FIFTH SECTION

CASE OF KULIK v. UKRAINE

( Application no. 10397/10 )

JUDGMENT

STRASBOURG

19 March 2015

FINAL

19/06/2015

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

In the case of Kulik v. Ukraine ,

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

Mark Villiger , President, Angelika Nußberger , Boštjan M. Zupančič , Ganna Yudkivska , Vincent A. D e Gaetano , André Potocki , Aleš Pejchal , judges, and Claudia Westerdiek , Section Registrar ,

Having deliberated in private on 17 February 2015 ,

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

PROCEDURE

1 . The case originated in an application (no. 10397/10) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Vitaliy Vladimirovich Kulik (“the applicant”), on 8 February 2010 .

2 . The applicant, who had been granted legal aid, was represented by Mr A. Bushchenko, a lawyer practising in Kyiv. The Ukrainian Government (“the Government”) were represented by their Agent at the time , Mr. N. Kulchytskyy.

3 . The applicant alleged under Article 3 of the Convention that he had been ill-treated by police officers and that there had been no effective investigation of the incident . He further complained under Article 13 of the Convention that he had had no civil remedy in respect of his allegations of ill-treatment.

4 . On 19 March 2012 the application was communicated to the Government .

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5 . The applicant was born in 1977 and lives in the village of Budy, Kharkiv Region .

6 . On 4 May 2003 the applicant was arrested on suspicion of stealing cucumbers from a greenhouse on a vegetable farm . On the same day the applicant was also arrested for an administrative offence (disobeying and resisting police officers). The report concerning the applicant ’ s arrest for the administrative offence indicated that the applicant had no bodily injuries.

7 . According to the Government, the applicant was released on 4 May 2003.

8 . According to the applicant, on that day police officers beat him up in the Chervonozavodskyy District Police Department of Kharkiv (“the Police Department”), forcing him to confess to the theft. The applicant made self-incriminating statements. He was released on 5 May 2003 after the court had imposed a fine on him for the administrative offence.

9 . On 5 May 2003 the investigator of the Police Department instituted criminal proceedings against the applicant and another person (P.) in connection with the theft of the cucumbers. As a preventive measure the applicant signed a written undertaking not to abscond.

10 . On 5 May 2003 the applicant sought medical treatment at a hospital. A doctor at the trauma unit of the hospital noted that the applicant had numerous bruises on his body , and diagnosed him with concussion and a possible fracture of the nose.

11 . On 8 May 2003 the applicant was examined by a surgeon, who noted that he had bruises on his nose, on the right side of the waist and on the suprapubic area.

12 . On 12 May 2003 the applicant was admitted to the hospital for inpatient treatment on account of the injuries he had sustained.

13 . On 20 May 2003 , in the course of questioning, P., another suspect in the criminal case, complained of ill-treatment to the police investigator and noted that on 4 May 2003 he had also been in the Police Department and had heard noise s and the applicant shouting .

14 . On 13 June 2003 the applicant was discharged from the hospital.

15 . On 25 June 2003 the applicant denied any involvement in the theft and argued that his earlier self-incriminating statements had been made as a result of ill-treatment on the part of police officers.

16 . On 26 June 2003 a medical expert completed the medical examination ( which started on 8 May 2003) and issued a report stating that the applicant was recovering from concussion accompanied by asthenic syndrome , he had bruises on the right leg and the trunk, swollen finger s on the left and right hand s , and a swollen nose. The expert opined that the injuries had been inflicted by blunt solid object s and could have been sustained on 4 May 2003. The expert also cited the applicant ’ s statement that the injuries had been caused on 4 May 2003 by unknown persons in the street.

17 . On 27 June 2003, in the course of questioning, P. once again stated that on 4 May 2003 he had also been in the Police Department and had heard noise s and the applicant shouting .

18 . On 8 July 2003 the applicant was examined by a psychiatrist and diagnosed with postcontusional syndrome accompanied by occasional anxious depression.

19 . On 10 July 2003 the applicant applied to the Chervonozavodskyy District Prosecutor ’ s Office of Kharkiv (“the District Prosecutor ’ s Office”) seeking criminal prosecution of police officers for ill-treatment.

20 . On 19 July 2003 the prosecutor , having conducted a pre-investigati on enquires, refused to open criminal proceedings in connection with the applicant ’ s allegations of ill-treatment , for lack of corpus delicti .

21 . On 31 July 2003 the applicant was examined by a psychiatrist , who considered that the concussion had had a negative psychological effect on him and that he was show ing signs of psychoorganic anxious depression syndrome with amnes t ic disorder.

22 . On 12 August 2003 the medical expert issued another report , noting that the applicant had sustained concussion which had caused psychoorganic anxious depression syndrome accompanied by amnes t ic disorder; that he had bruises on his right arm and trunk, and swelling s of the right and left hands and face; the injuries were of medium severity and had been caused by blunt solid objects. The expert considered that the injuries could have been sustained on 4 May 2003. The expert again cited the applicant ’ s statement that the injuries had been caused on 4 May 2003 by unknown persons in the street.

23 . O n 7 October 2003 the Kharkiv Region al Prosecutor ’ s Office quashed the decision of 19 July 2003 as unfounded and ordered further pre-investigati o n enquiries .

24 . On 17 October 2003 the District Prosecutor ’ s Office instituted criminal proceedings on account of the alleged ill-treatment of the applicant.

25 . On 31 March 2004 a medical expert issued an additional report which stated that the a pplicant ’ s craniocerebral injury accompanied by psychoorganic effects should be classified as an injury of medium severity; the other injuries (bruises and swellings) should be classified as minor injuries. It was noted in the report that the applicant stated that he had been beaten up by police officers on 4 May 2003. The expert opined that his injuries had been cau sed by blunt solid objects and could have been sustained on 4 May 2003 in the circumstances described by the applicant . T he expert did not however exclude the possibility that those injuries had been caused by the applicant ’ s fall ing down .

26 . On 7 April 2004 the Kharkiv Region al Prosecutor ’ s Office informed the applicant ’ s father that the criminal case concerning the applicant ’ s ill-treatment had not been comprehensively investigated and that the investigator in charge had been given instructions as to what further steps must be taken.

27 . On 8 June 2004 a doctor diagnosed the applicant with anxious depression syndrome.

28 . On 17 November 2004 the investigation in that case was suspended as the perpetrators of the crime against the applicant could not be identified.

29 . On 30 March 2005 the investigation was resumed.

30 . On 11 April 2005 the investigation was suspended again because the perpetrators of the crime against the applicant could not be identified.

31 . On 1 August 2005 the criminal proceeding s against the applicant concerning the theft of the cucumbers were terminated for lack of corpus delicti .

32 . On 27 January 2006 the Kharkiv Region al Prosecutor ’ s Office informed the applicant that the decision of 11 April 2005 had been quashed as unfounded and that instructions had been given for a proper investigat ion of the alleged ill-treatment.

33 . On 13 March 2006 the investigator of the District Prosecutor ’ s Office refused to institute criminal proceedings against specific officers of the Police Department in connection with the applicant ’ s alleged ill-treatment. The investigator noted that the police officers denied the applicant ’ s allegations and the applicant himself had not claim ed at the beginning that he had been ill-treated; the available evidence did not suggest that the injuries had been caused to the applicant by police officers .

34 . On 14 March 2006 the District P rosecutor ’ s O ffice decided to refer the case to the investigati o n unit of the Police Department for further proceedings .

35 . On 20 August 2008 the investigation was suspended as the perpetrators of the crime against the applicant could not be identified.

36 . On 31 October 2008 the supervising prosecutor ’ s office quashed that decision as unfounded and gave instructions for a further investigation. By letter of the same date the prosecutor informed the applicant of the decision taken. In that letter the prosecutor also informed the applicant about the earlier decision of 13 March 2006 , by which the investigator had refused to institute criminal proceedings against specific police officers.

37 . On 3 August 2009 the local prosecutor ’ s office informed the applicant that disciplinary proceedings had been instituted against the investigators for inadequate investigation of the case concerning the applicant ’ s ill-treatment.

38 . On 20 September 2012 the investigation was pending.

II. RELEVANT DOMESTIC LAW

39 . The relevant provisions of the Code of Criminal Procedure of 1960 (in force at the relevant time) can be found in the judgment in the case of Kaverzin v. Ukraine (no. 23893/03, § 45, 15 May 2012).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

40 . The applicant complained under Article 3 of the Convention that he had been ill-treated by police officers and that there had been no effective investigation of the incident .

41 . Article 3 of the Convention reads as follows:

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

A. Admissibility

42 . The Government submitted that the complaint was inadmissible for non-exhaustion of domestic remedies. They argued that the applicant had failed to appeal against the decision of 13 March 2006 by which the investigator had refused to open criminal proceedings against specific police officers . As an alternative, the Government maintained that the complaint should be rejected for the applicant ’ s failure to comply with the six-month period , which should be calculated from the date the applicant became aware of the decision of 13 March 2006. In that regard the Government argued that the applicant must have be come aware of the decision at least by the date of the prosecutor ’ s letter , 3 1 October 2008 , while the application was introduced in 2010 .

43 . T he Government further contended that the applicant ’ s complaint was manifestly ill-founded. With reference to the medical reports, t hey emphasised that the applicant had given to the medical experts different description s of the circumstances of his ill-treatment . F urthermore , t he Government noted that in the last medical report of 31 March 2004 the expert considered that the injuries could have been sustained on 4 May 2003 in the P olice D epartment, altho ugh the possibility was not excluded that th o se injuries had been caused by the applicant ’ s fall ing down . The medical evidence was not therefore conclusive to support the allegations of ill-treatment. As to the statements of the co-suspect P., they were vague and did not indicate that the applicant had any injuries at that time. With regard to the procedural aspect of Article 3, the Government submitted that the applicant made a complaint against the police officers only belatedly; nevertheless, the investigation was effective and there had been no shortcomings on the part of the domestic authorities.

44 . The applicant disagreed and contended that his complaint was admissible .

45 . The Court considers that the Government ’ s objection s raised on the grounds of non-exhaustion of domestic remedies and non-compliance with the six-month rule are closely linked to the substance of the applicant ’ s complaint. In these circumstances, it joins the se objection s to the merits of the case . The Court further considers that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and it is not inadmissible on any other ground. The complaint should therefore be declare d admissible.

B. Merits

1. The parties ’ submissions

46 . The Government did not provide specific comments as to the merits of the case.

47 . As regards the procedural aspect of Article 3, the applicant explained that he had complained to the domestic authorities of ill-treatment with a certain delay because following his release he had been having inpatient treatment in hospital , and for a long time after the release he had continued to be affected by the negative physical and psychological consequences of the ill-treatment. The applicant then contended that the criminal proceedings were not compatible with the requirements of effective investigation . As to the remedy suggested by the Government , h e argued that he had become aware of the decision of 13 March 2006 only belatedly , and that a copy of that decision was made available to him only with the Government ’ s observations in the present case. The domestic authorities had never provided him with such a copy. Furthermore, the domestic proceedings as such had not terminated with that decision , and the authorities were supposed to continue with the investigation which was pending at the time the application was made to the Court.

48 . As regards the substantive aspect of Article 3 , h e argued that at the initial stage of domestic proceedings he did not make correct statements as to the circumstances of his ill-treatment because of the negative psychological effects of the police brutality . The applicant insisted that his complaint was properly substantiated by the available evidence and that the Government had failed to provide a plausible explanation for the injuries.

2. The Court ’ s assessment

( a ) The procedural aspect of Article 3

49 . The Court reiterates that where an individual raises an arguable claim that he has been ill-treated by State authorities in breach of Article 3, that provision requires by implication that there should be an effective official investigation. For the investigation to be regarded as “effective”, it should in principle be capable of leading to the establishment of the facts of the case and to the identification and punishment of those responsible. This is not an obligation of result, but one of means. The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony, forensic evidence, and so on. Any deficiency in the investigation which undermines its ability to establish the cause of injuries or the identity of the persons responsible will risk falling foul of this standard, and a requirement of promptness and reasonable expedition is implicit in this context (see, among many other authorities, Mikheyev v. Russia , no. 77617/01, § 107 et seq., 26 January 2006, and Assenov and Others v. Bulgaria , judgment of 28 October 1998, Reports 1998-VIII, §§ 102 et seq.). For an investigation to be effective, those responsible for and carrying out the investigation must be independent and impartial, in law and in practice. This means not only a lack of hierarchical or institutional connection with those implicated in the events but also a practical independence (see Kolevi v. Bulgaria , no. 1108/02, § 193, 5 November 2009).

50 . The Court finds that the applicant ’ s injuries were serious enough (see paragraph s 10 , 11 , 16 , 22 , 25 above ) and that his complaint of ill-treatment , even though submitted with a certain delay, was arguable for the purpose of Article 3 , requiring therefore that the domestic authorities carry out an effective investigation.

51 . The Court further notes that it was more than three months after the applicant ’ s complaint to the prosecutor ’ s office that a full - scale investigation was opened. Before that date the case was investigated by way of pre-investigation enquiries. In this regard the Court has previously found that such pre-investigati on enquiries do not comply with the principles of an effective remedy , for the following reasons: the enquiring officer can take only a limited number of procedural steps within that procedure; the victims have no formal status, with the result that the y are precluded from effective participation in the procedure (see Davydov and Others, cited above, §§ 310-312 and Savitskyy v. Ukraine, no. 38773/05 , § 105, 2 6 July 2012).

53 . The Court further notes that following the decision of 14 March 2006 the investigation was entrusted to the p olice d epartment which employed the police officers who had allegedly ill-treated the applicant. The Court does not consider that that investigation was accompanied by guarantees of independence and impartiality (see Savitskyy , cited above, § 103). As to the Government ’ s objection concerning the failure of the applicant to appeal against th e decision of 13 March 2006 , the Court takes note of the applicant ’ s contention that t he domestic authorities informed him of that decision only belatedly. It also appears that the applicant was not provided with a copy of that decision by the domestic authorities and could examine it only with the Government ’ s observations in 2012. This means that before that date he did not know the precise reasons for it , and thus was not in a position to appeal effectively against it (see Akulinin and Babich v. Russia , no. 5742/02, § 29, 2 October 2008 , and Savitskyy , cited above, § 120 ) . Mean while , following the decision of 13 March 2006 the criminal proceedings were not terminated at the domestic level , and the authorities remained under an obligation to investigate the alleged ill-treatment. Th at decision did not therefore exclude the prosecution of police officers in the light of additional material which might be obtained in the course of further investigation .

54 . The Court lastly notes that the domestic investigation remained pending when the parties exchanged their observations , and t he Court does not consider that the overall length of the investigation of almost nine years was justified.

55 . In the light of the above considerations, the Court finds that the domestic proceedings did not comply with the basic requirements of “effectiveness” implied in Article 3 of the Convention. The Court notes that in the case of Kaverzin v. Ukraine (cited above, §§ 173-180) it found that reluctance on the part of the authorities to ensure that a prompt and thorough investigation of the ill-treatment complaints by the criminal suspects was carried out constituted a systemic problem within the meaning of Article 46 of the Convention.

56 . Accordingly, the Court dismisses the Government ’ s objection based on the rule of exhaustion of domestic remedies. As the investigation was pending on the date of application to the Court, no issue arises under the six-month rule either, and the relevant objection of the Government should likewise be dismissed. T he Court further holds that t here has been a violation of the procedural aspect of Article 3 of the Convention.

( b ) The substantive aspect of Article 3

57 . It is the Court ’ s well established principle under Article 3 of the Convention that i n assessing evidence it generally applie s the standard of proof “beyond reasonable doubt”. However, proof may follow from the coexistence of sufficiently strong , clear and concordant inferences or of similar unrebutted presumptions of fact. Where the events in issue lie wholly or in large part within the exclusive knowledge of the authorities, as in the case of those under their control in custody, strong presumptions of fact will arise in respect of injuries occurring during such detention. Indeed, the burden of proof may be regarded as lying with the authorities to provide a satisfactory and convincing explanation (see Ribitsch v. Austria , judgment of 4 December 1995, Series A no. 336, § 34, and Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII).

60 . It follows that there has been a substantive violation of Article 3 of the Convention.

II . ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

61 . The applicant complained under Article 13 of the Convention that he had no civil remedy in respect of his allegations of ill-treatment.

62 . Article 13 provides as follows:

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

A. Admissibility

63 . The Government contended that the complaint was inadmissible since the applicant had no arguable claim for the purpose of Article 13.

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

B. Merits

65 . The Court notes that t he criminal proceedings concerning the applicant ’ s ill-treatment were crucial for the exercise of the applicant ’ s civil right to claim compensation for injuries resulting from a criminal act: in the absence of an identified perpetrator a civil action would be futile (see Afanasyev v. Ukraine , no. 38722/02, § 77 , 5 April 2005 ). The Court finds that the shortcomings of the criminal proceedings at issue have effectively prevented the applicant from lodging a civil claim and obtaining compensation.

66 . There has therefore been a violation of Article 13 of the Convention.

III . APPLICATION OF ARTICLE 41 OF THE CONVENTION

67 . 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.”

A. Damage

68 . The applicant claimed 35,000 euros (EUR) in respect of non-pecuniary damage.

69 . The Government contended that the claim was groundless.

70 . The Court considers that the applicant must have suffered anguish and distress on account of the facts giving rise to the finding of violation s in the present case. Ruling on an equitable basis, the Court awards the applicant EUR 10,000 in respect of non-pecuniary damage.

B. Costs and expenses

71 . The applicant also claimed EUR 3,584 for costs and expenses incurred before the Court .

72 . The Government submitted that this claim was unfounded and excessive.

73 . According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award , in addition to the legal aid granted, the sum of EUR 1 , 5 00 for costs and expenses for the proceedings before the Court. The amount is to be paid directly into the bank account of the applicant ’ s lawyer, Mr Arkadiy Bushchenko (see, for example, Hristovi v. Bulgaria , no. 42697/05 , § 109, 11 October 2011, and Singartiyski and Others v. Bulgaria , no. 48284/07 , § 54, 18 October 2011).

C. Default interest

74 . The Court considers it appropriate that the default interest rate 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. Joins to the merits the Government ’ s objections as to the admissibility of the applicant ’ s complaint of ill-treatment by the police (on the grounds of non-exhaustion of domestic remedies and non-compliance with the six-month rule) and dismisses these objections after an examination on the merits;

2 . Declares the application admissible ;

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

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

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

6 . Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts , to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 10,000 ( ten thousand euros), plus any tax that may be chargeable, in respect of non- pecuniary damage;

(ii) EUR 1,500 ( one thousand five hundred euros) , plus any tax that may be chargeable to the applicant, in respect of costs and expenses , to be paid into the bank account of the applicant ’ s lawyer, Mr A. Bushchenko ;

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

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

Done in English, and notified in writing on 19 March 2015 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Claudia Westerdiek Mark Villiger Registrar President