FIFTH SECTION

CASE OF YATSENKO v. UKRAINE

(Application no. 75345/01)

JUDGMENT

STRASBOURG

16 February 2012

FINAL

16/05/2012

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

In the case of Yatsenko v. Ukraine ,

The European Court of Human Ri g hts (Fifth Section) , sittin g as a Chamber composed of:

Dean Spielmann , President, Elisabet Fura , Karel Jungwiert , Mark Villiger , Ann Power-Forde , Ganna Yudkivska , André Potocki , judges, and Claudia Westerdiek , Section Registrar ,

Havin g deliberated in private on 24 January 2012 ,

Delivers the followin g jud g ment , which was adopted on that date:

PROCEDURE

1 . The case ori g inated in an application (no. 75345/01) a g ainst Ukraine lod g ed with the Court under Article 34 of the Convention for the Protection of Human Ri g hts and Fundamental Freedoms (“the Convention”) by a Ukrainian national , Mr Ser g ey Viktorovich Yatsenko (“the applicant”) , on 19 March 2001.

2 . The applicant , who had been g ranted le g al aid , was represented by Mr A. Bushchenko , a lawyer practisin g in Kharkiv. The Ukrainian Government (“the Government”) were represented by their A g ent , Mr Y. Zaytsev.

3 . The applicant alle g ed that he had been ill-treated by the police authorities and that there had been no effective investi g ation into his complaints .

4 . On 2 8 November 2003 the President of the Second Section decided to g ive notice of the application to the Government. The application was subsequently allocated to the Fifth Section of the Court (Rule 52 § 1 of the Rules of Court). On 30 November 2004 the Court decided to examine the merits of the application at the same time as its admissibility (Article 29 § 1) and adjourned the application. The applicant was granted legal aid for his representation on 29 December 2004. He informed of the lawyer who would represent him on 14 February 2005. The exchange of observations between the parties was finalised on 7 March 2005. On 3 November 2009 the applicant informed the Court that he wished to maintain his application.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5 . The applicant was born on 8 November 1975 .

A . Criminal proceedin g s a g ainst the applicant

6 . On 28 April 1997 the police searched the applicant ’ s apartment.

7 . On 14 May 1997 the applicant was interro g ated and char g ed with a g g ravated extortion.

8 . On 11 September 1997 the applicant was arrested and later placed in detention on remand.

9 . On 24 May 2000 the Chervonozavodsky District Court of Kharkiv sentenced the applicant to nine years ’ imprisonment followin g his conviction for a g g ravated extorti on. Durin g the trial , the court accepted the testimony of the witness L.D.M. durin g the pre-trial investi g ation. L.D.M. ’ s evidence concerned one of nine episodes of extortion imputed to the applicant and his accomplices. It did not contain any information about the applicant or his accomplices ’ activity and was ancillary to the main evidence (the testimonies of the victim and other witnesses , and police materials).

10 . On 19 December 2000 the Kharkiv Re g ional Court upheld the jud g ment of 24 May 2000. The court did not rely on L.D.M. ’ s evidence and approved the trial court ’ s findin g s and assessment of facts. This c ourt further rejected the applicant ’ s complaint about the first instance court ’ s decision to admit as evidence testimony g iven by L.D.M. , even thou g h he was absent at the trial. It further noted that the evidence was of an ancillary character and fully corresponded to the other evidence examined.

11 . On 5 May 2001 the Deputy President of the Kharkiv Re g ional Court rejected the applicant ’ s request to initiate a supervisory review , as unsubstantiated.

B . The applicant ’ s administrative arrest on 19 April 1997

12 . O n 19 April 1997 the applicant was placed in detention at the Merefa Police Station by police officer R.A.A. , who imposed an administrative arrest on the applicant for appearin g drunk and swearin g in a public place. Later on the same date a jud g e of the Kharkiv District Court of Kharkiv authorise d the applicant ’ s administrative arrest for ten days for committin g the aforementioned administrative offence .

13 . On 27 May 2005 the President of the Kharkiv Re g ional Court of Appeal quashed the resolution of the Kharkivsky District Court of Kharkiv of 19 April 1997 (see para g raph 12 above) , findin g that the applicant ’ s ten ‑ day administrative arrest had been imposed with out lawful g rounds and that the court ’ s resolution was not substantiated .

C . Events related to the applicant ’ s ill-treatment and investi g ation into these events

14 . On 18 April 1997 police officers from the Kharkiv Re g ional Department for Combatin g Or g anised Crime ( “ the Department for Combatin g Or g anised Crime ” ) arrested the applicant on suspicion of his involvement in extortion . At 10.45 a.m. on the same day t he officers took him to the premises of the Department , where he was questioned by the officers about extortion from a Mr M .

15 . Accordin g to the investi g ation reports the applicant left the premises of the Department for Combatin g Or g anised Crime a t 2 p.m. on 18 April 1997 . Accordin g to some other reports he remained in the hands of police officers until l ater . Accordin g to the police records and R.A.A. police officer ’ s witness statements , on 19 April 1997 at 2.30 a.m. the applicant was brou g ht to the Merefa Police Station , where he was apprehended for minor hooli g anism . He was brou g ht to that station by N.A.V. , one of the policemen who questioned him before. The applicant was placed in detention at the Merefa Police Station by police officer R.A.A. , who completed a verbatim record on the applicant ’ s administrative arrest for appear in g drunk and swearin g in a public place (accordin g to that record he had appeared drunk in a public place at 7 p.m. on 18 April 1997 ) . That officer requested the Kharkiv District Court of Kharkiv to authorise the applicant ’ s administrative arrest for ten days . On 19 April 1997 a jud g e of that court approved this request (see para g raph 12 above) .

16 . On 23 and 25 April 1997 the Merefa Police Station called an ambulance to the applicant as he was complain in g of kidney pains. From 26 April to 13 May 1997 the applicant underwent treatment at the Kharkiv Re g ional Hospital for a ruptured kidney and craniocerebral trauma. He was a g ain treated for the same injuries and at the same hospital from 20 May to 4 June 1997 and later at the Kharkiv City Hospital from 9 June to 8 July 1997. From 14 July to 5 Au g ust 1997 the applicant underwent in- patient treatment at the Lyubotyn Hospital , where it was established that he w a s suffer in g from post-trauma tic nearsi g htedness , his si g ht havin g deteriorated since April 1997.

17 . On 5 May 1997 the applicant lod g ed a complaint of ill-treatment by police officers with the Kharkiv Re g ional Prosecutor ’ s Office ( “ the Re g ional Prosecutor ’ s Office ” ) . On 3 June 1997 the applicant sent a detailed statement to the Kharkiv Re g ional Prosecutor complainin g that he had been beaten by police officers S.O.G. , B.I.V. , B.S.V. , N.A.V. and L.D.V. from the Department for Combatin g Or g anised Crime , who had arrested and questioned him on 18 April 1997. In a written complaint he stated that these officers had punched and kicked him in the face , chin , nape of the neck , ears , chest , back and other parts of the body . They had also threatened him with rape , ordered him to strip naked and twisted his testicles . He had eventually a g reed to cooperate with the se police officers. He further mentioned that a fter his questionin g he had been taken by N.A.V. to the Merefa Police Station where he had been kept under administrative arrest for hooli g anism.

18 . As a result of these complaints , on 4 June 1997 the supervisory prosecutor of the Re g ional Prosecutor ’ s Office instituted criminal proceedin g s into the alle g ations of injuries and abuse of power by the police officers ( para g raph 2 of Article 166 of the Criminal Code) . The matter was referred to the Kyivsky District Prosecutor ’ s Office ( “ the District Prosecutor ’ s Office ” ) for investi g ation . The investi g ator questioned the police officers concerned , to g ether with witnesses and the applicant himself , and ordered the seizure of the medical evidence. On 13 Au g ust 1997 the investi g ator ordered a forensic medical examination of the applicant in order to establish whether any injuries had been inflicted on him and the cause of any such injuries. This examination resulted in a report dated 12 September 1997 which established that the applicant had concussion and a bruised kidney which could have occurred , as alle g ed , on 18 April 1998 . The report did not establish the cause of these injuries or any causal link between the injuries and the applicant ’ s alle g ations of ill-treatment. The investi g ation undertaken by the District Prosecutor ’ s Office lasted from 10 July 1997 to 30 January 1998 , when the criminal proceedin g s were discontinued on account of the absence of corpus delicti in the act ions of the police officers.

19 . On 2 September 1997 the Head of the Kharkiv Re g ional Police Department ordered that a disciplinary sanction be imposed on R.A.A. (see para g raph 15 above) , findin g , inter alia , that the applicant ’ s arrest on 18 April 997 had been ille g al . In particular , the internal police investi g ation established that N.A.V. acted upon request of R.A.A. to complete a verbatim record of the applicant ’ s arrest for drunkenness and swearin g in a public place (see para g raph 12 above) . The order also stated that R.A.A. had disre g arded the injuries that the applicant had at the time of bein g taken into detention .

20 . The applicant complained of discontinuance of the investi g ation (see para g raph 18 above) and o n 3 May 1999 th at resolution was quashed by the Kharkiv City Prosecutor ’ s Office , which found that the circumstances of the criminal case had been insufficiently investi g ated. The case was sent for additional investi g ation to the District Prosecutor ’ s Office , which undertook several investi g ative measures between 4 May and 29 October 1999 . In particular , it ordered an additional forensic medical examination of the medical evidence g athered in the case. On 14 September 1999 the forensic medical examination established that after the events of 18 April 1997 the applicant had suffered from concussion and a bruised kidney. On 20 September 1999 the District Prosecutor ’ s Office informed the applicant that the claims for dama g es he had lod g ed a g ainst the police officers could not be admitted to the case file as the applicant had no victim status in the criminal investi g ation. On 29 October 1999 the proceedin g s instituted followin g the applicant ’ s complaints of ill-treatment were suspended because the investi g ation had failed to determine the suspects.

21 . On 26 November 1999 the Kharkiv City Prosecutor ’ s Office quashed th at resolution as the investi g ation was incomplete. It recommended that it should be established whether the police officers indicated by the applicant were g uilty of abuse of power and of inflictin g bodily injuries on him . On 20 January 2000 the District Prosecutor ’ s Office terminated the proceedin g s on the g rounds of a lack of corpus delicti in the actions of the police officers involved in the applicant ’ s questionin g on 18 April 1997 .

22 . On 6 April 2000 the Kyivsky District Court of Kharkiv ( “ the District Court ” ) quashed the resolution of 20 January 2000 as the investi g ation was incomplete . In particular , it found that the investi g ation ’ s findin g s contradicted the expert forensic examinations that had established that the applicant had injuries followin g events of 18 April 1997 . The court ruled that the applicant should be g rant ed the status of a victim . It also ordered a further investi g at ion into the circumstances which had led to the applicant ’ s injuries.

23 . On 12 May 2000 the investi g ator of the District Prosecutor ’ s Office initiated an additional investi g ation into the applicant ’ s alle g ations of ill ‑ treatment. On 30 May 2000 , after several investi g ative acts and refusal s to initiate criminal proceedin g s a g ainst police officer R.A.A. and to g rant the applicant the status of victim , the proceedin g s were discontinued for the same reasons as on 20 January 2000.

24 . On 10 July 2000 the Re g ional Prosecutor ’ s Office quashed the resolution of 20 January 2000 , findin g that the instructions of the jud g e g iven on 6 April 2000 had not been complied with and that the investi g ation had been perfunctory and incomplete .

25 . A new investi g ation was conducted from 14 July to 14 December 2000. On 2 October 2000 the investi g ation a g ainst the suspected police officers was terminated due to the absence of corpus delicti in their actions . T he case was remitted to the District Police Department for further investi g ation into the char g es of “minor bodily injuries” (Article 106 of the Criminal Code) . The investi g ation a g ain rejected the applicant ’ s request for victim status. On 14 December 2000 the District Police Department terminated the proceedin g s as it found there was no evidence of a crime .

26 . On 2 April 2001 the Re g ional Prosecutor ’ s Office quashed the resolutions of 14 September , 2 October and 14 December 2000 and remitt ed the case to the District Prosecutor ’ s Office for further investi g ation. In particular , it ruled that the above-mentioned investi g ative resolutions were unlawful and the investi g ation into the alle g ations of abuse of power and infliction of bodily injuries on the applicant was incomplete and inadequate .

27 . The investi g ation was renewed on 7 April 2001 and lasted until Au g ust 2001 . In the course of the investi g ation the applicant was g ranted the status of victim , but the proceedin g s a g ainst the police officers were a g ain discontinued on account of a lack of corpus delicti and the g rounds for initiatin g criminal proceedin g s were reclassified . The case was a g ain remitted to the District Police Department where , on 12 September 2001 , another investi g ation into the infliction of bodily injuries was terminated as there was no evidence of a crime . On 14 and 19 January 2002 all the resolution s adopted in the course of the investi g ation were quashed by the Re g ional Prosecutor ’ s Office as the investi g ation was incomplete and its conclusions were premature . The case was a g ain remitted for re-investi g ation to the District Prosecutor ’ s Office .

28 . The proceedin g s after this remittal lasted from 1 to 27 February 2002 , when the District Prosecutor ’ s Office a g ain discontinued proceedin g s a g ainst the police officers as it found no evidence of a buse of power or ille g al infliction of injuries on the applicant . It also decided to institute a criminal investi g ation into the infliction of bodily injuries on the applicant and to remit the case for further investi g ation to the District Police Department.

29 . Followin g the remittal of the case for further investi g ation , on 6 March 2002 the investi g ator at the District Police Department instituted a criminal investi g ation into the infliction of li g ht bodily injuries on the applicant. On 23 Au g ust 2002 the investi g ation found no evidence of a crime ensuin g from the injuries inflicted on the applicant. It discontinued proceedin g s for lack of evidence of a crime.

30 . On 5 November 2002 the Re g ional Prosecutor ’ s Office quashed the resolution of 23 Au g ust 2002 as the investi g ation was inadequate and incomplete. The proceedin g s were a g ain re-initiated by the District Police Department on 28 November 2002 .

31 . On 9 December 2002 the investi g ator of the District Police Department lod g ed an application with the District Court seekin g to discontinue the proceedin g s on the char g es of bodily injuries , on account of the expiration of the statutory limitation period . On 19 December 2002 the court decided to terminate the proceedin g s on that g round.

32 . On 2 9 January 2003 the District Court allowed the applicant ’ s father ’ s request for the exten sion of the time-limit for lod g in g an appeal since neither h e nor the applicant had ever been informed about the judicial examination of the case . The applicant lod g ed an appeal seekin g to quash the resolution of 19 December 2002.

33 . On 22 April 2003 the Kharkiv Re g ional Court of Appeal q uashed the contested resolution of 19 December 2002 . In particular , it stated that the Police Department and the court had failed to ensure that the applicant had an opportunity to familiarise himself with the case-file before it was referred to the court. It remitted the case for rehearin g to the District Court , which on 30 May 2003 , ordered an additional investi g ation into the inflicti on of bodily injuries on the applicant.

34 . The new additional investi g ation lasted from 27 June to 10 October 2003 , when the investi g ator of the District Police Department discontinued proceedin g s in the case due to lack of corpus delicti .

35 . On 1 December 2003 the Re g ional Prosecutor ’ s Office quashed the resolution of 10 October 2003 as unlawful. It remitted the case for a new pre-trial investi g ation to the District Prosecutor ’ s Office , which on 13 January 200 4 declared that the applicant was the victim of bodily injuries inflicted on him by unknown persons on 18 April 1997. The i nvesti g at or questioned the applicant and ordered an additional forensic medical examination into the circumstances surroundin g his injuries . It remain ed unclear from the last letter of the applicant dated 3 November 2009 whether these proceedings we re still pending.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

36 . The applicant complain ed that he was subjected to ill-treatment by police officers , contrary to Article 3 of the Convention. He further complain ed that the investi g ation undertaken by the domestic authorities into his alle g ations was inadequate. Article 3 provides as follows:

“No one shall be subjected to torture or to inhuman or de g radin g treatment or punishment.”

A. Admissibility

37 . The Government contended that the applicant ’ s complaints of ill ‑ treatment by police were incompatible ratione temporis with the provisions of the Convention. However , they made no objection as to the admissibility of the complaints with re g ard to lack of an effective investi g ation into these alle g ations.

38 . The applicant a g reed with th e objection and maintained his complaints concernin g a procedural breach of Article 3 of the Convention.

39 . As to the substantive limb of the applicant ’ s complaints under Article 3 of the Convention , the Court considers that the Government ’ s objection must be allowed and the complaints at issue must be rejected as bein g incompatible ratione temporis as relatin g to events prior to 11 September 1997 (see , as the most recent authority , Isayev v. Ukraine (dec.) , no. 28827/02, 13 February 2007).

B. Merits

1. The parties ’ submissions

41 . The applicant contended that the investi g ation into the alle g ations of ill-treatment was not effective and had a number of deficiencies. In particular , he noted that the investi g ation had been initiated almost three months after the incident; there had been si g nificant periods of inactivity on the part of the investi g ative authorities; the investi g ators had paid more attention to the witness statements produced by the police and had not been objective and impartial; the applicant had been reco g nised as a victim only on 13 January 2004 (see para g raph 35 above) , and the results of the investi g ation had been reviewed on several occasions by hierarchically superior prosecutors , who had quashed successive resolutions and remitted the case for further investi g ation on several occasions as the investi g ation was incomplete .

42 . The Government disa g reed and stated that even thou g h the investi g ation had been discontinued and reinitiated on several occasions it could still be re g arded as effective and it complied with the requirements of Article 3 of the Convention.

2. The Court ’ s assessment

43 . The Court reiterates that where an individual raises an ar g uable claim that he has been ill-treated by the State authorities in breach of Article 3 , that provision requires by implication that there should be an effective official investi g ation , which should in principle be capable of leadin g to the establishment of the facts of the case and to the identification and punishment of those responsible. This is not an obli g ation of result , but one of means. The authorities must have taken the reasonable steps available to them to secure the evidence concernin g the incident , includin g , inter alia , eyewitness testimony , forensic evidence , and so on. Any deficiency in the investi g ation which undermines its ability to establish the cause of injuries or the identity of the persons responsible will risk fallin g foul of this standard , and a requirement of promptness and reasonable expedition is implicit in this context (see , amon g many authorities , Assenov and Others v. Bulgaria , 28 October 1998 , Reports of Jud g ments and Decisions 1998-VIII , §§ 102 et seq.). Consideration is often g iven to the date of commencement of investi g ations , delays in takin g statements (see TimurtaÅŸ v. Turkey , no. 23531/94, § 89 , ECHR 2000-VI , and Tekin v. Turkey , 9 June 1998 , Reports 1998-IV , § 67) , and the len g th of time taken to complete the initial investi g ation (see Indelicato v. Italy , no. 31143/96 , § 37, 18 October 2001). There must also be a sufficient element of public scrutiny of the investi g ation or its results to secure accountability in practice as well as in theory. The de g ree of public scrutiny required may well vary from case to case. More specifically , as re g ards involvement of a victim , in order to ensure sufficiency of public scrutiny , victim must be involved in the procedure to the extent necessary to safe g uard his or her le g itimate interests ( Tahsin Acar v. Turkey [GC], no. 26307/95, § 225, ECHR 2004 ‑ III ).

44 . Turnin g to the facts of the present case , the Court notes that criminal proceedin g s into the applicant ’ s alle g ations of ill-treatment by police officers were initiated on 4 June 1997 . The Court recalls that these events are outside its competence ratione temporis , h owever , they should be take n into account in order to assess the context and the situation complained of as a whole (see , mutatis mutandis , Milanović v. Serbia , no. 44614/07 , § 78 , 14 December 2010 ). In particular, the investigation from 4 June to 11 September 1997 , lasted only three months and eight days , with no major procedural steps taken by the authorities (see para g raphs 14 – 18 above). T he only important step being forensic medical examination, which had been finalised with a report of 12 September 1997, ordered on 13 August 1997 only , three months and nine days after the incident itself.

45 . As to the events after 11 September 1997 , the Court notes that the investigation into the applicant ’ s allegations of ill-treatment lasted until 30 January 1998, with the criminal proceedings discontinued in view of absence of corpus delicti (see paragraph 18 above). The decision to discontinue proceedings was quashed on 3 May 1999 for failure to investigate the applicant ’ s allegations sufficient ly (see paragraph 20 above). However, the ensuing proceedings were suspended as the suspects could not be established ( see paragraph 20 above ) . They were reinitiated one month later, on 26 November 1999, but terminated on 20 January 1999, on the same grounds as before, i.e. for lack of corpus delicti in the actions of the police officers (see paragraph 21 above). It is only after a resolution of the first instance court of 6 April 2000, which again established that the investigation was incomplete, that the proceedings were again resumed on 12 May 2000 . On 30 May 2000 they were again discontinued for the same reasons as criticised by the first instance court and prosecutor ’ s office before ( see paragraph 23 above ) . Later, on 10 July 2000 the investigation was again reinitiated and discontinued on 14 December 2000 again as there was no evidence of a crime (see paragraph 25 above). The Court notes in this respect that discontinuance of the proceedings for insufficiency and lack of proper investigation resulted from the shortcomings in the initial investigation into the applicant ’ s complaints (see paragraph 44 above) .

46 . Further decisions to discontinue criminal investigation and resolutions quashing investigation results taken within a period from August 2001 – January 2004 repeated the same investigative conclusions as to lack of corpus delicti in the police officers actions and gave similar reasons to quashing such decisions (see paragraphs 27 – 34 above) . In particular, t he investi g ation was renewed on 7 April 2001 and lasted until Au g ust 2001, when it was again discontinued on account of a lack of corpus delicti and the g rounds for initiatin g criminal proceedin g s were reclassified (see paragraph 27 above). On 14 and 19 January 2002 all the resolutions adopted in the course of the investi g ation were quashed by the Re g ional Prosecutor ’ s Office and investigation after remittal lasted from 1 to 27 February 2002 , when the District Prosecutor ’ s Office a g ain discontinued proceedin g s a g ainst the police officers as it found no evidence of abuse of power or ille g al infliction of injuries on the applicant (see paragraph 28 above). The proceedings were reinstituted on 6 March 2002 and discontinued on 23 August 200 2 as the investigation found no evidence of a crime (see paragraph 29 above) . The proceedings were again reinstituted on 28 November 2002 and the proceedin g s on the char g es of bodily injuries were discontinued on account of the expiration of the statutory limitation period on 19 December 2002 by the court (see paragraph 31 above) . The new additional investigation had been ordered on 10 October 2003, after judicial review by the court of appeal, and lasted from 27 June to 10 October 2003, when the proceedings were discontinued again due to lack of corpus delicti (see paragraphs 33 – 34 above) . T hus, the Court notes that t he resolutions discontinuin g the investi g ation were repeatedly quashed and the proceedin g s re-initiated because of a lack of proper findin g s of fact and serious deficiencies in the conduct of the investi g ation , which were established by the hierarchically superior prosecutors and courts of two instances on at least nine occasions (see para g raphs 20 - 22 , 24 , 1 6 - 27 , 30 , 33 and 35 above ) .

48 . The Court has further regard to the length of the proceedings based on the Government ’ s observations submitted on 27 February 2004. It has not been contested that by 2004, the proceedings still remained unfinished and the investigation incomplete for almost 7 years after entry of the Convention into force with respect to Ukraine. It considers that t he present case is similar to other jud g ments a g ainst Ukraine where it has already found a breach of the procedural limb of Article 3 of the Convention as the respective investi g ation s were initiated with substantial delay , there were delays in the medical examination of the victim and the investi g ation was repeatedly re-initiated because of failure of the investi g atin g authorities to adequate ly establish the facts of the case and due to serious errors in the conduct of the investigation , which were repetitively acknowledged by the domestic authorities themselves (see , amon g many other authorities , Davydov and Others v. Ukraine , nos. 17674/02 and 39081/02 , § 162 , 1 July 2010 ; Kucheruk v. Ukraine , no. 2570/04 , § 162 , ECHR 2007 ‑ X ; Oleksiy Mykhaylovych Zakharkin v. Ukraine , no. 1727/04 , §§ 68-75 , 2 4 June 2010; Lotarev v. Ukraine , no. 29447/04 , §§ 89-90 , 8 April 2010 ; and Kozinets v. Ukraine , no. 75520/01, §§ 62-64 , 6 December 2007 ). The Court sees no reason in the instant case to depart from the above reasonin g , its previous case-law on the matter and its findin g s in similar cases . In these circumstances it is not necessary to consider the further course of the proceedings (see paragraphs 4 and 35 above ).

49 . Accordingly, it concludes that there has been a breach of the procedural obli g ation under Article 3 of the Convention in that the applicant ’ s complaints about his ill-treatment were not investi g ated in a prompt and effective manner.

II. OTHER COMPLAINTS RAISED

50 . The applicant complained under Article 5 § 1 and Article 8 of the Convention that his administrative arrest of April 1997 and the search of his apartment in April 1997 had been unlawful . He also raised complaints under Article 6 § 3 (b) and (d) , claimin g that his ri g ht to prepare for a hearin g before the re g ional court had been breached (see para g raphs 9 – 10 above) and that he had been unable to interro g ate one of the witnesses in his case.

51 . Havin g considered the applicant ’ s submissions in the li g ht of all the material in its possession , the Court finds that in so far as the matters complained of are within its competence they do not disclose any appearance of a violation of the ri g hts and freedoms set out in the Convention.

52 . It follows that this part of the application must be declared inadmissible as bein g manifestly ill-founded , pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

53 . 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 Hi g h Contractin g Party concerned allows only partial reparation to be made , the Court shall , if necessary , afford just satisfaction to the injured party.”

54 . The applicant claimed 25 , 000 euros (EUR) in respect of non ‑ pecuniary dama g e. He also claimed 234 Ukrainian hryvnias ( UAH ) (about EUR 40) for the costs and expenses incurred before the Court.

55 . The Government stated that these claims should be rejected. They made no comment as to reimbursement of costs and expenses.

56 . Having regard to the circumstances of the case seen as a whole and deciding on equitable basis , t he Court awards the applicant EUR 6 , 000 in respect of non-pecuniary dama g e. It also allows the applicant ’ s claim for expenses incurred in the proceedin g s before the Court.

57 . The Court considers it appropriate that the default interest should be based on the mar g inal lendin g rate of the European Central Bank , to which should be added three percenta g e points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Declares the complaints under Article 3 of the Convention concerning lack of an effective investigation into allegations of ill-treatment admissible and the remainder of the application inadmissible;

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

3. Holds

(a) that the respondent State is to pay the applicant, within three months of the date on which the jud g ment becomes final in accordance with Article 44 § 2 of the Convention, EUR 6,000 (six thousand euros) in respect of non-pecuniary dama g e and EUR 40 (forty euros) for costs and expenses, plus any tax that may be char g eable to the applicant , to be converted into Ukrainian hryvnias at the rate applicable on the date of settlement;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the mar g inal lendin g rate of the European Central Bank durin g the default period plus three percenta g e points;

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

Done in En g lish, and notified in writin g on 16 February 2012 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Claudia Westerdiek Dean Spielmann Re g istrar President