FIFTH SECTION

CASE OF ADNARALOV v. UKRAINE

( Application no. 10493/12 )

JUDGMENT

STRASBOURG

27 November 2014

FINAL

27/02/2015

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

In the case of Adnaralov 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 Stephen Phillips , Section Registrar ,

Having deliberated in private on 4 November 2014 ,

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

PROCEDURE

1 . The case originated in an application (no. 10493/12) 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 Oleksiy Ivanovych Adnaralov (“the applicant”), on 8 February 2012 .

2 . The applicant, who had been granted legal aid, was represented by Ms N. Okhotnikova, a lawyer practising in Kharkiv. The Ukrainian Government (“the Government”) were represented by their Agent, Ms N. Sevostianova , from the Ministry of Justice .

3 . On 27 November 2013 the application was communicated to the Government .

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4 . The applicant was born in 1955 and lives in Kharkiv .

5 . On 5 May 2004 the applicant was arrested by four police officers on suspicion of bribe-taking. The police officers took him to the Kharkiv Dzer zhynskyy District Police Station , where he was held overnight. According to the applicant, the police officers beat him for several hours , forcing him to confess.

6 . On 6 May 2004 the applicant was taken to the Kharkiv City Prosecutor ’ s Office. He complained of ill-treatment to a senior prosecutor from the above office. The prosecutor referred the applicant for a forensic medical examination.

7 . On 7 May 2004 the applicant was diagnosed with concussion and admitted to hospital .

8 . On 8 May 2004 the applicant underwent a forensic medical examination , which established that he had numerous bruises on his face, chest, legs and arms, as well as a damaged tooth.

9 . On 11 May 2004 criminal proceedings were instituted against the applicant on charges of bribe-taking. They were eventually terminated o n 27 April 2007 for lack of corpus delicti .

10 . On 2 June 2004 the applicant lodged a nother complaint of ill-treatment with the Kharkiv City Prosecutor ’ s Office .

11 . On 23 June 2004 the applicant lodged a complaint with the Kharkiv Regional Prosecutor ’ s Office about the failure to examine his complaint of 2 June 2004.

12 . On 12 August 2004 the Kharkiv Dzerzhynskyy District Prosecutor ’ s Office refused to institute criminal proceedings against the police officers. That decision was quashed by the higher prosecutor on 7 October 2004 and an additional inquiry was ordered.

13 . On 28 October 2004 the Kharkiv Dzerzhynskyy District Prosecutor ’ s Office ordered a forensic medical examination of the applicant , which was conducted between 28 December 2004 and 13 January 2005. The experts ’ opinion confirmed the previous medical findings (see paragraphs 7 and 8 above) and concluded that the injuries had been the result of blows with blunt objects and had been inflicted during the period indicated by the applicant. The experts further opined that it could not be excluded that the injuries had originated in the circumstances indicated by the applicant, as they could all have been inflicted by fists.

14 . On 23 September 2005 the Kharkiv Frunzensky y District Prosecutor ’ s Office refused to institute criminal proceedings concerning the applicant ’ s allegations of ill-treatment. That refusal was quashed by the Kharkiv Regional Prosecutor ’ s Office on 31 M ay 2006.

15 . On 15 June 2006 the Kharkiv Frunzensky y District Prosecutor ’ s Office again refused to institute criminal proceedings concerning the applicant ’ s allegations of ill-treatment. In a letter dated 10 August 2008, the Kharkiv Regional Prosecutor ’ s Office informed the applicant that the decision of 15 June 2006 had been quashed and that the prosecutor who had conducted the inquiry would be subjected to disciplinary sanctions for the improper performance of his duties.

16 . On 29 March 2007 the Kharkiv City Prosecutor ’ s Office issued a decision refusing to institute criminal proceedings concerning the applicant ’ s allegations. That decision was subsequently quashed.

17 . On 8 January 2008 the Kharkiv City Prosecutor ’ s Office again refused to institute criminal proceedings concerning the applicant ’ s allegations of ill-treatment. That decision was quashed by the Kharkiv Kyivsk y y District Court on 17 October 2011 and the case was remitted for further in quir ies .

18 . On 17 February 2012 the Kharkiv City Prosecutor ’ s Office once again refused to institute criminal proceedings concerning the applicant ’ s allegations of ill-treatment.

19 . On 19 June 2012 the above decision was quashed by the Kharkiv Kyivsk y y District Court , which sent the case file back to the prosecutor for further inquir ies . The court noted, inter alia , that it had previously remitted the case for further inquiries , but that its instructions had not been followed. Furthermore, the applicant had not been questioned and the medical evidence had not been assessed. T he first-instance court ’ s decision was upheld on appeal by the Kharkiv Regional Court of Appeal on 9 July 2012 .

20 . On 31 August 2012 the Kharkiv City Prosecutor ’ s Office refused to institute criminal proceedings concerning the applicant ’ s allegations of ill-treatment. The applicant challenged that decision in the Kharkiv Kyivsk y y District Court on 20 September 2012.

21 . On 19 November 2012 a new Code of Criminal Procedure came into force. On 12 December 2012 , in accordance with the provisions of the new Code, the Kharkiv Dzerzhynskyy District Prosecutor ’ s Office entered t he relevant information in the newly established “ Integrated Register of pre-trial investigations ” and started criminal proceedings in respect of the applicant ’ s allegations of ill-treatment.

22 . On 6 February 2013 the prosecutor issued a decision to terminate the above -mentioned criminal proceedings.

23 . On 4 March 2013 the Kharkiv Dzerzh y nsky y District Court rejected the applicant ’ s complaint against the decision of 6 February 2013.

24 . On 4 April 2013 the Kharkiv Regional Court of Appeal quashed the prosecutor ’ s decision of 6 February 2013.

25 . On 7 June 2013 the applicant asked the Kharkiv Regional Prosecutor ’ s Office to supervise the investigation into his allegations of ill-treatment.

26 . On 14 July 2013 the Kharkiv Dzerzhynskyy District Prosecutor ’ s Office issued a decision to terminate the criminal proceedings for lack of corpus delicti in the actions of the police officers.

27 . On 30 September 2013 the Kharkiv Regional Prosecutor ’ s Office informed the applicant about the decision of 14 July 2013.

28 . On 8 October and 3 December 2013 the applicant asked the Kharkiv Dzerzhynskyy District Prosecutor ’ s Office to send him a copy of the decision of 14 July 2013.

29 . On 12 February 2014 the prosecutor sent the applicant a copy of the decision of 14 July 2013.

30 . On 21 February 2014 the applicant challenged the decision of 14 July 201 3 before the investigating judge of the Kharkiv Dzerzh y nsky y District Court.

31 . On 15 April 2014 the Kharkiv Dzerzh y nsky y District Court quashed the decision of 14 July 201 3 and remitted the case to the prosecutor for further investigation . The court concluded that the investigator had not followed the instructions of the appellate court indicated in its decision of 4 April 2013 on remittal of the case for further investigation , and had terminated the criminal proceedings without conducting the necessary inquiries or carrying out a comprehensive examination of the circumstances of the case .

II. RELEVANT DOMESTIC LAW

A. Constitution of Ukraine 1996

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 ...”

B. Code of Criminal Procedure 1960

Article 4

O bligation to institute criminal proceedings and to investigate a crime

“A court, prosecutor, investigator or body of inquiry must, to the extent that it is within their power to do so, institute criminal proceedings in every case where signs of a crime have been discovered, take all necessary measures provided by law to establish the circumstances surrounding the crime, identify those guilty of the crime and punish them.”

Article 94

Grounds for instituting criminal proceedings

“Criminal proceedings shall be instituted on the basis of:

(1) an allegation or notification from an enterprise, institution, organisation, official, representative of an official bod y or the public and individual citizen s;

(2) notification from a representative of the authorities or the public , or individual citizens who have apprehended a suspect at the place where the crime was committed or caught him red-handed;

(3) [the suspect ’ s] appearance with an acknowledgement of guilt;

(4) information published in the media;

(5) direct detection of signs of a crime by a body of inquiry, investigator, prosecutor or court.

[Criminal] proceedings may be instituted only where there is sufficient information that a crime has been committed.”

Article 95

Allegations and notifications of a crime

“ Allegations or notifications ... of a crime may be made in writing or orally ...”

Article 97

O bligation to accept allegations or notifications of crimes and the procedure for their examination

“A prosecutor, investigator, body of inquiry or judge shall accept allegations or notifications of crimes [which have been] committed or [are] being prepared, including in cases that are outside their jurisdiction.

On receipt of an allegation or notification of a crime, the prosecutor, investigator, body of inquiry or judge shall adopt, within three days, one of the following decisions:

(1) to institute criminal proceedings;

(2) to refuse to institute criminal proceedings;

(3) to remit the allegation or notification for examination in accordance with [the rules of] jurisdiction.

Simultaneously, all possible measures shall be applied to prevent the further commission of the crime or to put an end to it ...

Before instituting criminal proceedings, the prosecutor, investigator or body of inquiry shall conduct an inquiry, if it is necessary to verify [information contained in] an allegation or notification of a crime. [Such an inquiry] shall be completed within ten days by means of collecting explanations from individual citizens or officials or by means of obtaining necessary documents.

B efore instituting criminal proceedings [ i nformation contained in] an allegation or notification of a crime may be verified through detection and search activities ...”

Article 99-1

Appeal against a decision refusing to institute criminal proceedings

“A decision by an investigator or body of inquiry refusing to institute criminal proceedings may be appealed against to the relevant prosecutor. If that decision was taken by a prosecutor, an appeal may be lodged with a higher prosecutor. The appeal shall be lodged by the person whose interests are concerned or by his/her representative within seven days from the date of receipt of a copy of the decision.

If the prosecutor refuses to set aside the decision ... the person whose interests are concerned or his/her representative may lodge an appeal with a court under the procedure prescribed by Article 236-1 of this Code.

...”

Article 236-1

Appeal to a court against a decision refusing to institute criminal proceedings

“ The person whose interests are concerned or his/her representative may lodge a n appeal against a decision of a body of inquiry, investigator or prosecutor ... refusing to institute criminal proceedings with [the relevant] court within seven days of notification of the decision by the prosecutor ...”

Article 236-2

The court ’ s consideration of an appeal against a decision refusing to institute criminal proceedings

“ [ T he relevant court sitting as a ] a single-judge bench shall examine the appeal against a decision of a body of inquiry, investigator or prosecutor ... refusing to institute criminal proceedings within ten days of its receipt.

The judge shall obtain the materials on the basis of which the decision ... was taken, examine them, and inform the prosecutor and the appellant of the date on which the hearing on the appeal is scheduled. If necessary, the judge may hear the appellant in person.

Having examined the appeal, the judge ... shall take one of the following decisions, depending on whether the requirements of Article 99 of this Code were observed:

(1) to set aside the decision not to institute criminal proceedings and remit the materials for additional inquiry or open a criminal case;

(2) to reject the appeal.

The judge ’ s order is not amenable to appeal ...”

C . Code of Criminal Procedure 2012

34 . On 19 November 2012 a new Code of Criminal Procedure came into force. The relevant provisions of the Code read as follows:

Article 214

Opening of pre-trial investigation

“ 1. An investigator or a prosecutor shall immediately, but not later than 24 hours after submission of an allegation or notification that a criminal offence has been committed, or having found themselves from any source circumstances that may indicate 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 p re-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 complain ant , the victim, his/her representative, the suspect, and the defence counsel.

...

8. The c ourt ’ s decision to terminate the criminal proceedin gs 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 inactions of the investigator or the prosecutor are amenable to appeal :

1) the inaction of the investigator or the prosecutor, consisting of the failure to enter information about a criminal offen c e in the Integrated Register of pre-trial investigations after receipt of an allegation or notification of a criminal offen c e ... as well as failure to perform other investigative acts which he or she is obliged to perform within the time-limits defined by this Code - by the complainant , the victim, his or her representative or legal representative, the suspect, his/her counsel or legal representative ...

...

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 inaction of the investigator or the prosecutor during the pre-trial investigation

“ 1. The lodging of a complaint against decisions, acts or inaction 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 i nvestigator 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 inaction 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 inaction of the investigator or the prosecutor during the pre-trial investigation

“ 1. Complaints about decisions, acts or inaction of the investigator or the prosecutor shall be examined by an investigating judge of a local court ...

2. Complaints about decisions, acts or inaction 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 inaction 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 inaction are being challenged. The a bsence of the investigator or prosecutor shall not be an obstacle to examination of the complaint. ”

Article 307

Decision of the investigative judge following examination of a complaint about a decision, act or inaction 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 inaction during the pre-trial investigation may concern :

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

2) the obligation to terminate an act;

3) the obligation to perform a certain act;

4) the dismissal of the complaint.

3. The r uling of the investigating judge following the examination of a complaint about a decision, act or inaction 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 the 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 appeal ing against decisions by an investigating judge

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

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

35 . The applicant complained that he had been ill-treated by police officers. He further complain ed that the domestic authorities had failed to investigate his allegations of ill-treatment properly. He refer red to Articles 3 and 13 of the Convention.

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

A. Admissibility

37 . The Government maintained that the applicant had failed to exhaust domestic remedies, in that he had failed to challenge the decision of 14 July 2013 before the prosecutor or the court. They submitted that such a possibility was clearly provided for by the Code of Criminal Procedure of 2012.

38 . The applicant argued that he had successfully challenged the decision of 14 July 2013 and maintained that he had exhausted all effective domestic remedies.

Therefore, the application cannot be rejected on the grounds of non-exhau stion of domestic remedies and the Court therefore dismisses the Government ’ s objection.

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

B. Merits

1. Alleged ill-treatment by the police

41 . The applicant repeatedly claimed that he had been beaten by police officers throughout the night from 5 to 6 May 2004 and that the resulting injuries had been confirmed by forensic medical examinations.

42 . The Government did not submit any observations on the merits. However, in further submissions they maintained , without any further elaboration , t hat the applicant ’ s rights guaranteed by the Convention had not been violated.

43 . As the Court has stated on many occasions, Article 3 enshrines one of the most fundamental values of democratic societies. Even in the most difficult circumstances, such as the fight against terrorism and organised crime, the Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment (see Selmouni v. France [GC], no. 25803/94, § 95, ECHR 1999 ‑ V, and Assenov and Others v. Bulgaria , 28 October 1998, § 93, Reports of Judgments and Decisions 1998 ‑ VIII).

44 . In assessing evidence, the Court has generally applied the standard of proof “beyond reasonable doubt” (see Ireland v. the United Kingdom , 18 January 1978, § 161, Series A no. 25). However, such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000 ‑ VII).

2. Alleged failure to carry out an effective investigation

46 . The applicant maintained that the investigation into his allegations of ill-treatment had been ineffective . Under the old Code of Criminal Procedure the investigation had been limited to preliminary inquiries as the criminal case had not been formally opened. Such inquiries , however , had not foreseen important investigative measures , such as an on-site examination. Under the new Code of Criminal Procedure criminal proceedings had been instituted but had been terminated shortly afterwards , although the domestic courts soon quashed the decision to terminate the m . The applicant concluded that the remedies under both the old and the new Codes of Criminal Procedure had proven to be equally ineffective. Consequently, he had also been unable to claim compensation for damages.

47 . The Government did not submit any observations on the merits. I n further submissions they maintained , without elaborating further , that the applicant ’ s rights guaranteed by the Convention had not been violated .

48 . The Court reiterates that where an individual makes a credible assertion that he has suffered treatment infringing Article 3 at the hands of the police or other agents of the State, that provision, read in conjunction with the State ’ s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention”, requires by implication that there should be an effective official investigation. As with an investigation under Article 2, such an investigation should be capable of leading to the identification and punishment of those responsible. Otherwise, the general legal prohibition of torture and inhuman and degrading treatment and punishment would, despite its fundamental importance, be ineffective in practice and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity (see, among other authorities, Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000 ‑ IV).

49 . The investigation into serious allegations of ill-treatment must be thorough. That means that the authorities must always make a serious attempt to find out what happened and should not rely on hasty or ill-founded conclusions to close their investigation or as the basis of their decisions (see Assenov and Others , cited above, §§ 103 et seq.). They must take all reasonable steps available to them to secure the evidence concerning the incident, including, inter alia , eyewitness testimony and forensic evidence (see Tanrıkulu v. Turkey [GC], no. 23763/94, §§ 104 et seq., ECHR 1999-IV, and Gül v. Turkey , no. 22676/93, § 89, 14 December 2000). Any deficiency in the investigation which undermines its ability to establish the cause of injuries or the identity of those responsible will risk falling foul of this standard.

51 . In the light of th ose serious deficiencies and the overall length of the investigation , the Court considers that the domestic authorities did not fulfil their obligation to investigate the applicant ’ s complaints of ill-treatment effectively. Accordingly, there has also been a violation of Article 3 of the Convention under this head.

II . APPLICATION OF ARTICLE 41 OF THE CONVENTION

52 . 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

53 . The applicant claimed 100,000 euros (EUR) in respect of non-pecuniary damage.

54 . The Government maintained that there was no causal link between the alleged violations and the amount claimed . Furthermore, they considered the sum claimed to be excessive.

55 . The Court , acting on an equitable basis , awards the applicant EUR 10 ,000 in respect of non-pecuniary damage .

B. Costs and expenses

56 . The applicant also claimed EUR 850 for legal assistance .

57 . The Government did not comment.

58 . The Court notes that meanwhile the applicant was granted legal aid in the amount corresponding to the above sum and it has been paid to his lawyer . Accordingly, the Court considers that there is no call to award him any other sum on that account.

C. Default interest

59 . 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. Declares the application admissible;

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

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

4 . 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, EUR 10 , 000 ( ten thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage , to be converted into the currency of the respondent State at the rate applicable at 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 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 27 November 2014 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stephen Phillips Mark Villiger Registrar President