BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FIFTH
SECTION
CASE OF BOCHAROV v. UKRAINE
(Application
no. 21037/05)
JUDGMENT
STRASBOURG
17 March
2011
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 Bocharov v.
Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Dean Spielmann,
President,
Elisabet Fura,
Karel
Jungwiert,
Boštjan M. Zupančič,
Mark
Villiger,
Ganna Yudkivska,
Angelika Nußberger,
judges,
and Stephen Phillips,
Deputy Section
Registrar,
Having
deliberated in private on 22 February 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 21037/05) 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 Yevgeniy Yuryevich
Bocharov (“the applicant”), on 18 April 2005.
- The
applicant, who had been granted legal aid, was represented by Mr A.P.
Bushchenko, a lawyer practising in Kharkiv. The Ukrainian Government
(“the Government”) were represented by their Agent,
Mr Y. Zaytsev, from the Ministry of Justice.
- On
14 December 2009 the President of the Fifth Section decided to give
notice of the application to the Government. It was also decided to
rule on the admissibility and merits of the application at the same
time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1970 and lives in Kharkiv.
A. The applicant’s version of the events of 11
and 12 April 2002
- On
11 April 2002 soon after 8 a.m. the applicant was arrested at his
home by officers from the Kharkiv Regional Police Department. He was
then taken to the forest, where the police officers beat him
severely, forcing him to confess that he was storing weapons and
ammunition. Later the police took him to the Kharkiv Regional Police
Station, where they beat him again and put a gas mask on him to
induce suffocation. The applicant then confessed to storing and
trading weapons.
- The
applicant was taken home after 2 p.m. and the police conducted a
search and seizure of weapons and ammunition at his house and in his
garage.
- The
same day he was taken to the Moskovskiy District Police Station,
where he was asked to sign several documents including a paper that
said he had no complaints about the police officers.
- On
12 April 2002 the applicant was released around 6 p.m.
B. The Government’s version of the events of 11
and 12 April 2002
- On
11 April 2002, officers of the Criminal Investigation Unit of the
Kharkiv Regional Police Department summoned the applicant for
questioning. The applicant arrived at the Kharkiv Regional Police
Station and was questioned. On the same date, the police officers
carried out a seizure of ammunition at the applicant’s place of
residence and in his garage. After the seizure, the police officers
took the applicant to the Kharkiv Moskovskiy District Police Station.
On the same date, the applicant was released. In the evening of the
same day, the applicant was arrested on suspicion of storing drugs
and taken to the district police station. A report of an
administrative offence was drafted in respect of the applicant.
- On
12 April 2002, the officers of the Moskovskiy District Police
Department took the applicant outside the city and, there, the
applicant indicated the place where the rest of the ammunition had
been stored. On the same date, the applicant was released at 5 p.m.
Criminal proceedings against the applicant were instituted on charges
of ammunition storage.
C. Further events
- Following
his release, the applicant went home and felt unwell. An ambulance
brought him to hospital the same day at about 8 p.m. The applicant
told the doctors that he had been ill-treated by the police. The
diagnosis on admission contained the following: closed head trauma,
chest injuries, rib fractures, bruises on the back of the head,
concussion, kidney trauma and post-traumatic pneumonia. According to
the applicant, the doctors did not report all of his injuries, but
only the most serious ones.
- On
18 April 2002 the applicant lodged a formal complaint about his
ill-treatment by three officers of the Kharkiv Regional Police
Department – Messrs O.V.S., D.M.S. and D.N.S. – with the
Kharkiv Regional Prosecutor’s Office (“the KRPO”).
- On
23 April 2002 the applicant’s complaint was readdressed to the
Moskovskiy District Prosecutor’s Office (“the MDPO”).
- On
4 May 2002 the applicant was discharged from the hospital.
Afterwards, he requested an examination by a forensic expert and
received a letter of referral from the prosecutor handling the
matter.
- On
7 May 2002, following a query by the applicant, the MDPO informed him
that they had been reviewing the lawfulness of his detention at the
Moskovskiy District Police Station and that they were sending his
complaint to the KRPO to investigate the actions of the Kharkiv
Regional Police Department.
- On
17 June 2002 the KRPO refused to institute criminal proceedings
against the police officers of the Kharkiv Regional Police
Department, basing such refusal on the lack of proof that a crime had
been committed.
- On
15 August 2002, the forensic expert gave his opinion that the
applicant had sustained light and medium bodily injuries, including
concussion and injuries to the chest and kidneys.
- On
20 August 2002 the KRPO instituted a criminal investigation into the
infliction of medium bodily harm on the applicant. The KRPO noted
that despite the refusal to institute criminal proceedings against
the police officers of the Kharkiv Regional Police Department, the
findings of the forensic examination called for an investigation into
the infliction of bodily injuries to the applicant.
- In
October 2002 two police officers of the Moskovskiy District Police
Department and two attesting witnesses who had been present during
the ammunition seizure on 11 April 2002 were questioned. They all
denied seeing any violence towards the applicant or that he had
suffered any injuries.
- On
2 December 2002 the KRPO quashed the decision of 17 June 2002 and
ordered a further investigation into the applicant’s
complaints. The KRPO noted that the applicant had always indicated
that the injuries were inflicted on him by officers O.V.S., D.M.S.
and D.N.S. from the Kharkiv Regional Police Department and not by the
officers of the Moskovskiy District Police Department. It was also
noted that information on the possible involvement of the Kharkiv
Regional Police Department in the crime had been obtained and that
not all of the necessary investigative actions had been carried out
in the case.
- Following
the applicant’s complaint, the Kharkiv Regional Police
Department also conducted an internal inquiry and the applicant was
informed in January 2003 that two police officers had been dismissed
and one officer subjected to disciplinary sanctions. The dismissed
police officers were later reinstated in their positions under a
court decision.
- On
4 and 10 January 2003, the investigator questioned two of the
officers of the Kharkiv Regional Police Department – O.V.S. and
D.M.S., who denied the applicant’s allegations of
ill-treatment.
- On
27 January 2003, upon the applicant’s request, the investigator
ordered a forensic medical examination, which was conducted on 4
March 2003. According to its conclusion, the previous diagnosis had
been made on the basis of the applicant’s complaints and had
not been supported by any evidence. Therefore, the only injury that
was not questioned was a bruise on the applicant’s chest which
could be classified as a light bodily injury.
- On
7, 16 and 28 May 2003 officers O.V.S., D.M.S. and D.N.S. from the
Kharkiv Regional Police Department were questioned and on 21 and
28 May 2003 a confrontation was conducted between them and the
applicant. They denied any ill-treatment of the applicant.
- On
23, 26 and 27 May 2003 three more people present during the seizure
of ammunition from the applicant on 11 April 2002 were questioned.
They testified that they had seen no injuries being inflicted on the
applicant and that they had heard no complaint from him.
- On
2 June 2003, the investigator terminated the criminal proceedings for
want of proof of a crime. On 25 June 2003 this decision was quashed
by the KRPO.
- On
4 September 2003, the investigator questioned Ms Ch., the applicant’s
neighbour, who had seen him together with the police officers near
the entrance to his house on 11 April 2002. She had not seen evidence
of any injuries to the applicant.
- On
26 September 2003, the investigator ordered an additional forensic
medical examination, which was carried out between 9 October 2003 and
20 February 2004 by a group of specialists from the Central Forensic
Medical Examination Office. The experts concluded that the medical
diagnoses had been based on the applicant’s complaints and not
supported by other medical indications and were to be excluded as
unreliable. Furthermore, the symptoms taken as a manifestation of
concussion might have had a different explanation. They concluded
that the applicant had not sustained medium bodily harm as indicated
in the first report, but rather a light bodily injury which had been
a bruise on his chest.
- On
11 May 2004, the investigator issued an order terminating the
criminal proceedings for want of proof of crime and for lack of
corpus delicti. The decision took into account both the
testimonies of witnesses who had seen the applicant on 11 April 2002
and who had not noticed any injuries to the applicant, and the
results of the forensic medical examinations of 4 March 2003 and 20
February 2004 which overruled the previous medical findings as to the
existence of injuries to the applicant after the events of 11 April
2002.
- On
14 July 2004 the applicant challenged the decision of 11 May 2004
before the Moskovskiy District Court of Kharkiv.
- According
to the applicant, the court received the case file from the MDPO only
in February 2005. This was the first time that he had had the
opportunity to study it, as all his previous requests to this end had
been refused.
- On
8 April 2005, the Moskovskiy District Court quashed the decision of
11 May 2004 and ordered the prosecutor’s office to conduct a
further investigation. The court found, amongst other things, that
the applicant’s version of events had not been examined and
that the chronology of the events of 11 April 2002 had not been
established, despite the discrepancies between the testimonies of the
applicant and the police officers.
- On
13 September 2007, the prosecutor’s office decided to forward
the case for further investigation to the police authorities,
considering that infliction of bodily harm fell within their
jurisdiction.
- On
30 November 2007, the investigator of the Moskovskiy District Police
Department took the decision to terminate the criminal proceedings
for lack of corpus delicti. He noted that none of the
witnesses had confirmed the existence of injuries to the applicant on
11 and 12 April 2002 and that the forensic medical examination of 20
February 2004 had not confirmed the earlier findings as to the
applicant’s injuries, save for a bruise on his chest which
could only qualify as a light bodily injury.
- According
to the Government, the decision of 30 November 2007 was sent to
the applicant on the same day and the applicant did not appeal
against it. The applicant denied that he had received a copy of the
aforementioned decision.
II. RELEVANT DOMESTIC LAW
- Relevant
domestic law is summarised in the judgment of Oleksiy Mykhaylovych
Zakharkin v. Ukraine (no. 1727/04, §§ 38-41 and 45-46,
24 June 2010).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained that he had been ill-treated by the police and
that such ill-treatment had not been investigated properly. He
referred to Articles 3 and 13 of the Convention. The Court, which is
master of the characterisation to be given in law to the facts of the
case, decided to examine these complaints under Article 3 of the
Convention, which is the relevant provision and which provides as
follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Admissibility
- The
Government submitted that the applicant had failed to exhaust
domestic remedies. They contended that the applicant could have
challenged the decision of the Police Department of 30 November 2007
under Article 236 (5) of the Code of Criminal Procedure but had
failed to do so.
- The
applicant maintained that he had not been informed about the decision
of 30 November 2007 and therefore had not been able to challenge it.
- The
Court notes that the Government’s objection is closely linked
to the merits of the applicant’s complaint under Article 3 of
the Convention. Therefore, it joins it to the merits.
- The
Court notes that the application is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. Alleged ill-treatment by the police
- The
applicant maintained that after being under the control of the
police, he had been hospitalised with bodily injuries that were
serious enough to necessitate his in-patient treatment for a
significant period of time. He further maintained that his allegation
of ill-treatment was corroborated by other evidence, in particular:
(i) the unexplainable interval of six hours between his having been
taken into custody by the police and the search of his property; and
(ii) his suspicious administrative arrest on the same day for
possession of illegal drugs.
- The
Government noted that there was no evidence that the applicant had
been ill-treated at all, let alone in the hands of the police. They
noted that the forensic medical examinations ordered by the
investigation had not confirmed the initial findings as to the
gravity and extent of the applicant’s injuries. Moreover, the
private individuals who had either participated in the investigative
actions or had witnessed them had not confirmed that the applicant
had suffered any injuries on 11 and 12 April 2002.
- 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).
- 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).
- Turning
to the circumstances of the present case, the Court notes that the
applicant was hospitalised within hours after his release from the
police station and underwent in-patient treatment for more than
twenty days. The degree of bodily harm established by the medical
examination carried out on the applicant shortly after his release
(see paragraph 11 above) indicates that the applicant’s
injuries were sufficiently serious to amount to inhuman and degrading
treatment within the scope of Article 3.
- As
to the Government’s argument that none of the witnesses
confirmed the injuries to the applicant, the Court does not see the
reason for attaching so much weight to this evidence, given that it
would be difficult for non-specialists, being there for a different
purpose, to see injuries whose nature and location made them either
not visible externally or covered by the clothes of a person dressed
for the weather in mid-April. As to the additional forensic
examinations that questioned most of the findings of the initial
medical examinations (see paragraph 23 and 28 above), it should be
noted that some injuries remained unchallenged. Furthermore, the
additional examination was conducted much later and did not overturn
the previous findings but rather questioned their reliability given
the possible alternative explanations to be given for the applicant’s
health complaints made immediately after his release. Nonetheless,
the initial findings apart from being based on direct examination of
the applicant, as opposed to later examination based on documents,
were collaborated by the applicant’s consistent allegations of
ill-treatment and suspicious circumstances of his apprehension and
detention by police on 11 and 12 April 2002. Furthermore, it does not
appear from the parties’ submissions and the documents provided
that any of the medical staff who examined the applicant on 12 April
2002 were ever questioned by the investigator.
- The
Court reiterates that a State is responsible for the welfare of
people in detention and that the authorities have a duty to protect
such people. Bearing in mind the authorities’ obligation to
account for injuries caused to people under their control, the Court
considers that failure to find and prosecute individuals guilty of a
crime of violence against a detainee, as in the instant case, cannot
absolve the State of its responsibility under the Convention (see,
mutatis mutandis, Esen v. Turkey, no. 29484/95, §
28, 22 July 2003; Yaz v. Turkey, no. 29485/95, § 30,
22 July 2003; and Ayşe Tepe v. Turkey, no. 29422/95,
22 July 2003).
- In
the light of the above, it must be considered that the applicant
sustained the injuries as a result of inhuman and degrading treatment
for which the Government must bear Convention responsibility.
- The
Court concludes that there has been a breach of Article 3 of the
Convention in this regard.
2. Alleged failure to carry out an effective
investigation
- The
applicant maintained that the investigation was not independent. He
further complained that no immediate actions had been taken to
investigate his allegations, although he had informed the medical
staff about the origins of his injuries immediately upon his
admission to the hospital on 12 April 2002 and though he had lodged a
formal complaint with the Kharkiv Regional Prosecutor’s Office
about ill-treatment by the police on 18 April 2002. However, no
meaningful investigative measures had been taken until at least 10
May 2002, when he had been questioned by the investigator for the
first time. Most importantly, the investigator had not taken the
initiative by failing to conduct a forensic examination of the
applicant. The authorities had limited themselves to providing him
with a letter of referral for a forensic medical examination and the
applicant, being hospitalised, had not been able to undergo such an
examination prior to 14 May 2002 when he left the hospital.
- The
applicant also noted that until 2 December 2002, the investigator had
examined his possible ill-treatment by officers of the Moskovskiy
District Police Department, although in his complaint of 12 April
2002 he had clearly indicated that he had been ill-treated by
officers of the Kharkiv Regional Police Department. Only on 2
December, more than seven months later, had the investigator accepted
that the involvement of the officers of the Regional Police
Department must be investigated.
- He
further noted that he had not been duly informed about the course of
the investigation and that its shortcomings had been acknowledged at
the domestic level, given that further investigation had been ordered
on several occasions.
- The
Government maintained that it had not been established that the
applicant had sustained the injuries he claimed and that his
allegations of ill treatment had been duly investigated by the
relevant domestic authorities.
- 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).
- 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 v. Bulgaria,
judgment 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.
- In
the circumstances of the present case, the Court notes that the
delays in securing medical evidence and furthering the course of the
investigation, as indicated by the applicant, affected the
effectiveness of the investigation. In particular, despite the
applicant’s clear complaints, the investigation was directed
against the wrong police department, the officers indicated by the
applicant as the perpetrators had been questioned almost nine months
after the alleged beatings and the confrontation between them and the
applicant had been conducted more than a year after the alleged
beatings took place. The Court further notes that despite the
accuracy of the applicant’s diagnosis, which ought to have
played a key role in the investigative process, it does not appear
from the case file that any of the medical staff who examined the
applicant shortly after his release were ever questioned. Moreover,
some of the shortcomings in the investigation were acknowledged by
the domestic authorities, who remitted the case for further
investigation (see paragraph 20 and 32 above).
- The
Court also notes that the criminal case was ultimately transferred
for further investigation to the District Police Department, which in
the Court’s opinion could not have conducted an independent
investigation into the actions of their direct superiors from the
Regional Police Department.
- As
to the Government’s objection, the Court considers that it
should be rejected because the applicant took sufficient steps at the
domestic level to bring his complaints to the attention of the
national authorities.
- In
the light of the serious deficiencies referred to above, the Court
considers that the domestic authorities did not fulfil their
obligation to investigate the applicant’s complaints of
ill-treatment. Accordingly, there has also been a violation of
Article 3 of the Convention under this head.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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
- The
applicant claimed 30,000 euros (EUR) in respect of non pecuniary
damage.
- The
Government considered the claimed amount to be unsubstantiated and
excessive.
- The
Court, ruling on an equitable basis as required by
Article 41, awards the applicant EUR 10,000 in respect of
non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed EUR 7,952 for costs and expenses incurred
before the domestic courts and before the Court.
- The
Government observed that the applicant had received legal aid from
the Court and submitted that the request for costs and expenses must
therefore be rejected.
- 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 to the above criteria, the Court
considers it reasonable to award the sum of EUR 5,000 covering costs
under all heads.
C. Default interest
- The
Court considers it appropriate that 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
- Joins to the merits the
Government’s preliminary objection, and rejects it after an
examination on the merits;
- Declares the application admissible;
- Holds that there has been a violation of Article
3 of the Convention as regards the applicant’s ill-treatment;
- Holds that there has been a violation of Article
3 of the Convention as regards the absence of an effective
investigation into the applicant’s allegations of
ill-treatment;
- 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 to the applicant, in
respect of non-pecuniary damage and EUR 5,000 (five thousand euros)
in respect of costs and expenses, to be converted into Ukrainian
hryvnias 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 amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 17 March 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Dean Spielmann Deputy Registrar President
