JOINT DISSENTING OPINION OF JUDGES SPIELMANN, VILLIGER AND NUSSBERGER

We are unable to agree with the Court’s finding that there has been no violation of Article 3 of the Convention on account of the ill-treatment of the applicant during her transfer to the Central Clinical Hospital of 20 April 2012.

The applicant’s complaints concern both the substantive and procedural aspects of Article 3 of the Convention. As regards the former aspect, we note that it is common ground between the parties that the injuries complained of, in particular the bruises on the applicant’s body, appeared after the applicant’s involuntary transfer to the hospital. Thus, the applicant’s complaint of ill-treatment during her transfer to the hospital, which she duly raised at the domestic level, was prima facie arguable and, given the Court’s settled case-law on the matter, the authorities were required to conduct an effective official investigation.

We recall that the Court is sensitive to the subsidiary nature of its task and recognises that it must be cautious in taking on the role of a first-instance tribunal of fact where this is not rendered unavoidable by the circumstances of a particular case. Therefore, we consider it appropriate to examine first whether the applicant’s complaint was adequately investigated by the authorities and subsequently to turn to the question of whether the alleged ill-treatment took place, regard being had to the relevant domestic findings.

We reiterate that Article 3 of the Convention requires that an investigation into arguable allegations of ill-treatment must be thorough. This 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 in order 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 obtain evidence concerning the incident, including, inter alia , eyewitness testimony and forensic evidence (see Tanrıkulu, cited above, §§ 104 et seq., and Gül , cited above, § 89).

The 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 Assenov and Others , cited above, § 102, and Labita , cited above, § 131).

We further recall that for an investigation into torture or ill-treatment by agents of the State to be regarded as effective, the general rule is that the persons responsible for making inquiries and those conducting the investigation should be independent hierarchically and institutionally of anyone implicated in the events, in other words that the investigations should be independent in practice (see Batı and Others v. Turkey , nos. 33097/96 and 57834/00, § 135, ECHR 2004-IV (extracts)).

On 23 April 2012 the applicant filed a complaint with the Kharkiv Regional Prosecutor’s Office complaining of her forced transfer to the hospital and of ill-treatment during the course of the transfer on 20 April 2012. She was first examined on 24 April 2012, when she showed her bruises to the colony medical officers despite the fact that she had already asked for a medical examination on the previous day. According to the examination report, minor bodily injuries in the form of bruises were found to have resulted from a compressive blow by or contact with a blunt object one or two days prior to the applicant’s examination. The report established that the apparent age of the bruises did not, however, coincide with the time of the ill-treatment indicated by the applicant. Moreover, on the same date a forensic medical expert was invited to examine the applicant but she refused to allow such an examination.

Later on the same date the head of the investigative department of the Kharkiv Regional Prosecutor’s Office, having closed the one-day investigation of the event, refused to institute criminal proceedings against colony staff in the absence of evidence that they had caused her bodily injuries. Following the quashing of that decision on 25 April 2012, a further investigation was ordered.

On 3 May 2012 the investigator at the prosecutor’s office again refused to institute criminal proceedings against any member of the colony staff, in the absence of any indication of criminal conduct on their part. In his decision, reliance was placed on the refusal of the applicant to undergo a forensic medical examination on two occasions, on 24 and 26 April. According to the Government, evidence had been collected by the investigator from the members of colony staff involved, the medical workers and the ambulance driver who had been on duty on 20 April 2012, members of the medical panel, hospital employees and other individuals who had witnessed the transfer of the applicant to the hospital and who stated that the applicant had not complained of the infliction of any injuries on her and that they had seen no signs of injuries on her.

We note however that it does not appear from the material in the file that any explanation was sought by the investigator as to why the transfer of the applicant had been carried out in a hasty manner very late in the evening since there was nothing in the applicant’s previous medical records to suggest that her health condition necessitated an urgent transfer which could not wait until the next morning. Moreover, the investigator does not appear to have questioned why the applicant’s co-inmate has been removed from the cell at around 9 pm on 20 April 2012 (see paragraph 160), i.e, immediately before the prison guards came to take the applicant to the hospital. The investigator has not sought an explanation for such an unusual event, which is all the more remarkable as thus the only neutral witness not integrated in the prison hierarchy and not linked to the authorities was removed.

Of even greater significance is the fact that, whatever the evidence of those associated with the applicant’s transfer to hospital on 20 April 2012, the applicant while in custody had sustained bruising which was found both in the examination report of 24 April and the Ombudsman’s report of 25 April to have resulted from the use of compressive force. This required in our view a more searching inquiry as to the cause of the injuries, going beyond merely questioning those who had been directly involved in the transfer to hospital. We do not find on the evidence before us that such a thorough examination was carried out. In particular, in the report of 24 April it was indicated that the apparent age of the bruising did not coincide with the time indicated by the applicant and that the localisation of the injuries was such that they could have been self-inflicted. However, there is nothing to suggest that the investigator took any steps to establish precisely when the injuries were likely to have been sustained in the view of the colony medical staff or of the head of the Kharkiv Medical Academy department of forensic medicine, who had confirmed that view in his report of 26 April. Nor does it appear that the suggestion that the applicant’s injuries may have been self-inflicted, if such a suggestion was treated as credible, was pursued by the investigator either with the applicant herself or with the staff of the colony where, according to the authorities, she had been kept under continuous video surveillance. Further, there is no indication that the theory, first put forward in the report of 26 April 2012, that the applicant’s bruising was not caused by a compressive blow, as had previously been found, but was related to a condition linked to the applicant’s vascular and circulatory system, was followed up in the investigation. In particular, it does not seem that any attempt was made to examine the applicant’s medical records to which reference was made in the report or to establish the likelihood that the bruising in question had no external cause.

It is true that the investigation was hampered by the applicant’s refusal to undergo a forensic medical examination on two occasions, as noted in the decision of 3 May 2012. However, we cannot overlook the fact that the history of the applicant’s detention was characterised by her mistrust of the State authorities, including medical staff and experts who worked under the authority of the State and were not seen by her to enjoy the necessary independence. In these circumstances, we do not find unreasonable the applicant’s wish, in a case in which she alleged an assault by members of the prison administration, to be examined by an expert seen by her to be entirely independent of the State authorities. We note in this connection that under Ukrainian law individuals do not have a direct access to forensic medical examinations without an investigator’s or judge’s authorisation. In any event, whether or not her refusal can be regarded as reasonable, it did not exonerate the prosecuting authorities from taking such steps as were open to them to establish the nature and cause of the recent bruising which had unquestionably occurred while the applicant was detained in custody. For the reasons given above, we do not find any evidence that the necessary steps were taken.

Given the shortcomings found, we find that the investigation was not thorough and thus fell short of the requirements of Article 3 of the Convention.

We note that the applicant complains also of the lack of an independent investigation of the matter. The investigation was entrusted to the investigator of the Kharkiv Prosecutor Regional Office. The head of the investigative department of the Kharkiv Regional Prosecutor’s Office had twice refused to institute criminal proceedings against colony staff due to the absence of any indication of a criminal conduct. Having regard to our opinion that the investigation did not in any event satisfy the requirements of thoroughness in the present case, we do not consider it necessary finally to determine whether the investigation also lacked the requirement of independence. In our opinion, there has been a violation of the procedural requirements of Article 3 of the Convention.

Turning to the substantive aspect of the applicant’s complaint, we observe that in the present case there is no conclusive evidence concerning the circumstances in which the applicant was injured and in particular concerning the exact nature and degree of force used against her. Nevertheless, we consider that the bruising which was established on the applicant’s body was consistent with the account given by her of an assault by one or more members of the staff of the colony at the time of her transfer to hospital. Moreover, it is in any event beyond dispute that the bruising occurred while the applicant was in detention, thereby imposing on the Government the burden of advancing a plausible explanation as to how the bruising had occurred which did not involve the use of force on the applicant by members of the staff of the colony (see Ribitsch , cited above, § 34, and Salman v. Turkey [GC], no. 21986/93, §100, ECHR 2000-VII). It cannot be considered sufficient to advance hypotheses without making any effort to prove their veracity. In view of the inadequacies of the investigation into the circumstances of the bruising which are noted above, we are of the opinion that the Government have failed to advance any plausible explanation for the injuries of the applicants while in detention. Accordingly, in our opinion Article 3 of the Convention was violated also in its substantive aspect.

[1] Rectified on 26 June 2013: the text was “(out of twenty-six)” in the previous version.

[2] Tymoshenko in the hospital.

[3] Rectified on 26 June 2013: the first sentence of paragraph 5 was at the end of paragraph 4 in the previous version.

[4] Rectified on 26 June 2013: this part of the text was added.

[5] Rectified on 26 June 2013: the text was “Kharkiv” in the previous version.

[6] The scope of the second-mentioned issue is covered by application no. 65656/12.

[7] That issue forms part of application no. 65656/12.