CASE OF CHMIL v. UKRAINE

FIFTH SECTION

CASE OF CHMIL v. UKRAINE

(Application no. 20806/10)

JUDGMENT

STRASBOURG

29 October 2015

FINAL

29/01/2016

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

In the case of Chmil v. Ukraine,

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

Josep Casadevall, 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 6 October 2015,

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

PROCEDURE

1. The case originated in an application (no. 20806/10) 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 Anatoliy Vasylyovych Chmil (“the applicant”), on 18 March 2010.

2. The applicant was represented by Mr A.A. Kristenko, a lawyer practising in Kharkiv. The Ukrainian Government (“the Government”) were represented by their Agent, most recently, Mr B. Babin of the Ministry of Justice.

3. The applicant alleged that he had been subjected to ill-treatment by the police, and that there had been no effective investigation into his complaints.

4. On 26 November 2012 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1936 and lives in the town of Ananyiv, Ukraine. At the material time, the applicant was the head of a territorial election commission.

6. At approximately 6.30 a.m. on 31 October 2004 – the day of the first round of the presidential elections – while on his way to the territorial election commission headquarters, the applicant met four police officers walking in the same direction who were unfamiliar to him (later identified as police officers K., L., P. and D.). The applicant struck up a conversation with them, which apparently ended up in a verbal confrontation.

7. According to the applicant, when they reached Ananiyivskyy District Police Station, the police officers pushed him inside and physically assaulted him.

8. According to the Government, when the group reached the police station, the applicant suddenly grabbed L.’s uniform and the grille of the security door and started shouting that he was being beaten. After that, the applicant talked to the head of the police station and left.

9. On the same day, the applicant phoned a prosecutor and complained of the above events. The applicant stated that at 6.30 a.m. police officers he did not recognise had pushed him into the corridor of the police station, knocked him to the ground and started to kick him. A police officer who had been on duty at the time had seen this. The applicant had been kicked in the head, the groin and the spine. As he had also been shouting out during the incident, the head of the police station had come and had ordered the officers to let him go. These events had been witnessed by a certain S.

10. Later, the applicant also testified that he had seen five unfamiliar police officers while walking to work. He had asked them where they were from, and had said that they would be working together that day. They had answered that they were from the town of Ananyiv. When the group had neared the police station, the applicant had been pushed inside. He had grabbed the door grille and shouted. The police officers had continued to hit him and had dragged him into the police station. There, they had kicked him to the floor and had continued to kick him while he was on the floor.

11. At around 1 p.m. on 31 October 2004 the applicant was examined by a forensic medical expert, B. The applicant complained of nausea and a headache, in addition to pain below his right shoulder blade, in the lumbar part of his spine, in his legs and in his groin. The applicant had a scratch on his left cheek and an oedema on his right leg. He was advised to consult both a surgeon and a neuropathologist. The applicant was supposed to go and see the expert again the next day, but did not do so.

12. On the same day, the police officers involved in the incident (K., L., D. and P.) were questioned. Police officer K. reported to the head of the police station that, while walking along the street with his three colleagues, they had been approached by a stranger who had asked them provocative questions such as, “Did you come here to kill and hang people? What are you doing here? What are you eavesdropping on?” The police officers had answered that they had been sightseeing and that the town was very beautiful. In reply, the man had said that they had seen enough and that they, “should go to the town of Reni where police officer P. should sit on the stork’s post”. The group had stopped near the police station, where the man had grabbed L.’s shoulder strap with one hand and the door grille with the other hand, and had started shouting that he had been beaten. After that, the man had entered the police station.

13. The Government also submitted the testimonies of the above police officers, which were dated 31 October 2004 and drafted in almost identical terms. According to those testimonies, in the morning of 31 October 2004, the police officers who had gone to Ananyiv to assist in maintaining public order on election day had been walking from their accommodation to the police station. An unknown man had approached them and shouted, “The fascists are coming!” and had followed them to the police station while insulting them. When L. had tried to enter the police station, the man had grabbed the door grille and L.’s left shoulder strap, and had started shouting that he was being beaten. The head of the police station had intervened. Nobody had hit the man.

14. On the same day, the entrance to the police station was inspected and no trace of a struggle was detected. L.’s uniform coat was also inspected, and it was established that one of the bands with which his left shoulder strap had been attached had been torn off.

15. Police officers K., L., D. and P. were examined by a forensic expert and by a hospital doctor. It was confirmed that they had not sustained any physical injuries and had not been drunk at the relevant time.

16. On 31 October 2004 testimonies of potential witnesses were collected.

17. The testimonies of the police officers present at the time of the incident in the police station were as follows:

- police officer Sa. saw the applicant grab the door grille and shout as if somebody had been hitting him;

- police officer Bo. saw the applicant grab the door grille and shout hysterically. Twice, the applicant tried to kick a police officer, but missed;

- police officer N. saw the applicant in the police station. The applicant was shouting at the police officers, threatening them with dismissal and calling them names;

- police officer G. saw four unfamiliar police officers, the applicant, and police officers Bo., Da., and Sa. in the reception area of the police station. The applicant was shouting that he had been beaten;

- the head of the police station, Le., and police officer Kl. saw the applicant talking to L. and asking, “Who allowed you to beat me?”.

18. Forensic expert B. testified that he had examined the applicant at around 1.00 p.m. on 31 October 2004. The applicant had been complaining of nausea and a headache, in addition to pain in his back, groin and right leg. The applicant had had a scratch on his left cheek, which may have been caused by the skin being rubbed against some flat object with an uneven surface. The applicant had also had an oedema on his right leg. He had been advised to consult both a surgeon and a neuropathologist. The applicant had said that he had to work that day, and so would consult the doctor the next day. According to B., the applicant’s account – that he had been severely beaten by five police officers – was doubtful, as it contradicted the results of the physical examination.

19. S., a journalist, testified that he had seen a group of police officers walking along the street, flanking the applicant. When the group had reached the police station, the police officers had pushed the applicant inside. The applicant had resisted and the police officers had kicked him on the legs, the stomach and groin and possibly in the back. S. had run towards the police station. He had heard the applicant shout at a police officer, “Why are you beating me?” The head of the police station had been standing nearby.

20. A number of people were standing across the street from the police station at the relevant time and allegedly saw the incident. They testified as follows:

- Se., the town mayor, said, “The police officers and A.V. Chmil were walking along the street quite normally. I continued my conversation with other people and suddenly heard A.V. Chmil shouting, ‘Leave me alone!’ A.V. Chmil grabbed the police officers’ clothes and tried to tear away their shoulder straps. The police officers did not use any force. Everybody went into the police station. After three to four minutes, A.V. Chmil then left the police station”;

- Ko., a district election commission member, said, “A man was following three or four police officers. As the first police officer was entering the police station, the man squeezed in between them. This was followed by some shouts and a shove in the doorway. The man was pushing the police officers and shouting, ‘Help!’ and ‘Let me go!’”;

- Ku said, “A man was following four unfamiliar police officers. As one police officer was entering the police station, the man started to push the others and to shout that they were not to touch or beat him. I did not see anybody beating him”;

- Tk., a police officer, said, “A man was walking behind the police officers. As one police officer was entering the police station, the man pushed him. The man also shouted that they were not to touch him. After one minute, the man left the police station”;

- Ts., a police officer, said, “A.V. Chmil was following four police officers. As one of the police officers started to go into the police station, A.V. Chmil squeezed in between the other three and started shouting that he was being beaten. He pushed the first police officer inside and then went in himself. A.V. Chmil left the police station after one to two minutes”.

21. The applicant was in hospital from 2 to 19 November 2004. While there, he complained that he had been physically assaulted on 31 October 2004, and was diagnosed with concussion.

22. On 10 November 2004 the Ananiyivskyy District Prosecutor’s Office refused to institute criminal proceedings against the police officers. The available evidence was summarised as follows. Five witnesses (including two police officers) testified that in the morning of 31 October 2004 they had seen the applicant walking to the police station, accompanied by four police officers. As one of the police officers had gone into the police station, the applicant had squeezed in between the police officers and had started pushing them – grabbing at their uniforms and shouting that they should stop beating him and leave him alone. The witnesses did not see the applicant being physically assaulted. The police officers involved in the incident testified that they had not hit him. Six more police officers who had been in the police station at that time testified that nobody had hit the applicant. A forensic expert, B., testified that he had examined the applicant at 1 p.m. on 31 October 2004. The applicant had had scratches on his left cheek and on his right leg. Judging by the applicant’s injuries, the expert had doubted that the applicant had been beaten by five police officers in the manner that he had alleged. The Ananiyivskyy District Prosecutor’s Office also noted that, as the applicant was in hospital at that time, it was impossible to establish the seriousness of the injuries he had sustained. In view of the evidence outlined above, the prosecutor concluded that the applicant’s allegations were unsubstantiated and that there was no evidence of a crime having been committed.

23. On 22 November 2004, following a request from the Ananiyivskyy District Prosecutor’s Office, a forensic medical expert concluded that the applicant had sustained minor physical injuries.

24. On 30 December 2004 the Odessa Regional Prosecutor’s Office overruled the decision of 10 November 2004 and remitted the case for further investigation. Amongst other things, it was noted that, in view of the applicant’s stay in hospital, a forensic medical examination should have been carried out, and witnesses other than police officers – such as the applicant’s relatives – should have been questioned.

25. In January 2005 in the course of further investigation, a hospital doctor testified that, following his admission to hospital, the applicant had complained that he had been physically assaulted, and had had bruises on his right leg.

26. A territorial election commission secretary testified that on 31 October 2004 she had arrived at work at 8 a.m. The applicant had already arrived, and he had told her that he had been beaten. He had had no visible injuries.

27. On 16 February 2005 the Ananiyivskyy District Prosecutor’s Office instituted criminal proceedings against the police officers for abuse of power.

28. The case material contains records of testimonies drafted in almost identical terms, which the four police officers involved in the incident gave on 19 March 2005. Those testimonies are nearly identical to those given by the police officers on 31 October 2004, save that in the more recent testimonies all of the police officers added that they had been trained, and that, if they had indeed beaten the applicant, then he would have sustained much more serious injuries.

29. On 19 March 2005 four formal confrontations between the applicant and the police officers were also held. The parties were asked the following questions:

- Do you know each other and, if so, how did you meet and what is your current relationship?

- Do you have any reason to lie about each other?

- What were you doing when you met each other on the way to the Ananiyivskyy District Police Station?

- In what manner did you enter the Ananiyivskyy District Police Station?

- (Of the police officers) When did you learn that A.V. Chmil was the head of the territorial election commission?

- Was A.V. Chmil subjected to physical or psychological pressure on 31 October 2004?

- Were any procedural documents regarding A.V. Chmil drafted at the police station?

30. The answers in all four confrontation records are identical and are drafted in nearly identical terms.

31. In response to the third question, the police officers said that the applicant had asked them who they were and what they were doing in town. Police officer K. had answered the applicant and had said that they were police officers and were walking around the town. The applicant had started to insult them.

32. The record of the confrontation between the applicant and L. also contains the following verbatim extract:

“Как Вы оказались в здании Ананьевского РО УМВД Украины в Одесской области?

...

Л.: В райотдел милиции заходили через дверь по одному. Первым в двери зашел Л., за ним начал заходить я, в этот момент гр. Чмиль А.В. встал между мной и П., в дверях в райотдел. При этом одной рукой схватился за решетку двери, другой за мое плече.”

“In what manner did you enter the Ananiyivskyy District Police Station?

...

L.: We entered the police station one by one through the door. L. went in first, then me, but at that moment A.V. Chmil went to stand between me and P. in the doorway. He grabbed the door grille with one hand and my shoulder with the other hand.”

33. On 12 April 2005, following a decision of 20 March 2005 of the Ananiyivskyy District Prosecutor’s Office to conduct a forensic examination, a group of forensic medical experts concluded that the applicant had sustained a concussion, a scratch to his left cheek, and bruising to the left part of his face, his left hip and the lower part of his right leg. These injuries were categorised as minor.

34. Between April and May 2005 some of the above-mentioned witnesses (see paragraphs 17 - 20 above) were questioned again. They gave testimonies similar to those of October 2004.

35. On 14 July 2005, following a decision of 10 May 2005 of the Ananiyivskyy District Prosecutor’s Office to conduct a forensic examination, a group of forensic medical experts, having studied the relevant case file material, concluded that the applicant had sustained a concussion and a scratch to his left cheek. He had also sustained bruising to the left part of his face, his left hip and the lower part of his right leg. The bruises had been noted on the applicant’s medical card on 2 November 2004. The expert had not mentioned them in the initial examination of 31 October 2004, as they had not yet been visible at that time. The forensic medical experts were of the opinion that the concussion, the scratch and the bruises to the left cheek and lower part of the applicant’s right leg had been caused several hours before the initial examination at 1 p.m. on 31 October 2004. It was impossible to establish the exact time that the applicant’s injuries had been caused. They could have been inflicted between 7 and 8 a.m., but also earlier or later. All of the injuries had been caused by blunt trauma. The possibility that the applicant had sustained the injuries when he had fallen could not be excluded.

36. On 8 September 2005 the Ananiyevskyy District Prosecutor’s Office terminated the proceedings for the absence of any corpus delicti. The prosecutor concluded that the applicant had sustained the injuries in question when he had grabbed L.’s coat inside the police station, lost his footing and fallen down.

37. On 12 September 2005 the Odessa Regional Prosecutor’s Office overruled that decision and remitted the case for further investigation. It was noted that not all of the witnesses had been questioned.

38. On 10 October 2005 the proceedings were terminated again. It was noted that the witnesses Kol. and Sam. had not seen the applicant being subjected to ill-treatment. Kol. had testified that the police officers “had accompanied” the applicant to the police station, but that he had not seen the applicant being beaten. Sam. had seen the applicant after the incident.

39. On 19 December 2005 the Odessa Regional Prosecutor’s Office overruled that decision and remitted the case for further investigation.

40. On 8 August 2006, following a complaint lodged by police officers K. and P., the decision of 16 February 2005 to institute criminal proceedings against the police officers (see paragraph 27 above) was quashed by the Ananiyivskyy Local Court as unsubstantiated, and the case material was sent to a prosecutor’s office for a decision.

41. On 13 August 2006 a group of forensic medical experts gave an opinion on the applicant’s case. They were asked to say whether they thought that the applicant’s second-degree disability (друга група інвалідності) was related to the injuries which he had sustained on 31 October 2004. The Government submitted an incomplete copy of the experts’ conclusion (seven pages out of ten).

42. On 27 November 2006 the Ananiyevskyy District Prosecutor’s Office refused to institute criminal proceedings against the police officers. It found that the applicant had created a conflict situation and had sustained injuries as a result of a fall.

43. On 7 March 2008 the Odessa Regional Court of Appeal quashed the decision of 8 August 2006. The police officers tried again to challenge the decision of 16 February 2005 in court, but to no avail.

44. On 5 May 2008 the Ananiyevskyy District Prosecutor’s Office overruled the decision of 27 November 2006 and remitted the case for further investigation.

45. In the course of that further investigation, the witnesses (the police officers who were present at the time of the incident in the police station and the people who saw the incident from across the road), the applicant and police officers K., L., P. and D. were questioned again. They all confirmed their previous testimonies. A formal confrontation between the applicant and K., L., P. and D. was undertaken, as well as a reconstruction of events.

46. On 27 February 2009, following a decision of the Ananiyivskyy District Prosecutor’s Office, another forensic medical examination was completed. It concluded that the applicant had sustained a concussion and a scratch to his left cheek, bruises to the left part of his face, his left hip and the lower part of his right leg. Those injuries could have occurred on 31 October 2004 between 7 and 8 a.m., or later. All injuries had been caused by blunt trauma – impact from blunt objects or from falling down onto a hard surface, such as the floor.

47. On 2 April 2009 the criminal proceedings were terminated for the absence of any corpus delicti. The conclusion was that at around 6.30 a.m. on 31 October 2004 the applicant had approached four police officers – D., K., P. and L. – who had been in charge of maintaining public order on the day of the elections. The applicant had started to call them names. When the police officers had tried to go into the police station, the applicant had squeezed in between them, grasped the iron grille of the door with one hand and L.’s coat by the other, and had started shouting that he was being beaten in an effort to attract attention. The police officers and the applicant had finally entered the police station, and police officer L. had had his left shoulder-strap torn off. Seven police officers had testified that nobody had beaten the applicant in the police station. Other witnesses had testified that they had not seen the applicant being physically assaulted. According to the forensic medical examination, the applicant’s injuries could have been inflicted between 7 and 8 a.m. or later on 31 October 2004. On 17 February 2009 a forensic medical expert, B., had testified during the reconstruction of events that if the applicant’s version of events had been true, then he would have sustained more serious physical injuries. It was therefore concluded that the police officers had committed no crime.

48. The applicant challenged that decision before more senior prosecutors, but to no avail. By letter of 11 December 2009, the General Prosecutor’s Office informed the applicant that, following the investigation, it had been established that on 31 October 2004 he had approached four police officers and started to insult them and call them “black-shoulder-strappers”. He had also torn off the left shoulder strap of police officer L. Moreover, it had been established that the police officers had not used force against the applicant and that, on the contrary, the applicant had tried to kick one of the police officers in the groin while in the police station. Consequently, there were no grounds for overruling the decision of 2 April 2009.

49. The applicant also instituted proceedings for damages against the Ananiyivskyy District Prosecutor’s Office, but to no avail, as his claims were rejected for failure to comply with procedural requirements.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

50. The applicant complained that he had been subjected to ill-treatment by the police and that there had been no effective investigation following his complaint. The applicant 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

51. The parties did not submit any observations on the admissibility of those complaints.

52. The Court notes that the decision of 2 April 2009, which terminated the criminal proceedings in the applicant’s case, was adopted more than six months before the present application was lodged.

53. The Court further notes that the Government did not address the question of the six-month rule. However, the Court reiterates that the six-month rule, in reflecting the wish of the Contracting Parties to prevent past decisions being called into question after an indefinite lapse of time, serves the interests not only of the respondent Government but also of legal certainty as a value in itself. It marks out the temporal limits of supervision by the organs of the Convention, and signals to both individuals and State authorities the period beyond which such supervision is no longer possible. It is therefore not open to the Court to dispense with the application of the six-month rule solely because the Government have not made an objection based on this rule (see Walker v. the United Kingdom (dec.), no. 34979/97, ECHR 2000‑I).

54. The Court observes that the applicant challenged the decision in question before more senior prosecutors, but to no avail. No formal decision was adopted following his complaints, and he was simply informed by letter that there were no grounds for overruling the decision of 2 April 2009. It is therefore necessary to decide precisely when the six-month period started to run in the circumstances of the case.

55. The Court reiterates that, according to its findings in the case of Kaverzin v. Ukraine (no. 23893/03, § 97, 15 May 2012), the procedures of appeal to hierarchically superior prosecutors and to the courts have not been proved to be capable of providing adequate redress in respect of complaints of both ill-treatment by the police and ineffective investigation.

56. In the present case, the Court, however, notes that the decisions to terminate the criminal proceedings against the police officers were repeatedly overruled by more senior prosecutors and that the case was remitted for fresh investigation. The Court considers that, in such circumstances, the applicant could not be reproached for trying to have recourse to a remedy which had already proved on several occasions to have had some effect in his case. Moreover, although the proceedings in the applicant’s case had been going on for more than four years by the time of the decision of 2 April 2009, it cannot be concluded that the applicant introduced his complaint before this Court with any undue delay (see, mutatis mutandis, Varnava and Others v. Turkey [GC], §§ 161-66).

57. The Court therefore considers that the applicant has complied with the six-month rule in the present case.

58. The Court further notes that 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. Alleged ill-treatment

(a) Parties’ submissions

59. The Government disagreed that there had been a violation of the substantive part of Article 3 of the Convention in the present case.

60. The Government did not deny that the applicant had sustained physical injuries on 31 October 2004. There were five forensic medical examinations – all of which established that the applicant had sustained minor physical injuries. However, it was concluded that the applicant could equally have sustained those injuries before or after the events complained of.

61. The Government further submitted that the police officers had not been responsible for the applicant’s physical injuries. All witnesses had testified that the situation was of the applicant’s own making. Moreover, one of the witnesses had testified that the applicant had had no visible injuries on 31 October 2004 (see paragraph 26 above). The forensic medical expert, B., had also testified that the applicant’s injuries were not consistent with his version of events.

62. Lastly, the Government stated that “the police officers had had no reason to hit the applicant, as he had been released after the incident”.

63. The applicant disagreed and maintained that he had been subjected to ill-treatment by the police officers, in breach of Article 3 of the Convention.

64. The applicant stated that he was an elderly person who was small in stature. He had never acted in a violent manner or intended to hurt anybody. However, the police officers had unlawfully used force against him, and had continued to physically assault him even when he was lying on the floor.

65. The applicant submitted that his account of the ill-treatment which he had suffered was supported by the conclusions of the numerous forensic medical examinations. That ill-treatment had occurred when the applicant had been under the control of the police officers. However, the Government had failed to provide a satisfactory and convincing explanation as to the origin of his injuries.

66. The applicant also noted that, although there had been “at least two eyewitnesses to the physical assault”, their testimonies had been ignored.

67. The applicant stated that, in view of the above, there was enough evidence to conclude that there had been a violation of Article 3 of the Convention under its substantive limb in his case.

(b) The Court’s assessment

68. The Court has stated on many occasions 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 or the victim’s behaviour (see, among other authorities, Labita v. Italy [GC], no 26772/95, § 119, ECHR 2000-IV).

69. The Court is sensitive to the subsidiary nature of its role, and recognises that it must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case (see, for example, McKerr v. the United Kingdom (dec.), no. 28883/95, 4 April 2000). Nonetheless, where allegations are made under Article 3 of the Convention, the Court must apply a particularly thorough scrutiny, even if certain domestic proceedings and investigations have already taken place (see, mutatis mutandis, Ribitsch v. Austria, 4 December 1995, § 32, Series A no. 336, and Avşar v. Turkey, no. 25657/94, § 283, ECHR 2001-VII (extracts)).

70. The Court recalls its jurisprudence confirming that the standard of proof applied in its assessment of evidence is that of “beyond reasonable doubt” (see Avşar, cited above, § 282). Such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences, or of similar unrebutted presumptions of fact.

71. Turning to the present case, the Court notes that, according to the applicant, the police officers pushed and kicked him while manhandling him into the police station, knocked him to the floor and then kicked him on various parts of his body. As a result, the applicant had concussion and sustained some bruising and a scratch to his face.

72. In order to fall under Article 3 of the Convention, ill-treatment must attain a minimum level of severity. The assessment of this minimum level of severity 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 gender, age and state of health of the victim (see Valašinas v. Lithuania, no. 44558/98, § 101, ECHR 2001‑VIII). The Court has considered treatment to be “inhuman” where, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual physical injury or intense physical or mental suffering. It has deemed treatment to be “degrading” where it was such as to arouse in the victims feelings of fear, anguish and inferiority capable of humiliating and debasing them (see Kudła v. Poland [GC], no. 30210/96, § 92, ECHR 2000-XI).

73. The applicant’s injuries (as described above) were confirmed on numerous occasions by the findings of forensic medical experts. It is not contested by the Government that the treatment described by the applicant reached the threshold of severity necessary for the events in question to fall within the ambit of Article 3 of the Convention. It remains to be determined whether the State authorities treated the applicant in the way described and therefore should be held accountable under Article 3 of the Convention.

74. In this respect, the Court notes that forensic medical experts were asked on several occasions to determine the time that the injuries in question were inflicted. Although the experts were not able to give the precise time, it was concluded (see paragraphs 35 and 46 above) that the injuries in question had been inflicted several hours before the initial examination of the applicant by a medical expert at 1 p.m. on 31 October 2004.

75. It is true that the investigation at national level was limited to verifying whether or not the applicant had been ill-treated by the police officers. However, despite the instructions given by a more senior prosecutor (see paragraph 24 above), nothing was done to check whether anything had happened to the applicant before or after the disputed events which could have corroborated or disproved the parties’ assertions as to the time and origin of the applicant’s injuries.

76. The Court notes that the incident with the police officers took place very early in the morning when the applicant was apparently walking from his house to his place of work, and it appears that after the incident the applicant went to work, where he immediately told his colleagues that he had been physically assaulted. There is no evidence that the applicant received any injuries before or after the incident in question.

77. The Court also considers that the results of the investigation, given its numerous shortcomings (see below), did not disprove the applicant’s allegations that he had been pushed into the police station and then physically assaulted.

78. The Court further notes that, in any event, numerous witnesses saw “a shove” in the doorway of the police station. Even accepting the Government’s version of the facts, it appears that some force was used against the applicant. Given his age, the force used could have been perceived by the applicant as quite strong. Having regard to the circumstances of the case described by the Government (the applicant blocking the door to the police station and grabbing one of the police officers’ uniforms), the training allegedly received by the police officers in order to deal with such situations, as well as to the applicant’s age and state of health, it appears that the force used against him was excessive, given that, as a result, the applicant was diagnosed with concussion and was in hospital for seventeen days.

79. The Court therefore considers that, according to both parties’ versions of events, there is enough evidence in the present case to conclude “beyond reasonable doubt” that the applicant was subjected to ill-treatment by the police, in breach of Article 3 of the Convention under its substantive limb.

2. Adequacy of the investigation

(a) Parties’ submissions

80. The Government submitted that, in the present case, all investigatory steps necessary for establishing the circumstances of the case had been performed. A number of such steps had been performed on the same day. There had been five forensic medical examinations, however, the questions regarding the timing of the injuries and the way in which they had been inflicted remained unanswered. The applicant had not complained of any particular shortcomings of the investigation, and had not appealed against the decision of 2 April 2009. The Government concluded that, in the present case, there had been no violation of Article 3 of the Convention under its procedural limb.

81. In reply, the applicant submitted that, although he had lodged his complaint of ill-treatment on the same day as the incident, the investigation had lasted more than five years and had failed to result in the punishment of those responsible for his injuries.

82. The authorities had failed to establish what the legal grounds were for taking the applicant into the police station. The investigation had been unreasonably lengthy, and its conclusions had relied heavily on the testimonies of the police officers, which had been drafted in identical terms.

83. The applicant also underlined that the decisions not to institute criminal proceedings against the police officers had been overruled on numerous occasions, and that clear instructions had been given to the investigation authorities, yet those instructions had been disregarded.

84. Lastly, the applicant stated that the ineffective investigation into his case was a typical problem within the Ukrainian system of law enforcement (see Kaverzin v. Ukraine, cited above), and that there had been a violation of Article 3 of the Convention under its procedural limb in his case.

(b) The Court’s assessment

85. The Court reiterates that, where an individual raises an arguable claim that he has been subjected to ill-treatment by 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. Such an investigation should be capable of leading to the identification and punishment of those responsible. Otherwise, the general legal prohibition of torture and inhuman and degrading treatment and punishment would, despite its fundamental importance, be ineffective in practice, and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity (see Assenov and Others v. Bulgaria, 28 October 1998, § 102, Reports of Judgments and Decisions 1998‑VIII, and Labita v. Italy [GC], § 131, cited above).

86. An investigation into arguable allegations of ill-treatment must also be thorough. This means that the authorities must always make a serious attempt to find out what happened, and should not rely on hasty or ill-founded conclusions in order to close their investigation, or as the basis of their decisions (see Assenov and Others, cited above, §§ 103 et seq.). They must take all reasonable steps available to them to obtain evidence concerning the incident, including, inter alia, eyewitness statements and forensic evidence (see, mutatis mutandis, Tanrıkulu v. Turkey [GC], no. 23763/94, §§ 104 et seq., ECHR 1999‑IV, and Gül v. Turkey, no. 22676/93, § 89, 14 December 2000).

87. Turning to the present case, the Court notes that Article 3 of the Convention requires that the investigation should start as soon as an arguable claim has been made by the applicant (see Veznedaroğlu v. Turkey, no. 32357/96, § 34, 11 April 2000). In the present case, the investigation started immediately after the applicant had lodged his complaint, and a number of investigatory steps were taken on the same date – the victim, alleged offenders and numerous witnesses were questioned and the scene of the incident was examined. However, ten days later, the prosecutor’s office refused to institute criminal proceedings. In so doing, it relied exclusively on the evidence collected shortly after the incident, which was apparently insufficient for making a decision with any proper basis, as evidenced by the fact that a more senior prosecutor then overruled the initial refusal to institute criminal proceedings (see paragraph 24 above).

88. The Court further notes that, at one point, criminal proceedings were instituted against the police officers in relation to an alleged abuse of power. However, three decisions (dated 8 September 2005, 10 October 2005 and 27 November 2006) of the prosecutor’s office then terminated those proceedings for absence of evidence of a crime. Those decisions were subsequently overruled by more senior prosecutors because of shortcomings, and the case was remitted for further investigation.

89. The Court notes that, during that time, various procedural investigatory actions were performed – four forensic medical examinations, confrontations between the applicant and the police officers and a reconstruction of events. However, it appears that those steps were merely superficial. In particular, the testimonies and answers given by the police officers during the confrontations with the applicant were identical, and from the incoherent wording of the statement made by L. it is apparent that they had sometimes been prepared by copying the text from one document and pasting it into another (see paragraph 32 above).

90. As for the forensic medical examinations, the Court notes that the experts were never asked whether the applicant could have sustained his injuries in the circumstances he described, or in the circumstances described by the police officers.

91. The Court therefore considers that the investigation following the applicant’s complaints was unreasonably lengthy and marked by shortcomings which have been acknowledged by the national authorities, and that the conclusions of that investigation were not based on the available evidence. In particular, on 8 September 2005 the prosecutor noted that the applicant had sustained his injuries by falling down, yet nobody, (the police officers included), had ever testified that they saw the applicant fall. The same is true of the decision of 2 April 2009 to terminate the criminal proceedings in the absence of any findings as to whether or not the applicant’s injuries could have originated in the circumstances described by him or in those described by the police officers.

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

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

93. 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

94. The applicant claimed 40,000 euros (EUR) in respect of non-pecuniary damage.

95. The Government maintained that there had been no violation of the applicant’s rights in the present case, and that the amount claimed was, in any event, excessive. Moreover, according to the Government, the applicant had failed to show a causal link between the violations alleged and the amount claimed.

96. The Court, ruling on an equitable basis, awards the applicant EUR 7,000 in respect of non-pecuniary damage.

B. Costs and expenses

97. The applicant also claimed 34,291 Ukrainian hryvnias (UAH) (at the material time around EUR 3,000) for legal assistance before this Court and UAH 131.90 (around EUR 12) for postage expenses incurred in the Convention proceedings. The applicant submitted a time sheet completed by Mr Kristenko in respect of the work done in October 2013. According to this time sheet, Mr Kristenko worked on the case for fourteen hours.

98. The Government submitted that the hourly rate charged by the applicant’s lawyer was too high. Referring to the Court’s case-law (see Belousov v. Ukraine, no. 4494/07, §§ 113-117, 7 November 2013), the Government maintained that the amount claimed was excessive.

99. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 1,000 for legal assistance before this Court and EUR 12 for postage expenses.

C. Default interest

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

FOR THESE REASONS THE COURT UNANIMOUSLY,

1. Declares the application admissible;

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

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

4. Holds

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

(i) EUR 7,000 (seven thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 1,012 (one thousand twelve euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

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

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

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

              Claudia WesterdiekJosep Casadevall
RegistrarPresident

Full & Egal Universal Law Academy