FIFTH SECTION

DECISION

Application no . 37794/14 Aleksandr Iosifovich NAGORSKIY against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 12 January 2016 as a Chamber composed of:

Angelika Nußberger, President, Ganna Yudkivska, Erik Møse, André Potocki, Yonko Grozev, Carlo Ranzoni, Mārtiņš Mits, judges, and Claudia Westerdiek, Section Registrar ,

Having regard to the above application lodged on 3 June 2014 ,

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 Aleksandr Iosifovich Nagorskiy, is a Ukrainian national who was born in 1967. He is represented before the Court by Mr A. Fedosov, a lawyer practising in Strasbourg.

2. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr B. Babin, of the Ministry of Justice of Ukraine.

A. Criminal proceedings against the applicant

3. On 3 August 2010 the applicant was arrested on suspicion of a number of criminal offences.

4. On 6 August 2010 the Obolosnky District Court of Kyiv remanded him in custody: this detention was further extended on a number of occasions.

5. On 16 July 2013 the Obolonsky District Court of Kyiv found the applicant guilty as charged and sentenced him to ten years ’ imprisonment. In the operative part of its judgment the court also ruled that the applicant ’ s pre-trial detention should be continued as a preventive measure pending the entry of that judgment into force. It further noted that the judgment could be challenged on appeal within fifteen days of the date of its pronouncement.

6. On 12 May 2014 the above judgement was quashed on appeal, and the case was remitted to the investigative authorities for additional investigation.

7. No information was submitted by the parties as to the further course of the proceedings.

8. On an unspecified date between July and October 2014 the applicant was granted an amnesty and released.

B . Incident of 8 May 2014

9. On 8 May 2014 the applicant was escorted from the Kyiv Pre-trial Detention Centre (“the SIZO”) to the Shevchenkivsky District Court, Kyiv, for a hearing regarding the lawfulness of his detention. The hearing lasted about fifteen minutes and was further adjourned until 12 May 2014.

1. The applicant ’ s account of further events

10. After the closure of the hearing, the applicant, his co-accused and some others attending the hearing remained in the courtroom demanding that the judge rule that the applicant should be released immediately. One hour later, at about 4.30 p.m., officers of the “Gryfon” (police special unit ensuring legal order on the court premises) arrived in the courtroom, having been summoned by the judge. Twelve officers split up into two groups: the first group held the applicant stretched out and started beating him with handcuffs and truncheons; the second group formed a human chain so that others in the room would not be able to see what was going on in the defendant ’ s cage. As a result, the applicant sustained serious bodily injuries, including several wounds to his head. Somebody called an ambulance but a chief officer prevented the applicant from being taken to hospital and he was transferred back to the SIZO. No medical assistance was provided in the SIZO until 9 p.m., when following pressure from the media the applicant was transferred to the Emergency Care Hospital (“the Hospital”) and received medical treatment.

2. The Government ’ s account of further events

11. Dissatisfied with the adjournment of the hearing, the applicant, his co-accused and several others present demanded the applicant ’ s immediate release and refused to comply with the escorting officers ’ request to leave the courtroom. The presiding judge called the police special unit to ensure order on the premises. The applicant continued to resist police officers and was therefore forcefully escorted out of the courtroom. As a result, he sustained bodily injuries. Upon return to the SIZO, the applicant was examined at the medical unit and was then transferred to the Hospital, where he was provided with the requisite medical assistance.

C. Investigation into the incident

1. Complaint lodged by Mrs K.

12. On 8 May 2014 Mrs K. notified the police of the applicant ’ s ill-treatment in the courtroom by unidentified police officers. On the same day, the relevant information was entered in the “ Integrated Register of pre-trial investigations” and criminal proceedings were commenced on suspicion of excess of powers by “Gryfon” officers . Mrs K. was questioned and the courtroom was examined by the police. According to the police report, dark red drops which looked like blood were found on the floor next to the hearing room and in the defendant ’ s cage. According to Mrs K., she arrived to the courtroom once she became aware that a “Gryfon” officer had hit the applicant on the head with a rubber truncheon. Upon arrival, she saw that there was blood all over the courtroom.

13. On 22 May 2014 the Kyiv Prosecutor ’ s Office took over the proceedings.

14. On 23 May 2014 Mrs B. was questioned as a witness. She stated that about ten or fifteen “Gryfon” officers, equipped with handcuffs and truncheons, had entered the courtroom after the hearing was over. They had formed a human chain and separated the applicant from the other people in the room. A “Gryfon” officer then went into the defendant ’ s metal cage and started pulling the applicant by the arm. A few seconds later there was blood on the applicant ’ s face. Mrs B. did not see who injured the applicant or how it happened, but noted that the latter did not resist the officers. At the same time, she saw “Gryfon” officers twisting the applicant ’ s hands forcefully while trying to handcuff him.

15. On 17 June 2014 Mrs N. and Mr G. were questioned as witnesses. Mrs N. stated that she was not present at the hearing but was told by Mrs B. that the conflict arose because of the applicant ’ s refusal to leave the courtroom. Mr G., who had been present at the hearing when “Gryfon” arrived, stated that the applicant was not kicked or punched. Instead, he saw some officers, standing outside the metal cage, twisting the applicant ’ s arms. As a result, the applicant hit his head on the metal cage and fell down. Then up to eight officers entered the cage and dragged the applicant out of the courtroom. According to Mr G., the officers did not identify themselves when they arrived and did not ask anybody to leave the premises.

16. On 24 June 2014 the applicant was questioned as a victim. According to him, “Gryfon” officers appeared in the courtroom wearing bulletproof vests and neck and face coverings which rendered their identification impossible. One of them, accompanied by an officer from the escorting unit, approached the applicant from the opposite side of the cage, pulled the applicant ’ s hands forward and twisted his arms. “Gryfon” officers then entered the cage and started beating him in the face with truncheons and dragging him in different directions. As a result, the applicant hit his face on the cage bars. He was also kicked in the head by the “Gryfon” chief officer. Once the applicant started bleeding, he was stretched out on the floor, handcuffed and dragged out of the courtroom. On the way down, on the third floor, his head was intentionally banged against a metal case and he lost consciousness. According to the applicant, it was the Federal Security Service of the Russian Federation that had ordered “Gryfon” to kill him.

17. On the same day, a forensic medical examination of the applicant was ordered.

18. On 14 October 2014 a forensic medical examination report was issued. On the basis of the documents provided by the investigator, the expert stated that the applicant had sustained a contused head wound and numerous abrasions on the face and the left hand. The expert opined that those injuries had been caused by blunt objects; as to their date, it could not be excluded that they had been inflicted on 8 May 2014. The injuries were classified as minor. The expert further found no clinical evidence that the applicant had sustained concussion. He noted in this respect that no pathology was evident from the description of the applicant ’ s neurological state during his first and subsequent medical examinations. Likewise, there was no description of any radial nerve disorder in the file. The expert observed that some changes revealed during the head and spine X-ray examination indicated the progress of the applicant ’ s chronic diseases, either of which, taken separately or together with others, could present neurological signs similar to those which would appear with concussion.

19. On 28 November 2014 the Kyiv Prosecutor ’ s Office terminated the criminal proceedings. The relevant resolution referred to the results of the above forensic medical examination and gave details of the testimonies of the applicant and those of Mr G., Mrs B. and “Gryfon” officers, questioned as witnesses. According to the “Gryfon” officers, they had had no means of restraint during the operation and had used no force on the applicant. They stated that the applicant ’ s injuries could have been self-inflicted when he resisted being escorted from the court. The resolution further referred to the provisions of the Criminal Code, according to which abuse of powers was criminally punishable only if the damage caused was in money terms at least 100 times greater than the citizen ’ s tax-exempt minimum income. It noted that the case file contained no evidence that the applicant had sustained such damage. The prosecutor finally concluded that no proof of abuse of powers by “Gryfon” officers was obtained during the investigation. It was noted that the resolution could be challenged within ten days of the date of its receipt. The resolution has not been appealed against by Mrs K. or the applicant.

2. Complaints lodged by Mrs B.

20. On unspecified dates Mrs B. lodged a number of complaints with different State authorities, including MPs, about the events of 8 May 2014.

21. On 26 June 2014 the Kyiv Main Police Department, having completed their internal inquiry in respect of some of Mrs B. ’ s complaints, found no misconduct by “Gryfon” officers. According to the internal inquiry report, on 8 May 2014 the police special unit arrived at the courtroom as Mrs B. and others attending the hearing were refusing to leave; they impeded the applicant ’ s being escorted out of the court premises. The officers identified themselves and demanded that the public cease offering resistance and leave the premises. As they did not comply, some of the “Gryfon” officers and the escorting officers formed a human chain and pushed the members of the public back, allowing other officers to take the applicant out of the courtroom. The applicant behaved inappropriately, uttering obscenities and hanging on to the metal bars of the cage. As a result, he injured his arm. According to the report, no force or special means of restraint was used.

D. Medical treatment in detention

22. On 8 March 2010 the applicant was admitted to the SIZO. On admission he underwent a medical examination, including an X-ray, and his medical file was studied. He was diagnosed with a number of chronic conditions, for which he received outpatient treatment. The applicant was also put on the list for regular medical check-ups.

23. According to the Government, during his stay in the SIZO the applicant presented himself to the medical unit on a number of occasions and was examined by the SIZO medical staff and, where necessary, by specialists from State health-care institutions.

24. On an unspecified date the applicant consulted the SIZO dentist and was diagnosed with chronic periodontitis and edentulous upper arch. Symptomatic in-patient treatment and consultation of a general practitioner were recommended.

25. On 22 June 2013 the applicant was examined by a maxillofacial surgeon and cardiologist from the Main Military Hospital. He was diagnosed with a number of chronic conditions, had some of his teeth extracted, and was prescribed appropriate treatment. He was also advised to undergo an electrocardiogram.

26. On 6 February 2014 the electrocardiogram was done; it revealed no particular problems.

27. On 7 May 2014 the applicant was examined by the SIZO general practitioner and expressed no particular complaints as to his state of health. No serious pathology requiring treatment was revealed. It was recommended that he undergo a preventive medical examination and have some tests.

28. On the same day blood and urine tests were carried out: they revealed no pathology. A repeated blood sugar test was recommended.

29. On 8 May 2014, after his return from the court hearing, the applicant was examined at the SIZO medical unit and was diagnosed with bruises on his forearms and head, periorbital haematomas of both eyes, and two stab wounds to the forehead. The applicant was then referred to the Hospital.

30. At the Hospital, the applicant was examined by a general practitioner and a neurosurgeon. He underwent an electrocardiogram and head X-ray and was diagnosed with a contused head wound, numerous bruises, abrasions on the head and left hand, and a number of other conditions he had previously been diagnosed with. Having received first aid for the injuries he had sustained, the applicant was escorted back to his cell as, according to the Hospital physician, his state of health did not require in-patient treatment at the Hospital or the SIZO medical unit.

31. On 12 May 2014 the stitches on the applicant ’ s head were removed with no complications.

32. On 21 May 2014 the applicant was examined by a neuropathologist of the SIZO medical unit and was diagnosed with cephalic syndrome resulting from concussion and post-traumatic radial nerve neuropathy. Outpatient treatment was prescribed.

33. On 19 June 2014 the applicant was re-examined by the neuropathologist. The previous diagnosis was confirmed and it was recommended, inter alia , that he undergo a brain and spine MRI.

34. On 20 June 2014 the applicant was examined by an endocrinologist and underwent a fasting blood sugar test. No particular problems were revealed.

35. On 25 June 2014 the SIZO authorities asked the Hospital for an MRI for the applicant and for the SIZO to be informed of the date of the examination.

36. On 4 July 2014 the applicant underwent MRI scans of the brain and spine.

37. According to a Prisons Department certificate of 24 June 2014, the applicant ’ s state of health was satisfactory. He was under constant supervision by the SIZO medical staff and did not require in-patient treatment in the SIZO medical unit or elsewhere.

E. Relevant domestic law

Article 214

Opening of pre-trial investigation

“1. An investigator or a prosecutor shall immediately, but not later than twenty-four hours after submission of an allegation or notification that a criminal offence has been committed, or having discovered themselves from any source indications that a criminal offence has been committed, be required to enter such information in the Integrated Register of pre-trial investigations and shall open an investigation ...

2. The pre-trial investigation shall begin as soon as data have been entered in the Integrated Register of pre-trial investigations ...”

Article 284

Termination of criminal proceedings

“... 3. An investigator or a prosecutor may issue a decision to terminate criminal proceedings, which is amenable to appeal in accordance with the procedure established by this Code.

...

5. A copy of the investigator ’ s decision to terminate the criminal proceedings shall be sent to the complainant, the victim, and the prosecutor. The prosecutor has the right to quash the decision on the grounds of its unlawfulness or lack of substantiation within twenty days of receipt of the copy of the decision. The prosecutor may also quash the investigator ’ s decision to terminate the criminal proceedings following a complaint lodged by a complainant or a victim, if such a complaint has been lodged within ten days of receipt of a copy of the decision by the complainant or the victim.

A copy of the prosecutor ’ s decision to terminate the criminal proceedings shall be sent to the complainant, the victim, his/her representative, the suspect, and defence counsel.

...

8. The court ’ s decision to terminate the criminal proceedings may be challenged on appeal.”

Article 303

Decisions, acts or inaction of the investigator or the prosecutor, which are amenable to appeal during the pre-trial investigation, and the right to appeal

“1. During the pre-trial proceedings the following decisions, acts or failures to act of the investigator or the prosecutor are amenable to appeal:

...

3) the investigator ’ s decision to terminate the criminal proceedings - by the complainant, the victim, his or her representative or legal representative;

4) the prosecutor ’ s decision to terminate the criminal proceedings - by the complainant, the victim, his or her representative or legal representative, the suspect, his/her counsel or legal representative ...”

Article 305

Legal consequences of lodging a complaint against a decision, act or failure to act on the part of the investigator or the prosecutor during the pre-trial investigation

“1. The lodging of a complaint against decisions, acts or failures to act of the investigator or the prosecutor during the pre-trial investigation shall not stop the execution of the decision or the act of the investigator or the prosecutor.

2. The investigator or the prosecutor may set aside his or her own decisions referred to in paragraphs 1, 2, 5 and 6 of Article 303 of this Code, or terminate the act or failure to act complained of, which results in the termination of the proceedings concerning the complaint.

The prosecutor can set aside his or her own decisions referred to in paragraph 3 of Article 303 of the Code and appealed against in accordance with the procedure provided for in paragraph 5 of Article 284 of this Code, which results in the termination of the proceedings concerning the complaint.”

Article 306

Procedure for examination of complaints about decisions, acts or failures to act on the part of the investigator or the prosecutor during the pre-trial investigation

“1. Complaints about decisions, acts or failures to act on the part of the investigator or the prosecutor shall be examined by an investigating judge of a local court ...

2. Complaints about decisions, acts or failures to act during the pre-trial investigation shall be examined within seventy-two hours of receipt of a complaint, except for complaints about the decision to terminate criminal proceedings, which shall be dealt with within five days of receipt of the complaint.

3. Examination of complaints about decisions, acts or failures to act during the pre-trial investigation shall be carried out with the mandatory participation of the person who lodged the complaint or his or her defence counsel or representative, and the investigator or prosecutor whose decisions, acts or failures to act are being challenged. The absence of the investigator or prosecutor shall not be an obstacle to examination of the complaint.”

Article 307

Decision of the investigating judge following examination of a complaint about a decision, act or failure to act on the part of the investigator or the prosecutor during the pre-trial investigation

“... 2. A ruling of the investigating judge following the examination of a complaint about a decision, act or failure to act during the pre-trial investigation may concern:

1) the quashing of the decision of the investigator or prosecutor;

2) obligation to terminate an act;

3) obligation to perform a certain act;

4) dismissal of the complaint.

3. The ruling of the investigating judge following the examination of a complaint about a decision, act or failure to act on the part of the investigator or the prosecutor is not amenable to appeal, unless it concerns a decision on the dismissal of a complaint about a decision to terminate criminal proceedings.”

Article 309

Rulings by the investigating judge amenable to appeal during a pre-trial investigation

“... 2. During a pre-trial investigation decisions of the investigating judge to dismiss a complaint against a decision to terminate criminal proceedings ... may be challenged by means of an appeal.”

Article 310

Procedure for appealing against decisions by an investigating judge

“1. The decisions of the investigating judge may be challenged in accordance with the appeal procedure.”

COMPLAINTS

39. The applicant complained under Article 3 of the Convention that he had been ill-treated by police special forces on 8 May 2014 and that there had been no effective investigation in this respect. He further complained under the same Article that during his detention in the SIZO he was not provided with adequate medical care.

THE LAW

A . S cope of the case

40. The Court observes that after communication of the application to the respondent Government and in response to the Government ’ s objections as to the admissibility and merits of the application, the applicant submitted further complaints about inappropriate conditions of his transportation to the hearing on 8 May 2014 and about his detention conditions that day.

41. In the Court ’ s view, the new complaints do not constitute an elaboration of the applicant ’ s original complaint to the Court. The Court considers, therefore, that it is not appropriate now to take these matters up separately in the context of the present application (see, inter alia , Vasiliy Ivashchenko v. Ukraine , no. 760/03, § 66, 26 July 2012).

B . Alleged violations of Article 3 of the Convention

42. The applicant complained that on 8 May 2014 he had been ill-treated by “Gryfon” officers and that there was no effective investigation of that incident. He further complained that he was not offered adequate medical care in detention, including for the injuries sustained on 8 May 2014. He relied on Article 3 of the Convention, which reads as follows:

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

1 . Alleged ill-treatment of the applicant on 8 May 2014 and the subsequent investigation

43. The Government maintained that the applicant had failed to exhaust domestic remedies, in that he had failed to challenge the decision of 28 November 2014 before the prosecutor or the court. They submitted that such a possibility was clearly provided for by the new Code of Criminal Procedure of 2012, and that the applicant ’ s failure to use the avenues available must thus be seen as his agreement with the results of the criminal investigation.

44. The applicant did not submit any comment in this respect.

2 . Medical care in the SIZO

(a) The parties ’ submissions

47. The applicant submitted that the medical care he had received in the SIZO was inadequate. In particular, he stated that:

(i) since his detention in March 2010 he had suffered severe pain from a number of the chronic conditions he was suffering from, but his repeated requests for medical treatment were refused by the SIZO authorities;

(ii ) his lawyer ’ s requests of 2011 for forensic medical examination, lodged with the investigator dealing with his criminal case, was refused;

(iii ) the diagnosis stated in the Hospital certificate of 8 May 2014 was incorrect, and he should have been hospitalised and not sent back to his cell. He alleged that, being under constant supervision of the escorting officers, the Hospital physician had failed to diagnose the concussion and to take appropriate measures;

(i v) the medication prescribed following his medical examinations was provided to him by his friends and was either not administered by the SIZO staff or was significantly delayed .

48. The Government submitted that the applicant had never raised these complaints before the domestic authorities, in particular before the prosecutor ’ s office, and therefore had failed to exhaust the available domestic remedies.

49. The applicant made no comments.

50. The Government further argued that the medical care received by the applicant had been adequate. They noted in this respect that during his admission to the SIZO the applicant was medically examined and diagnosed with a number of chronic conditions. Throughout his detention he had been under regular medical supervision by the SIZO medical staff, and he consulted external medical practitioners on a number of occasions.

51. As regards the incident of 8 May 2014, the Government noted that the applicant was examined by SIZO medical staff, who referred him to the Hospital, where he received specialist medical treatment. He was returned to the SIZO and put back in his cell as, according to the Hospital physician, his injuries did not require in-patient treatment either at the Hospital or in the SIZO medical unit. During the following detention, the applicant was under supervision by the SIZO physicians, was regularly examined by the relevant specialists, and underwent the necessary medical tests. His state of health was found to be satisfactory.

(b) The Court ’ s assessment

52. The Court does not consider it necessary to examine the Government ’ s objection on non-exhaustion, given that this part of the application is in any event inadmissible, for the following reasons.

53. The Court has emphasised on a number of occasions that the health of prisoners has to be adequately secured (see Kudła , cited above, § 94). A lack of appropriate medical care may amount to treatment contrary to Article 3 (see İlhan v. Turkey [GC], no. 22277/93, § 87, ECHR 2000-VII, and Sarban v. Moldova , no. 3456/05, § 90, 4 October 2005). In assessing whether the authorities discharged their health-care obligations towards a detainee in their charge, the Court may also analyse to what extent his state of health deteriorated in the course of his detention. Although such deterioration does not in itself imply a violation of Article 3, it may, nonetheless, be considered to be a characteristic element of the overall conditions of detention (see, for example, Valašinas , cited above, § 54, and Farbtuhs v. Latvia , no. 4672/02, § 57, 2 December 2004).

55. Likewise, no evidence supports the applicant ’ s allegation that he was not provided with adequate medical assista nce following the incident of 8 May 2014. The applicant failed to provide any factual details, for example as to what specific health problems he experienced after the incident and when and to whom he had applied for assistance, how his requests had been treated, and how long he had had to wait. The Court discerns no indication of any obstacles preventing the applicant from submitting those details to the Court (see, mutatis mutandis , Vintman v. Ukraine , no. 28403/05, § 147, 23 October 2014). The case file suggests that the applicant was seen by medical practitioners shortly after the incident, and there is no evidence that the assistance provided that day was inadequate in terms of treatment for the injuries sustained. The accuracy of the diagnosis was eventually examined by a forensic medical expert in the course of the investigation of the ill ‑ treatment complaint. He concluded that there was no credible clinical evidence that the applicant had sustained concussion (see paragraph 18 above). In the absence of any objection to the report on the applicant ’ s part, the Court sees no reason to cast doubt on the expert ’ s conclusions. It further follows from the Government ’ s submissions - and this was not disputed by the applicant - that during his subsequent detention he was under the permanent supervision of the SIZO medical staff. He underwent a number of medical examinations, and his state of health was found to be satisfactory.

56. Lastly, the Court cannot but note that following his amnesty and release from detention, at some point between July and October 2014, the applicant was allegedly undergoing medical treatment in a hospital. He was thus free to provide medical evidence in support of his allegations about inadequate medical treatment in detention. However, he failed to do so.

57. In the light of the foregoing, the Court concludes that the applicant failed to substantiate his complaint that the medical treatment he received during his detention in the SIZO was inadequate. 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.

C . O ther complaints

58. The Court has examined the remainder of the applicant ’ s complaints. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. 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 4 February 2016 .

             Claudia Westerdiek Angelika Nußberger Registrar President