CASE OF GORDIYENKO v. UKRAINE

FIFTH SECTION

CASE OF GORDIYENKO v. UKRAINE

(Application no. 27620/09)

JUDGMENT

STRASBOURG

16 October 2014

FINAL

16/01/2015

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

In the case of Gordiyenko 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 23 September 2014,

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

PROCEDURE

1. The case originated in an application (no. 27620/09) 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 Vyacheslav Aleksandrovich Gordiyenko (“the applicant”), on 8 May 2009.

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

3. The applicant alleged that on several occasions he had been subjected to ill-treatment and that there had been no effective investigation of those events.

4. On 8 October 2012 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1957 and lives in Kherson.

6. In 1980 the applicant sustained a craniocerebral injury and underwent surgery for a brain hematoma.

7. In 1993 the applicant sustained another craniocerebral injury, following which he started to suffer from epileptic attacks. According to the applicant, since that time the attacks usually occur twice a week.

8. The applicant was designated as Category 2 (medium-level) disabled on account of his poor health.

A. Incident of 24 March 2006

9. At about 9.30 a.m. on 24 March 2006 the applicant was standing at a trolleybus station when T. allegedly clipped him slightly while attempting to park his car. A conflict arose between them, with T. punching the applicant in the face and then throwing some further punches at him.

10. On the same day the applicant complained to the Suvorivskyy District Police Department of Kherson (“the Police Department”) about T. The police registered the complaint and directed the applicant to a forensic medical expert for assessment.

11. On 27 March 2006 the forensic medical expert issued a report noting that the applicant had sustained a bruise measuring 3 cm by 1.5 cm on the right side of his lower jaw. The report specified that the injury was minor, could have been caused on 24 March 2006, and had been inflicted by a blunt object.

12. On 15 May 2006 the Police Department refused to open a criminal investigation against T., noting that the applicant’s injury was minor and that he could institute private prosecution proceedings against T.

13. On 19 May 2006 the Suvorivskyy District Prosecutor’s Office of Kherson (“the District Prosecutor’s Office”) quashed that decision and instituted criminal proceedings against T. under Article 296 § 1 of the Criminal Code (“disorderly conduct”). The case was referred to the Police Department for pre-trial investigation.

14. On 9 June 2006 a forensic medical expert issued a report stating that the applicant had suffered bruising on his face, which had been caused by a blunt object. The expert considered that the injury was minor and that it could have been inflicted on 24 May 2006 as described by the applicant.

15. On 22 July 2006 another forensic medical expert report was issued. It stated that there had been no exacerbation of the applicant’s chronic illnesses after the incident of 24 March 2006.

16. Following his complaints that his epileptic attacks had increased, the applicant underwent neurological treatment in the local hospital between 24 July and 3 August 2006. During that period the applicant had one epileptic attack. Between 25 January and 3 February 2007 the applicant underwent another course of neurological treatment. During that time he had two epileptic attacks. Between 19 and 31 December 2007 the applicant was admitted to hospital again for neurological treatment and in that period he had no epileptic attacks.

17. On 24 July and 19 August 2006, 22 January and 11 April 2007 the Police Department closed the criminal investigation for lack of evidence that T. had committed the crime provided for under Article 296 § 1 of the Criminal Code. All those decisions were quashed by the supervising prosecutors as unfounded and further criminal investigations were ordered.

18. On 9 July 2007 the Police Department closed the investigation once again for essentially the same reasons.

19. On 14 November 2007 the Kherson Regional Prosecutor’s Office quashed that decision and ordered a further investigation. On the same date it opened a criminal investigation under Article 125 § 1 of the Criminal Code for infliction of minor bodily injuries to the applicant.

20. On 6 December 2007 the Police Department terminated the investigation under Article 296 § 1 of the Criminal Code, noting that T.’s actions had not amounted to the crime of disorderly conduct.

21. On 17 March 2008 the investigation in respect of the crime provided for under Article 125 § 1 of the Criminal Code was completed and the case was referred to the Suvorivskyy District Court of Kherson (“the District Court”) for trial.

22. On 3 April 2008 the District Court terminated the proceedings against T. as time-barred. The applicant appealed, claiming in particular that T. should have been charged with a more serious crime.

23. On 27 May 2008 the Kherson Region Court of Appeal upheld the decision of 3 April 2008. The applicant appealed to the Supreme Court.

24. On 1 December 2008 the Supreme Court dismissed the applicant’s appeal as unfounded.

25. On 12 February 2009 the applicant instituted civil proceedings against T., seeking damages in connection with the incident of 24 March 2006.

26. The District Court ordered a forensic medical examination in the case.

27. On 14 September 2009 the forensic medical expert concluded that the facial bruise identified on the applicant on 24 March 2006 had not caused any deterioration in his health and that the applicant’s brain had not been affected by that injury.

28. On 16 October 2009 the District Court awarded the applicant 2,000 Ukrainian hryvnias in respect of non-pecuniary damage on account of T.’s unlawful behaviour on 24 March 2006. The decision became final but has not been fully enforced.

B. Incident of 18 April 2008

29. At about 11.30 a.m. on 18 April 2008 the applicant was walking in a street near his home. Allegedly, he was attacked suddenly by a man wielding a knife; the applicant tried to defend himself but received a hard blow to the head and his head was cut, probably with the knife.

30. On the same day the applicant complained to the Police Department. When questioned by a police officer, the applicant replied that the assailant had hit him in the head with an object.

31. Again on the same day the applicant was medically examined and diagnosed with concussion and soft-tissue bruising of the head. He was admitted to hospital and received inpatient treatment between 18 and 29 April 2008.

32. On 25 April 2008 the Police Department refused to institute criminal proceedings because, despite the measures taken by the police, the assailant could not be identified. Furthermore, the gravity of the applicant’s injuries could not be established as no report had been issued following his medical examination.

33. On 8 May 2008 the applicant lodged another complaint with the Police Department, claiming that the assailant had been wielding a small knife.

34. On 28 August 2008 the Kherson Regional Prosecutor’s Office quashed the decision of 25 April 2008 and ordered further pre-investigating enquiries. The supervising prosecutor specified that it was necessary to question the applicant in more detail, to carry out his medical examination, and to identify and question possible witnesses of the incident and the doctors who had treated him.

35. On 13 September 2008 the applicant was questioned by the police again. He stated that the assailant had been wielding a metallic object. On the same day the Police Department decided not to institute criminal proceedings because, despite the measures undertaken, there was no information leading to identification of the assailant; furthermore, the gravity of the applicant’s injuries could not be established, as no report had been issued following his medical examination.

36. On 29 September 2008 a forensic medical expert completed the examination of the applicant and concluded that the concussion and the bruise on his head had been caused by blunt objects; those injuries were minor and might have been sustained on 18 April 2008.

37. On 8 October 2008 the District Prosecutor’s Office quashed the decision of 13 September 2008 and ordered further enquiries to be carried out by the Police Department.

38. On 10 October 2008 the Police Department refused to institute criminal proceedings, noting that the assailant had not been identified and that the applicant’s injuries were minor.

39. On 13 October 2008 the District Prosecutor’s Office quashed that decision and ordered that the applicant’s doctor and the forensic medical expert be further questioned, and that information on the applicant’s mental state be obtained.

40. On 21 October 2008 the Police Department, having taken further measures, again refused to institute criminal proceedings on the grounds that the assailant had not been identified and the applicant had sustained only minor injuries. The decision also referred to the doctor’s statement that the bruise on the applicant’s head measured 6 cm by 7 cm.

41. On 13 November 2008 the Kherson Regional Prosecutor’s Office quashed that decision, considering that it had not been properly reasoned and substantiated.

42. Following that decision, the police identified individuals who had been selling sunglasses and citrus fruits near the scene of the incident on 18 April 2008. When questioned, the stall-holders stated that they had not noticed any incidents near their place of work on that day.

43. On 1 December 2008 the Police Department, relying on the collected material, decided not to institute criminal proceedings, once again stating that, despite the measures undertaken, the assailant could not be identified and the injuries were minor.

C. Incident of 20 September 2010

1. The applicant’s account of the incident

44. In the morning of 20 September 2010 the applicant entered the premises of the District Court to get a copy of a court decision in his case. When it was his turn in the queue, the applicant produced his pension certificate and demanded a copy of the decision. The officer of the court’s registry refused to give him the document and started to argue with the applicant in the presence of the other visitors. As the argument continued, the officer asked two court security guards for help. The security guards approached the applicant and demanded that he leave the court premises. The applicant refused. The security guards then twisted his hands behind his back, handcuffed him and dragged him out of the hall, punching him in the head and kicking him in the legs. The applicant lost consciousness. When he came to, police officers were also present. People observing the incident called an ambulance. About twenty minutes later, the ambulance arrived and the handcuffs were removed. One of the visitors, Ms G., approached the applicant and gave him her contact details in case he needed her witness statement.

45. Outside the court, the applicant was placed in the ambulance. The doctors and the police officers discussed for a while whether the applicant should go to hospital or to the police station. When the applicant attempted to interfere in the discussion the police officers pushed him to the ground, and stepped on his arms in order to prevent him from getting up. Eventually, the applicant was taken to hospital.

2. The Government’s account of the incident

46. In the morning of 20 September 2010 the applicant entered the premises of the District Court to get a copy of a court decision in his case. A conflict between him and the officer of the court’s registry arose, since the applicant refused to show his ID document at the desk. The applicant behaved inappropriately, uttering obscenities and ignoring the officer’s remarks. The officer therefore asked two court security guards (belonging to the special police department ensuring legal order on the court premises) for help. They approached the applicant, introduced themselves and asked him not to breach public order. The applicant continued to utter obscenities, however. In a while two police officers arrived. They introduced themselves, demanded that the applicant stop his unlawful behaviour and warned him about the possible use of force and special means of restraint. The applicant disregarded the police officers’ lawful demands and was therefore handcuffed. When he was forcefully dragged towards the exit of the court premises, the applicant lost consciousness and fell on the floor. The handcuffs were then removed and he was provided with first aid; an ambulance was called.

47. When the ambulance arrived, the applicant was taken outside the court premises and provided with further first aid. No force was used against the applicant at that time. However, each time the police officers approached the applicant, he fell down on the ground and hit his body against the ambulance in an attempt to injure himself. The applicant was therefore given a sedative injection and taken by ambulance to hospital.

3. Further developments

48. On the same day the applicant was admitted to hospital for inpatient medical treatment. He was released from hospital on 28 September 2009.

49. On 20 October 2010 a forensic medical expert issued a report stating that the applicant had sustained a bruise measuring 9.8 cm by 3.8 cm on his right arm; a bruise measuring 5.8 cm by 3.9 cm on his left forearm; and a bruise measuring 6.2 cm by 4.3 cm on his right forearm. There was a swelling measuring 2.4 cm in diameter in the parietal and occipital regions of the head, and the applicant had suffered from concussion and cerebral haemorrhage. The expert opined that those injuries had been caused by blunt objects; as to the date, they had probably been inflicted on 20 September 2010. The injuries were classified as minor.

50. On 11 October 2010 the police drew up a report stating that on 20 September 2010 the applicant had breached public order on the court premises, which amounted to an administrative offence.

51. On 25 October 2010 the applicant complained to the District Prosecutor’s Office of ill-treatment by the court security guards and police officers.

52. On 14 November 2010 the Kherson Regional Police completed their internal inquiry and found that the applicant had sustained injuries in the course of the incident; however, as the evidence collected was contradictory any further decisions concerning the incident would have to be taken by the District Prosecutor’s Office. The internal inquiry report stressed that the statements of the applicant and Ms G. contradicted those of the officers of the court’s registry, the court security guards and the police officers.

53. On 12 January 2011 the District Court closed as time-barred the administrative case against the applicant for the alleged violation of public order on the court premises.

54. On 7 April 2011 a forensic medical expert reported that the injuries identified on the applicant could have been sustained in the manner described by the applicant in his account of the incident.

55. On 14 November 2011 the investigator questioned the forensic medical expert who noted that the concussion and the injuries to the applicant’s head could also have been sustained when the applicant, allegedly, hit his head against the ambulance.

56. In the meantime, on 6 December 2010, 11 April, 3 October and 14 November 2011 the District Prosecutor’s Office, basing its decisions on the pre-investigating enquiries conducted in the relevant periods, refused to institute criminal proceedings in connection with the applicant’s allegations of ill-treatment for lack of corpus delicti in the behaviour of the court security guards and the police officers. The District Prosecutor’s Office concluded that during the incident the applicant had failed to obey the lawful orders of the police officers and that he had been lawfully handcuffed; as to the injuries, the applicant could have sustained them when he fell on the floor on the court premises and later when he was hitting his head against the ambulance.

57. The above decisions were reversed by the supervising prosecutors as unsubstantiated and further pre-investigating enquiries were ordered. In particular, on 28 November 2011 the General Prosecutor’s Office reversed the decision of 14 November 2011, noting that neither the applicant’s version of the incident nor the police officers’ version had been thoroughly scrutinised. The General Prosecutor’s Office emphasised that the events on the premises of the court had been observed by a number of visitors. However, despite their importance, the investigator had failed to take sufficient steps to identify possible witnesses. Furthermore, even the identified witness, Ms G., had not been questioned by the prosecutor’s office investigator. As to the events that occurred outside the court, the version that the applicant had intentionally hit his head against the ambulance had not been properly substantiated.

58. On 13 December 2011 the Kherson Regional Prosecutor’s Office telephoned Ms G. to invite her for questioning. Ms G. declined, stating that she did not wish to communicate with the officer of the Kherson Regional Prosecutor’s Office concerned; she then said that she was outside Kherson and would be back on 17 December 2011.

59. On the same day, 13 December 2011, the Kherson Regional Prosecutor’s Office refused to institute criminal proceedings in connection with the applicant’s alleged ill-treatment for lack of corpus delicti. The decision was based on the medical evidence, and on the statements of the court registry officers, the court security guards, the police officers, the ambulance driver, the ambulance doctor and his medical assistant, as well as the forensic medical expert. As regards Ms G., she could not be questioned as she had been unavailable. According to that decision, the applicant had behaved inappropriately on the premises of the court. He had breached public order and failed to obey the lawful orders of police officers. The court security guards had therefore handcuffed him and tried to escort him out of the court. When the applicant had lost consciousness (or pretended to have lost consciousness) and had fallen on the floor, the handcuffs had been removed and he had been provided with first aid. The decision further referred to the statements of the ambulance team and one of the police officers, specifying that outside the court premises the applicant had been in an agitated state, falling on the ground and hitting his head against the ambulance. The decision also referred to the forensic medical expert’s report describing the applicant’s injuries; it cited the expert’s opinion that the applicant’s head injuries could have been caused when he had allegedly been hitting his head against the ambulance.

60. On 19 December 2011 an officer of the Kherson Regional Prosecutor’s Office questioned Ms G. The latter stated that during the conflict the officer of the court registry had behaved defiantly, while the applicant had remained calm; the security guards had handcuffed the applicant and dragged him towards the exit kicking him in the legs and, when the applicant had fallen on the floor they had continued to kick him in other parts of the body. Ms G. had continued to observe the scene outside the court premises and noted that the police officers had been kicking the applicant while he had been lying on the ground. She emphasised that she had not noticed the applicant hitting his head against the ambulance or a police car.

61. On 4 January 2012 the Kherson Region Prosecutor’s Office considered another complaint from the applicant and confirmed that its earlier decision of 13 December 2011 concerning the incident had been lawful and substantiated. It specified that Ms G.’s statements were not supported by the materials of the enquiries.

II. RELEVANT DOMESTIC LAW

A. Criminal Code of Ukraine of 5 April 2001

62. Article 125 of the Code provides:

“1. The intentional infliction of a minor bodily injury shall be punished ...

2. The intentional infliction of a minor bodily injury leading to a short-term health disorder ... shall be punished ...”

63. Article 296 § 1 of the Code provides as follows:

“1. Disorderly conduct, namely a serious breach of public order motivated by flagrant disrespect of the community, combined with particular impudence and exceptional cynicism, shall be punished ...”

B. Code of Criminal Procedure of 28 December 1960 (in force at the material time)

64. The relevant provisions of the Code of Criminal Procedure can be found in the judgment in the case of Davydov and Others v. Ukraine (nos. 17674/02 and 39081/02, § 112, 1 July 2010).

C. The Police Act of 20 December 1990

65. Section 13 of the Act provides, inter alia, that police officers are entitled to apply measures of physical coercion in order to terminate offences and to overcome resistance to lawful police orders if such resistance is accompanied by force directed against police officers or other individuals, provided that other means have been tried but have not ensured the fulfilment by the police of their duties.

66. Section 14 of the Act provides, inter alia, that police officers are entitled to apply handcuffs in order to protect themselves and others from attacks and other actions which endanger life or health; in order to arrest offenders if they resist police officers or if there are reasons to consider that they may escape or cause damage to others or themselves; and in order to break resistance to police officers.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

67. The applicant complained, under Article 3, 6 and 13 of the Convention, that the State had failed to ensure an effective criminal prosecution of T. for the latter’s violent conduct towards him on 24 March 2006. He further complained that there had been no effective investigation of the incident of 18 April 2008. Lastly, he complained that on 20 September 2010 he had been ill-treated by court security guards and police officers, resulting in serious physical injuries, and that there had been no effective investigation of that incident.

68. The Court finds that the complaints fall to be examined solely under 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. Incident of 24 March 2006

69. The applicant insisted that he had been subjected to serious ill-treatment by T. and that his health had deteriorated after that incident. He also insisted that the State authorities had failed to carry out an effective investigation of the incident and punish T. for his behaviour.

70. The Government contested those arguments and submitted that the domestic authorities had complied with their procedural obligations under Article 3 of the Convention.

71. In accordance with the Court’s case-law, Article 3 of the Convention requires that the authorities conduct an effective official investigation into alleged ill-treatment, even if such treatment has been inflicted by private individuals (see Denis Vasilyev v. Russia, no. 32704/04, § 99, 17 December 2009; Biser Kostov v. Bulgaria, no. 32662/06, § 77, 10 January 2012; and Skorokhodov v. Ukraine, no. 56697/09, § 32, 14 November 2013).

72. However, the 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 (see Labita v. Italy [GC], no. 26772/95, §§ 119-20, ECHR 2000-IV).

73. As a result of the conflict with T. on 24 March 2006, the applicant sustained a bruise measuring 3 cm by 1.5 cm on the right side of his lower jaw. The Court considers that that injury as such is not serious enough for the purposes of Article 3. It notes that the infliction of even more serious physical injuries has not been considered as ill-treatment falling under Article 3 (see Tonchev v. Bulgaria, no. 18527/02, §§ 39 and 42, 19 November 2009; Kulakov v. Ukraine (dec.) no. 12944/02, 16 November 2010; and Ilieva and Georgieva v. Bulgaria (dec.), no. 9548/07, 17 April 2012).

74. The Court further notes that the applicant has a long medical history of neurological illnesses and in his case a punch in the face might have caused serious complications. However, according to the results of the expert examinations, the injury in question did not exacerbate the applicant’s chronic illnesses (see paragraphs 15 and 27 above). The applicant’s subsequent admissions to hospital do not suggest the contrary (see paragraph 16 above). The Court does not find any reason to question these medical findings. At the same time, the applicant’s submissions do not point to any other specific factors that might lead the Court to believe that T.’s actions caused the applicant serious suffering.

75. The Court therefore finds that the applicant’s treatment on 24 March 2006 by a private individual did not attain the minimum level of severity to fall under Article 3 of the Convention. Accordingly, it did not trigger the State’s procedural obligations under that Convention provision.

76. In the light of the above considerations, the Court finds that the complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

B. Incident of 18 April 2008

77. The applicant insisted that there had been no effective investigation of the incident of 18 April 2008 during which he had been assaulted by an unknown individual.

78. The Government contended that the authorities had taken all possible steps in order to discharge their procedural obligation under the Convention.

79. The Court notes that in his description of the alleged assault on 18 April 2008, the applicant was not always precise as to the object wielded by the assailant during the attack. His allegation that he was injured by a knife is not supported by medical report suggesting that the concussion and the bruise were caused by blunt objects (see paragraph 36 above). Nevertheless, having regard to the applicant’s poor state of health and his injuries diagnosed after the incident (concussion and a head bruise measuring 6 cm by 7 cm), the Court may assume that the applicant made an arguable allegation of ill-treatment and that the State was therefore obliged, under Article 3 of the Convention, to carry out an effective investigation of the incident.

80. However, the obligation to investigate is not an obligation of result, but of means; not every investigation should necessarily be successful or come to a conclusion which coincides with the claimant’s account of events (see Mikheyev v. Russia, no. 77617/01, § 107, 26 January 2006). The minimum standards of effectiveness laid down by the Court’s case-law include the requirements that the investigation must be independent, impartial, thorough and subject to public scrutiny, and that the competent authorities must act with exemplary diligence and promptness (see Aleksandr Nikonenko v. Ukraine, no. 54755/08, § 44, 14 November 2013, with further references).

81. The applicant’s complaint, however, appears to be confined to his discontent with the outcome of the investigations, without any particular deficiencies having been indicated.

82. The Court observes that the domestic pre-investigating enquiries were entrusted to the local police and were subject to supervision and control by the superior prosecutors; the applicant could also have requested judicial review of the decisions. There is nothing to suggest that the domestic proceedings lacked the requisite independence and impartiality.

83. In the course of the domestic proceedings the deficiencies of the police enquiries were quickly identified by the supervising authorities and necessary instructions were given to ensure that the examination of the incident was thorough. In the end, the police interviewed the relevant persons, assembled the evidence, including the medical reports, and took other steps in order to shed light on the circumstances of the alleged incident. At the same time, no serious protraction on the part of the authorities can be discerned. In these circumstances, the fact that the incident was investigated by way of repeated pre-investigating enquiries, and not in the course of a full-scale criminal investigation, is not sufficient by itself to suggest that the allegations of ill-treatment were examined in contravention of Article 3 (see Suprun v. Ukraine (dec.), no. 7529/07, 27 April 2010 and, by contrast, Sergey Savenko v. Ukraine, no. 59731/09, §§ 28-31, 24 October 2013).

84. Accordingly, this complaint should be rejected as being manifestly ill-founded under Article 35 §§ 3 (a) and 4 of the Convention.

C. Incident of 20 September 2010

1. Admissibility

85. The Government submitted that the applicant had sustained bodily injuries on 20 September 2010 as a result of his own behaviour. In that regard the Government relied on their version of the events and insisted that that version was well substantiated by the evidence collected. They maintained that the use of handcuffs and the recourse to force had been lawful and necessary in the circumstances. In their opinion the complaint was manifestly ill-founded.

86. The applicant insisted that his complaint was admissible.

87. 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

(a) The parties’ submissions

88. As regards the procedural aspect of Article 3 of the Convention, the Government submitted that the applicant’s allegations of ill-treatment had been investigated effectively. The authorities had taken all necessary steps in order to collect the evidence and to establish the circumstances in which the applicant had sustained his injuries. Therefore the requirements under Article 3 of the Convention had been complied with.

89. As to the substantive aspect of Article 3, the Government did not provide any specific arguments, adhering to their earlier position that the complaint was manifestly ill-founded.

90. The applicant claimed that the investigation into his allegations of ill-treatment had not been compatible with the procedural aspect of Article 3 of the Convention. In his opinion the investigating authorities had failed to examine the case thoroughly.

91. The applicant further insisted on his version of the incident and argued that the domestic authorities had wrongly established the facts relating to the incident in question. He therefore asserted that his treatment had been contrary to Article 3 of the Convention.

(b) The Court’s assessment

(i) The procedural aspect of Article 3

92. Article 3 of the Convention requires that an investigation into arguable allegations of ill-treatment must 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. They must take all reasonable steps available to them to obtain evidence concerning the incident, including eyewitness testimony and forensic evidence (see Kaverzin v. Ukraine, no. 23893/03, § 108, 15 May 2012, with further references).

93. The Court finds that the applicant’s injuries were serious enough (see paragraph 49 above) and that his complaint of ill-treatment was arguable for the purpose of Article 3 requiring therefore that the domestic authorities carry out an effective investigation.

94. The Court notes that the case was investigated by way of pre-investigation enquiries, which ended with five decisions refusing to institute criminal proceedings. The first four decisions were reversed by the supervising prosecutor as unsubstantiated and further enquiries were ordered. In particular, when reversing the fourth decision terminating the pre-investigation enquiries, the General Prosecutor’s Office found that the facts had not been convincingly established and that the evidence had been insufficient; it then specified that the investigator had failed to take the requisite steps to identify possible witnesses of the incident and had not even questioned the identified witness, Ms G. (see paragraph 57 above). The Court notes that during the next set of enquiries, which resulted in the decision of 13 December 2011, Ms G. was not questioned either (see paragraphs 58 and 59 above). It is true that she was questioned later and her statements, which supported the applicant’s allegations, were dismissed as being inconsistent. However, it does not appear that special diligence was shown in examining the applicant’s version of the incident.

95. In that connection, the Court also considers that the authorities should have taken additional steps in order to clarify the medical opinions concerning the cause of the applicant’s injuries in so far as the medical expert suggested, at first, that the injuries might have been sustained in the way described by the applicant. Subsequently, he opined that certain injuries, in particular the applicant’s head injuries, might also have been sustained in the manner as described by the officers. In the latter case, however, he did not give any further view as to the origins of the remaining injuries, notably those on the applicant’s arms (see paragraphs 54 and 55 above). Nevertheless, the authorities relied on that partial opinion in their decision to discontinue the enquiries.

96. Having regard to these facts and considerations, the Court finds that the domestic authorities relied on hasty conclusions in their decisions and did not make an adequate attempt to scrutinise the circumstances of the incident. It considers that the State has failed to take the necessary steps aimed at an effective investigation of the allegation of ill-treatment.

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

(ii) The substantive aspect of Article 3

(α) Relevant principles

98. In accordance with the Court’s case-law, Article 3 does not prohibit the use of force for the purposes of effecting an arrest. However, such force may be used only if indispensable and must not be excessive (see, among others, Rehbock v. Slovenia, no. 29462/95, §§ 68-78, ECHR 2000‑XII; Ivan Vasilev v. Bulgaria, no. 48130/99, § 63, 12 April 2007; and Spinov v. Ukraine, no. 34331/03, § 51, 27 November 2008).

99. In assessing evidence, the Court has generally applied the standard of proof “beyond reasonable doubt”. However, proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see, among other authorities, Yerokhina v. Ukraine, no. 12167/04, § 52, 15 November 2012, with further references).

100. As to the burden of proof, in cases of alleged ill-treatment during arrest, it is incumbent on the State to provide a plausible explanation of how the injuries were caused and to show that the use of force was not excessive, failing which a clear issue arises under Article 3 of the Convention (see Rehbock, cited above; Zelilof v. Greece, no. 17060/03, § 47, 24 May 2007; Lewandowski and Lewandowska v. Poland, no. 15562/02, § 58, 13 January 2009; Staszewska v. Poland, no. 10049/04, § 52, 3 November 2009; and Mikiashvili v. Georgia, no. 18996/06, § 69, 9 October 2012).

101. In determining whether there was a plausible explanation for the use of force and resulting injuries, attention should be paid to the adequacy of the domestic investigations carried out in respect of the allegations of ill-treatment (see Karbowniczek v. Poland, no. 22339/08, § 58, 27 September 2011).

(β) Application of the above principles

- As to the standard and burden of proof

102. It is common ground that the applicant sustained injuries during the incident involving court security guards and police officers. Those facts are substantiated by the evidence available in the file. In these circumstances the burden rests on the Government to provide a plausible explanation for the use of force during the incident and the origin of the injuries.

- Explanation for the use of force and the injuries

103. According to the decision of 13 December 2011 of the Kherson Regional Prosecutor’s Office, after the applicant refused to comply with the demands of the police officers, they applied force against him; when the court security guards handcuffed the applicant and tried to escort him out of the court premises, the applicant fell on the floor; subsequently, outside the court premises, the applicant fell on the ground and hit his head against the ambulance.

104. Against that factual background, the head injuries sustained by the applicant were deemed to be explained by reference to the medical expert’s opinion that those injuries could have been sustained when the applicant was hitting his head against the ambulance. As to the other injuries, namely the bruises on both arms, even though the forensic medical expert acknowledged that they could have been sustained in the way described by the applicant, no specific explanation was provided by the authorities.

- Is the available explanation plausible?

105. With regard to the applicant’s injuries for which the domestic authorities provided a specific explanation, namely the head injuries, the Court, referring to its findings above under the procedural aspect of Article 3, notes that the applicant’s account of the origin of those injuries was not properly investigated. It is notable that the forensic medical expert did not exclude either version of sustaining head injuries; nevertheless, preference was given to the police officers’ account, without any serious attempt to assess the applicant’s version. Therefore, the Court considers that the official explanation for the origin of the applicant’s head injuries is not convincing.

106. More generally, the Court is not convinced that it was indispensable to use the force against the applicant, including his handcuffing. It notes that the conflict between the applicant and the officers arose in a rather spontaneous situation, when compared with planned arrest operations. This situation, however, did not appear to be a pressing one and was quite manageable given the nature of the alleged violation committed by the applicant, the lack of indications of dangerous conduct on his part, his apparently weak physical condition, as well as the fact that he was facing four officers in total. There is nothing to indicate that it was crucial to handcuff him on the court premises and to do it in front of other visitors.

- Conclusion

107. In view of the above considerations, the Court concludes that the use of force against the applicant has not been shown to have been indispensable. The authorities failed to provide a specific explanation for the considerable part of the applicant’s injuries, and the available explanation for the head injuries is not satisfactory. For these reasons the Court holds that the State must be held responsible for the alleged ill-treatment, which should be classified as inhuman and degrading.

108. It follows that there has been a substantive violation of Article 3 of the Convention.

II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

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

110. 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.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

111. 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

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

113. The Government maintained that the claim was unsubstantiated.

114. The Court considers that the applicant must have suffered anguish and distress on account of the facts giving rise to the finding of violations. Ruling on an equitable basis, the Court awards the applicant EUR 5,000 in respect of non-pecuniary damage.

B. Costs and expenses

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

C. Default interest

116. 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 of the Convention concerning the events of 20 September 2010 admissible and the remainder of the application inadmissible;

2. Holds that there has been a procedural violation of Article 3 of the Convention as regards the investigation of the events of 20 September 2010;

3. Holds that there has been a substantive violation of Article 3 of the Convention as regards the events of 20 September 2010;

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 5,000 (five thousand 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 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 16 October 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Claudia WesterdiekMark Villiger
RegistrarPresident

 

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