SECOND SECTION

CASE OF AFANASYEV v. UKRAINE

( Application no. 38722/02 )

JUDGMENT

STRASBOURG

5 April 2005

FINAL

05/07/2005

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Afanasyev v. Ukraine ,

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

Mr J.-P. Costa , President , Mr A.B. Baka , Mr I. Cabral Barreto , Mr K. Jungwiert , Mr V. Butkevych , Mrs A. Mularoni , Ms D. Jočienė, judges , and Mrs S. Dollé , Section Registrar ,

Having deliberated in private on 8 June 2004 and 15 March 2005 ,

Delivers the following judgment, which was adopted on the last ‑ mentioned date:

PROCEDURE

1 . The case originated in an application (no. 38722/02) 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 Aleksey Vladimirovich Afa nasyev (“the applicant”), on 14 September 2002 .

2 . The applicant, who had been granted legal aid, was represented by Mr A.P. Bushchenko, a lawyer practising in the city of Kharkiv . The Ukrainian Government (“the Government”) were represented by their Agents - Mrs V. Lutkovska and Mrs Z. Bortnovska.

3 . The applicant alleged that he had been ill-treated while in police custody in violation of Article 3 of the Convention , and that he had no effective remedy for this complaint as required by Article 13 of the Convention.

4 . The application was allocated to the Second Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.

5 . By a decision of 8 June 2004 , the Court declared the application admissible.

6 . The Government, but not the applicant , filed o bservations on the merits (Rule 59 § 1).

7 . On 1 November 2004 the Court changed the co mposition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Second Section (Rule 52 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

8 . The applicant was born in 1964 and lives in the city of Kharkiv , Ukraine .

9 . O n 1 March 2000 th e applicant was arrested on suspicion of crime s of swindling and taken to the Kyivsky District Police Station ( Київський районний відділ міліції міста Харкова ).

10 . According to the applicant, he was handcuffed in the police station and police officers demanded that he confess . When he refused to do so, he was severely beaten several time s. After each beating he was told that if he did not confess he would be subjected to further beatings. During the last beating one of the police officers, G., hit the applicant on the left ear, causing swelling and partial deafness. After the beatings, the police officers warned the applicant to “think it over” during the night , otherwise he would be beaten again the next day.

11 . The applicant maintain ed that he had had many scratches and bruises on his body. On 2 March 2000, when the police officers wanted to transfer him to a temporary detention centre ( ізолятор тимчасового утримання ), the centre refused to admit him on account of his numerous injuries.

12 . On 3 March 2000 the applicant was escorted to hospital where he was examined.

13 . The same day the applicant was transferred to a temporary detention centre.

14 . On 4 March 2000 the applicant was charged, but released on bail on condition that he did not abscond, by a decision of the Kyiv sky District Prosecutor.

15 . From 7 March to 5 April 2000 the applicant underwent medical examinations at the forensic medical examination department ( відділ судово-медичної експертизи ). The forensic expert recorded various injuries to the applicant ’ s body. The injuries included a damaged left ear , and bruises on the trunk, face, left arm and left leg (qualified as minor injuries by the Government) . The expert also indicated the approximate date s on which the applicant had sustained t h ese injuries , some 5 to 7 days before 7 March 2000 . Th ose date s coincided with the applicant ’ s detention in the Kyiv sky District Police Station.

16 . On 13 April 2000 the applicant requested the Kharkiv Regional Prosecutor to institute criminal proceedings against the police officers for torture. The request was transferred to the Kyiv sky District Prosecutor ’ s Office for consideration.

17 . On 24 April and 18 May 2000 , the applicant requested the Kyiv sky District Prosecutor ’ s Office to inform him about the outcome of his complaint .

18 . On 24 April 2000, the deputy prosecutor of the Kyiv District of Kharkiv issued a decree refusing to institute criminal proceedings on the ground that there was no evidence that an offence had been committed. In his decree, the deputy prosecutor stated that criminal proceedings had been initiated against the applicant on 10 February 2000. The applicant confessed voluntarily to having committed the crimes of which he was charged when he learned that his accomplices had also confessed. Furthermore, police officers had been questioned about the applicant ’ s allegations and had refuted the accusations against them. T he deputy prosecutor concluded:

“(...) despite the fact that the forensic medical expert opinion No. 747/c of 5 April 2000 [established that the applicant suffered] minor bodily injuries giving rise to a short-term disability, no evidence has been obtained that those injuries were inflicted by officers of the Kyiv sky District Police Station of Kharkiv. The [applicant ’ s] arguments set out in his request must be considered to have been invented by him. He was fully aware that the investigation gave rise to sufficient proof that he had committed the crimes of which he was accused. He is now trying to avoid the punishment he deserves”.

19 . On 3 June 2000 the applicant appealed against this decision to the Kyivsky District Court and t o the City Prosecutor ’ s Office. (According to the Government, it was on 3 July 2000 that the applicant complained to the Kharkiv Regional Prosecutor ’ s Office , and then on 14 September 2000 to the court, paragraph 21 below .)

20 . On 20 July 2000 the Kharkiv City Prosecutor ’ s Office informed the applicant that it had rejected his request to quash the decree of 24 April 2000 .

21 . On 14 September 2000 the applicant lodged a complaint with the Kyivsky District Court of Kharkiv challenging the decree of 24 April 2000.

22 . On 19 October 2000 the Kyiv sky District Court quashed the decree of 24 April 2000 and ordered that criminal proceedings be opened against the accused police officers under Article 166 § 2 of the Criminal Code (excess of power). The court stated that the prosecutor had failed to investigate the cause of the applicant ’ s injuries and that the prosecutor ’ s refusal to institute criminal proceedings against the police officers in question had been unreasonable.

23 . The criminal case was sent to the Kyiv sky District Prosecutor ’ s Office. On 10 November 2000 this Office requested the Kharkiv Regional Prosecutor ’ s Office to lodge a supervisory review appeal with the Presidium of the Kharkiv Regional Court against the Kyivsky District Court ’ s decision of 19 October 2000 . The applicant was informed of this on 26 January 2001 .

24 . On 25 April 2001 t he Kharkiv Regional Prosecutor ’ s Office rejected th e request , finding no grounds for such a review, and returned the case file to the District Prosecutor ’ s Office. The applicant was informed of this development by letter of 27 April 2001 .

25 . C riminal proceedings were initiated on 28 April 2001 by the Kyivsky District Prosecutor, but terminated by decree o n 3 September 2001 for want of evidence that a ny crime had been committed. Nevertheless, according to the Government, b etween May and Nove mber 2001 investigators i nterviewed several witnesses, including the police officers and the applicant ’ s relatives.

26 . Following the applicant ’ s complaint, on 29 October 2001 the Kharkiv Regional Prosecutor ’ s Office quashed the decree of the Kyiv sky District Prosecutor and sent the case to the Kharkiv City Prosecutor ’ s Office . The latter in turn transferred the case o n 7 November 2001 to the Zhovtnevy District Prosecutor ’ s Office for a further preliminary investigation .

27 . On 13 November 2001 the Zhovtnevy District Prosecutor ’ s Office began the investigation.

28 . In November and December 2001 several other witnesses were questioned and confrontations were organised.

29 . On 20 November 2001 a forensic medical examination was ordered within the framework of the investigation.

30 . On 4 December 2001 the expert examination concluded that the applicant had suffered bodily harm of medium severity which could have occurred in the circumstances alleged by the applicant.

31 . On 12 December 2001 a supplementary forensic examination was ordered as the first was deemed incomplete .

32 . According to the Government, o n 25 February 2002 the second expert opinion established that the applicant had sustained minor bodily harm prior to his detention in the Kyivsky District Police Station.

33 . At the request of the applicant ’ s lawyer, one of the medical experts was interviewed in the presence of the lawyer on 21 March 2002 . The same day the lawyer requested an additional medical examination since, in his view, the second report lacked a ny scientific basis and was contradicted by the other evidence in the case. Although the prosecutor received the request, the lawyer never ha d a reply.

34 . On 28 March 2002 , on conclusion of the additional investigation, the Zhovtnevy District Prosecutor ’ s Office issued a decree terminating the criminal proceedings on the ground that there was no evidence that a crime had been committed. (The applicant was informed of this on 16 April 2002.) The prosecutor stated, inter alia , that the police officers who had been questioned had denied the accusations against them and had explained the applicant ’ s allegations with reference to the criminal proceedings brought against him. The prosecutor further stated that the testimonies of T. and O., confirming the applicant ’ s allegations, had to be disregarded since they were the applicant ’ s co-accused . The prosecutor also maintained that the medical examination had concluded that the applicant ’ s injuries could have been caused before he was detained at the police station.

35 . On 16 April and 31 May 2002 the applicant and his lawyer requested the district prosecutor to provide them with the case file. By letter of 10 June 2002 , the prosecutor replied that the materials in the case file had been sent to the Regional Prosecutor ’ s Office for examination.

36 . Following the filing of several complaints by the applicant and his lawyer with the District, Regional and General Prosecutor ’ s Office, the Kharkiv Regional Prosecutor ’ s Office informed the applicant on 9 October 2002 that the criminal case, in so far as it concerned the alleged excess of power by police officers, had been closed , but that the question of the infliction of minor bodily harm had been remitted for further investigation.

37 . That same day, 9 October 2002 , the Kharkiv City prosecutor ’ s Office quashed the decision of 28 March 2002 and remitted the case to the Zhovtnevy District Prosecutor ’ s Office , which o n 23 August 2002 recommenced the investigation.

38 . Because of the contradictory findings of the previous forensic medical examinations, an additional examination was entrusted to the Central Office of Forensic Medical Examination in Kyiv.

39 . On 2 June 2003 the Zhovtnevy District Prosecutor ’ s Office received an expert opinion dated 3 February 2003 in which it was stated that the applicant had sustained bodily injury of medium severity that could have been inflicted in the circumstances alleged by the applicant.

40 . On 25 June 2003 the Kharkiv Regional Prosecutor ’ s Office instructed the Zhovtnevy District Prosecutor ’ s Office to complete the investigation as soon as possible.

41 . On 9 July 2003 the Zhovtnevy District Prosecutor ’ s Office issued a decree terminating the criminal proceedings on the ground that the actions of the law-enforcement officers had not given rise to any criminal offence. It reclassified the criminal offence as the infliction of bodily injury of medium severity by unknown person(s) and remitted the criminal case for investigation to the Kyivsky District Police Department.

42 . T he applicant appealed against this decree to the Zhovtnevy District Court .

43 . On 15 November 2003 the criminal investigation was stayed and it was decided to continue the operative search as the offender had not yet been identified.

44 . On 31 December 2003 Zhovtnevy District Court quashed the decree of 9 July 2003 and remitted the case for an additional investigation. The court noted, in particular, that the investigating authorities had failed to take all necessary measures to identify and question independent witnesses, given that the applicant and the law-enforcement officers had made contradictory statements.

45 . On 30 March 2004 the Zhovtnevy District Prosecutor ’ s Office passed a resolution discontinuing the criminal investigation against the police officers indicated by the applicant , and decided that the fact of the infliction of bodily harm of medium severity required further investigat ion .

46 . T he investigation is still pending because t he offender has not yet been f ound.

II. RELEVANT DOMESTIC LAW

1. Constitution of Ukraine

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. ...”

2. Code of Criminal Procedure

48 . A rticle 4 of the Code provides that t he court, prosecutor or investigator shall, within their competencies, institute criminal proceedings in every case where signs of a crime have been discovered, take all necessary measures provided by law to establish the commission of the crime and the identity of the offenders and punish them.

49 . Article 22 of the Code prohibits extracting confessions from an accused or any other participant in the proceedings through violence, threats or other illegal means.

50 . Article 28 of the Code provides that the person who sustained material damage from the crime shall be entitled to lodge a civil claim against the accused person or persons who bear material liability for the actions of the accused.

3. Code of Civil Procedure

51 . Article 221 of the Code foresees an obligation of the court to suspend proceedings in the case, if i t c annot be examined prior to the decision in an other case examined under civil, criminal or administrative proceedings.

4. The Law of Ukraine “on the procedure for compensation of damage caused to the citizen by unlawful actions of bodies of inquiry, pre-trial investigatio n, prosecutors and courts” of 1 December 1994

Article 2

“The right to compensation for damages in the amount and in accordance with the procedure established by this Law shall arise in the cases of:

- acquittal by a court;

- termination of a criminal case on grounds of an absence of proof of commission of a crime, absence of corpus delicti , or lack of evidence of the accused ’ s participation in the commission of the crime;

- refusal to initiate criminal proceedings or termination of criminal proceedings on the grounds stipulated in sub-paragraph 2 of paragraph 1 of this Article;

- termination of proceedings for an administrative offence. ”

THE LAW

I. THE GOVERNMENT ’ S PRELIMINARY OBJECTION

53 . The Government maintained that the applicant ’ s complaints should be declared inadmissible since the criminal proceedings arising out of his allegations were still pending. The Government observed in this connection that the applicant and his lawyer have participated actively in these proceedings. The application was therefore premature and the applicant should be required to await the final decision at the domestic level before submitting his application to the Court.

54 . The applicant contested the Government ’ s submission. He stated that in Ukraine an allegation of torture required the prosecutor to conduct a criminal investigation into the facts. However, in his case the investigation had lasted too long and both he and his lawyer had been precluded from effective participation in the investigation. Moreover, the investigating authority had shown its reluctance to carry out a proper and impartial investigation into his claim.

55 . The Court notes that the Government ’ s objection is closely linked to the applicant ’ s complaints under Articles 3 and 13 of the Convention. In these circumstances, it joins the preliminary objection to the merits of the applicant ’ s complaints .

II . ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

56 . The applicant complained that he had been ill-treated in custody and that the State authorities failed to undertake a thorough and effective investigation. He relied on Article 3 of the Convention, which provides as follows :

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

A. Alleged ill-treatment in police custody

1. The p arties ’ submissions

57 . The Government submitted that there was no evidence to show that the applicant sustained any injuries at the police station at the hands of police officers. The Government referred to the applicant ’ s conflicting statements to the domestic authorities as to the d etails of his alleged beatings.

58 . The applicant maintained that , apart from his statement as to the time and nature of his injuries, there was sufficient evidence, including medical opinions, to support his claim that his injuries could only have been inflicted during his detention at the police station. Several witnesses had also given evidence about his state of health prior to his detention. The applicant contested the Government ’ s submission that he had made conflicting statements when giving details of the beating s . The only contradiction concerned the surname of one of the alleged offenders, and this was due to confusion on his part.

2. The Court ’ s assessment

60 . The Court further recalls that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the duration of the treatment, its physical and/or mental effects and, in some cases, the sex, age and state of health of the victim. In respect of a person deprived of his liberty, 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 (see the Assenov and Others v. Bulgaria judgment of 28 October 1998, Reports of Judgments and Decisions 1998-VIII, § 94).

64 . The Court recalls that a State is responsible for the welfare of persons in detention and that the authorities have a duty to protect such persons. Bearing in mind the authorities ’ obligation to account for injuries caused to persons under their control, the Court considers that failure to find State agents guilty of a crime of violence against a detainee, as in the instant case, cannot absolve the State of its responsibility under the Convention (see, mutatis mutandis , Esen v. Turkey , no. 29484/95, § 28; Yaz v. Turkey , no. 29485/95, § 30; Ayşe Tepe v. Turkey , no. 29422/95, 22 July 2003).

65 . In the light of the above, and in the absence of any plausible explanation of the Government as to the origin of the applicant ’ s injuries, it must be considered that the applicant sustained injuries as a result of the inhuman and degrading treatment for which the Government must bear Convention responsibility.

B. Adequacy of the investigation

1. The p arties ’ submissions

67 . The Government submitted that the investigation into the applicant ’ s allegations was started immediately after the applicant lodged his complaint. According to the Government, the course followed by the investigation, the number of measures taken and the remission of the case for further investigation by the higher prosecutors and courts , demonstrated the intent of the State authorities to conduct a comprehensive and objective investigation.

68 . The applicant maintained that , despite their duty under law, the investigator and the prosecutor, whom the applicant met after his beating, showed complete indifference to the cause of his injuries. The applicant further maintained that the investigation was conducted in a dilatory manner and lasted too long. The applicant also submitted that the delays in the questioning of witnesses had a damaging effect on the investigation, since some of them could no longer recall clearly the events. The applicant noted that he was prevented from participating actively in the investigation, given the delays in informing him about procedural decisions taken and the refusals to allow him to have full access to the case file.

2. The Court ’ s assessment

70 . In the present case, the Court has found that the applicant has suffered inhuman and degrading treatment whilst in police custody , for which the Government must bear Convention responsibility. In these circumstances, it considers that h is complaint concerning the lack of any effective investigation by the authorities into the cause of his injuries more appropriately fall s to be dealt with under Article 13 of the Convention (cf. Ilhan v. Turkey [GC], no. 22277/93, §§ 89-92, ECHR 2000-VII) .

II I . ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

71 . The app licant complained under Article 13 of the Convention of the alleged lack of effective remed ies in resp ect of the violation of Article 3.

72 . Article 13 of the Convention provides:

“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.”

1. The p arties ’ submissions

73 . The Government maintained that the investigation into the applicant ’ s allegation was a remedy which the applicant had used effectively .

74 . The applicant maintained that Article 13 had been violated since the State authorities failed to conduct an effecti ve investigation into his case. He referred to his a rguments mentioned in paragraph 68 above. He further submitted that national legislation did not provide for the award of compensation in the circumstances of his case since he was found guilty of a crime ( see paragraph 52 above). The applicant maintained that examination of a civil claim for compensation would in any event have be en dependent on the outcome of the criminal proceedings , which are still pending.

2. The Court ’ s assessment

78 . In view of these considerations, the Court dismisses the Government ’ s preliminary objection as to the necessity for the applicant to a wait the final result of the investigation in to his allegations , and find s that there has been a violation of Article 13 of the Convention in this respect .

79 . 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.”

80 . The Court points out that under Rule 60 of the Rules of Court any claim for just satisfaction must be itemised and submitted in writing, together with the relevant supporting documents, failing which the Court may reject the claim in whole or in part.

(a) pecuniary damage

81 . The applicant did not submit any claim under this head within the prescribed time-limit; the Court therefore makes no award.

(b) non-pecuniary damage

82 . The applicant claimed EUR 50,000 as compensation for non-pecuniary damage.

83 . The Government maintained that the claim is unsubstantiated and too high. The Government invited the Court to make an award of non-pecuniary damage on an equitable basis with regard to its previous case-law.

85 . The applicant claimed USD 10,100 (EUR 7,720) for the costs and expenses incurred in the domestic and Convention proceedings.

86 . The Government maintained that the claim as to the number of hours spent by the applicant ’ s lawyer on the preparation of the application form , a s well as further written submissions to the Court , were exaggerated . Moreover , there was no indication that those costs were actually incurred.

87 . The Court reiterates that in order for costs and expenses to be included in an award under Article 41, it must be established that they were actually and necessarily incurred in order to prevent or obtain redress for the matter found to constitute a violation of the Convention and were reasonable as to quantum (see Nilsen and Johnsen v. Norway [GC], no. 23118/93, § 62, ECHR 1999-VIII). The Court considers that these requirements have not been met in the instant case. It finds that the applicant ’ s lawyer exaggerated the time he spent on the preparation of the case. It is not satisfied that the costs and expenses, allegedly reflecting more than two hundred hours of effective work and amounting to USD 10,100, were all incurred, or reasonably incurred, in connection with the complaints submitted to the Court. However, it is clear that the applicant ha d some legal expenses , given the steps taken by his lawyer at the domestic level , as well as the observations and further submissions made by his lawyer to the Court.

88 . Having regard to all relevant factors , the Court awards EUR 1,500 , which after the deduction of EUR 890 which the applicant received in legal aid from the Council of Europe, comes to EUR 610 in respect of costs and expenses, plus any tax that may be chargeable on that amount.

C. Default interest

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

FOR THESE REASONS, THE COURT UNANIMOUSLY

1 . Dismisses the Gov ernment ’ s preliminary objection;

2 . Holds that there has been a violation of Article 3 of the Convention;

3. Holds that there has been a violation of Article 13 of the Convention;

4 . Holds

(a) that the respondent State is to pay the applicant , within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention , the following amounts:

(i) EUR 6 ,500 ( six thousand five hundred euros) in respect of non-pecuniary damage;

(ii) EUR 610 (six hundred and ten euros) in respect of costs and expenses;

(i ii ) any tax that may be ch argeable on the above amounts;

(b) that the above amounts shall be converted into the national currency of the respondent State at the rate appli cable at the date of settlement ;

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

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

Done in English, and notified in writing on 5 April 2005 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

S. Dollé J.-P. Costa Registrar President