffs to prevent his escape. The Government submitted that the overruling of refusals to institute criminal proceedings and the fact that the case had been remitted for further investigation showed the authorities’ willingness to investigate the incident effectively.

56. The applicant maintained his complaint. He stressed that there had been a gap between the time of his arrest and the time at which his arrest had been recorded which was unaccounted for. It was in that period of time that he had been ill-treated. Concerning the delay in raising his complaint, he submitted that even after he had been transferred from police custody to the SIZO he had continued to fear reprisals from the police because they had frequently taken him out of the SIZO and could have ill-treated him. For that reason, he had not started complaining of ill-treatment until the pre-trial investigation had been completed. He submitted that he had challenged the results of the medical and psychiatric expert examinations before the Court of Appeal but without success.

B. The Court’s assessment

1. Alleged ill-treatment

(a) Admissibility

57. The Court notes that the complaint of ill-treatment raises serious issues requiring an examination on 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 (compare Serikov v. Ukraine, no. 42164/09, § 53, 23 July 2015). It is not inadmissible on any other grounds. It must therefore be declared admissible.

(b) Merits

(i) General principles

58. 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).

59. When the police or other agents of the State, in confronting someone, have recourse to physical force which has not been made strictly necessary by the person’s own conduct, it diminishes human dignity and is an infringement of the right set forth in Article 3 of the Convention (see Kop v. Turkey, no. 12728/05, § 27, 20 October 2009, and Timtik v. Turkey, no. 12503/06, § 47, 9 November 2010).

60. 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).

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

61. Turning to the facts of the case, the Court considers that there is sufficient evidence (see paragraphs 13 and 15 above) that the applicant sustained injuries which were serious enough to fall within the ambit of Article 3. It remains to be considered whether the State should be held responsible under Article 3 for inflicting those injuries.

62. The Court observes that it is not disputed between the parties that the police officers used some force to arrest the applicant. The parties disagree, however, on whether the use of force against the applicant in the course of his arrest amounted to a breach of Article 3 and whether he was subjected to ill-treatment contrary to Article 3 after the arrest. Accordingly, the Court will examine two issues:

(i) whether the physical force used against the applicant in the course of his arrest was compatible with the requirements of Article 3 of the Convention;

(ii) whether the applicant was ill-treated after his arrest while in the hands of the police.

(α) Whether the physical force used against the applicant in the course of his arrest was compatible with the requirements of Article 3 of the Convention

63. The applicant, by his own admission, attempted to flee from the police, even though he sought to explain his escape attempt by a misunderstanding (see paragraph 35 above). This circumstance counts against the applicant, with the result that the burden on the Government to prove that the use of force was not excessive is less stringent (see, mutatis mutandis, Spinov v. Ukraine, no. 34331/03, § 49, 27 November 2008, and Berliński v. Poland, nos. 27715/95 and 30209/96, § 62, 20 June 2002).

64. While the applicant was arrested by four police officers, the Court does not consider that the number of police officers deployed excessively outnumbered him. Account should be taken of the fact that, in planning the applicant’s arrest, the police faced the task of arresting an individual wanted for aggravated burglary and murder (compare Zalevskiy v. Ukraine, no. 3466/09, § 67, 16 October 2014).

65. Against this background, the Court further notes that the cause of the applicant’s injuries was plausibly explained by the domestic authorities. They found that the injuries had been caused in the course of the applicant’s struggle with the victim on 30 November 2008 and when the applicant had fallen while trying to flee, had been restrained and handcuffed. Given that the applicant admitted that he had tried to run away from the police and had fallen as a result, it is plausible that some of the injuries could also have been sustained on that occasion. In particular, the applicant could have suffered the bruises on his face and body and the concussion when he was tripped up to prevent him from fleeing, fell on the asphalt pavement and was subsequently restrained by the police officers. The bruises on his wrists could have been caused by the handcuffs (compare Spinov, cited above, § 50).

66. Moreover, the medical evidence suggests also that some of the applicant’s injuries recorded on 6 December 2008 could have been caused by the victim, Mr N., who, according to the findings of the domestic authorities, had offered stiff resistance to his attackers (see paragraphs 6 and 33 above). It is relevant that on 6 December 2008 the medical expert observed scabbing on the applicant’s bruises and stated that they could have been inflicted on 30 November 2008. It would appear that the expert concluded, in light of the degree of scabbing, that at least some of the applicant’s injuries were relatively old and pre-dated the arrest (compare Göçmen v. Turkey, no. 72000/01, §§ 10, 11, 56, 17 October 2006).

67. The Court also notes the Government’s submissions that some of the applicant’s injuries could be explained by the blow to the head which the applicant suffered in October 2008 and which was recorded in the psychiatric experts’ report (see paragraph 21 above). However, given that this possibility was apparently not explored in the course of the domestic investigation, the Court does not consider it appropriate to examine it. In any event, as the Court concluded above, the applicant’s injuries can be sufficiently explained even without having to consider this possibility.

68. In the light of these circumstances the Court finds no reason to conclude that the recourse to physical force by the police was not made strictly necessary by the applicant’s own conduct. It was, therefore, compatible with the requirements of Article 3 of the Convention.

(β) Whether the applicant was ill-treated while in the hands of the police following his arrest

69. The Court is mindful of the fact that there was an unexplained gap of about thirteen hours between the actual arrest of the applicant on 5 December 2008 and the time at which his arrest was recorded on 6 December 2008. Some, but apparently not all, of this period was no doubt needed to transport the applicant from the place of his arrest in Chervonograd to Pustomyty, a distance of about 109 kilometres. The Court considers that in the present case the fact of unrecorded detention alone is not sufficient to support a finding that the applicant was ill-treated.

70. None of the documents submitted to the Court contains reliable information that the injuries observed on the applicant on 6 December 2008 had been inflicted while he had been in the hands of police following his arrest. The Court also reiterates its finding that there was a plausible explanation for those injuries.

71. Therefore, given all the information in its possession, the Court finds it impossible to establish “beyond reasonable doubt” that the applicant suffered ill-treatment while in the hands of the police following his arrest, as alleged by him.

(γ) Conclusion

72. There has, therefore, been no violation of the substantive limb of Article 3 of the Convention.

2. Effectiveness of the investigation

(a) Admissibility

73. 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

(i) General principles

74. 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. Such an 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).

75. 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 it 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).

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

76. The Court notes that substantial injuries were observed on the applicant on 6 December 2008, shortly after he had been arrested. It is true that the applicant waited until 12 July 2009, that is for more than seven months after the event, to complain that those injuries had been inflicted on him while in police custody. In this context the Court reiterates that in accordance with its case-law the scope of the obligation to apply promptly to the domestic authorities, which is part of the duty of diligence incumbent on the applicants, must be assessed in the light of the circumstances of the case (see, mutatis mutandis, Mocanu and Others v. Romania [GC], nos. 10865/09, 45886/07 and 32431/08, § 265, ECHR 2014 (extracts)). In this connection the Court observes that until 8 July 2009 the police had frequently taken the applicant from the SIZO to participate in various investigative measures (see paragraph 18 above). In view of this, the Court is willing to lend some credence to the applicant’s explanation that he feared reprisals from the police had he raised his complaint earlier.

77. In such circumstances the Court considers that once the applicant had raised his ill-treatment complaint, accompanied as it was by medical evidence of the injuries, the domestic authorities were under an obligation to carry out an effective investigation of the facts alleged by the applicant. While the applicant’s lack of expedition in lodging the complaint no doubt made the authorities’ task more difficult, it cannot alone explain the deficiencies of the investigation which followed (compare Drozd v. Ukraine, no. 12174/03, § 65, 30 July 2009).

78. The Court observes that once the applicant had raised his complaint, the authorities took five decisions not to institute criminal proceedings, four of which were overruled as premature. The Court has held on numerous previous occasions that the repetition of such decisions usually discloses a serious deficiency in the proceedings (see ibid., § 66).

79. Moreover, in overruling the initial decisions not to institute criminal proceedings on 26 February 2010, the Lviv regional prosecutor’s office identified a number of avenues of additional inquiry which should have been undertaken, most notably the need to interview the medical expert and the ambulance staff who had examined the applicant on 6 December 2008 (see paragraph 37 above).

80. It does not appear, however, that the investigating authorities followed those instructions, since the subsequent decisions not to institute criminal proceedings of 31 March 2010 and 18 May 2012 were based exclusively on the statements of the police officers. The police officers’ version of events prevailed and no effort was made to verify it through other means of inquiry (compare Kaverzin, cited above, § 175). It appears that the applicant was not interviewed until the full criminal investigation was opened on 20 March 2013, more than four years after the alleged events (compare Aleksandr Smirnov v. Ukraine, no. 38683/06, § 60, 15 July 2010). It appears, moreover, that the medical expert and the ambulance staff were never questioned, even after criminal proceedings were finally instituted on 20 March 2013.

81. It is evident, moreover, that the applicant experienced difficulties in accessing the investigation procedure. In particular, he was not informed about the decision of 31 March 2010 not to institute criminal proceedings until 5 May 2011, nearly eleven months later. No explanation was provided for that delay.

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

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

III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

84. The applicant complained, under Article 6 of the Convention, that despite his request, the medical expert G., the investigator I.Ku. of the Pustomyty Police and police detectives I.Kot., V.Ye., I.G. and R.M. of the Lviv Regional Police were not summoned as witnesses in the course of the trial.

85. As the requirements of Article 6 § 3 are to be seen as particular aspects of the right to a fair trial guaranteed by Article 6 § 1 (see, among many other authorities, Van Mechelen and Others v. the Netherlands, 23 April 1997, § 49, Reports of Judgments and Decisions 1997-III), the Court will examine this complaint under those two provisions taken together. The relevant parts read as follows:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...

...

3. Everyone charged with a criminal offence has the following minimum rights:

...

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him ...”

A. Admissibility

86. 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

87. The applicant maintained his complaint. He argued that the expert G.’s report did not fully correspond to the injuries he had, that the investigator I.Ku. and police detectives I.Kot., V.Ye., I.G. and R.M. had ill-treated him to force him to confess and that investigator I.Ku. had ‘falsified’ the record of his questioning of 6 December 2008.

88. The Government submitted that the medical expert G., whom the applicant had wanted to call as a witness, had answered all the questions put to her by the investigator. The applicant had examined her report during the pre-trial investigation but neither he nor his counsel had raised any objections. The Government argued that the expert would not have been in a position to give an opinion as to the exact timing of the injuries at the court hearing, more than a year and three months after the examination had been conducted. As to the applicant’s request to call the police officers as witnesses, the Government submitted that the applicant’s allegations had already been examined within the framework of pre-investigation enquiries. The officers had also been questioned during the pre-trial investigation and the court had had the transcripts of those interviews at its disposal and had read them out in the course of the trial. It was not up to the court to conduct its own investigation into the allegations of ill-treatment, but the court could refuse to take into account any evidence it considered inadmissible. The court’s refusal to call the witnesses indicated by the applicant had not, therefore, influenced the fairness of the proceedings. Accordingly, the Government maintained that there had been no violation of Article 6 §§ 1 and 3 (d).

2. The Court’s assessment

(a) General principles

89. The Court reiterates that the right to call witnesses is not absolute and can be limited in the interests of the proper administration of justice. Article 6 § 3 (d) does not require the attendance and examination of every witness on the accused’s behalf; its essential aim, as indicated by the words “under the same conditions”, is full equality of arms in the matter. The task of the European Court is to ascertain whether the proceedings in issue, considered as a whole, were fair (see Vidal v. Belgium, 25 March 1992, § 33, Series A no. 235-B). An applicant claiming a violation of his right to obtain the attendance and examination of a defence witness should show that the examination of that person was necessary for the establishment of the truth and that the refusal to call that witness was prejudicial to his defence rights (see Guilloury v. France, no. 62236/00, § 55, 22 June 2006). Although it is normally for the national courts to assess the evidence before them, as well as the relevance of the evidence which defendants seek to adduce, there might be exceptional circumstances which could prompt the Court to conclude that the failure to hear a person as a witness was incompatible with Article 6 (see Bricmont v. Belgium, 7 July 1989, § 89, Series A no. 158, and Destrehem v. France, no. 56651/00, § 41, 18 May 2004).

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

90. The Court notes that the applicant sought examination of a number of witnesses in an apparent attempt to corroborate his allegation that he had been ill-treated by the police to make him confess. While the testimony of the witnesses requested by the applicant could have shed light on the question of his possible ill-treatment, this testimony would have been relevant for the applicant’s trial had he made a confession to the police and the domestic courts had relied on it securing his conviction (compare Tarasov v. Ukraine, no. 17416/03, § 105, 31 October 2013), or if this testimony would be of other importance to his conviction (see, for example, Perna v. Italy [GC], no. 48898/99, §§ 28 and 29, ECHR 2003-V). However, for the following reasons the Court finds that this was not the case.

91. The Court observes, at the outset, that at no point in the proceedings did any of the defendants, including the applicant, deny their involvement in the burglary: they all pleaded guilty to the burglary charge. The disagreement between the defendants and between the prosecution and the applicant related solely to the role he played in the violent acts that led to N.’s death. The applicant consistently, from the first interview with the police, denied having played any role in those acts. His co-defendants, to the contrary, testified that it had been the applicant who had stabbed N.

92. The only element of the applicant’s pre-trial statements which touched on the issue of who stabbed N. was his admission, on 6 December 2008, later repeated during the trial, that he used the knife to cut the victims’ paintings out of their frames in order to steal them. While making this admission, the applicant always insisted that he had not stabbed N. and, indeed, had played a lesser role in attacking N. than his co-defendants. The applicant never retracted this early admission but rather reiterated it in the course of his trial. The admission was consistent with his position throughout the proceedings.

93. The Court finds, therefore, that the applicant made no confession to the police as to his involvement in stabbing of N. Moreover, it would appear that the applicant’s conviction had solid evidentiary basis other than the applicant’s own statements, most notably the statements of his co-defendants, the fact that the co-defendants’ statements corresponded with the surviving victim’s and not the applicant’s account, and the DNA expert evidence that the applicant’s clothing bore traces of blood possibly originating from N. (see paragraph 33 above).

94. In view of these considerations, the Court finds that any possible testimony of the witnesses the applicant wished to call could not have influenced the outcome of his trial (compare Dorokhov v. Russia, no. 66802/01, § 74, 14 February 2008).

95. Therefore, the Court concludes that the applicant did not demonstrate that the domestic court had failed to question any witness whose testimony would have affected the fairness of the proceedings as a whole against him.

96. It follows that there has been no violation of Article 6 §§ 1 and 3 (d) of the Convention.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

97. 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.”

98. The applicant did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award him any sum on that account.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;

2. Holds that there has been no 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 that there has been no violation of Article 6 §§ 1 and 3 (d) of the Convention.

Done in English, and notified in writing on 3 March 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Claudia Westerdiek Angelika Nuβberger
Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> KAPUSTYAK v. UKRAINE - 26230/11 (Judgment (Merits and Just Satisfaction) : Court (Fifth Section)) [2016] ECHR 245 (03 March 2016) URL: http://www.bailii.org/eu/cases/ECHR/2016/245.html Cite as: [2016] ECHR 245