CASE OF A.N. v. UKRAINE

FIFTH SECTION

CASE OF A.N. v. UKRAINE

(Application no. 13837/09)

JUDGMENT

STRASBOURG

29 January 2015

FINAL

29/04/2015

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of A.N. 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,
Vincent A. De Gaetano,
André Potocki,
Aleš Pejchal, judges,
and Claudia Westerdiek, Section Registrar,

Having deliberated in private on 16 December 2014,

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

PROCEDURE

1. The case originated in an application (no. 13837/09) 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 A.N. (“the applicant”), on 15 February 2009. The President of the Section granted the applicant’s request not to have his name disclosed (Rule 47 § 4 of the Rules of Court).

2. The Ukrainian Government (“the Government”) were represented by their Agent at the time, Mr N. Kulchytskyy.

3. Relying on Article 3 of the Convention, the applicant alleged, in particular, that he had been tortured by police officers whose aim was to make him confess to a murder and that there had been no effective investigation in that regard. He further complained under Article 6 § 1 of the Convention that the domestic courts had unfairly convicted him, relying on evidence obtained through ill-treatment. The applicant also complained under Article 3 of the Convention that he had not been provided with appropriate medical treatment during his detention.

4. On 27 September 2012 the above complaints were communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1980 and is currently serving his sentence in prison.

A. The murder, the alleged ill-treatment and the domestic investigations

6. On 15 November 2004 a man was murdered at a bus stop in the town of Dymytriv, Donetsk Region. A criminal investigation was opened.

7. According to the applicant, on 12 December 2004 he was taken by police officers to some premises where they interrogated and tortured him with the aim of extracting a confession to the murder. The torture allegedly included the administration of electric shocks and the infliction of physical injuries.

8. On 14 December 2004 the applicant wrote a confession admitting that he had committed the murder.

9. On the same day the applicant was provided with a lawyer and questioned as a suspect. During the questioning, in the presence of the lawyer, the applicant submitted that on the evening of 15 November 2004 he had met the victim at the bus stop and asked if he had a cigarette; the victim responded aggressively and an argument arose between them, which developed into a fight; when the victim attacked him with a knife, the applicant grabbed the arm that was holding the knife and, at a certain moment during the struggle between them, the knife ‒ still in the victim’s hand ‒ caused a lethal wound to the victim’s neck. The investigator also asked the applicant to explain why he had a swelling on the left forearm in the wrist area. The applicant disputed that it could be described as a swelling and added that it might have been caused by the handcuffs.

10. In the evening of 14 December 2004 the police drew up a report on the applicant’s arrest.

11. On 15 December 2004 the applicant was examined by a forensic medical expert who reported that the applicant had no injuries. According to the applicant, the expert had examined him superficially and he had not been required to undress.

12. On 16 December 2004 the applicant participated in a reconstruction of the incident and, in the presence of his lawyer, explained and demonstrated how the conflict between him and the victim had developed and how the fatal wound had been caused.

13. On 17 December 2004 the Dmytriv Town Court extended the applicant’s preliminary detention to 24 December 2004. On 24 December 2004 the Dmytriv Town Court ordered the applicant’s detention in custody. During these hearings the applicant ‒ in the presence of his lawyer ‒ described the circumstances of the incident in the same way as he had done earlier. He also stated that he had not been subjected to pressure on the part of the police officers. The applicant then admitted that he regularly took Tramadol (an opioid analgesic) and specified that before the incident of 15 November 2004 he took five pills of Tramadol.

14. On 24 December 2004 the applicant was charged with the murder. He was again questioned in the presence of his lawyer. The applicant repeated the details of the struggle between him and the victim and the circumstances of the victim’s death.

15. On 28 December 2004 the applicant was placed in Pre-Trial Detention Centre No. 6 (“the SIZO”). Upon admission he was given a medical examination, during which no injuries were found.

16. On 8 and 14 January 2005 the applicant’s mother lodged a complaint with the prosecutor’s office, alleging that the police officers had tortured the applicant and made him confess to a crime which he had not committed.

17. On 24 February 2005 the forensic medical expert issued a report in which ‒ referring to the results of the applicant’s medical assessment on 15 December 2004 ‒ he stated that at the time of the medical assessment the applicant had not been suffering from any injuries.

18. On the same date the Dymytriv prosecutor’s office refused to open an investigation in connection with the allegations of torture, noting that there were no indications that the police officers had committed any offence.

19. On 11 March 2005 the applicant was questioned once again. During the questioning, he denied the charges of murder and retracted his earlier statements, claiming that he had incriminated himself because he had been afraid of the police officers.

20. On 15 March 2005 the case was referred to the Dmytriv Town Court for trial.

21. On 15 April 2005 the applicant submitted a written request for a medical examination to the Dmytriv Town Court. The applicant gave the names of the three police officers who had allegedly tortured him on 12 December 2004 and specified the place where that had happened. The applicant claimed that he had been hung upside down over a horizontal crowbar whilst handcuffed; a gas mask had been placed over his head; electric shocks had been applied to different areas of his body including his genitals. He claimed that after the continued ill-treatment he had given up and accepted the fictional story made up by the police officers; he had then been taken to the crime scene and was told the details that he was supposed to repeat later during the investigation.

22. On 21 April 2005 the Dmytriv Town Court ordered the prosecutor’s office to investigate the applicant’s allegations; it also ordered a forensic medical examination of the applicant to be carried out.

23. On 29 April 2005 the forensic medical expert drafted a report in which ‒ relying on the results of the applicant’s assessment of 15 December 2004 and the report of 24 February 2005 ‒ he noted that at the time of the medical assessment the applicant had not been suffering from any injuries.

24. On 4 May 2005, acting on the results of the pre-investigation enquiries, the Dmytriv prosecutor’s office refused to initiate criminal proceedings against the police officers, holding that no elements of offence had been established.

25. On 6 July 2005 the applicant was assessed by a medical expert who reported that the applicant had scars on his wrist joints, and on the left side and front of his chest. The expert noted that the scars had resulted from injuries caused by blunt objects and could have been sustained between six and eighteen months prior to the examination. The expert further reported a scar on the right forearm and noted that it had resulted from an injury caused by a blunt object; in his view the injury could have been sustained more than three years before the examination. The expert classified all the injuries as minor.

26. On 8 July 2005 the Donetsk Regional Prosecutor’s Office quashed as unsubstantiated the decisions of 24 February and 4 May 2005 adopted by the Dymytriv prosecutor’s office and ordered further pre-investigation enquiries.

27. On 11 October 2005, following additional enquiries, the Dymytriv prosecutor’s office issued a further decision refusing to open an investigation in connection with the alleged ill-treatment. The prosecutor noted that the applicant had not complained of the ill-treatment earlier, that the police officers had denied his allegations, that the medical report of 15 December 2004 had documented no injuries to the applicant and that the report of 7 July 2005 stated that the applicant had some old scars which did not bear out his allegations.

28. On 7 September 2005, further to a request from the court, the applicant was examined by a panel of forensic medical experts. In their report of 7 November 2005, the panel stated that the applicant had scars on both ears, on the left side of his chest, on his forearms, wrists, right shin and ankle, and the pigmented area on the right side of his chest. The experts noted that the scars had resulted from injuries which could have been sustained six months or more before the date of the examination; some of the injuries could have been caused by shackles. The panel classified the injuries as minor.

29. On 15 February 2006, following a request from the court, the panel of experts also reported that it was impossible to determine on the basis of the available medical information whether the injuries found on the applicant had been sustained before or after 15 December 2004.

30. On 17 April 2006 the Dmytriv Town Court remitted the case for additional investigation, noting that the investigator had failed to establish a number of important facts, including the time of the victim’s death and any motive on the part of the applicant for committing the crime. The prosecutor appealed against that decision.

31. On 15 September 2006 the Donetsk Region Court of Appeal quashed the decision of 17 April 2006 as unfounded and remitted the case to the first-instance court for trial.

32. On 29 December 2006 a forensic psychiatric expert drafted a report stating that the applicant had recovered from a temporary mental disorder.

33. During the trial the applicant denied the charges and maintained that he had been ill-treated by the police officers, who had made him incriminate himself. The court questioned the expert who had carried out the assessments of 15 December 2004 and 6 July 2005 about the discrepancies in those assessments. The expert explained that his first assessment had been concerned with the documentation of visible injuries and he had not been asked a specific question about scars. He also noted that during that assessment he had asked the applicant to undress. The applicant maintained, however, that the expert had not asked him to undress.

34. On 8 October 2007 the Dymytriv Town Court found the applicant guilty of murder and sentenced him to twelve years’ imprisonment. The court established the applicant’s guilt relying on the self-incriminating statements made by the applicant in the presence of his lawyer between 14 and 24 December 2004, including the statements of the applicant which he made before the court when the issue of a preventive measure was being decided. The court also referred to the other oral, documentary, material and expert evidence.

35. The court rejected the applicant’s allegations of ill-treatment as unsubstantiated. In that regard it referred to the results of the medical assessments of 15 and 28 December 2004 which found no injuries on the applicant. It also noted that there had been no suggestion by the experts as to how the injuries discovered on the applicant later could have been sustained. As to the injuries on the wrists, the court noted that they might have been caused by the handcuffs and added that between December 2004 and March 2005 the applicant had regularly been handcuffed when escorted to and from the court.

36. The applicant appealed against that judgment claiming, inter alia, that his conviction had been unlawful and based on evidence obtained through ill-treatment.

37. On 6 June 2008 the Donetsk Region Court of Appeal dismissed the applicant’s appeal and upheld the judgment of the first-instance court. It noted that the applicant’s allegations of ill-treatment had been far-fetched and, in any event, they had been properly examined by the prosecutor’s office and the trial court. It pointed out that the applicant had made the self-incriminating statements between 14 and 24 December 2004 in the presence of his lawyer, and that on 15 and 28 December 2004 no injuries had been documented following the medical examination of the applicant.

38. The applicant lodged an appeal on points of law with the Supreme Court, claiming in particular that his conviction had been based on evidence obtained through ill-treatment.

39. On 15 August 2008 the Supreme Court rejected the applicant’s appeal on points of law as unfounded.

40. Following his conviction, the applicant lodged an appeal against the decision of 11 October 2005, in which the prosecutor had refused to open an investigation in respect of the alleged ill-treatment.

41. On 9 February 2010 the Dymytriv Town Court quashed the impugned decision, considering that the matter had not been examined thoroughly.

42. The prosecutor appealed against that decision.

43. On 10 March 2010 the Donetsk Region Court of Appeal quashed the decision of 9 February 2010 and remitted the case to the first-instance court for fresh consideration.

44. On 9 September 2010 the Dymytriv Town Court dismissed as time-barred the applicant’s complaint concerning the decision of 11 October 2005.

45. The Donetsk Region Court of Appeal and the Higher Specialised Civil and Criminal Court of Ukraine upheld the decision of 9 September 2010 on 7 October 2010 and 8 April 2011 respectively.

B. Medical care in detention

46. Between December 2004 and June 2005 the applicant underwent X-ray examinations which showed no lung pathology.

47. On 25 June 2005 he applied to the medical unit of the SIZO complaining of coughing up phlegm, weakness and fever. The applicant was examined by the general practitioner and diagnosed with chronic bronchitis in its acute phase. He was hospitalised in the medical unit of the SIZO and provided with in-patient treatment.

48. On 4 July 2005 the applicant was discharged from the medical unit in satisfactory condition. He was advised to avoid getting too cold.

49. Between July 2005 and October 2006 the applicant underwent X-ray examinations which showed no signs of pathology. He made no complaints concerning his health.

50. On 13 November 2006 the applicant was treated in the local hospital on account of cuts to both forearms, and scratches on his neck and the front of his abdomen. He was diagnosed as having attempted suicide.

51. On the next day he was examined by a psychiatrist who diagnosed mental and behavioural disorder caused by taking opioids, generating a psychopathy-like syndrome. The applicant received further outpatient psychiatric treatment.

52. Between December 2006 and February 2008 the applicant underwent X-ray examinations which showed no signs of pathology. He made no complaints concerning his health.

53. On 19 July 2008 the applicant was transferred from the SIZO to a prison. Upon admission, the applicant was medically examined and diagnosed with chronic bronchitis.

54. On 23 July 2008 the applicant underwent X-ray examination which showed no signs of pathology.

55. In May 2009 the applicant underwent treatment for an acute form of bronchitis.

56. In January 2010 the applicant was diagnosed with tuberculosis of the right lung. The applicant was offered hospitalisation in the tuberculosis clinic of Zhdaniv prison no. 3 for further examination and treatment. The applicant refused to be hospitalised.

57. Between 22 and 27 February 2010 the applicant underwent examination in the tuberculosis clinic of Zhdaniv prison no. 3.

58. On 26 February 2010 the applicant was diagnosed with post-tuberculosis residual changes and residual changes after pleurisy. He was advised to undergo sessions of anti-tuberculosis treatment for a period of three years. The applicant refused to undergo the proposed sessions of treatment.

59. On 5 December 2012 the applicant was diagnosed with chronic bronchitis in remission and chronic maxillary sinusitis in remission. The applicant received further outpatient treatment by the general practitioner at the medical unit of the prison.

II. RELEVANT DOMESTIC LAW

60. The relevant provisions of the Code of Criminal Procedure of 28 December 1960 (in force at the relevant time) are quoted in Kaverzin v. Ukraine (no. 23893/03, § 45, 15 May 2012).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF ILL-TREATMENT BY POLICE OFFICERS

61. The applicant complained that he had been tortured by the police and that there had been no effective investigation of these allegations. He relied on Article 3 of the Convention which reads:

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

A. Procedural obligation under Article 3 of the Convention

1. Admissibility

62. The Court considers 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.

2. Merits

63. The Government contended that the domestic authorities had taken all reasonable steps in order to discharge their procedural obligation under Article 3 of the Convention. They pointed out that the examination of the applicant’s complaint had been carried out with the requisite expedition and thoroughness.

64. The applicant disagreed and argued that the State had failed to investigate his allegations of ill-treatment effectively.

65. The Court reiterates that where an individual makes an arguable claim that he has been ill-treated by the State authorities in breach of Article 3, that provision ‒ read in conjunction with the State’s general duty under Article 1 of the Convention ‒ requires by implication that there should be an effective official investigation. For the investigation to be regarded as “effective”, it should in principle be capable of leading to the establishment of the facts of the case and to the identification and punishment of those responsible. This is not an obligation as to results but one as to means. The authorities must have taken the steps reasonably available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony, forensic evidence, and so on. 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, and a requirement of promptness and reasonable expedition is implicit in this context (see, among many authorities, Mikheyev v. Russia, no. 77617/01, § 107 et seq., 26 January 2006, and Assenov and Others v. Bulgaria, 28 October 1998, §§ 102 et seq., Reports of Judgments and Decisions 1998‑VIII).

66. As to the present case, the Court considers that at least on 15 April 2005 the domestic authorities had received an arguable complaint of ill-treatment which triggered their procedural obligation under Article 3 of the Convention to carry out an effective investigation of that complaint.

67. The Court has doubts that the domestic authorities took proper and sufficient steps for the collection of medical and other evidence concerning the alleged ill-treatment. It notes that, despite the applicant’s request of 15 April 2005 for a fresh medical examination, the forensic medical expert issued a report that was based exclusively on the old medical reports (see paragraph 23 above). A fresh examination was not carried out until 6 July 2005 (see paragraph 25 above). This delay, for which there was no justification, was attributable to the authorities and was inappropriate since it eventually contributed to the loss of important medical evidence.

68. It was without any fresh medical assessment, however, that on 4 May 2005 the prosecutor’s office concluded that no elements of any offence had been established and refused to instigate criminal proceedings against the police officers (see paragraph 24 above). That decision, as well as the earlier similar one, was quashed as unfounded by the supervising prosecutor’s office and further pre-investigation enquiries were ordered (see paragraph 26 above). However, no full-scale investigation was in fact opened because the prosecutor’s office eventually concluded the pre-investigation enquiries with a decision not to institute criminal proceedings (see paragraph 27 above). In this regard the Court has previously found that such pre-investigation enquiries do not comply with the principles of an effective remedy for the following reasons: the enquiring officer can take only a limited number of procedural steps within that procedure; the victims have no formal status, with the result that their effective participation in the procedure is precluded; any other remedy available to the victims, including a claim for damages, has limited chances of success and could be considered as theoretical and illusory (see Davydov and Others, cited above, §§ 310‑312; Golovan v. Ukraine, no. 41716/06, § 75, 5 July 2012; and Savitskyy v. Ukraine, no. 38773/05, § 105, 26 July 2012).

69. Subsequently, in the light of the contradictions between the results of the applicant’s initial and further medical examinations, the trial court ordered an additional forensic medical examination by the panel of experts. That panel identified even more injuries on the applicant’s body than had been documented in the report by the individual expert (see paragraphs 25 and 28 above). It appears, however, that it was because of the delay and the inadequacy of the initial medical information that the panel of experts were unable either to determine conclusively the date when the identified injuries had been sustained or to provide more information as to their nature (see paragraph 29 above).

70. The courts’ endeavours to further examine the issue did not succeed in eliminating the discrepancies in the medical evidence and were limited in their scope, thus failing to ensure the effectiveness of the domestic procedure. In particular, it does not appear that the courts sufficiently elucidated the circumstances in which the applicant was examined on 15 December 2004. During the trial the expert gave ambiguous answers as to the scope of that examination, the expert and the applicant disagreed as to whether or not the applicant had been required to undress in the course of that examination. Despite receiving further medical opinions, the domestic authorities did not examine whether the applicant’s injuries ‒ which had turned into scars with the passage of time ‒ might have been visible at the time of the examination on 15 December 2004, even though the investigator had questioned the applicant about a swelling visible on his left forearm just one day before that examination. As regards the medical examination of 28 December 2004, the courts did not take specific measures to ascertain the reliability of its results.

71. The Court notes that in the case of Kaverzin v. Ukraine (no. 23893/03, §§ 173-180, 15 May 2012) it found that reluctance on the part of the authorities to ensure that a prompt and thorough investigation of the ill-treatment complaints by the criminal suspects was carried out constituted a systemic problem within the meaning of Article 46 of the Convention. The Court concludes that, in the light of the circumstances of the case and in line with its earlier case-law, in the present case, too, the domestic authorities failed in their procedural obligation to effectively investigate the allegations of ill-treatment.

72. There has therefore been a procedural violation of Article 3 of the Convention.

B. Substantive aspect of Article 3 of the Convention

1. Admissibility

73. The Government submitted that the complaint concerning ill‑treatment of the applicant by the police officers was manifestly ill‑founded. They pointed out that according to the initial medical assessments and reports the applicant had no injuries. While subsequent assessments had identified scars on the applicant’s body, neither the exact date of those injuries nor the exact manner of their origin had been established. The Government considered that there was no reliable evidence proving that the applicant had sustained any injuries while under the control of the police officers.

74. The applicant disagreed.

75. The Court considers 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.

2. Merits

76. The Government maintained their position that the complaint was manifestly ill-founded.

77. The applicant maintained that the medical evidence was sufficient to prove that he had been tortured by the police officers.

78. The Court reiterates that Article 3 of the Convention prohibits in absolute terms torture and inhuman or degrading treatment. Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim. In relation to a person deprived of his liberty, recourse to physical force that has not been rendered strictly necessary by his own conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3 (see Labita v. Italy [GC], no. 26772/95, §§ 119-20, ECHR 2000-IV).

79. In assessing evidence, the Court has generally applied the standard of proof “beyond reasonable doubt” (see Ireland v. the United Kingdom, 18 January 1978, § 161, Series A no. 25). However, proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as is the case with persons who are under their control while in custody, strong presumptions of fact will arise in respect of injuries occurring during such detention. Indeed, the burden of proof may be regarded as lying with the authorities to provide a satisfactory and convincing explanation (see Ribitsch v. Austria, 4 December 1995, § 34, Series A no. 336, and Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII).

80. In the present case the evidential material concerning the applicant’s alleged ill-treatment is controversial. The applicant’s complaint relates essentially to the date of 12 December 2004. The medical assessments of 6 July and 7 September 2005 indicated for the first time that the applicant had some scars on his body. The exact date of the injuries remains unknown as the experts postulated long periods within which the injuries could have been sustained. However, the initial medical assessments of 15 and 28 December 2004, conducted shortly after the alleged ill-treatment, did not document any injuries on the applicant. Given the considerations concerning the procedural aspect of Article 3 of the Convention above, the reliability of the results of the initial medical assessments might be questioned.

81. The Court does not need to resolve the latter question. If the reports of 15 and 28 December 2004 are to be accepted as reliable evidence, proving that the applicant had no injuries at that time, then any injuries documented later bear no relation to the applicant’s complaint of ill-treatment, which allegedly took place on 12 December 2004. The scars documented by the experts could have originated in a variety of circumstances, but none would be of relevance for the domestic authorities called upon to resolve the applicant’s specific complaint.

82. On the other hand, if the findings of the medical examinations of 15 and 28 December 2004 are discarded as unreliable, then the Court likewise has no sufficient basis for accepting the applicant’s account of the facts. The experts’ findings based on the assessments of 6 July and 7 September 2005 postulate long periods within which the injuries could have been sustained and those periods extend far beyond the date of the alleged ill-treatment. It is notable that from 14 December 2004 and onwards the applicant was communicating with his lawyer, and there is no document to show that they requested any medical assessment of the applicant at the relevant time. Finally, there is nothing to show that the applicant was under the control of police officers on 12 December 2004, the date to which the applicant’s complaint relates, or even on 13 December 2004, and therefore no presumption of fact in favour of the applicant’s version arises.

83. On the whole, the applicant’s allegations as to the place, time and methods of ill-treatment and the persons who inflicted injuries are not supported by medical or other evidence and cannot be upheld by the Court. The Court has found under the procedural limb of Article 3 of the Convention that the domestic authorities failed to investigate effectively the applicant’s allegations of ill-treatment and did not ensure appropriate steps were taken to assemble the evidence for the case. Those failings constituted a procedural violation of this provision of the Convention. As to the substantive aspect of Article 3, the Court finds no violation.

II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

84. The applicant complained that the courts had assessed the evidence inadequately and had unfairly convicted him on the basis of the self-incriminating statements obtained through ill-treatment. He relied on Article 6 § 1 of the Convention which provides, in so far as relevant:

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

85. The Government submitted that the domestic courts had determined the applicant’s case on the basis of evidence which was lawfully obtained by the authorities with due respect to the applicant’s rights. The domestic courts had relied on the self-incriminating statements which the applicant had made in the presence of his lawyer and there had been no grounds to question the quality of this evidence.

86. The applicant disagreed.

87. The Court notes that between 14 and 24 December 2004 the applicant made extensive self-incriminating statements in the presence of lawyer. A part of those statements was made before the domestic courts when the issue of preventive measure was being decided. Those statements together with the other evidence were used by the domestic courts to determine the applicant’s criminal case. As to the alleged ill-treatment on 12 December 2004, the Court has dismissed the relevant complaint under Article 3 of the Convention. It finds therefore that in the circumstances of the present case no issue under Article 6 of the Convention arises in connection with the applicant’s contention that he was convicted on the basis of evidence obtained through ill-treatment (see Yerokhina v. Ukraine, no. 12167/04, § 77, 15 November 2012 and Nikolayenko v. Ukraine, no. 39994/06, § 71, 15 November 2012).

88. This complaint is therefore manifestly ill-founded and should be dismissed as inadmissible in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF LACK OF MEDICAL CARE

89. The applicant complained that he was not provided with appropriate medical treatment during his detention. He relied on Article 3 of the Convention.

90. The Government submitted that during the applicant’s detention he had been provided with appropriate medical assistance. He had been regularly examined by doctors at the detention facilities and had undergone the necessary examinations and treatment.

91. The applicant maintained that his medical care had been insufficient during many years of the period spent in detention.

92. The Court notes that it does not appear that the applicant ever complained to the medical staff of the detention facilities concerning inadequate medical treatment. Moreover, it appears from the Government’s submissions that on certain occasions the applicant refused to undergo treatment offered to him by the medical staff of the detention facilities.

93. The applicant’s assertion that he did not receive appropriate medical care is a general one and is not supported by any factual information. At the same time, the materials submitted by the Government suggest that the applicant was medically examined on a regular basis and was provided with appropriate medical treatment. There is no indication of any failing on the part of the medical staff of the detention facilities which would give rise to an issue under Article 3 of the Convention (see also Vergelskyy v. Ukraine, no. 19312/06, §§ 89-91, 12 March 2009, and Znaykin v. Ukraine, no. 37538/05, § 41, 7 October 2010).

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

IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

95. The applicant complained of other violations of his rights under the Convention.

96. The Court has examined these complaints and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. Accordingly, the Court rejects them as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

V. 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.”

A. Damage

98. The applicant asked to be awarded compensation in respect of non-pecuniary damage but left the amount to the discretion of the Court.

99. The Government considered that the claim was unfounded.

100. The Court considers that the applicant must have suffered anguish and distress on account of the facts giving rise to the finding of violations in the present case. Ruling on an equitable basis, the Court awards the applicant EUR 7,500 in respect of non-pecuniary damage.

B. Costs and expenses

101. The applicant did not submit any claims under this head. The Court therefore makes no award.

C. Default interest

102. 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 concerning the ill-treatment by police officers and effectiveness of its investigation (Article 3 of the Convention) admissible and the remainder of the application inadmissible;

2. Holds that there has been a procedural violation of Article 3 of the Convention;

3. Holds that there has been no substantive violation of Article 3 of the Convention;

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, EUR 7,500 (seven thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

Done in English, and notified in writing on 29 January 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Claudia WesterdiekMark Villiger
RegistrarPresident

 

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