European Court of Human Rights

 

 

 

FIFTH SECTION

CASE OF SHUMANSKYY v. UKRAINE

(Application no. 70579/12)

 

 

 

 

JUDGMENT

 

 

 

 

 

 

 

 

 

STRASBOURG

8 October 2020

 

This judgment is final but it may be subject to editorial revision.

In the case of Shumanskyy v. Ukraine,

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

          Gabriele Kucsko-Stadlmayer, President,
          Ganna Yudkivska,
          Mattias Guyomar, judges,
and Anne-Marie Dougin, Acting Deputy Section Registrar,

Having regard to:

the application 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 Vasyl Myroslavovych Shumanskyy (“the applicant”), on 22 October 2012;

the decision to give notice to the Ukrainian Government (“the Government”) of the complaints under Article 3, Article 5 §§ 1 and 3, as well as Article 6 §§ 1 and 3 (c), and to declare inadmissible the remainder of the application;

the parties’ observations;

Having deliberated in private on 15 September 2020,

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

INTRODUCTION

1.  The applicant complained under Article 3 of the Convention that he had been ill-treated by the police and that there had been no effective domestic investigation into the matter. He also complained under Article 5 § 1 that his detention from 5 to 8 September 2008 had been unlawful and under Article 5 § 3 that he had not been brought promptly before a judge. Lastly, he complained under Article 6 §§ 1 and 3 (c) that he had not had a fair trial.

THE FACTS

2.  The applicant was born in 1971 and is serving a prison sentence in Gorodyshche Prison no. 67. He was represented by Mr M.G. Kovalyuk, a lawyer practising in Beregomet, Chernivtsi region.

3.  The Government were represented by their Agent, most recently Mr I. Lishchyna.

4.  The facts of the case, as submitted by the parties, may be summarised as follows.

5.  Late at night on 20 August 2008 several unidentified persons broke into a house belonging to Mr and Ms L. and assaulted and robbed them. The victims received multiple blows with sticks, as a result of which Mr L. died.

6.  On the same date the police opened a criminal investigation into the matter.

7.  On 2 September 2008 Mr M. and Mr T. (see, in particular, paragraph 10 below) were arrested on suspicion of an unrelated theft committed the previous night.

8.  On 5 September 2008 the police arrested the applicant in Kitsman. As indicated in their report, the reason for his arrest was that he had been swearing in public. On the same day the Kitsman Town Court found the applicant guilty of the administrative (minor) offence of swearing in public and sentenced him to three days’ administrative detention, which started running at 6 p.m. on that day. The applicant was detained during that period in the Kitsman police station.

9.  According to the applicant, the reasons for his arrest were not explained to him. He was allegedly severely ill-treated by the police after his arrest, with a view to making him confess to the robbery and murder (see paragraphs 5 and 6 above). His alleged ill-treatment included hits and punches to various parts of his body, as well as strangulation with a plastic bag. As a result, he signed “some documents”. He specified, however, that he had not signed the “explanations” of 6 September 2008 or the confession statement of 8 September 2008 (see paragraphs 10 and 12 below).

10.  The case file contains a document entitled “explanations” of 6 September 2008, supposedly signed by the applicant. As indicated therein, the applicant had found out from an acquaintance, Mr D., that the L. family had money. Subsequently, the applicant had spoken of his financial hardships to a stranger (M.) at a bus station and they had decided to rob the L. family together. Another person (T.) had also joined them. It was noted in the “explanations” that the applicant had not entered the L. family’s house. According to the applicant, he made no statements, nor did he sign the above-mentioned document.

11.  On 8 September 2008 M. and T. wrote statements of “voluntary surrender to the police”, in which they confessed to having assaulted and robbed the L. family. According to M., a person known to him as Sergiy had also been involved. He submitted, in particular, that Sergiy had joined him and T. in beating the victims. As to T.’s statements of that date, he wrote that Sergiy, a friend of M.’s, had waited for them near the car and had not entered the L. family’s house.

12.  The case file contains a similar statement of “voluntary surrender to the police” of the same date, supposedly written and signed by the applicant. It repeated, in substance, the earlier “explanations” (see paragraph 10 above). According to the applicant, he neither wrote that statement nor signed it.

13.  On the evening on 8 September 2008 a criminal case was opened against the applicant, as well as M. and T., on suspicion of robbery and murder.

14.  On an unspecified date T. and M. recognised the applicant as the person allegedly known to them as “Sergiy” (see paragraph 11 above). According to the applicant, they did so on the instructions of the police.

15.  Also on 8 September 2008, an investigator of the Kitsman police questioned the applicant. According to his report, the applicant had no injuries and made no complaints.

16.  In the evening of the same day, the applicant’s term of administrative detention (see paragraph 8) expired and he was transferred from the Kitsman police station to the Chernivtsi temporary detention facility (“the Chernivtsi ITT”). Before being admitted, however, he was taken to the regional emergency hospital concerning a “trauma sustained on 5 September 2008”. He was diagnosed with bruises and abrasions on his hips and buttocks and was prescribed treatment. It appears that the police officer accompanying the applicant informed the doctor that the applicant had been injured as a result of a domestic incident.

17.  Also on the evening of 8 September 2008 the applicant signed a report confirming that his rights as a suspect had been explained to him. He expressed a wish to be represented by a lawyer.

18.  On 9 September 2008 lawyer B. was appointed to represent the applicant. When questioned as a suspect in the presence of his lawyer on that day, the applicant refused to make any statements.

19.  On the same day the lawyer complained to the prosecution authorities of his client’s ill-treatment and asked that he undergo an immediate forensic medical examination.

20.  On 10 September 2008 the investigator ordered such an examination and on 16 September 2008 it was carried out. The applicant told the expert that he had been beaten up by the police following his arrest on 5 September 2008. According to the examination report, the applicant had three bruises on the right hip measuring 5cm by 3 cm, 5.5 cm by 1.5 cm and 5 cm by 1.5 cm, an 8 cm by 8 cm bruise on his left hip, and bruises on his buttocks measuring 7 cm by 6 cm and 6 cm by 2.5 cm. The report specified that the injuries were minor and had been inflicted by blunt objects. The expert’s conclusion was that the injuries in question could have been inflicted at the time and in the circumstances indicated by the applicant.

21.  On 18 September 2008 the applicant was questioned as an accused, in the presence of his lawyer. He denied any involvement in the crimes of which he was accused and submitted that he did not even know his supposed accomplices. He refused to make any further statements.

22.  On 3 November 2008 T. was questioned in the presence of a lawyer. He retracted his earlier confession statements, including those concerning “Sergiy” (see paragraph 11 above), as having been obtained under duress. At the same time, T. confessed to the unrelated count of theft committed together with M. (see paragraph 7 above).

23.  On 19 November 2008 M. did the same.

24.  On 15 December 2008 the investigator issued a ruling in which he decided to sever from the case the material concerning the applicant’s injuries for an additional investigation. It was observed in the ruling that, as established by the expert report of 16 September 2008 (see paragraph 20 above), the applicant had sustained injuries during his detention in the Kitsman police station.

25.  On 19 December 2008 the Chernivtsi regional prosecutor’s office (“the Chernivtsi prosecutor’s office”) refused to open a criminal investigation against certain police officers in respect of the alleged ill-treatment of T., who had apparently raised a complaint in that regard.

26.  On 22 December 2008 one of the victims, Ms L., was questioned. She submitted that she could not remember exactly whether two or three persons had attacked her and her husband. At the same time, she was confident about the involvement of M. and T., whom she had recognised earlier.

27.  On 24 December 2008 a forensic report was issued in respect of the fingerprints from the crime scene, which had earlier been identified as not belonging to members of the L. family. The expert concluded that none of the fingerprints belonged to the applicant, M. or T. On 27 January 2009 a forensic report was issued in respect of hairs found at the crime scene. The expert concluded that none of the hairs belonged to the applicant or M.

28.  On 16 January 2009 the Kitsman town prosecutor’s office (“the Kitsman prosecutor’s office”) refused to open a criminal investigation against the police in respect of the applicant’s allegation of ill-treatment. It noted that although the forensic expert report of 16 September 2008 had recorded some injuries on the applicant, there was no evidence that they had been inflicted on him by the police. The prosecutor observed that the applicant had been detained in the Kitsman police station from 5 to 8 September 2008, whereas his forensic medical examination had taken place about eight days thereafter. Having regard to that circumstance and noting that the applicant had not complained of his ill-treatment at the time, the prosecutor concluded that the applicant might have sustained the injuries in question “as a result of his own recklessness”. Furthermore, the prosecutor relied on the statements of the police officers concerned, who had denied any coercion in respect of the applicant.

29.  On 28 January 2009 the applicant, T. and M. were questioned again in the presence of their lawyers. They stated that their initial confessions had been extracted by ill-treatment. T. and M., however, maintained their confessions to the unrelated theft (see paragraph 7 above).

30.  On 23 March 2009, during a hearing before the Chernivtsi Regional Court of Appeal (“the Chernivtsi Court”), sitting as a court of first instance, the victim, Ms L., submitted that she recognised T. and M., but not the applicant, because she had not seen the third intruder well.

31.  On 17 July 2009 the Chernivtsi Court found the applicant guilty of robbery, but acquitted him of murder. He was sentenced to thirteen years’ imprisonment and confiscation of all his personal property. The court relied, in particular, on the applicant’s “explanations” of 6 September 2008 and his confession of 8 September 2008 (see paragraphs 10 and 12 above). The applicant’s allegation that he had been coerced into making self‑incriminating statements was dismissed as unsubstantiated.

32.  The applicant appealed against his conviction, submitting that it was based on inconclusive evidence collected with gross violations of the law on criminal procedure. He complained that initially he had been detained on an artificial pretext and that during that period he had been ill-treated by the police. The applicant also pointed out inconsistencies in the statements given by his co-defendants during the pre-trial investigation. He insisted that he had never met them before.

33.  On 8 December 2009 the Supreme Court quashed the judgment of 17 July 2009 and remitted the case to the same first-instance court for a fresh examination by a different panel. It noted, in particular, that the trial court’s conclusion about the absence of sufficient evidence of the applicant’s guilt in respect of the murder had been premature.

34.  On 5 July 2010 the Kitsman prosecutor’s office refused to open a criminal investigation against the police officers in respect of the alleged ill‑treatment of M.

35.  On 6 December 2010 the Chernivtsi Court found all the accused guilty of murder and robbery. It sentenced the applicant to fifteen years’ imprisonment and confiscation of all his property. It was noted in the judgment that Ms L. recognised M. and T. without hesitation and considered that the applicant “looked similar” to one of the attackers. The court also relied on the initial confessions made by the accused. It dismissed their allegations of ill-treatment as unsubstantiated on the grounds that the prosecution had refused to open criminal investigations into that matter on several occasions (see paragraphs 25, 28 and 34 above).

36.  The applicant lodged a cassation appeal, in which he alleged, in particular, that he had incriminated himself under duress and without legal assistance. In a supplementary submission, he claimed that he had not in fact written or signed any confessions. He further argued that the courts had lacked any solid evidence for his conviction.

37.  On 24 April 2012 the Higher Specialised Court for Civil and Criminal Matters upheld the judgment. It noted, in general terms, that the convicts had confessed to the crimes imputed to them during the pre-trial investigation in the presence of their lawyers and that their later retraction of those confessions was to be regarded as a mere attempt to escape criminal liability. It considered their guilt to be established by the totality of the evidence. Lastly, the court dismissed as unfounded the convicts’ allegations of ill-treatment.

38.  In April 2012 the case file on the administrative offence proceedings against the applicant (see paragraph 8 above) was destroyed as the statutory period for its storage had expired.

RELEVANT LEGAL FRAMEWORK

39.  The relevant provisions of the Constitution of Ukraine and the Code of Criminal Procedure can be found, in particular, in the Court’s judgment in the case of Kaverzin v. Ukraine (no. 23893/03, §§ 44 and 45, 15 May 2012).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

40.  The applicant complained that he had been ill-treated by the police and that there had been no effective domestic investigation into 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

41.  The Court notes that this part of the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

B.     Merits

1.    The parties’ submissions

42.  Referring to the emergency hospital’s records of 8 September 2008 and the forensic medical report of 16 September 2008 (see paragraphs 16 and 20 above), the applicant submitted that his ill-treatment allegation was supported by sufficient evidence. He further complained that there had been no meaningful domestic investigation into his complaint in that regard.       

43.  The Government contested those arguments. They admitted that the applicant had sustained some injuries, but contended that nothing proved that those injuries had resulted from his ill-treatment by the police between 5 and 8 September 2008. Had the applicant indeed been subjected to the continuous serious ill-treatment alleged by him, his injuries would have been far more serious. Moreover, the domestic authorities had made all reasonable efforts to look into his allegation, and there were no reasons for questioning their conclusion that it was unsubstantiated.

2.    The Court’s assessment

44.  The relevant general principles of the Court’s case-law are summarised in Bouyid v. Belgium ([GC], no. 23380/09, §§ 81-90 and 100‑01, ECHR 2015), and El-Masri v. the former Yugoslav Republic of Macedonia ([GC], no. 39630/09, §§ 182-85, ECHR 2012).

45.  The Court considers that in the present case the available medical evidence conclusively demonstrates that the applicant sustained extensive bruising shortly after his placement in administrative detention. There is no indication that he could have sustained those injuries before his arrest on 5 September 2008. It is noteworthy in this regard that neither the police nor the Kitsman Town Court noted any injuries on the applicant when he was arrested and heard on the charge of swearing in public (see paragraphs 8, 16 and 20 above). It was therefore for the State to provide a plausible explanation for the injuries sustained.

46.  The applicant’s lawyer complained to the prosecution about his client’s ill-treatment as soon as he was assigned to represent him in the proceedings, namely on 9 September 2008 (see paragraphs 18 and 19 above). The Court considers that the applicant’s complaint of ill-treatment was “arguable” for the purposes of Article 3, and his injuries were sufficiently serious, therefore, to require the domestic authorities to carry out an effective investigation.

47.  Although the investigator ordered a forensic medical expert examination of the applicant without delay, on 10 September 2008, the examination was not actually carried out until six days later. By that time the applicant had been under the control of the police for eleven days and some of his injuries might have healed. However, he was still severely bruised (see paragraph 20 above).

48.  The expert confirmed the applicant’s allegation as regards the timing and the possible origin of his injuries. However, for some unknown reason, the Kitsman prosecutor’s office, in its ruling of 16 January 2009, did not consider that finding convincing and advanced instead its own explanation of the applicant’s injuries - that he might have sustained them “as a result of his own recklessness” (see paragraph 28 above). The prosecutor explained that assumption by the following considerations: firstly, that the forensic medical examination of the applicant had taken place about eight days after the end of his detention in the Kitsman police station; and, secondly, that the applicant had not complained of ill-treatment at the time. Neither of those arguments stands up to scrutiny. After his detention in the Kitsman police station the applicant had been transferred to the Chernivtsi ITT and had therefore remained under the control of the police (see paragraph 16 above). The implication that the applicant might have sustained his injuries after his detention in the Kitsman police station still placed an obligation on the State to investigate what had happened and punish those responsible. Furthermore, the Court finds it difficult to understand how the applicant could be reproached for his failure to complain of ill-treatment during a three-day period when he had been under the full control of those who had allegedly ill-treated him and without any legal assistance. He did complain as soon as a lawyer was appointed to represent him (see paragraphs 18 and 19 above).

49.  Accordingly, the conclusions of the Kitsman prosecutor’s office in its ruling of 16 January 2009 can only be described as manifestly unreasonable.

50.  Nonetheless, in the course of the applicant’s trial, the domestic courts relied on the above-mentioned ruling as providing sufficient grounds for dismissing his ill-treatment allegation.

51.  It is also relevant to note that the domestic authorities examined the applicant’s complaint only by means of inquiries, without instituting full‑scale criminal proceedings. The Court has held that this investigative procedure does not comply with effectiveness principles, because an inquiring officer can take only a limited number of procedural steps within that procedure, and a victim’s procedural status is not properly formalised (see, mutatis mutandis, Davydov and Others v. Ukraine, nos. 17674/02 and 39081/02, §§ 310-12, 1 July 2010, and Savitskyy v. Ukraine, no. 38773/05, § 105, 26 July 2012).

52.  Lastly, the Court notes that the applicant was apparently never questioned in respect of his ill-treatment allegation.

53.  The Court considers this sufficient to conclude that the applicant was denied an effective investigation of his arguable claim that he had been ill‑treated by the police. As the Court held in its judgment in the case of Kaverzin v. Ukraine, this situation stemmed from systemic problems at the national level, which allowed agents of the State responsible for such ill‑treatment to go unpunished (no. 23893/03, 15 May 2012, §§ 169-82).

54.  The Court also concludes that the Government have not satisfactorily established that the applicant’s injuries were caused otherwise than by ill‑treatment while in police custody, as alleged by him (see, mutatis mutandis, Adnaralov v. Ukraine, no. 10493/12, § 45, 27 November 2014).

55.  There has therefore been a violation of Article 3 of the Convention in its both substantive and procedural aspect.

II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION

56.  The applicant complained that his detention from 5 to 8 September 2008 had been in breach of Article 5 § 1 of the Convention, which reads as follows in the relevant parts:

“1.  Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

...

(c)  the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ...”

A.    Admissibility

57.  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

58.  The applicant submitted that his arrest on 5 September 2008 and his subsequent three-day detention had been unlawful and arbitrary. He maintained that, whereas his detention from 5 to 8 September 2008 had been classified as administrative, it had been a mere pretext for keeping him available for questioning in respect of the robbery and murder.

59.  The Government argued that the applicant’s detention had been in compliance with the domestic legislation, which, in turn, was clear and foreseeable.

60.  In the Court’s view, there is unequivocal evidence in the case file that during the three-day detention documented as a punishment for an administrative (minor) offence, namely swearing in public, the applicant was treated as a suspect in the robbery and murder case (see paragraph 10 above). Looking beyond the appearances and the language used, and concentrating on the realities of the situation, the Court considers that the applicant’s administrative detention was in reality part of his pre-trial detention, under Article 5 § 1 (c), as a criminal suspect, but that his procedural rights as a suspect were not safeguarded (see Kafkaris v. Cyprus [GC], no. 21906/04, § 116, ECHR 2008, and Doronin v. Ukraine, no. 16505/02, §§ 55-56, 19 February 2009).

61.  In the Doronin case cited above (§ 56), as well as in a number of other cases against Ukraine (see, for example, Oleksiy Mykhaylovych Zakharkin v. Ukraine, no. 1727/04, § 88, 24 June 2010; Nechiporuk and Yonkalo v. Ukraine, no. 42310/04, § 178, 21 April 2011; and Rudnichenko v. Ukraine, no. 2775/07, §§ 66 and 67, 11 July 2013), the Court condemned such conduct by the authorities as being arbitrary, incompatible with the principle of legal certainty, and as running counter to the principle of the rule of law.

62.  The Court finds no reason to consider that the situation in the present case was different from that in the cases cited above and, accordingly, considers that the applicant’s detention between 5 and 8 September 2008 was in breach of Article 5 § 1 of the Convention.

III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

63.  The applicant also complained that in the proceedings leading to his conviction for murder he had not had a fair trial as required by Article 6 §§ 1 and 3 (c) of the Convention, the relevant parts of which 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:

...

(c)  to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; ...”

A.    Admissibility

64.  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

65.  The applicant complained that he had been denied access to legal assistance during the initial period of his detention when he had been subjected to ill-treatment with a view to forcing him to confess to the robbery and murder. While denying having signed the “explanations” of 6 September 2008 and the statement of “voluntary surrender to the police” of 8 September 2008 (see paragraphs 10 and 12 above), the applicant argued that those statements had been a result of his ill-treatment and that they had played a decisive role in his conviction.

66.  Furthermore, the applicant argued that the fairness of his trial had been undermined by the admission as evidence of the statements given by M. and T., allegedly obtained in breach of their rights under Article 3 of the Convention.

67.  Lastly, he submitted that the domestic courts had failed to duly address the arguments in his defence, as well as the inconsistencies in the statements of his co-accused and the victim.

68.  The Government submitted that they could not comment on the alleged restriction on the applicant’s right to legal assistance during the initial period of his detention, because the case file regarding the administrative offence proceedings against him had been destroyed in 2012 (see paragraph 38 above).

69.  The Government reiterated their argument about the absence of any proof that coercion had been applied to the applicant in police custody (see paragraph 43 above). Likewise, they observed that the ill-treatment allegations of M. and T. had been duly examined.

70.  Overall, the Government maintained that the domestic courts had had no reasons for excluding the applicant’s initial self-incriminating statements and that in any event, there had been other extensive evidence proving his guilt.

2.    The Court’s assessment

71.  The admission of confession statements obtained as a result of torture or of other ill-treatment in breach of Article 3 as evidence to establish the relevant facts in criminal proceedings renders the proceedings, as a whole, unfair. This finding applies irrespective of the probative value of the statements and irrespective of whether their use was decisive in securing the defendant’s conviction (see Gäfgen v. Germany [GC], no. 22978/05, § 166, ECHR 2010, with further references).

72.  The Court has found that the applicant was subjected to ill-treatment in breach of Article 3 of the Convention during his detention in the Kitsman police station between 5 and 8 September 2008 (see paragraph 55 above). During that period the police recorded his self-incriminating statements (see paragraphs 10 and 12 above). Whether the applicant in fact signed those statements, which he denied, is not important (ibid.). What matters for the Court is that they constituted evidence obtained in breach of Article 3 and that that evidence was used for the applicant’s conviction (see, in particular, paragraph 35 above).

73.  The Court also notes that the applicant was legally represented only as from 9 September 2008, after which he denied any involvement in the crimes imputed to him (see paragraphs 18, 21 and 29 above).

74.  Furthermore, the Court refers to its finding that in reality the applicant’s administrative detention between 5 and 8 September 2008 had been a mere pretext for keeping him available for questioning in respect of the criminal offences under investigation, without, however, safeguarding his procedural rights as a suspect (see paragraph 62 above).

75.  The trial court failed to carry out its own independent assessment of the relevant medical and other evidence with a view to ascertaining whether there were reasons to exclude those statements from the case file. Instead, it relied on the prosecutor’s ruling, which the Court has found to have been based on an investigation that fell short of Article 3 requirements (see paragraphs 35 and 37 above). Nor was there any meaningful examination of the applicant’s arguable claim that the administrative-offence charge against him had been fabricated to ensure his availability for questioning without respecting the requisite safeguards for his procedural rights as a criminal suspect. This lack of a careful assessment of the quality of the impugned evidence and the circumstances in which it was obtained was not remedied by the Higher Specialised Court for Civil and Criminal Matters (compare Ryabov v. Russia, no. 2674/07, § 58, 17 July 2018).

76.  The above considerations are sufficient for the Court to conclude that the applicant did not have a fair trial.

77.  That being so, the Court does not consider it necessary to examine the applicant’s additional arguments in that regard (see paragraphs 66 and 67 above).

78.  It follows that has been a violation of Article 6 §§ 1 and 3 (c) of the Convention.

IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

79.  Lastly, the applicant submitted that on 5 September 2008 the Kitsman Court had dealt with the administrative-offence case against him in a superficial and arbitrary manner and had unjustifiably imposed the most severe custodial sanction on him. He therefore complained under Article 5 § 3 of the Convention that he could not be regarded as having been promptly brought before a judge following his arrest on 5 September 2008.

80.  Having regard to the facts of the case, the submissions of the parties, and its finding under Article 5 § 1 of the Convention (see paragraph 62 above), the Court considers that it is not necessary to examine whether, in this case, the applicant’s complaint under Article 5 § 3 of the Convention is admissible and whether there has also been a violation of that provision (see, for the approach, V.K. v. Russia, no. 9139/08, § 43, 4 April 2017, and the reference therein to Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014).

V. APPLICATION OF ARTICLE 41 OF THE CONVENTION

81.  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

82.  The applicant claimed 5,000,000 euros (EUR) in respect of non‑pecuniary damage and 194,000 Ukrainian hryvnias (UAH) in respect of pecuniary damage sustained by way of lost income. He stated that at the material time he had been a private entrepreneur earning around UAH 2,000 per month. He also sought a retrial in compliance with Article 6 of the Convention.

83.  The Government contested the claim as exorbitant and unsubstantiated.

84.  The Court does not discern any causal link between the violations found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, ruling on equitable basis, it awards the applicant EUR 16,000 in respect of non‑pecuniary damage.

85.  Furthermore, the Court notes that where an individual, as in the instant case, has been convicted by a court in proceedings which did not meet the Convention requirement of fairness, a retrial, a reopening or a review of the case, if requested, represents in principle an appropriate way of redressing the violation (see, for example, Leonid Lazarenko v. Ukraine, no. 22313/04, § 65, 28 October 2010).

B.     Costs and expenses

86.  The applicant also claimed UAH 10,000 for the legal fees incurred before the Court and UAH 1,400 for translation expenses. No copies of the relevant legal service contracts, invoices, vouchers or any other supporting financial documents were submitted.

87.  The Government contested that claim as unsubstantiated.

88.  According to the Court’s settled 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 (see Buzadji v. the Republic of Moldova [GC], no. 23755/07, § 130, 5 July 2016). A representative’s fees are considered to have been actually incurred if the applicant has paid them or is liable to pay them. The opposite is the case with respect to the fees of a representative who, without waiving them, has simply taken no steps to pursue their payment or has deferred it. The fees payable to a representative under a conditional-fee agreement are actually incurred only if that agreement is enforceable in the respective jurisdiction (see Merabishvili v. Georgia [GC], no. 72508/13, § 371, 28 November 2017, with further references).

89.  In the present case the applicant did not submit documents showing that he had paid or was under a legal obligation to pay the fees charged by his representative. In the absence of such documents, the Court is not in a position to assess the points mentioned in the previous paragraph. It therefore finds no basis on which to accept that the costs and expenses claimed by the applicant have actually been incurred by him (compare Gablishvili and Others v. Georgia, no. 7088/11, §§ 75-79, 21 February 2019; and, for a similar approach, see Malyy v. Ukraine [Committee], no. 14486/07, §§ 136-40, 11 April 2019).

90.  Nor did the applicant submit any documents in support of his claim for translation expenses.

91.  It follows that the claim must be rejected.

C.    Default interest

92.  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 complaints under Article 3, Article 5 § 1 and Article 6 §§ 1 and 3 (c) of the Convention admissible;

2.      Holds that there is no need to examine the admissibility and merits of the remainder of the application;

3.      Holds that there has been a violation of Article 3 of the Convention in its substantive aspect on account of the applicant’s ill-treatment by the police;

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

5.      Holds that there has been a violation of Article 5 § 1 of the Convention as regards the applicant’s detention between 5 and 8 September 2008;

6.      Holds that there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention in the proceedings leading to the applicant’s conviction for robbery and murder;

7.      Holds

(a)   that the respondent State is to pay the applicant, within three months, EUR 16,000 (sixteen thousand euros) in respect of non‑pecuniary damage, plus any tax that may be chargeable, to be converted into the currency of the respondent State;

(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 8 October 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

   Anne-Marie Dougin                                           Gabriele Kucsko-Stadlmayer
Acting Deputy Registrar                                                       President