CASE OF MELNYK v. UKRAINE

FIFTH SECTION

CASE OF MELNYK v. UKRAINE

(Application no. 28412/10)

JUDGMENT
 

STRASBOURG

21 November 2019

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

In the case of Melnyk v. Ukraine,

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

Gabriele Kucsko-Stadlmayer, President,
Yonko Grozev,
Lado Chanturia, judges,
and Claudia Westerdiek, Section Registrar,

Having deliberated in private on 22 October 2019,

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

PROCEDURE

1.  The case originated in an application (no. 28412/10) 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 Mykola Anatoliyovych Melnyk (“the applicant”), on 16 April 2010.

2.  The applicant, who had been granted legal aid, was represented by Mr M. Tarakhkalo, Ms A. Martynovska and Ms V. Lebid, lawyers practising in Kyiv. The Ukrainian Government (“the Government”) were represented by their Agent, Mr I. Lishchyna.

3.  The applicant alleged, in particular, that he had been ill-treated in police custody and that there had been no effective domestic investigation. He also complained about the conditions of his detention and that there had been no effective domestic remedy available to him for his complaint. Lastly, he complained that he had not had a fair trial in the determination of the criminal charges against him.

4.  On 3 July 2015 notice of the above complaints was given to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTSTHE CIRCUMSTANCES OF THE CASE

5.  The applicant was born in 1965. On 29 June 2018 he was due to be released from prison after serving his sentence. His current address is unknown.Background events

6.  On the night of 7 to 8 January 2007 a robbery took place at a warehouse in Kyiv. Several robbers wearing masks and gloves attacked and immobilised two security guards and took a large number of household appliances.Alleged ill-treatment of the applicant and the domestic investigation thereof

7.  Early in the morning of 11 January 2007 the police arrested the applicant at his home and took him to the Kyiv Desnyanskyy district police station (“the police station”), where he was questioned about the night the robbery had taken place (see paragraph 6 above). He made a written statement that he had been at home with friends. Thereafter the police allegedly ill-treated him with a view to extracting a confession from him regarding the robbery.

8.  The applicant provided the following version of events. Two officers, A. K. and B. K., were involved in his ill-treatment. They punched him in the head and various other parts of his body, and one of them appeared to have had a metal object in his fist. The officers also kicked him, including in the knees, making him fall. They grabbed him by the collar and hit his head against the wall several times. Occasionally, A.K. pressed his knee against his chest, when he was lying on the floor, and covered his mouth and nose with one hand and strangled him with the other, until he fainted. To bring him to his senses, the two officers burnt his left hand with cigarette butts. The ill-treatment continued for about twelve hours. Subsequently, another police officer, P.I., entered the office and asked A.K. and B.K. to leave. He told the applicant that there was some evidence against him and threatened that, if he did not confess to the robbery, he would be killed and his body never found. Fearing for his life, the applicant agreed to confess (see paragraph 17 below).

9.  On 15 January 2007 the applicant and his three co-accused were brought before the Kyiv Desnyanskyy District Court (“the District Court”) to determine the preventive measure to be taken against them. All the accused, who, according to the applicant, had numerous visible injuries, complained to the judge that they had been ill-treated by the police following their arrest on 11 January 2007. The judge instructed the investigator to arrange for them to undergo a forensic medical examination.

10.  On 16 January 2007 the applicant underwent a forensic medical examination, which documented eight bruises on his head and torso, the largest one measuring 7.5 by 6 cm, as well as four abrasions on his left knee and left hand. The expert concluded that the injuries had been caused by at least twelve blows from hard blunt objects, which could possibly have been sustained on 11 or 12 January 2007. The injuries were considered minor.

11.  On the same date the three other suspects also underwent a forensic medical examination, which revealed similar findings.

12.  On 15 March 2007 the Desnyanskyy prosecutor’s office (“the prosecutor’s office”) issued a ruling refusing to institute criminal proceedings against the police officers. It was mainly based on the statements of the officers, who denied having ill-treated the applicant and his co-accused. The investigator, who had arranged the accused’s forensic medical examinations on the instruction of the judge on 15 January 2007, (see paragraph 9 above) stated that she had not seen any injuries on them. The prosecutor’s refusal did not mention the expert reports of 16 January 2007 (see paragraphs 10 and 11 above).

13.  On the same date the prosecutor’s office instituted disciplinary proceedings against the police officers in question. It was established that, although the applicant had been arrested on 11 January 2007, his arrest had not been documented until 12 January 2007. Furthermore, on the same date the police had drawn up a report stating that he had committed the administrative (minor) offence of wilful disobedience of a lawful order of the police. He had been placed under administrative detention for twenty‑four hours. However, the report had never been sent to a court. The prosecutor therefore concluded that the police officers had discharged their official duties in an inadequate and irresponsible manner, which had led to the applicant’s unlawful detention for more than three hours.

14.  On 28 March 2007 the investigator issued a ruling separating the material concerning the accused’s allegations of ill-treatment by the police for individual investigation. It appears that there was no follow-up to that decision.

15.  On several occasions between 2007 and 2011 the applicant asked the prosecutor’s office for a copy of its ruling of 15 March 2007 refusing to institute criminal proceedings against the police (see paragraph 12 above), but to no avail. He also tried many times to challenge the ruling before the courts, but his complaint was rejected without being examined on the merits as having been lodged outside the statutory ten-day time-limit. Subsequently, the District Court held that the applicant could not be considered to have breached the time-limit, as, according to the documentary evidence, the impugned ruling had been served on him on 2 October 2011.

16.  After eventually examining the applicant’s complaint on the merits, on 2 November 2012 the District Court dismissed it and upheld the prosecutor’s ruling of 15 March 2007. It found that the applicant’s allegation of ill-treatment was not supported by any objective evidence. Furthermore, the District Court observed that disciplinary proceedings had been instituted against the police officers concerned (see paragraph 13 above). On 21 November 2012 and 16 May 2013 the decision was upheld by the Kyiv City Court of Appeal (“the Court of Appeal”) and the Higher Specialised Court for Civil and Criminal Matters respectively.Criminal proceedings against the applicant

17.  On the evening of 11 January 2007, allegedly following his ill‑treatment by the police, the applicant wrote “a statement of surrender to the police” dictated to him by officer P.I. (see paragraph 8 above). Its contents were as follows. On the night of 7 to 8 January 2007 the applicant had accompanied his three acquaintances to a warehouse in Kyiv, at their request. The others had entered the premises, having asked him to stay outside on guard. About an hour later they had reappeared with a loaded van containing, according to them, some smuggled goods. When the applicant had enquired about the origin of those goods, the three men had threatened him with violence. They had asked him to store the goods in a warehouse rented by him in Baryshivka. Although he had suspected that the goods were stolen, he had been too scared to refuse. He stated that he was willing to show the relevant location to the police and surrender the goods to them. The applicant confirmed in writing that Article 63 of the Constitution (see paragraph 73 below) had been explained to him.

18.  On the same day the police arrested the other individuals, who also made confession statements. They later retracted them as having been made under duress.

19.  On 12 January 2007 criminal proceedings were instituted against the applicant on suspicion of aggravated robbery (see paragraph 74 below).

20.  At 1.15 p.m. that day the investigator drew up an arrest report. The applicant confirmed therein that he wished to be represented by a lawyer. However, for unknown reasons, immediately thereafter he signed a waiver of his right to legal assistance.

21.  On the same day the police inspected the warehouse rented by the applicant in the Kyiv region and seized the stolen household appliances.

22.  On 13 January 2007 formal charges were brought against the applicant and his procedural status changed from a suspect to an accused. In addition to the robbery charge, he was also accused of carjacking (see paragraph 75 below). The applicant signed a report in confirmation that his right to legal defence under Article 63 of the Constitution had been explained to him. He also signed another waiver of legal assistance. The applicant stated that he did not admit his guilt and refused to make any further statements.

23.  From 23 January 2007 the applicant was represented by a lawyer of his own choosing.

24.  On 6 February 2007, while being questioned in the presence of his lawyer, the applicant stated that his initial confession had been extracted from him by ill-treatment (see paragraphs 8 and 17 above). He admitted only having agreed to store some cardboard boxes at the request of his acquaintance (one of his co-accused), without knowing their contents or origin.

25.  On an unspecified date the case was referred to the District Court for trial.

26.  On 13 November 2007 the court returned the case to the prosecution authorities and ordered an additional pre-trial investigation. It also released the applicant on an undertaking not to abscond.

27.  On 20 August 2008 and 21 January 2009 the trial court remitted the case for additional pre-trial investigation again, without changing the preventive measure in respect of the applicant. On 18 March 2009 the Court of Appeal, however, quashed the last-mentioned ruling and referred the case to the first-instance court for fresh examination.

28.  On 30 April 2009 the District Court placed the applicant in pre-trial detention to replace the undertaking not to abscond previously imposed as a preventive measure (see paragraph 26 above).

29.  On 16 July 2009 the District Court found the applicant guilty as charged and sentenced him to ten years’ imprisonment with confiscation of all his property. At the hearing the applicant contended that he had only agreed to provide his acquaintances, his co-accused, with warehouse space for storing some cardboard boxes, without knowing what they had contained or where they had come from. The trial court chose, however, to rely on the applicant’s “statement of surrender to the police” of 11 January 2007 (see paragraph 17 above), considering it more credible. The applicant did not deny having shown the warehouse and boxes to the police. The District Court found the applicant’s complaint of ill-treatment by the police unsubstantiated, as well as the similar complaints raised by his co-accused. It observed that, while the accused maintained that they had raised the complaints during the habeas corpus hearing on 15 January 2007 (see paragraph 9 above), the transcript of that hearing did not mention any such complaints. The District Court further referred to the statements of the police officers concerned, who denied the veracity of the ill-treatment allegations. Lastly, it noted that the allegations had been investigated by the prosecution authorities, who had issued a ruling refusing to institute criminal proceedings against the officers.

30.  The applicant appealed. He complained, inter alia, that his confession of 11 January 2007 had been made under duress. He argued that neither the prosecution authorities nor the trial court had given any consideration to the forensic medical report of 16 January 2007 proving that he had sustained his injuries while in police custody.

31.  On 11 November 2009 the Court of Appeal upheld the judgment of the first-instance court of 16 July 2009 and its reasoning. As regards the convicts’ complaints of ill-treatment, the appellate court observed that they had been duly investigated and dismissed as unsubstantiated.

32.  The applicant appealed on points of law, reiterating his earlier arguments.

33.  On 21 April 2010 the Supreme Court dismissed the applicant’s appeal on points of law and upheld the lower courts’ decisions, including their reasoning regarding the accused’s complaints of ill-treatment (see paragraphs 29 and 31 above).Conditions of detention

34.  The applicant was detained in Korosten Prison no. 71 from 21 November 2009 to 13 July 2010, in Raykiv Prison no. 73 from 13 July to 22 October 2010, and in Bila Tserkva Prison no. 35 from 22 October 2010 to 6 June 2015. All three prisons are medium security facilities.Physical conditions of detention

(a)   In Korosten Prison no. 71

(i)  The applicant’s account

35.  The cells had been overcrowded, with each inmate having living space of less than 2 sq. m. The applicant had shared his cell measuring 8 by 15 metres with about eighty inmates.

36.  The applicant submitted a printout from the official website of the State Prison Service, which stated that the intended capacity of the prison was 1,100 inmates.

37.  Ventilation had been poor and access to natural light insufficient. The water supply had been irregular and the water dirty. The food had been inadequate and the ingredients used for preparing meals had often passed their expiry date.

38.  The prisoners had had to contribute financially to the refurbishment of the prison.

(ii)  The Government’s account

39.  Prisoners lived in dormitories and had proper living conditions.

40.  Relying on an information note issued by the State Prison Service on 15 September 2015, the Government submitted that the total living space measured 4,551.7 sq. m and was shared by 910 inmates, which meant that each prisoner was afforded about 5 sq. m of personal space.

41.  Prisoners’ nutrition complied with the legally established standards and included meat, fish, animal fats, vegetables, cereals and more. The quality of the food was constantly and directly monitored by the medical staff, as well as the responsible officials of the prison administration.

42.  The water quality was also checked on a regular basis. As confirmed by the relevant reports, it complied with the sanitary requirements for drinking water.

(b)   In Raykiv Prison no. 73

(i)  The applicant’s account

43.  The prison dormitory had been overcrowded, and each inmate had had only 2 sq. m of personal space. Ventilation had been insufficient, and it had always been hot and stuffy. The applicant, a non-smoker, had not been separated from inmates who smoked and had thus been constantly exposed to passive smoking.

44.  The applicant submitted a printout from the official website of the State Prison Service, which stated that the intended capacity of the prison was 1,100 inmates.

45.  Artificial lighting had only been available for five hours and fifteen minutes per day, which had not been enough.

46.  The sanitary facilities had been particularly poor. Toilets had been located in a separate building outside the dormitory and had not had a flushing system or water taps. They had also been extremely dirty, especially during summer, swarming with maggots and flies. Premises with washbasins had been located outside the dormitory as well. Hot water had not been available during summer and autumn. Inmates had only had access to running water for two or three hours per day, without any established schedule. There had been ten water taps for one unit accommodating 300 prisoners.

47.  The applicant drew a sketch illustrating the location of the above‑mentioned facilities. He noted that his unit had been located on the third floor. Accordingly, in order to brush his teeth or wash his hands, he had had to go three floors down, leave the dormitory premises and queue with numerous other prisoners.

48.  The applicant had used a water filter supplied by his relatives, but even once filtered the water had been too dirty to drink.

49.  The food had been impossible to eat, and had smelled and looked awful. It had been prepared in unhygienic conditions. As there had been no refrigerators in the prison, the applicant could not rely on the food supplied by his wife.

(ii)  The Government’s account

50.  The dormitory where the applicant had lived measured 299.6 sq. m and accommodated fifty-four inmates, which meant that each of them had about 5 sq. m (the Government relied on the information note issued by the State Prison Service on 15 September 2015).

51.  The sleeping areas were equipped with properly functioning ventilation and aired on a daily basis.

52.  The prison had an uninterrupted water supply from its own artesian wells. The quality of the drinking water was checked regularly and complied with the legal standards.

(c)   In Bila Tserkva Prison no. 35

(i)  The applicant’s account

53.  The prison dormitory had been overcrowded. Of its four floors, only the ground floor and first floor had been occupied (because of poor conditions on the upper floors). Between November 2010 and March 2011 the applicant had shared his cell measuring 30 sq. m with twenty inmates.

54.  The applicant submitted a printout from the official website of the State Prison Service, which stated that the intended capacity of the prison was 890 inmates.

55.  The food had been so poor that the applicant had often preferred to go hungry instead of eating it. There had been no refrigerators and prisoners could not therefore have their own food supplies. Electricity in the dormitory had only been available three times per day, for about two hours.

56.  There had been large-scale refurbishment works in the prison, which had lasted for several months and caused various inconveniences.

57.  From 22 October to the end of December 2010 the applicant had been employed in various capacities at the prison workshop, producing grocery bags. He had worked in three shifts, in poor conditions (noisy environment, no ventilation, poor light), with only one day off on Sundays. There had been 300 to 400 prisoners involved in that production, sharing premises of 40 by 20 metres.

58.  Subsequently the applicant had been transferred to the laundry, where the conditions had been just as poor. The work had been very hard. For example, he had had to iron about 800 kg of linen per day.

59.  From April 2011 the applicant had lived and slept in the laundry premises. He had had to sleep on racks or on the concrete floor, and had been kept up by the constant noise of the machines working around the clock. As a result, he had slept for about four hours per day. The premises had been very humid and had lacked ventilation.

60.  The applicant submitted statements by two other inmates confirming his description of the conditions of detention.

61.  He also submitted seven job sheets specifying his shifts and the teams in which he had been working in the prison laundry from January 2014 to June 2015. Each sheet was signed by four officials of the prison administration.

(ii)  The Government’s account

62.  The living space measured 3,134.5 sq. m and was shared by 652 prisoners, which meant that each inmate had 4.8 sq. m of personal space.

63.  There was an uninterrupted water and electricity supply.

64.  The nutrition arrangements were in compliance with the legal standards. Before each meal the quality of the food was checked by a medical official and a representative from the administration. The prison cooks had regular training with a view to improving their skills.

65.  Although the applicant had been formally employed, he had not actually worked. In any event, the conditions of work had been satisfactory: there had been no emission of harmful chemicals, the level of dust and noise had been within acceptable limits, and the technological process had been in compliance with occupational safety standards. The prison administration had not received any complaints from the applicant.Medical care

(a)   The applicant’s account

66.  In his initial submissions to the Court the applicant contended that he had required dental treatment while in Raykiv Prison no. 73 but had not been provided with any, as there had been no adequate equipment and the dentist could only extract teeth without being able to treat them. In his reply to the Government’s observations, the applicant was silent on the issue of medical care in the above-mentioned prison.

67.  The applicant also alleged in his initial submissions that upon his arrival at Bila Tserkva Prison no. 35 he had contracted inguinal mycosis, and that the prison doctor had refused to provide him with the appropriate treatment. He did not comment on that issue after notice of the application was given to the Government.

68.  Overall, according to the applicant, his health seriously deteriorated during his detention in Bila Tserkva Prison no. 35. He did not receive any medical treatment for the gastritis he was suffering from in the prison, even though he had requested it many times. He therefore could only rely on the medication supplied by his wife. The nutrition was not adapted to his medical needs. The applicant observed that, while upon his arrival at the prison his only health-related concern had been gastritis, after his transfer he had been diagnosed with chronic pancreatitis, hepatitis, diabetes, stage 1 hypertensive heart disease, diffuse cardiosclerosis, discirculatory encephalopathy, short-sighted astigmatism of the right eye, and presbyopia of both eyes. His gastritis had developed into aggravated gastroduodenitis and gastroesophageal reflux disease.

69.  In substantiation of the above statement, the applicant relied on a discharge note from the Irpin Military Hospital of 7 August 2015, which stated that he had undergone an inpatient medical examination and treatment in its gastroenterology department from 7 July to 7 August 2015. The applicant did not provide any details as regards the circumstances of his hospitalisation. It was noted in that document that, according to him, he had been suffering from gastroesophageal reflux disease and chronic gastroduodenitis for the last ten years and had been regularly taking omeprazole. He was also reported to have stated that his health had deteriorated in the month prior to his examination.

70.  The applicant also referred to a report issued by the Monitoring Commission of the Kyiv Regional Administration following its twelve monitoring visits to four prisons in the Kyiv region in 2014. Three of those visits had been to Bila Tserkva Prison no. 35. The report contained a general critical remark on medical understaffing and the inability of prisoners to obtain comprehensive medical care. No further details were provided.

71.  The applicant provided the Court with a copy of his medical file (or extracts) for 2009 to 2015. It is hardly readable for the most part. It appears, however, that during his several examinations in 2009 and 2010 the applicant was diagnosed with chronic gastritis and that some medication was prescribed for him. It appears that he underwent regular medical examinations between 2010 and 2015, with no complaints or health-related issues having been reported.

(b)   The Government’s account

72.  The applicant did not seek medical assistance during his detention in Bila Tserkva Prison no. 35. Nor did he receive any medication from his relatives.RELEVANT DOMESTIC LAWConstitution of Ukraine (1996)

73.  The relevant provisions read as follows:

Article 28

“Everyone has the right to respect for his or her dignity.

No one shall be subjected to torture, cruel, inhuman or degrading treatment or punishment that violates his or her dignity ...”

Article 63

“A person shall not bear responsibility for refusing to testify or to explain anything about himself or herself, members of his or her family or close relatives in the degree determined by law.

A suspect, an accused, or a defendant shall have the right to mount a defence.

A convicted person shall enjoy all human and citizens’ rights, except for the restrictions determined by law and established in court judgments.”Criminal Code (2001)

74.  Under Article 187 § 4, robbery committed for the purpose of obtaining property on a particularly large scale, or by an organised group, or combined with causing grievous bodily harm, is punishable by imprisonment for a term of eight to fifteen years, with confiscation of property.

75.  Under Article 289 § 2, carjacking committed following conspiracy by a group, or combined with violence dangerous to the victim’s life or health, or with the threat of such violence, or combined with burglary resulting in considerable material damage, is punishable by imprisonment for a term of five to eight years, with or without confiscation of property.

THE LAWALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF THE ALLEGED ILL-TREATMENT OF THE APPLICANT IN POLICE CUSTODY AND THE LACK OF AN EFFECTIVE DOMESTIC INVESTIGATION

76.  The applicant complained that he had been ill-treated by the police, in breach of Article 3 of the Convention. He also alleged, relying on Article 13 of the Convention, that his complaints in that regard had not been duly examined.

77.  The Court is of the opinion that it is appropriate to examine both aspects of the applicant’s grievance under Article 3 of the Convention (see Kozinets v. Ukraine, no. 75520/01, § 44, 6 December 2007), which reads as follows:

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

78.  The Court notes that this part of the application is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.MeritsAlleged ill-treatment

(a)   The parties’ submissions

79.  The applicant maintained his version of events (see paragraph 8 above). He observed that, as established by the forensic medical report of 16 January 2007, he had sustained a number of injuries while under the control of the police between 11 and 12 January 2007. The authorities had not, however, explained the origin of those injuries.

80.  The Government contested those arguments. They contended that the domestic authorities had made all reasonable efforts to look into the applicant’s allegation, and that there were no reasons for questioning their conclusion that it was unsubstantiated.

(b)   The Court’s assessment

81.  As the Court has stated on many occasions, Article 3 of the Convention enshrines one of the core values of democratic societies (see, among many other references, Selmouni v. France [GC], no. 25803/94, § 95, ECHR 1999‑V).

82.  Although the Court 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, it has to apply “particularly thorough scrutiny” where allegations are made under Article 3 of the Convention, even if certain domestic proceedings and investigations have already taken place. In other words, in such a context the Court is prepared to conduct a thorough examination of the findings of the national courts. In examining them it may take account of the quality of the domestic proceedings and any possible flaws in the decision-making process (see Bouyid v. Belgium [GC], no. 23380/09, § 85, ECHR 2015, with further case-law references).

83.  The Court considers it particularly important to point out that, in respect of a person who is deprived of his liberty, or, more generally, is confronted with law-enforcement officers, any recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is, in principle, an infringement of the right set forth in Article 3 (ibid., § 88).

84.  Turning to the present case, the Court notes that five days after the applicant’s arrest, on 16 January 2007, the forensic medical examination revealed that he had extensive bruising on his head and torso, as well as abrasions on his knee and hand. While the expert categorised the injuries in question as “minor”, he specified that they had been caused by at least twelve blows from hard blunt objects. He also confirmed that they could have been sustained on 11 or 12 January 2007 in the manner indicated by the applicant (see paragraph 10 above).

85.  The Court observes that the applicant provided a sufficiently coherent and detailed account of the circumstances in which he had sustained those injuries. According to him, he had been seriously assaulted by two police officers seeking to extract a confession from him to a criminal offence (see paragraph 8 above). Although they denied the veracity of the applicant’s allegations, the domestic authorities did not provide any explanation as to the origin of his injuries.

86.  The Court attaches weight to the fact that, as established by the domestic authorities, the applicant’s arrest was formalised after a delay of one day and that it was on that day that he wrote his “statement of surrender to the police” (see paragraphs 13 and 17 above). In the Court’s view, the very fact that the applicant confessed to the crime during his undocumented detention, in a setting lacking procedural guarantees, such as the availability of a lawyer, and retracted his confession soon afterwards (see paragraphs 17 and 24 above), creates the appearance that his confession may not have been given freely (compare Belousov v. Ukraine, no. 4494/07, § 63, 7 November 2013). Corroborated by the medical evidence of physical injuries, this gives rise to a strong presumption that the police officers resorted to physical ill‑treatment as a means of breaking the applicant’s psychological resistance and using his vulnerable state in order to obtain self-incriminating statements (ibid.).

87.  In such circumstances, and given the onus on the State to provide a plausible explanation for injuries sustained by a person under the control of the police, the Court concludes that the Government have not satisfactorily established that the applicant’s injuries were caused by means other than ill‑treatment while in police custody, as alleged by him (see, mutatis mutandis, Adnaralov v. Ukraine, no. 10493/12, § 45, 27 November 2014).

88.  Accordingly, there has been a violation of Article 3 in its substantive aspect on account of the applicant’s ill-treatment by the police.Effectiveness of the investigation

(a)   The parties’ submissions

89.  The applicant argued that there had been no meaningful domestic investigation into his allegation of ill-treatment by the police. He observed, in particular, that the decision of the prosecution authorities not to institute criminal proceedings against the officers concerned had only been based on the statements of those officers and had disregarded the forensic medical report corroborating his allegation. Furthermore, he submitted that he had never been questioned in that regard.

90.  The applicant also submitted that the prosecutor’s ruling of 15 March 2007 had not been served on him until 2 October 2011, that is, after a delay of four and a half years (see paragraph 15 above).

91.  He submitted that, although the courts had eventually examined his complaint about the impugned ruling on the merits, their approach had been overly formalistic and they had made no attempt to rectify the shortcomings of the earlier investigation.

92.  The Government disagreed. They noted that the authorities had immediately responded to the applicant’s complaint having carried out, the following day, his forensic medical examination and having instituted disciplinary proceedings against the police officers concerned.

(b)   The Court’s assessment

93.  The Court emphasises that where an individual raises an arguable claim that he or she has been seriously ill-treated by police in breach of Article 3, that provision requires by implication that there should be an effective official investigation 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], no. 26772/95, § 131, ECHR 2000‑IV). The minimum standards of effectiveness defined by the Court’s case-law include the requirements that the investigation must be independent, impartial and subject to public scrutiny, and that the competent authorities must act with exemplary diligence and promptness (see, for example, Menesheva v. Russia, no. 59261/00, § 67, ECHR 2006‑III).

94.  In the present case, the Court has found that the respondent State is responsible under Article 3 for the applicant’s ill-treatment (see paragraph 88 above). The authorities therefore had an obligation to investigate it in compliance with the aforementioned effectiveness standards.

95.  The Court notes that on 15 January 2007 the applicant complained to the authorities that he had been ill-treated following his arrest (see paragraph 9 above). His allegations were supported by the forensic medical report of 16 January 2007 (see paragraph 10 above). Nevertheless, on 15 March 2007 the prosecutor’s office refused to open a criminal case regarding the matter, finding that there had been nothing criminal in the actions of the police (see paragraph 12 above). That decision was eventually upheld by the courts, at three levels of jurisdiction (see paragraph 16 above).

96.  The Court finds well-founded the applicant’s arguments that he was never questioned in respect of his complaint, that he was only served with the prosecutor’s decision after a considerable delay, and that both the investigation authorities and the courts disregarded the essential forensic medical evidence in support of his allegations.

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

98.  There has therefore also been a violation of Article 3 of the Convention in its procedural aspect.ALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE CONVENTION ON ACCOUNT OF POOR CONDITIONS OF THE APPLICANT’S DETENTION

99.  The applicant complained that he had not been provided with adequate medical care in detention, and about the physical conditions in Korosten Prison no. 71, Raykiv Prison no. 73 and Bila Tserkva Prison no. 35. He relied on Article 3 of the Convention (quoted in paragraph 77 above), as well as Article 13, which reads as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”AdmissibilityMedical care

(a)   Complaint under Article 3 of the Convention

100.  The parties’ submissions are summarised in paragraphs 66-72 above.

101.  The Court reiterates that an unsubstantiated allegation that medical care has been non-existent, delayed or otherwise unsatisfactory is normally insufficient to disclose an issue under Article 3 of the Convention. A credible complaint should normally include, among other things, sufficient reference to the medical condition in question; medical treatment that was sought, provided, or refused; and some evidence – such as expert reports – which is capable of disclosing serious failings in the applicant’s medical care (see, for example, Krivolapov v. Ukraine, no. 5406/07, § 76, 2 October 2018, with further references).

102.  Turning to the present case, the Court observes that the applicant’s allegations of poor medical care in detention are limited to vaguely worded accusations against the authorities. Relying mainly on the discharge note from the Irpin Military Hospital of 7 August 2015, he argued that he had not been provided with any treatment for gastritis in Bila Tserkva Prison no. 35 and that his health had therefore seriously deteriorated (see paragraphs 68 and 69 above).

103.  The Court observes, however, that according to the readable part of the copy of the applicant’s medical file provided by him, he did undergo regular medical check-ups in Bila Tserkva Prison no. 35, with no health‑related concerns reported. Furthermore, as indicated in the above-mentioned discharge note, he had stated that his health had deteriorated in the month prior to his arrival at the hospital, that is, from 7 June 2015 (see paragraphs 69 and 71 above). Given that the applicant had left Bila Tserkva Prison no. 35 on 6 June 2015 (see paragraph 34 above), the administration of the prison could hardly be blamed in these circumstances for failing to provide adequate medical care.

104.  As to the other grievances raised in the applicant’s initial complaints, namely that he had not been provided with adequate dental treatment in Raykiv Prison no. 73 or with any treatment for inguinal mycosis in Bila Tserkva Prison no. 35, the Court observes that he did not make any submissions in that regard after notice of the application was given to the Government (see paragraphs 66 and 67 above).

105.  In the light of the foregoing, the Court concludes that the applicant failed to substantiate his complaint of inadequate medical care in detention. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

(b)   Complaint under Article 13 of the Convention

106.  Given that the Court has found that the applicant has not made out an arguable claim under Article 3 of the Convention in respect of his medical care in detention, the guarantees of Article 13 do not apply to this complaint (see Vergelskyy v. Ukraine, no. 19312/06, § 124, 12 March 2009).

107.  This part of the application is therefore incompatible ratione materiae with the provisions of the Convention and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.Physical conditions of detention

108.  The Court notes that this part of the application is neither manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention nor inadmissible on any other grounds. It must therefore be declared admissible.MeritsComplaint under Article 3 of the Convention

(a)   The parties’ submissions

109.  The parties maintained their accounts as summarised in paragraphs 35-65 above.

(b)   The Court’s assessment

(i)  General principles

110.  The Court notes that the relevant principles of its case-law in relation to overcrowding were recently set out in Muršić v. Croatia ([GC], no. 7334/13, §§ 137-41, 20 October 2016). In particular, when the personal space available to a detainee falls below 3 sq. m of floor surface in multi‑occupancy accommodation in prisons, the lack of personal space is considered so severe that a strong presumption of a violation of Article 3 arises (ibid.,§ 137). In cases where a prison cell – measuring in the range of 3 to 4 sq. m of personal space per inmate – is at issue, the space factor remains a weighty factor in the Court’s assessment of the adequacy of conditions of detention. In such instances a violation of Article 3 will be found if the space factor is coupled with other aspects of inappropriate physical conditions of detention (ibid., § 139). Where a detainee had at his or her disposal more than 4 sq. m of personal space in multi-occupancy accommodation in prison and where therefore no issue with regard to the question of personal space arises, other aspects of physical conditions of detention remain relevant for the Court’s assessment of adequacy of an applicant’s conditions of detention under Article 3 of the Convention (ibid., § 140).

111.  The Court has also held that, when assessing conditions of detention, account has to be taken of the cumulative effects of these conditions, as well as of specific allegations made by the applicant. The length of the period during which a person is detained in the particular conditions has also to be considered (ibid., § 101, with further references).

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

   As regards Korosten Prison no. 71

112.  The Court observes that the applicant provided detailed information about the dimensions of his cell and the number of detainees held with him, from which it appeared that each prisoner had 1.5 sq. m of personal space (see paragraph 35 above). The Government, in turn, made a general submission about the overall living space of the prison dormitory and its general population as of September 2015, from which they suggested drawing a conclusion that each prisoner had been afforded about 5 sq. m of personal space (see paragraph 40 above). In the absence of any information from the Government as to the particular conditions in which the applicant was detained in the prison, including the space in his cell and the number of inmates therein, the Court cannot accept their argument. It also notes that their estimate is not only too general but also inapplicable to the applicant’s case, given that it concerns the situation in the prison in September 2015, whereas the applicant was detained there in 2009 and 2010 (see paragraphs 34 and 40 above).

113.  In these circumstances, the Court cannot but give weight to the applicant’s submissions and conclude that during his detention in the prison he was allowed 1.5 sq. m of personal space, which is significantly below the minimum standard of 3 sq. m in multi-occupancy accommodation (see Muršić, cited above, § 137). A strong presumption of a violation of Article 3 thus arises (ibid.).

114.  The Court notes that the applicant was detained in those conditions for a total of seven months and twenty-two days (see paragraph 34 above) and that the Government have not demonstrated that there were factors capable of adequately compensating for the scarce allocation of personal space.

115.  In addition to the focal issue of overcrowding, it is the very principle of accommodating so many prisoners in the same dormitory that has previously given rise to serious concern on the part of the Court and the Committee for the Prevention of Torture. In cases where applicants were housed, together with dozens of other inmates, in a dormitory in which they had at their disposal only minimal personal space, the Court held that the level of privacy available to them was insufficient to satisfy the requirements of Article 3 of the Convention (see Butko v. Russia, no. 32036/10, § 59, 12 November 2015, with further references).

116.  It follows that the conditions of the applicant’s detention in Korosten Prison no. 71 did not comply with the requirements of Article 3 of the Convention. This finding makes it unnecessary for the Court to address separately the applicant’s remaining allegations relating to the poor quality of food and water in the prison.

   As regards Raykiv Prison no. 73

117.  The Court notes that the submissions of both parties regarding the personal space afforded to the applicant in the prison are too vague for any conclusions to be drawn. The applicant submitted that each prisoner had only had 2 sq. m of personal space, without giving any details concerning the cell in which he had been detained. Nor did the Government clarify that issue, having provided only a general estimate of the prison dormitory’s space and population as of September 2015, which was about five years after the applicant had left the prison.

118.  Accordingly, the Court is unable to establish, to the required standard of proof, that the applicant was detained in overcrowded conditions.

119.  The Court has held in its case-law that, quite apart from the necessity of having sufficient personal space, other aspects of material conditions of detention are relevant for the assessment of whether they comply with Article 3. Such elements include access to outdoor exercise, natural light or air, the availability of ventilation, the adequacy of heating arrangements, the possibility of using the toilet in private, and compliance with basic sanitary and hygiene requirements (see Story and Others v. Malta, nos. 56854/13 and 2 others, §§ 106 and 112, 29 October 2015, and Muršić, cited above, § 140).

120.  The Court observes that in the present case the applicant provided specific factual details in support of his argument about poor sanitary installations in the prison, which for the most part remained uncontested by the Government. These included, in particular, his submission that there were only ten water taps to accommodate the needs of 300 prisoners, as well as his description of the truly appalling sanitary conditions in toilets (see paragraph 46 above).

121.  The Court reiterates that access to properly equipped and hygienic sanitary facilities is of paramount importance for inmates to maintain a sense of personal dignity. Not only are hygiene and cleanliness integral parts of the respect that individuals owe to their bodies and to the neighbours with whom they share premises for long periods of time, they also constitute a condition, and at the same time a necessity, for the conservation of health. A truly humane environment is not possible without ready access to toilet facilities or the possibility of keeping one’s body clean (see Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, § 156, 10 January 2012).

122.  The Court considers that the sanitary facilities in the prison as described by the applicant clearly contradicted those standards (compare Insanov v. Azerbaijan, no. 16133/08, § 126, 14 March 2013, and Vitkovskiy v. Ukraine, no. 24938/06, §§ 53 and 119-22, 26 September 2013).

123.  Furthermore, in the absence of any comments from the Government, the Court considers credible the applicant’s submissions regarding his constant exposure to passive smoking and insufficient artificial lighting (see paragraphs 43 and 45 above). These are additional factors to be taken into account in assessing the cumulative effect of the conditions of detention.

124.  Overall, the Court considers that the conditions of the applicant’s detention in Raykiv Prison no. 73, in which he was held for three months and nine days, contravened the requirements of Article 3 of the Convention.

   As regards Bila Tserkva Prison no. 35

125.  The Court notes that the parties provided conflicting accounts regarding the conditions of the applicant’s detention in the prison. While the applicant’s description was rather detailed, the Government confined their submissions to making a general reference to the prison’s overall living space population. On the facts of the case, they did not deny that from November 2010 to March 2011 the applicant had been detained in a cell measuring 30 sq. m and accommodating twenty inmates as alleged by him (see paragraphs 53 and 62 above). The applicant explained the overcrowding by the fact that only two of the four floors of the prison building had been used at the time. That circumstance, too, remained without any comments from the Government’s side.

126.  Having regard to the evidence submitted by the applicant (see paragraphs 60 and 61 above), the Court considers it sufficiently established that the applicant worked in the laundry. In the absence of any factual details from the Government about the conditions of his detention, the Court sees no reasons to question the applicant’s submission that he slept in the laundry premises (see paragraph 59 above). It also accepts his argument that those premises were not suitable for that purpose.

127.  The above considerations, namely that the applicant was apparently detained partly in overcrowded conditions and partly in conditions inappropriate for living and sleeping, are sufficient for the Court to conclude that the standards enshrined in Article 3 of the Convention were not respected in that prison either.

   Conclusion

128.  The Court therefore concludes that there has been a violation of Article 3 of the Convention on account of the poor physical conditions of the applicant’s detention in Korosten Prison no. 71, Raykiv Prison no. 73, and Bila Tserkva Prison no. 35.Complaint under Article 13 of the Convention

129.  The Government submitted that it had been open for the applicant to raise his complaints with a prosecutor.

130.  The applicant insisted that there had been no effective domestic remedy available to him.

131.  The Court points out that Article 13 of the Convention guarantees the availability at national level of a remedy to enforce the substance of Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. With reference to its earlier case-law (see, among other authorities, Melnik v. Ukraine, no. 72286/01, §§ 113-16, 28 March 2006) and the circumstances of the present case, the Court finds that the Government have not proved that the applicant had in practice an opportunity to obtain effective remedies for his complaints, that is to say, remedies which could have prevented the violations from occurring or continuing, or afforded him any other appropriate redress.

132.  The Court concludes, therefore, that there has been a violation of Article 13 in conjunction with Article 3 of the Convention on account of the lack of an effective and accessible remedy under domestic law for the applicant’s complaints in respect of the physical conditions of his detention.ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF the APPLICANT’S SELF-INCRIMINATION UNDER DURESS

133.  The applicant further complained that he had been convicted on the basis of his confession given under duress. He relied on Article 6 § 1 of the Convention, the relevant part of which provides as follows:

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

134.  The Court notes that this part of the application is not manifestly ill-founded. It is not inadmissible on any other grounds. It must therefore be declared admissible.MeritsThe parties’ submissions

135.  The applicant submitted that the use of his self-incriminating statement made as a result of coercion by the police officers had rendered his trial unfair.

136.  The Government contested that argument, stating in particular that the applicant’s allegation of ill-treatment had been thoroughly examined in the course of his trial and rejected as unsubstantiated.The Court’s assessment

137.  The Court reiterates that the admission of confessions obtained in violation of Article 3 renders the criminal proceedings in question as a whole automatically unfair, irrespective of the probative value of those statements and irrespective of whether their use was decisive in securing the defendant’s conviction (see Gäfgen v. Germany [GC], no. 22978/05, §§ 166 and 173, ECHR 2010, and, more recently, Golubyatnikov and Zhuchkov v. Russia, nos. 44822/06 and 49869/06, § 113, 9 October 2018).

138.  The Court has found that the applicant was subjected to ill‑treatment in police custody, as a result of which he wrote “a statement of surrender to the police” on 11 January 2007 (see paragraphs 84-88 above). That statement formed part of the evidence adduced against him (see paragraph 29 above).

139.  In such circumstances, regardless of the impact the applicant’s self‑incriminating statement of 11 January 2007 had on the outcome of the criminal proceedings against him, the Court concludes that this evidence rendered the criminal proceedings unfair (see, for example, Zyakun v. Ukraine, no. 34006/06, § 62, 25 February 2016).

140.  There has, accordingly, been a violation of Article 6 § 1 of the Convention.OTHER ALLEGED VIOLATIONS OF THE CONVENTION

141.  Lastly, the applicant complained that the domestic courts dealing with his criminal case had lacked impartiality.

142.  The Court notes that this complaint is wholly unsubstantiated and should therefore be rejected as manifestly ill-founded in accordance with Article 35 §§ 3 (a) and 4 of the Convention.APPLICATION OF ARTICLE 41 OF THE CONVENTION

143.  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.”Damage

144.  The applicant claimed 60,000 euros (EUR) in respect of non‑pecuniary damage. He also claimed 63,718.02 Ukrainian hryvnias (UAH) in respect of pecuniary damage, on the basis of the following calculation: UAH 18,428.66 for the costs of his medical treatment; UAH 7,118.44, representing his contribution to the prison refurbishment costs; UAH 6,026.5 for the cost of his work clothes; UAH 31,400 for the amount spent on food while in prison; and UAH 744.42 for postal expenses.

145.  The Government contested the above claims as unsubstantiated and excessive, with the exception of the claim concerning postal services (see paragraph 149 below).

146.  The Court will deal with the issue of the applicant’s postal services under costs and expenses (see paragraph 151 below). The Court does not discern any causal link between the violations found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, ruling on equitable basis, it awards the applicant EUR 12,000 in respect of non‑pecuniary damage.Costs and expenses

147.  The applicant also claimed EUR 4,043.20 for the costs and expenses incurred before the Court, to be paid directly into Mr Tarakhkalo’s bank account. In support of his claim, he submitted a legal assistance contract signed by him and Mr Tarakhkalo on 10 November 2015. It stipulated an hourly fee of EUR 95. According to the contract, payment was due after completion of the proceedings in Strasbourg and within the limits of the sum awarded by the Court in respect of costs and expenses. The applicant also submitted a report of 24 February 2016 on the work completed under the aforementioned contract. It specified that Mr Tarakhkalo had worked on the case for thirty-eight hours (EUR 3,610) and that he had incurred administrative and postal costs totalling EUR 288.80 and EUR 144.40 respectively.

148.  The Government maintained that, given the nature of the applicant’s complaints, the claim for legal expenses was exaggerated. They further noted that the applicant had failed to submit proof that the administrative and postal costs indicated in the report of 24 February 2016 had actually and necessarily been incurred.

149.  The Government admitted, however, that the applicant had confirmed by receipts his own postal expenses in the amount of UAH 551.27 (see paragraph 144 above). They left that matter to the Court’s discretion.

150.  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-mentioned criteria, the Court considers it reasonable to grant the applicant’s claim in part and to award him EUR 2,760 for the legal fees incurred before the Court (which is equal to EUR 3,610 less EUR 850, the sum received by way of legal aid), plus any tax that may be chargeable to the applicant. This award is to be paid into Mr Tarakhkalo’s bank account, as indicated by the applicant (see, for example, Belousov, cited above, §§ 116-17).

151.  Furthermore, having regard to the receipts for postal services submitted by the applicant, the Court awards him EUR 30 for postal costs.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,Declares admissible the applicant’s complaints: under Article 3 of the Convention about his alleged ill-treatment by the police and the domestic investigation thereof; under Articles 3 and 13 about the physical conditions of his detention in Korosten Prison no. 71, Raykiv Prison no. 73 and Bila Tserkva Prison no. 35; and under Article 6 § 1 of the Convention about the alleged unfairness of his trial on account of the applicant’s self-incrimination under duress;Declares the remainder of the application inadmissible;Holds that there has been a violation of Article 3 of the Convention in its substantive aspect on account of the applicant’s ill-treatment by the police;Holds that there has been a violation of Article 3 of the Convention in its procedural aspect on account of the lack of an effective domestic investigation into the applicant’s allegation of ill-treatment by the police;Holds that there has been a violation of Articles 3 and 13 of the Convention on account of the poor physical conditions of the applicant’s detention in Korosten Prison no. 71, Raykiv Prison no. 73 and Bila Tserkva Prison no. 35 and the lack of an effective domestic remedy in that regard;Holds that there has been a violation of Article 6 § 1 of the Convention on account of the applicant’s self-incrimination under duress;Holds

(a)  that the respondent State is to pay the applicant, within three months the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i)        EUR 12,000 (twelve thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)      EUR 2,760 (two thousand seven hundred and sixty euros), plus any tax that may be chargeable, in respect of legal costs before the Court (the net award to be paid into the bank account of the applicant’s representative Mr Tarakhkalo);

(iii)     EUR 30 (thirty euros), plus any tax that may be chargeable, for postal 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;Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 21 November 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Claudia WesterdiekGabriele Kucsko-Stadlmayer
RegistrarPresident

 

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