FIFTH SECTION
DECISION
Application no. 25922/09
Gleb Davidovich SKANT
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 6 September 2016 as a Chamber composed of:
Angelika Nußberger, President,
Ganna Yudkivska,
Erik Møse,
André Potocki,
Yonko Grozev,
Carlo Ranzoni,
Mārtiņš Mits, judges,
and Milan Blaško, Deputy Section Registrar,
Having regard to the above application lodged on 10 April 2009,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Gleb Davidovich Skant, is a Ukrainian national who was born in 1971 and lives in Kharkiv.
2. The applicant was represented by Ms A. Mukanova, a lawyer practising in Kharkiv. The Ukrainian Government (“the Government”) were represented, most recently, by their Agent, Mr I. Lishchyna, of the Ministry of Justice.
A. Events of 18 October 2008 and their aftermath
3. After 7 p.m. on 18 October 2008 the applicant went out onto the staircase landing in front of his flat to talk to an acquaintance of his, Y.K., a user of injection drugs. According to the applicant, they spoke about computer games. According to Y.K., the applicant asked him to inject him with a syringe which the latter provided. According to a subsequent forensic analysis, the syringe seized from Y.K. contained an illegal drug, but the relevant amount was below the level needed for a prosecution.
4. In the course of the subsequent investigation it emerged that the residents in the applicant’s block of flats had for some time observed drug use on the staircase landings in the building. Having seen the applicant and Y.K. on the landing, and suspecting them of drug use, O.Ya. – the grandson of a lady who lived two floors above the applicant – contacted his friend D.T., a police officer, and asked him to intervene.
5. While the applicant and Y.K. were standing on the landing and, according to Y.K., while he was giving the applicant the injection, they were approached by D.T., accompanied by O.Ya. and a certain I.L. D.T. explained that he had brought along the other people as potential witnesses.
6. According to all those involved in the incident other than the applicant, D.T. identified himself as a police officer and enquired what the applicant was doing. According to the applicant, D.T. did not identify himself. The applicant attempted to open the door to his flat and retreat.
7. According to the applicant, he was then hit on the head, kicked and punched, and those attacking him also attempted to put a syringe in his pocket. He cried for help. The attackers pushed him to the floor and continued to kick him.
8. According to all the other people involved in the incident, including Y.K., the applicant resisted D.T. when the latter tried to stop him from retreating into his flat. He started struggling with D.T., but D.T. eventually overpowered him and pushed him to the ground face down. I.L. helped D.T. hold the applicant down.
9. The applicant cried for help. D.T. called his colleague, officer O.Z., for backup. I.P., a neighbour, subsequently stated that, after hearing cries for help, he went up one floor from his flat and saw the applicant, whom he knew by sight, lying on the ground and being held down by two people while struggling. A third person assisting with the arrest was holding Y.K., who was standing facing the wall. Other than that, nobody was moving. I.P. saw O.Z. arrive and handcuff the applicant.
10. The applicant and Y.K. were taken out of the building. G.D., a neighbour, saw them on the ground floor and did not see any ill-treatment.
11. According to the applicant’s submissions to the Court, immediately before putting him in the car, the police officers hit him repeatedly. Y.K. and another neighbour, N.Zh., saw no ill-treatment.
12. The police officers took the applicant and Y.K. to the Kharkiv Kyivsky District police station in the same car, and took the applicant to the third floor without registering him at the front desk.
13. According to the applicant, in the car and at the police station the police continued to beat him. They also threatened to continue beating him and rape him once they were in one of the offices at the station. The officers and all the other people present, including Y.K., denied these allegations.
14. It is undisputed that when the applicant was taken to the third floor of the station, and as D.T. was opening an office door, the applicant either kneed or headbutted him in the face, ran along the corridor to a window and jumped out, breaking the glass with a part of his body, either his head or shoulder. On 24 October 2008 a forensic medical expert recorded that D.T. had a haematoma on his face, diagnosed him with concussion, and stated that the injuries were consistent with D.T.’s account that he had been hit by the applicant.
15. The applicant was found lying on a lawn and was taken to hospital.
16. On 24 October 2008 a forensic medical expert recorded that, based on the applicant’s personal examination and hospital records, he had a wound on the crown of his head which had scabbed over, a wound on his right elbow which had scabbed over, redness in his waist area on the right and a circular bruise on his left wrist. He was diagnosed with a closed head trauma, concussion and several fractures. The expert concluded that, other than the wrist bruise, all of the injuries could be explained by the applicant’s jump through the window and fall, and the bruise could be explained by the handcuffing.
17. On 21 November 2008, in connection with his conduct in the course of his arrest, the Kharkiv Moskovsky District Court convicted the applicant of the administrative offence of disobeying a police officer, and gave him a fine.
18. On 3 September 2012 the applicant was recognised as a Category 3 disabled person (the least severe category of disability).
B. Investigation into the events
19. On 18 October 2008 an inspection of the scene of the incident at the police station was conducted. A shattered window and shards of glass were discovered, spread over the ground and covering a wide area.
20. On 20 October 2008 the applicant’s mother lodged a formal complaint regarding the alleged ill-treatment. On 21 October 2008 an investigator of the Kharkiv Kyivsky district prosecutor’s office took a statement from her. The statement was mainly based on the applicant’s account, which she had heard while visiting him in hospital.
21. On 23 October 2008 the applicant told the investigator that he had been attacked by strangers on the landing of his building. He had hit back and struggled with them for two minutes. They had pushed him to the ground and hit him. They had then hit him in the car on the way to the police station, stopping several times on the way to do so. When they had taken him to the third floor of the police station, somebody had threatened him with rape. He had not been able to bear it, had hit one of the officers, and had jumped out of the window.
22. On 24 October 2008 the applicant and D.T. underwent forensic medical examinations, in accordance with the investigator’s instructions (see paragraphs 14 and 16 above). Subsequently, the investigator took a number of statements from various witnesses (see, in particular, paragraph 11 above) and the applicant.
23. On 28 October 2008 a certain Ms T.O. told the investigator that on the night in question she had been collecting empty bottles near the applicant’s building when she had seen, at a distance of about fifteen metres, six strangers take two arrestees to a car. One person, with his hands handcuffed behind his back, had been hit and kicked in the kidneys, neck and head for about ten minutes while he screamed for help. Before putting him in the car one of the assailants had said, “Don’t forget to plant [that thing on him]” (“Что б не забыли подложить”). When she had called the applicant’s mother the next day to tell her about the incident, she had learned that the person she had seen had been the applicant. T.O. said that she was the applicant’s mother’s former classmate, and made other statements indicating that she knew the family well. Neither the applicant nor his mother mentioned in their initial statements (see paragraphs 20-22 above) the events which, according to T.O., had happened in front of the police car.
24. On 30 October 2008 the investigator refused to institute criminal proceedings, for lack of corpus delicti in the police officers’ actions. On 8 November 2008 the Kharkiv regional prosecutor’s office overruled that decision, instituted criminal proceedings in relation to suspected abuse of power by the police officers, and entrusted the investigation to an investigator at the regional office. On the same day the police officers were questioned, and denied subjecting the applicant to any ill-treatment.
25. On 15 November 2008 the applicant was recognised as an aggrieved party in those proceedings, and was questioned in that capacity.
26. In the course of the subsequent criminal investigation, all the witnesses mentioned above and several others were repeatedly interviewed, and several formal confrontations between witnesses and on-site reconstructions were held, with the participation of the applicant and the police officers. In particular, on 6 March 2009 the applicant was questioned about his personal history. He stated that he had previously participated in kickboxing and karate tournaments, and in 1994 had been a karate champion in Ukraine. He also stated that in 2000 he had changed his name from Maksim Vladimirovich Inyutin to Gleb Davidovich Skant, since this was a requirement for converts to Islam. He did not attend any church in particular, but felt closest to the Jehovah’s Witnesses.
27. The investigator also obtained the opinions of a number of experts. In particular, on 21 April 2009 a psychologist concluded that the applicant’s conduct might have been driven by such pronounced personality traits as an appetite for risk, a heightened sense of injustice, a strong will, and a tendency to become easily insulted. The expert noted that, according to the applicant, he had thought about jumping out of the car on the way to the police station. On 30 June 2009 a panel of medical experts confirmed the findings of the examination of 24 October 2008 (see paragraph 16 above), and concluded that the applicant’s injuries were inconsistent with his account of ill-treatment.
28. On 30 September 2010 the investigator decided not to bring charges against the individuals who had been involved in the incident (D.T., O.Z., O.Ya. and I.L.), for lack of corpus delicti in their actions, and on 2 October 2010 the investigator decided to discontinue the criminal proceedings, finding that there were no sufficient grounds to bring any charges. The investigator concluded, in particular, that the applicant’s account diverged from the accounts of all witnesses and the medical evidence, while the officers’ accounts did not. As to T.O., her account contradicted the consistent statements of other disinterested parties, and she was the applicant’s mother’s former classmate.
29. On 24 November 2010 the Kharkiv Chervonozavodsky District Court overruled the decision of 2 October 2010 and sent the case back for further investigation, stating in particular that the investigator had failed to take into account T.O.’s statements.
30. In the course of the subsequent investigation, the investigator repeatedly attempted to contact the applicant, without success, and then ordered the police to look for him. According to a police report of 7 April 2011, the applicant’s parents and neighbours said that he had moved in with his girlfriend. Although he visited them from time to time, his parents maintained that he had not left an address. They promised to inform the applicant that the investigator was looking for him when they next saw him. The investigator’s efforts to contact the applicant through his lawyers were equally unsuccessful.
31. On 31 May 2011 the investigator again discontinued the criminal proceedings, coming to the same conclusions, particularly concerning T.O.’s statements. According to the Government, the applicant was notified of that decision on the same day by letter. According to the applicant, he learned of it on 3 June 2013.
COMPLAINTS
32. The applicant complained under Article 3 of the Convention that he had been ill-treated by the police, and that the domestic investigation into the alleged ill-treatment had been ineffective.
THE LAW
A. The parties’ submissions
33. The Government submitted that the applicant had lost contact with the domestic authorities after the case was sent for further investigation, and had failed to appeal against the decision of 31 May 2011 to discontinue the investigation. For the Government, this called into question his intention to pursue his application before the Court. They referred to Article 37 § 1 of the Convention. They also argued that the applicant could no longer be regarded as a victim within the meaning of Article 34 of the Convention.
34. The Government also submitted that, in failing to appeal against the decision of 31 May 2011, the applicant had failed to exhaust an effective domestic remedy.
35. The Government further argued that the applicant’s allegation that he had been ill-treated was not supported by other evidence. The applicant had also changed various details in his account in the course of the investigation. His complaint was therefore manifestly ill-founded. The Government further submitted that the domestic investigation into the applicant’s complaint had been effective.
36. The applicant submitted that he had failed to cooperate with the authorities because his state of health had made this difficult, and because he had not wished to be questioned again in relation to the circumstances about which he had already given statements. As to the possibility of appealing against the decision of 31 May 2011, he had only learned of that decision on 3 June 2013. Even if he had appealed against it and the decision had been overruled, no meaningful investigation could have been conducted after such a long period of time. He insisted that his complaint about ill‑treatment was not manifestly ill-founded.
37. As to the investigation, the applicant submitted that the investigation had not been effective for the following reasons: (i) there had been a delay before the authorities had started the investigation; (ii) the decisions refusing to institute proceedings and discontinuing the investigation had been based on the accounts of the police officers and their friends; (iii) the investigating authority, in conducting further investigation following the domestic court’s overruling of the first decision not to prosecute, had failed to comply with the domestic court’s instructions, particularly as to the need to take into account T.O.’s statements. The applicant argued that his absence during the final stage of the investigation could not have undermined its effectiveness.
B. The Court’s assessment
1. The applicant’s intention to pursue the application
38. As to the Government’s objection in relation to the purported loss of contact with the applicant, the Court observes that, in the instant case, there is no indication that the applicant lost contact with his representative, thereby rendering her unable to effectively represent him (contrast, for example, Feal-Martinez and Pearson v. the United Kingdom (dec.), no. 1309/02, 1 July 2003, and Chirino v. the Netherlands (dec.), no. 31898/04, 4 May 2006). On the contrary, the representative submitted documents from the applicant which postdated the period in which the domestic authorities had attempted to contact him (see, for example, paragraph 18 above), and indicated that she had had contact with him following communication of the case. Moreover, the results of the domestic investigation into the applicant’s whereabouts themselves indicate that, rather than simply losing contact with his representative, he was unwilling to be contacted by the authorities (see paragraph 30 above). This, in itself, does not indicate that the applicant does not intend to pursue his application before the Court (compare, for example, Gündem v. Turkey, 25 May 1998, § 63, Reports of Judgments and Decisions 1998-III). Accordingly, this objection by the Government must be rejected.
2. Exhaustion of domestic remedies
39. The Court notes that the Government also raised a preliminary objection as to the applicant’s failure to exhaust an effective domestic remedy. However, it does not consider it necessary to examine this objection, given that the application is, in any event, inadmissible for the following reasons (see, for example, Constantin Tudor v. Romania, no. 43543/09, § 78, 18 June 2013).
3. Alleged violations of Article 3 of the Convention
(a) Alleged ill-treatment of the applicant
40. There is no medical evidence to support the applicant’s allegations of ill-treatment, and the available medical evidence in fact contradicts the allegations (see paragraph 27 above). Moreover, his allegations also contradict the concordant evidence of all other witnesses but one, including witnesses with no apparent interest in the matter. As to the statements of that one witness, T.O., the Court observes that they contradict the applicant’s own original account and the accounts of other witnesses (see paragraph 11 above), and are not supported by the medical evidence.
41. The Court is conscious of the disagreement between the domestic authorities as to T.O.’s credibility. However, in view of all the other evidence now available, the Court is not convinced that her statements would in any event be sufficient to make the applicant’s complaint under the substantive limb of Article 3 of the Convention arguable for the purposes of the proceedings now pending before the Court.
42. It follows that this part of the application is manifestly ill-founded, and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
(b) Effectiveness of the domestic investigation
43. The Court notes, however, that the latter finding is based on the information gathered in the course of the domestic investigation which is currently available to the Court, and does not mean, of itself, that the applicant’s initial complaint at domestic level was not arguable for the purposes of triggering the State’s procedural obligation to investigate (see Alpar v. Turkey, no. 22643/07, § 42, 26 January 2016).
44. Indeed, in view of the seriousness of the incident which occurred at the police station and T.O.’s statements, the Court is prepared to assume that the applicant’s initial complaint at domestic level was “arguable” so as to the trigger the domestic authorities’ obligation, under the procedural limb of Article 3 of the Convention, to conduct an effective investigation.
45. However, the Court finds that the applicant has failed to put forward any arguments capable of convincing it that the domestic investigation was not effective.
46. It is true that a full-blown criminal investigation was not initiated until 8 November 2009, and before that date the applicant’s case was dealt with in the context of a pre-investigation inquiry, a procedure which the Court has on many occasions held to be inadequate (see, for a recent example, Serikov v. Ukraine, no. 42164/09, §§ 82-83, 23 July 2015). However, in the specific circumstances of the present case, there is no indication that the authorities failed – in that initial period – to undertake any reasonable steps, the absence of which would have undermined the effectiveness of a subsequent investigation (see Zalevskiy v. Ukraine, no. 3466/09, § 56, 16 October 2014, with further references).
47. The Court further finds that, after a full criminal investigation had been formally initiated, the authorities carried out a wide variety of investigative actions: not limiting themselves to the police officers’ accounts, but also repeatedly questioning all potential witnesses, including those without any obvious interest in the matter; ordering several expert opinions; holding formal confrontations and on-site reconstructions, particularly in an effort to resolve the contradictions between the applicant’s and the police officers’ accounts. There is no indication that the authorities omitted any apparent and available avenue of inquiry.
48. As to the length of the proceedings, the Court observes that the investigation was completed in less than a year, and in the subsequent period of one year and two months the domestic courts examined the lawfulness of the findings made by the investigator (compare Zalevskiy, cited above, § 55). As to the subsequent period (after 24 November 2010), the domestic authorities cannot be blamed for the length of the proceedings, because a major part of their efforts during that period involved looking for the applicant (see paragraph 30 above). The applicant failed to show any convincing reasons for his failure to keep in contact with the authorities during that period.
49. The Court is conscious of the fact that the domestic court disagreed with the investigating authority’s assessment of T.O.’s statements. However, it should also take account of the fact that the investigating authority’s efforts to comply with the domestic court’s decision were undermined by the applicant’s failure to cooperate with the investigation. In particular, one obvious avenue of enquiry in evaluating T.O.’s statements would have been to enquire into the reasons for the apparent discrepancy between her account and the applicant’s initial account of the relevant events (see paragraph 11 above).
50. However, the authorities were inevitably prevented from pursuing this and various other possible avenues of enquiry by the applicant’s avoidance of contact with them. In such circumstances, the Court is not prepared to speculate as to the course the investigation could have taken had the applicant cooperated, and cannot hold the authorities responsible for the length of the proceedings after 24 November 2010, or the way in which the proceedings unfolded (see, mutatis mutandis, Tymoshenko v. Ukraine, no. 49872/11, § 241, 30 April 2013).
51. It follows that this part of the application is also manifestly ill‑founded, and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 29 September 2016.
Milan BlaškoAngelika Nußberger
Deputy RegistrarPresident
Full & Egal Universal Law Academy