FIFTH SECTION

CASE OF ALEKSANDR SMIRNOV v. UKRAINE

(Application no. 38683/06)

JUDGMENT

STRASBOURG

15 July 2010

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

In the case of Aleksandr Smirnov v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:

,
Having deliberated in private on 22 June 2010,
Delivers the following judgment:
PROCEDURE
1.  The case originated in an application (no. 38683/06) 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 Aleksandr Vladimirovich Smirnov (“the applicant”), on 15 September 2006.
2.  The applicant, who had been granted legal aid, was represented by Ms A. Mukanova, a lawyer practising in Kharkiv. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev.
3.  The applicant alleged, in particular, that he had been ill-treated by the police and that the domestic authorities had failed to adequately investigate his complaints in that regard.
4.  On 5 March 2009 the Court decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3).
THE FACTS
I.  THE CIRCUMSTANCES OF THE CASE
5.  The applicant was born in 1970 and lives in Yevpatoriya.
A.  Alleged ill-treatment and related events
6.  On 26 March 2002 the applicant was arrested on suspicion of theft. He was taken to Yevpatoriya Police Base Station No. 8 («Опорний пункт охорони правопорядку № 8»), where the police body-searched him and discovered, in the presence of two attesting witnesses, two packets of opium extract. The record of the search and seizure, which contained a signature appearing to be that of the applicant, indicated that he had admitted having bought those drugs for his own use. However, once the drug seizure was documented, the applicant cut his neck with his key-ring as an indication of protest. The police called an ambulance, which documented the injury as being of a minor nature and provided the applicant with the required aid.
7.  The applicant was placed under three-day administrative detention pending clarification of all the circumstances of the supposed drug offence.
8.  On the same date he was delivered to the Yevpatoriya Local Police Precinct («РОВД м. Євпаторія»), where, according to the applicant, police officer R. beat him severely.
9.  According to the applicant, R. asked him not to raise any complaints in exchange for a promise that the police would turn a blind eye to any future misdemeanours from his side. The applicant accepted this.
10.  On 26 March 2002 he was delivered to the Yevpatoriya Temporary Detention Facility, where he was placed in a cell shared by some twelve inmates. According to the registration journal, he arrived there without any visible bodily injuries. During the three days of his detention he did not request or receive any medical assistance.
11.  On 29 March 2002 the applicant was released.
12.  On 15 April 2002 he complained to a traumatologist in the Yevpatoriya hospital that he was suffering from pain in the chest and was prescribed some antibacterial medication.
13.  Having repeatedly sought medical assistance for continuous pain, on 22 April 2002 the applicant was diagnosed with post-traumatic intercostal neuralgia and painful hypodermic indurations from both sides of the rib cage. He told the doctor that he had accidentally fallen down some stairs on 13 April 2002.
14.  On 25 April 2002 the applicant was hospitalised with the following diagnoses: right-lung pneumonia concentrated in the inferior lobe, fracture of the middle third of the breastbone and closed fracture of the seventh rib on the right side. He underwent treatment as an in-patient until 8 May 2002.
B.  Investigation of the alleged ill-treatment
15.  On 22 January 2003 the applicant complained to the Yevpatoriya Town Prosecutor’s Office (“the Yevpatoriya Prosecutor”) that on 26 March 2002 he had been beaten up by police officer R., as a result of which he had several rib fractures. He explained the delay in bringing that complaint by the alleged agreement with R. (see paragraph 9 above), which he considered to have been breached.
16.  On 29 January 2003 the hospital where the applicant had been treated submitted all the related medical documentation (namely the X-ray films, the medical history sheet and other medical records) to the Yevpatoriya Deputy Prosecutor at the latter’s request. As it would be later admitted in the course of the investigation, the content of those documents was never reflected in the investigation paperwork.
17.  Overall, in the period from January 2003 to December 2007 the Yevpatoriya Prosecutor refused thirteen times to open a criminal case against R. on the basis of the applicant’s complaints. All those refusals were subsequently quashed by the Crimea Prosecutor or by the Prosecutor General as unlawful, premature or groundless.
18.  The major investigative steps taken and the omissions indicated by the higher-level prosecution authorities were as follows.
19.  In January 2003 the Yevpatoriya Prosecutor questioned police officer R. and the investigator dealing with the applicant’s own criminal case, who denied the alleged ill-treatment.
20.  In October 2003 the ambulance doctors who had provided the applicant with medical aid on account of the cut to his throat on 26 March 2002 were questioned and noted that he had not raised any ill‑treatment allegations, whereas the cut itself had been an insignificant injury. The therapist who had hospitalised the applicant in April 2002 was also questioned, but could not remember any details.
21.  At about the same time it was found out that the medical documentation seized earlier from the hospital was missing.
22.  In February 2004 the Crimea Prosecutor criticised his lower-level colleague for not having questioned the applicant and his family members. Among the other omissions he pointed out the failure to conduct a medical forensic examination of the applicant with a view to establishing the nature, date and gravity of the injuries complained of.
23.  That criticism was repeated in June, August and November 2004.
24.  On 25 November 2004 a forensic medical examination was conducted to clarify which of the applicant’s versions concerning the date and origin of his injuries – from the alleged beatings on 26 March 2002 or from the accidental fall on 13 April 2002 – was more plausible. The examination was limited to an analysis of the few medical documents which were available and concluded that both dates were possible for the applicant’s injuries at issue, whereas their nature and origin could not be established in the absence of the X-ray films of the material time, as well as the other essential medical documentation (see paragraphs 16 and 21 above).
25.  In December 2004 the attested witnesses present at the applicant’s arrest on 26 March 2002 stated that they had not witnessed any ill‑treatment.
26.  The applicant’s mother, who was questioned in January 2005, stated that after his release on 29 March 2002 the applicant had complained that he had been beaten by the police and of pain in the chest.
27.  On 4 January 2005 the Crimea Prosecutor instructed the investigator, inter alia, to find the applicant’s medical documentation and to question the inmates with whom he had been sharing a cell in March 2002.
28.  In February and April 2005 efforts were taken to find the applicant’s cellmates. The whereabouts only of four of them were established. Three inmates did not remember the applicant complaining of ill-treatment or being in need of medical aid, whereas the fourth one mentioned that the applicant had complained to him that he had been beaten by the police without giving any further details.
29.  On 21 April 2006 the Crimea Prosecutor criticised the investigator for not having undertaken an inquiry in respect of the loss of the applicant’s medical documents. In June 2006 such an inquiry was held, but to no avail. The Yevpatoriya Deputy Prosecutor stated that he had handed the documents to his superior, who had retired in October 2003 and whose current place of residence was unknown.
30.  On 22 June 2006 another forensic medical examination was held. It confirmed the conclusions of the earlier one, also referring to the absence of the X-ray films as an impediment to more specific conclusions.
31.  In January 2007 the applicant was questioned for the first time in the framework of the investigation of his allegation of ill-treatment. The administration of the prison where he was serving his sentence at the time questioned him at the investigator’s request. According to the investigation documents, he stated that he had earlier explained his injuries by an accidental fall because he did not want to bring the police officer to criminal liability, without giving any further details.
32.  On 9 January 2007 the applicant was X-rayed, as a result of which a consolidated fracture of one rib was confirmed. The film was lost in the course of 2007.
33.  On 4 December 2007 the Crimea Prosecutor noted that the investigation had fallen short of meeting any of its or the Prosecutor General’s earlier instructions, given on eleven occasions.
34.  On 30 January 2008 the third forensic medical examination was held. This time it was based on a visual examination of the applicant and took place in the prison where he was serving his sentence. As the X-ray films both of April 2002 and of January 2007 remained missing and the X‑ray machine in the prison was not operational, the expert made a general conclusion that the applicant might have had his rib broken in April 2002. In any event, it appeared impossible to clearly establish the date, nature and origin of his injuries given the considerable lapse of time. The report contained a general observation that, as a rule, establishing the precise time of a fracture was possible only within a year after it had taken place, as later consolidated fractures appear the same.
35.  On 31 January 2008 the Yevpatoriya Prosecutor issued the fourteenth and last decision on the refusal to open criminal proceedings against police officer R. on the basis of the applicant’s complaints. It noted that all possible investigative measures had been taken, but had failed to yield any substantiation of the applicant’s allegations.
36.  On 19 May, 18 November 2008 and 3 June 2009 respectively the Yevpatoriya Town Court (“the Yevpatoriya Court”), the Crimea Court of Appeal (“the Court of Appeal”) and the Supreme Court upheld the above ruling. The reasoning of the three courts was confined to a finding that the requirements of Article 99 of the Code of Criminal Procedure had been fulfilled, with no facts established in proof of the applicant’s allegation.
C.  Criminal proceedings against the applicant
1.  The first set
37.  On 24 July 2002 and 18 March and 23 September 2003 respectively, the Yevpatoriya Court, the Court of Appeal and the Supreme Court found the applicant guilty of possession of illegal drugs and theft and sentenced him to three years and six months’ imprisonment.
38.  On 25 November 2002 the applicant was arrested (with the reasons for the delay before his arrest being unclear).
2.  The second set
39.  On 20 May 2003 the Yevpatoriya Court found the applicant guilty of some fifteen counts of theft committed during October and November 2002 and sentenced him to four years’ imprisonment. The final sentence under both verdicts – of 24 July 2002 and of 20 May 2003 – was set at six years.
40.  The applicant appealed against the charge of the drug offence.
41.  On 2 September 2003 the Court of Appeal rejected the appeal as related to another verdict (of 24 July 2002).
42.  On 12 May 2005 the Yevpatoriya Court rejected the applicant’s request that his mother be allowed to represent him, referring to the fact that both verdicts against him had entered into force.
3.  Other events
43.  On 22 November 2008 the applicant was released from prison, having served his sentence in full.
44.  In December 2008 he was provided with an opportunity to copy the entire case file.
45.  On 4 August 2009 he underwent computer tomography, which revealed old fractures of the breastbone and three ribs.
II.  RELEVANT DOMESTIC LAW
46.  Pursuant to Article 99 of the Code of Criminal Procedure, a prosecutor, an investigator, an enquiry body or a court shall refuse to open a criminal case if there are no grounds for deciding otherwise.
47.  Other relevant legal provisions can be found in the Spinov v. Ukraine , no. 34331/03, §§ 32-33, 27 November 2008.
THE LAW
I.  ALLEGED VIOLATIONS OF ARTICLE 3 OF THE CONVENTION
48.  The applicant complained that he had been ill-treated by the police on 26 March 2002 and that there had been no effective investigation into the matter. Although he relied on Articles 3 and 13 of the Convention, the Court considers that these complaints fall to be examined solely under Article 3, which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
A.  Admissibility
49.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It is not inadmissible on any other grounds and must therefore be declared admissible.
B.  Merits
1.  The parties’ submissions
50.  The Government denied the applicant’s allegation of ill-treatment as not corroborated by any conclusive evidence. They noted that he had sought medical assistance on that account neither during his detention between 26 and 29 March 2002 nor until more than two weeks after his release. He could have sustained the injuries complained of while at liberty, as he had himself stated when consulting a doctor in April 2002. The Government also found the applicant’s explanations as regards his ten-month delay in raising this complaint unconvincing, which, according to them, had rendered futile all the subsequent investigation despite its thoroughness. They considered that the authorities had verified his allegation to the best of their efforts and had no choice but to dismiss it as unsubstantiated.
51.  The applicant maintained his allegation, asserting that none of the medical examinations had in fact contradicted it. As regards the investigation, he submitted that it had been lengthy and inefficient. The applicant pointed out, in particular, some deficiencies which had, in his opinion, seriously undermined it, such as the loss of the essential medical documents and the delays in conducting the forensic medical examinations.
2.  The Court’s assessment
(a)  As regards the alleged ill-treatment
52.  The Court notes at the outset that the injuries complained of, namely multiple rib fractures, are sufficiently serious to amount to ill-treatment falling within the scope of Article 3 of the Convention (see, for example, Gladyshev v. Russia, no. 2807/04, §§ 54-58, 30 July 2009). The question arises whether the State authorities should be held responsible for them.
53.  The Court reiterates that allegations of ill-treatment must be supported by appropriate evidence. In assessing evidence, the Court has generally applied the standard of proof “beyond reasonable doubt”. However, such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Ireland v. the United Kingdom, 18 January 1978, § 161, Series A no. 25).
54.  In the present case the only common ground between the parties is the fact that the applicant had sustained some rib fractures, whereas they disagreed on the time and the origin of those injuries and disputed whether they had resulted from the use of force by the police (see and compare with Stoica v. Romania, no. 42722/02, §§ 48 and 66, 4 March 2008). The medical evidence, which consists of three forensic reports (see paragraphs 24, 30 and 34 above), not elucidate the matters disputed. The Court further notes that the applicant failed to produce any other strong evidence corroborating his allegations, such as eyewitness statements (as, for example, in Muradova v. Azerbaijan, no. 22684/05, §§ 51-52 and 108, 2 April 2009) or documents showing that he had entered the police premises in good health but left it having sustained injuries (see Selmouni v. France [GC], no. 25803/94, § 87, ECHR 1999‑V, with further references).
55.  That being so, the Court finds it impossible to establish “beyond reasonable doubt” whether or not the applicant’s injuries were caused by the police as he alleged and concludes that there has been no violation of Article 3 of the Convention under its substantive limb.
(b)  As regards the adequacy of the investigation
56.  The Court that where an individual raises an arguable claim that he has been seriously ill-treated by the police or other such agents of the State unlawfully and in breach of Article 3, that provision requires by implication that there should be an effective official investigation capable of leading to the identification and punishment of those responsible. If this were not the case, the general legal prohibition of torture and inhuman and degrading treatment and punishment would 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 v. Bulgaria, 28 October 1998, § 102, Reports of Judgments and Decisions1998‑VIII).
57.  Although in the present case the Court has not found it proved, on account of lack of evidence, that the applicant was ill-treated in the hands of the police, nonetheless, as it has held in previous cases, that does not in principle preclude the complaint in relation to Article 3 from being “arguable” for the purposes of the positive obligation to investigate (see Böke and Kandemir v. Turkey, nos. 71912/01, 26968/02 and 36397/03, § 54, 10 March 2009). The Court notes that the applicant alleged before the domestic authorities that he had been seriously ill-treated by the police. The credibility of that allegation could have been verified on the basis of the applicant’s medical documentation of April 2002. However, even though the prosecutor seized the relevant documents shortly after the applicant had lodged his complaint, those documents not only remained without any evaluation, but went missing altogether while in the authorities’ possession. This omission makes it more difficult for the Court to determine whether there was a reasonable suspicion underlying the applicant’s allegation which would engage the authorities’ obligation effectively to investigate it. At the same time, the Court is mindful of the fact that the responsibility for the aforementioned difficulty – the missing documents - lies with the State authorities rather than with the applicant. Furthermore, the Court does not lose sight of the findings of subsequent medical forensic reports, none of which contradicted the applicant’s allegations. In sum, there is nothing in the case-file materials to convince the Court that the applicant’s complaint of ill-treatment before the domestic authorities so devoid of any reasonable suspicion that it merited no investigation. It therefore finds that the State was bound in the present case by the positive obligation to investigate the allegation in an efficient and expedient manner.
58.  The Court reiterates that aobligation to investigate “is not an obligation of result, but of means”: not every investigation should necessarily be successful or come to a conclusion which coincides with the claimant’s account of events; however, it should in principle be capable of leading to the establishment of the facts of the case and, if the allegations prove to be true, to the identification and punishment of those responsible (see Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 71, ECHR 2002‑II, with further references). 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 for their decisions (see Assenov and Others, cited above, §§ 103 et seq.).
59.  The Court notes that in the present case the applicant indeed did not hurry to bring his allegation of ill-treatment to the authorities’ attention, whatever his thinking might be, having raised it for the first time ten months after the complained-of event (see paragraph 15 above). The Court does not rule out that such a delay could in principle have a negative impact on the efficiency of the investigation. In the present case, however, there are no reasons to regard it as a prima facie impediment for establishment of the truth, for the investigation could have relied on the applicant’s medical documentation of April 2002, or alternatively it could have arranged for new X-rays, for which it was still not too late (see paragraph 34 above). None of these measures was undertaken. As noted above, the medical documentation of April 2002 disappeared from the investigation paperwork without trace, whereas the applicant’s new X-ray, taken only in January 2007, was not capable of establishing the exact date of his injuries and, in any event, it too was lost, in unclear circumstances. It is also noteworthy that, firstly, the applicant did not fail to comply with any time-limits in raising his complaint, and, secondly, the investigation authorities themselves never invoked his delay as an obstacle to the investigation.
60.  The Court finds it remarkable that the investigation did not question the applicant himself until four years after his alleged ill-treatment had taken place, despite the repeated instructions of the higher-level prosecution authorities in that regard (see paragraphs 22, 23 and 31 above).
61.  The Court further observes that the investigation lasted overall for about five years, having been discontinued and subsequently resumed thirteen times. In the Court’s opinion, repeated remittals of a case for further investigation may disclose a serious deficiency in the domestic prosecution system (see, in the context of Article 6 of the Convention, Wierciszewska v. Poland, no. 41431/98, § 46, 25 November 2003, applied in the context of   in Kozinets v. Ukraine, no. 75520/01, § 61, 6 December 2007). Having regard to the reasons for the multiple remittals in the present case, which were unambiguously indicated by the Crimea Prosecutor or the Prosecutor General as largely based on the unlawfulness, prematurity and groundlessness of the investigation findings (see paragraph 17 above), the Court considers that such remittals indeed disclose serious deficiencies in the investigation. Its effectiveness is further undermined by the investigator’s disregard for the instructions of the higher-level prosecutors, which seemed to be a regular practice (see paragraphs 23 and 33 above).
62.  Having regard to the above-mentioned deficiencies, the Court concludes that the State authorities failed to conduct a proper investigation into the applicant’s allegations of ill-treatment.
63.  There has accordingly been a violation of Article 3 of the Convention under its procedural head.
II.  ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION
64.  The applicant complained under Article 6 of the Convention that he had not had sufficient time and facilities to prepare his appeal in the first set of proceedings against him, whereas the second set of proceedings had been unfair for various reasons.
65.  The Court notes that these complaints should be rejected as being outside the six-month time-limit and for non-exhaustion of domestic remedies respectively, pursuant to Article 35 §§ 1 and 4 of the Convention.
III.  ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION
66.  The applicant also alleged, relying on Article 34 of the Convention, that he had encountered difficulties in collecting copies of documents in support of his application.
67.  The Court notes that the applicant received all the documents which he had intended to send to the Court in support of his application having been able to copy the entire case file (see paragraph 44 above), and there is nothing to suggest any explicit or implicit obstruction by the authorities in that respect. Accordingly, it considers that the State cannot be considered to have failed to comply with its obligations under Article 34 of the Convention in the present case.
IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
68.  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
69.  The applicant claimed 15,000 euros (EUR) in respect of non‑pecuniary damage.
70.  The Government contested that claim.
71.  The Court considers that the applicant suffered non-pecuniary damage which cannot be compensated by the mere finding of a violation of his Convention rights. Having regard to the circumstances of the case and ruling on an equitable basis, as required by Article 41, it awards him EUR 6,000 in respect of non-pecuniary damage plus any tax that may be chargeable.
B.  Costs and expenses
72.  The applicant also claimed EUR 7 for postal expenses incurred in the proceedings before the Court.
73.  The Government left the matter to the Court’s discretion.
74.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs anexpenseonly 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 information in its possession and the above criteria, the Court considers it reasonable to award the claimed sum of EUR 7 in respect of costs anexpenses.
C.  Default interest
75.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1.  Declares the complaints under Article 3 of the Convention admissible and the remainder of the application inadmissible;

2.  that there has been no violation of Article 3 of the Convention under its substantive limb

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

4.  Holds that Ukraine has not failed to comply with its obligations under Article 34 of the Convention;

5.  Holds
(a)  that the respondent State is to pay the applicant, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 6,000 (six thousand euros) in respect of non-pecuniary damage and EUR 7 (seven euros) in respect of costs and expenses, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable;
(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;

6.  Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 15 July 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Claudia Westerdiek	Peer Lorenzen
	Registrar	President