FIFTH SECTION
CASE OF
ALEKSAKHIN v. UKRAINE
(Application no.
31939/06)
JUDGMENT
STRASBOURG
19 July 2012
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 Aleksakhin v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as
a Chamber composed of:
DeanSpielmann, President,
MarkVilliger,
KarelJungwiert,
AnnPower-Forde,
GannaYudkivska,
AngelikaNußberger,
AndréPotocki, judges,
andClaudia Westerdiek, Section Registrar,
Having deliberated in private on 19 June 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
31939/06) 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 Sergey Viktorovich Aleksakhin (“the
applicant”), on 11 July 2006.
The applicant was represented by Ms Irina Blagaya
and Mr Gennadiy Tokarev, lawyers practising in Kharkiv, Ukraine. The Ukrainian Government (“the Government”) were represented by their Agent, Mr N. Kulchytskyy,
of the Ministry of Justice of Ukraine.
The applicant allegedthat he had been ill-treated
by the police and that there existed no effective remedy in respect of that
ill-treatment. He also alleged that the proceedings in his case, mainly those
against the police officer, had been too lengthy.
On 3 January 2011the application was communicated
to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1970 and lives in Kharkiv, Ukraine.
A. Events of 14 April 1998
At 6 p.m. on 14 April 1998 the applicant and K.
were apprehended by police officers Kh., Ko. and L.at a trolleybus stop and
taken to the police station. Kh. later testified that the applicant and K. had
been apprehended because they had been fighting with other young men, who had
run off.
In the police station Kh. told the applicant to
sit down. He thenattached the applicant by handcuffs to a metal ring in the
wall and sprayed him in the facewith tear gas. Kh. then kicked the applicant in
the chest and hit him several times on the head, neck and back. Kh. later
produced written accounts, allegedly given by private individuals B. and Kl.,
stating that the applicant had behaved violently and that that was the reason
for his apprehension.On the following morning the applicant was released.
The applicant was in hospital between 16 April
and 19 May 1998. He was diagnosed with concussion, body and chest injuries and
a fracturedbone in his neck.
On 9 January 2002 the applicant was recordedas
falling into the third category of disability (the mildest) on account of the injurieshe
had received.
B. Criminal proceedings against the police officer
In April 1998 the applicant requested the
institution of criminal proceedings against Kh.
Between April and December 1998 various persons
were questioned by the prosecutor’s office. In the meantime, on 5 June 1998 the
police officially informed the applicant that he had been arrested for being
drunk and molesting passers-by. On an unidentified date he was also informed
that the police officers’ actions had been lawful. In August 1998 the police
issued a certificate stating that no force had been used on the applicant («мерыфизическоговоздействиянеприменялись»).
On 29 October 1998 a forensic medical
examination concluded that the applicant had sustained traumatic oedema on his
neck, chest and hands, bruises on one hand and his chest, a closed
craniocerebral injury, concussion and some broken bones in the neck.The
injuries were classified as grievous bodily harm endangering life at the moment
of infliction. They could have been inflicted in the circumstances described by
the applicant.
On 8 December 1998 the Dzerzhynskyy District
Prosecutor’s Office instituted criminal proceedings in respect of the
infliction of grievous bodily harm on the applicant (по
факту
заподіяння
тяжких
тілесних
ушкоджень).
On 14 December 1998 the applicant was given the
status of victim.
A forensic medical examination carried out in
January 1999 reached similar conclusions to the one of 29 October 1998.
On 30 March 1999 criminal proceedings were
instituted against Kh. and joined to the criminal case instituted on 8 December
1998. Kh. was charged with infliction of grievous bodily harm, abuse of power
with grave consequences, and forgery. According to the Government, on the same
date the applicant lodged within criminal proceedings a civil claim against Kh.
On the same date it was decided not to institute
criminal proceedings against Ko. and L. It was also decided that there was no
evidence that the applicant and K. had resisted the policein any way.
In April 1999 the criminal case against Kh. was
transferred to the Dzerzhynskyy District Court of Kharkiv.
Between May 1999 and September 2000 seven court
hearings were scheduled but all of them were postponed for various reasons
(hearing scheduled on a public holiday, judge being busy on another case, “for
technical reasons”, Kh. failing to appear twice, victim and witnesses failing
to appear).
Between September 2000 and August 2001 eleven
court hearings took place and two were postponed because the judge was ill.
On 23 August 2001 the court sentenced Kh. to
five years’ conditional imprisonment, with three years’ probation, for
infliction of grievous bodily harm, abuse of power, and forgery. Kh. was also
prohibited from occupying “particular positions” in the police for five years
and had to pay a fine of 300 Ukrainian hryvnias (UAH). The applicant was
awarded UAH 12,261.43 (at the material time around 2,526 euros (EUR)) in
compensation for pecuniary and non-pecuniary damage.
On the same date the court adopted a separate
ruling by which it informed the Dzerzhynskyy District Prosecutor that the
Kharkiv Regional Department of the Ministry of the Interior had not properly
examined the applicant’s complaints and that witnesses Kho., Ko. and Ch. (police officers) had made false statements in court. In particular, these witnesses
had testified that the applicant had himself hit the wall with his head and
that the gas and handcuffs had been used in order to restrain him. The court
found these statements to be untrue as they contradicted other evidence in the
case.
On 3 December 2001 the Kharkiv Regional Court of
Appeal quashed the decision of 23 August 2001, finding that the sentence was
too lenient, and remitted the case for fresh consideration to the first-instance
court.
On 25 December 2001 the case was received by the
Dzerzhynskyy District Court and a court hearing was scheduled for 16 April
2002.
On 16 April 2002 the hearing did not take place since
“a lawyer had failed to appear”.
Between April 2002 and October 2003 six more
hearings were postponed, the judge being busy in another case, on vacation or
ill. On one occasion the hearing was postponed because Kh.’s lawyer had failed
to appear.
On 15 October 2003 the conclusion of the
previous forensic medical examination was confirmed.
Between October 2003 and May 2005 seven court
hearings took place, four hearings were postponed as witnesses had failed to
appear or the judge was ill or on vacation, and four hearings were postponed at
the applicant’s request or because of the applicant’s failure to appear.
On 10 May 2005 the Dzerzhynskiy District Court
found Kh. guilty of abuse of power and forgery, and sentenced him to three
years’ imprisonment, but dispensed him from serving the sentence.
On 18 October 2005 the Kharkiv Regional Court of
Appeal quashed that decision and remitted the case to the Kyivskiy District
Court of Kharkiv for fresh consideration. The court also adopted three separate
rulings. It informed the Kharkiv Regional Council of Judges that the judgesat
the Dzerzhynskiy District Court had delayed the consideration of the case and
failed to take into account that Kh. had also been accused of the infliction of
grievous bodily harm. In particular, the court stated that since 14 April 1999
six judges had been replaced and for a total of four years no action had been
taken in the case. The court also noted that the prosecutor had failed to
respond to the court’s separate ruling of 23 August 2001.
On 3 July 2006 the Kyivskyy District Court
sentenced Kh. to five years’ conditional imprisonment, with three years’
probation, for infliction of grievous bodily harm endangering life at the
moment of infliction,and abuse of power. Kh. was also prohibited for three
years from occupying positions which involvedexercising State power. The
charges concerning forgery were dismissed as time-barred. The court noted that
Kh. had partially compensated the damage inflicted by him and had committed no
further crimes. As additional mitigating circumstances, the court noted that
Kh.was a carer for his partner’s minor son andhad an aged mother. The
applicant’s claim for damages was left unexamined since “the applicant would
amend it”. The applicant did not appeal against the decision.
C. Civil proceedings
In March 2007 the applicant instituted civil
proceedings against the Kharkiv Main Regional Department of the Ministry of the
Interior and the State Treasury of Ukraine, claiming UAH 121,599 in respect of
non-pecuniary damage and UAH 1,052.87 in respect of pecuniary damage.
On 2 April 2008 the Kyivskyy District Court
found against the applicant.
On 24 June 2008 the Kharkiv Regional Court of
Appeal quashed that decision and remitted the case for fresh consideration.
On 25 March 2009 the Supreme Court of Ukraine
quashed the decision of 24 June 2008 and remitted the case for fresh consideration
to the Court of Appeal.
On 11 June 2009 the Kharkiv Regional Court of
Appeal quashed the decision of 2 April 2008 and awarded the applicant UAH
80,000 (at the material time approximately EUR 7,600) in respect of non-pecuniary
damage and UAH 1,052.87 in respect of pecuniary damage.
On 16 August 2010 the Supreme Court of Ukraine
rejected cassation appeals by the parties.
By 28 January 2011 the decision of 11 June 2009
was enforced in full.
II. RELEVANT DOMESTIC LAW
Article 101 of the Criminal Code of Ukraine, in
force at the material time provided as follows:
Article 101. Intentional grievous bodily injury
1. Intentional grievous bodily
injury, that is, willful bodily injury which endangers life at the time of
infliction, or results in theloss of any organ or its functions, or causes
mental illnessor any other health disorder togetherwith a persisting loss of
not less than one-third of working capability, or the interruption of a pregnancy,
or permanent facial disfigurement, shall be punishable by imprisonment for a
term of two to eight years.
2. Intentional grievous bodily
injury committed in a heinous manner(мучення
або
мордування)... shall be punishable by imprisonment for a
term of seven to ten years.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE
CONVENTION
The applicant complained that he had been
subjected to an unjustified use of force which amounted to torture, and had
been further subjected to degrading treatment contrary to Article 3 of the
Convention since the police officer had insulted him and demanded that he plead
guilty. He further invoked Article 13 of the Convention, stating that for
more than seven years the State authorities had failed to protect his rights.
The Court, which is master of the
characterisation to be given in law to the facts of the case, finds that the
above complaints fall to be examined solely under Article 3 of the Convention
under its substantive and procedural limbs (see, mutatis mutandis, Polonskiy
v. Russia, no. 30033/05, §§ 126-127, 19 March 2009, and contrastİlhan
v. Turkey [GC], no. 22277/93, §§ 89-93, ECHR 2000‑VII), which
reads as follows:
Article 3
“No one shall be subjected to
torture or to inhuman or degrading treatment or punishment.”
A. Admissibility
The Government stated that the applicant could
no longer claim to be the victim of a violation of Article 3 of the Convention
since the police officer who had ill-treated him had been punished and the
applicant had not appealed against the sentence of 3 July 2006. The applicant
had also received appropriate compensation.
The applicant contended that Kh.’s lenient
sentence and the low amount of compensation awarded had not been an adequate
response to the negative effects he had suffered as a result of sustained
ill-treatment.
The relevant principles concerning whether an
applicant can continue to claim to be the victim of an alleged violation of
Article 3 of the Convention are summarised in the judgment of Gäfgen v.
Germany [GC] (no. 22978/05, §§115-119, ECHR 2010).
The Court considers that the Government’s
objection is closely linked to the applicant’s complaint about the inadequacy
of the redress he received for a breach of his Convention rights. In these
circumstances, it joins the objection to the merits of the applicant’s
complaints (seeVladimir Romanov v. Russia, no. 41461/02, § 53, 24 July
2008).
The Court further notes that the complaints are
not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of
the Convention. It further notes that they are not inadmissible on any other
grounds. They must therefore be declared admissible.
B. Merits
1. The parties’ submissions
The applicant noted that the Government had
accepted the fact of his ill-treatment. He stated that he had not lost the
victim status and reiterated his submissions that there had been no effective
investigation into his complaints.
The Government stated that the fact of the
applicant’s beatings had been recognised on the national level and that the
applicant had received appropriate compensation.
2. Legal qualification of the treatment
As the Court has held on many occasions, Article
3 of the Convention enshrines one of the most fundamental values of a
democratic society. It prohibits in absolute terms torture or inhuman or
degrading treatment or punishment. In determining whether a particular form of
ill-treatment should be classified as torture, consideration must be given to
the distinction, embodied in Article 3, between this notion and that of inhuman
or degrading treatment. It appears that it was the intention that the
Convention should, by means of such a distinction, attach a special stigma to
deliberate inhuman treatment causing very serious and cruel suffering (see Ireland v. the United Kingdom, 18 January 1978, § 167, Series A no. 25; Aksoy
v. Turkey, 18 December 1996, § 63, Reports of Judgments and Decisions
1996-VI; and Selmouni v. France [GC], no. 25803/94, § 96, ECHR 1999‑V).
In addition to the severity of the treatment,
there is a purposive element to torture, as recognised in the United Nations
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, Article 1 of which defines torture in terms of the intentional
infliction of severe pain or suffering with the aim, interalia, of
obtaining information, inflicting punishment or intimidating (see Akkoç v.
Turkey, nos. 22947/93 and 22948/93, § 115, ECHR 2000‑X).
The Court notes that in the present case the
national courts found that the applicant had sustained grievous bodily harm
endangering life at the moment of infliction, at the hands of a police officer.
The ill-treatment consisted of application of tear-gas, a kick and a small
number of blows.As a result of it the applicant suffered intense pain and
became disabled.
The Court further notes that there is no
evidence that the applicant’s behaviour necessitated any use of force, let
alone such violent actions. In such circumstances this severe ill-treatment was
necessarily aimed at intimidating and humiliating the applicant, and possibly
facilitating the further extraction of a confession, since according to Kh.’s
explanations, he believed that the applicant had participated in a fight and
thus could possibly have committed a criminal offence.
These elements are sufficient for the Court to
conclude that the applicant was subjected to torture, in violation of Article 3
of the Convention (see Savin v. Ukraine, no. 34725/08, §§ 59-63, 16 February 2012).
3. Effectiveness of the investigation
According to the Court’s established case-law,
when an individual makes a credible assertion that he has suffered treatment
infringing Article 3 at the hands of agents of the State, it is the duty
of the national authorities to carry out “an effective official investigation”
capable of establishing the facts and identifying and punishing 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 v. Bulgaria, 28 October 1998, §
102, Reports 1998‑VIII, and Labita v. Italy [GC], no.
26772/95, § 131, ECHR 2000-IV).
The minimum standards of effectiveness defined
by the Court’s case-law include the requirements that the investigation must be
independent, impartial and subject to public scrutiny, and that the competent
authorities must act with exemplary diligence and promptness (see, for example,
Menesheva v. Russia, no. 59261/00, § 67, ECHR 2006-III).
The procedural requirements of Article 3 go
beyond the preliminary investigation stage when, as in this case, the
investigation leads to legal action being taken before the national courts: the
proceedings as a whole, including the trial stage, must meet the requirements
of the prohibition enshrined in Article 3. This means that the domestic
judicial authorities must on no account be prepared to let physical or
psychological suffering inflicted go unpunished. This is essential for
maintaining the public’s confidence in, and support for, the rule of law and
for preventing any appearance of the authorities’ tolerance of or collusion in
unlawful acts (see, Okkalı v. Turkey, no. 52067/99, § 65, ECHR 2006‑XII
(extracts)).
The Court observes that in the present case the
criminal proceedings against the police officer were instituted one year after
the events in question. These proceedings lasted for more than seven years and
were significantly protracted, as was particularly noted by the national courts
(see paragraph 30). Although they ended with the police officer’s conviction,
the Court notes that the sentence of 3 July 2006 is nearly identical to the one
of 23 August 2001 which was quashed by the higher court as being too lenient.In
such circumstances the Court is not convinced that, after more than seven years
of court proceedings and two remittals, the applicant should again have been
expected to appeal against the decision of 3 July 2006, as contended by the
Government.
The Court further reiterates that when an agent
of the State is accused of crimes involving torture or ill-treatment, the
criminal proceedings and sentencing must not be time-barred and the granting of
an amnesty or pardon should not be permitted (see Abdülsamet Yaman v. Turkey,
no. 32446/96, § 55, 2 November 2004). Although in the present case the police
officer was convicted, the Court again notes that the final sentence of 3 July
2006 is nearly identical to the one of 23 August 2001 (Kh. being sentenced to
five years’ imprisonment and released on probation) quashed by the higher court
as too lenient. By punishing the officer with a lenient non-custodial sentence
more than eight years after his wrongful conduct, the State in effect fostered
the law-enforcement officer’s “sense of impunity” instead of showing, as it
should have done, that such acts could in no way be tolerated (see, for similar
reasoning, Gäfgen, cited above, §§ 123 and 124, andOkkalı, cited
above, §§ 73 to 75). In such circumstances, the Court is not convinced
that the police officer’s punishment was adequate.
Regard being had to the foregoing, the Court
finds that the authorities failed to carry out an effective criminal
investigation into the applicant’s complaints of ill-treatment.
4. Adequacy of the compensation
The Court reiterates that in the case of a
breach of Articles 2 or 3 of the Convention, compensation for the pecuniary and
non-pecuniary damage flowing from the breach should in principle be available
as part of the range of remedies (see Z and Others v. the United Kingdom
[GC], no. 29392/95, § 109, ECHR 2001-V), although in cases of wilful
ill-treatment a violation of Articles 2 or 3 cannot be remedied exclusively
through an award of compensation to the victim. In the present case the
applicant was awarded approximately EUR 7,600 in compensation for non-pecuniary
damage, to be paid by the State. The Court notes that this amount is significantly
lower than the amount it generally awards in comparable cases lodged against Ukraine (see Korobov v. Ukraine, no. 39598/03, § 99, 21 July 2011, andSavin v.
Ukraine,cited above, § 90).
5. Conclusions
The foregoing considerations are sufficient to
enable the Court to conclude that the applicant can still claim to be a victim
of the violation of Article 3. It therefore dismisses the Government’s
preliminary objection in this regard.
In view of the foregoing,the Court finds that there
has been a violation of Article 3 of the Convention under its substantive and
procedural heads.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The applicant complained about length of proceedings
in his case.He relied on Article 6 § 1 of the Convention, which reads, in so
far as relevant, as follows:
“In the determination of his civil rights and obligations ...
everyone is entitled to a ... hearing within a reasonable time by [a] ...
tribunal ...”.
The Court notes that this complaint is linked to
the one examined above and must therefore likewise be declared admissible.
Having regard to the finding relating to Article
3 (see paragraphs 57 and62 above), the Court considers that it is not necessary
to examine whether, in this case, there has been a violation of Article 6 § 1
of the Convention.
III. 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 EUR 40,000 in respect of
non-pecuniary damage.
The Government considered this sum to be
extremely excessive.
The Court, taking into account the domestic
courts’ award to the applicant and deciding on an equitable basis,awards the
applicant EUR 20,000 in respect of non-pecuniary damage.
B. Costs and expenses
The applicant also claimed EUR 4,144 for the
costs and expenses incurred before the Court. This amount included EUR 3,850
for the applicant’s lawyer’s fees, EUR 206 for “administrative expenses”, and
EUR 88 for postal expenses, all incurred during the period 2006-11.
The Government indicated that the present case
was not complex and did not necessitate the amount of legal work claimed by the
applicant. Moreover, the Government considered that the “administrative
expenses” and postal expenses claimed by the applicant were excessive.
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, regardbeing had to the documents
in its possession and the above criteria, the Court considers it reasonable to
award the sum of EUR 4,144to cover the costs for the proceedings before the
Court.
C. Default interest
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. Decides to join to the merits the issue of
the applicant’s victim status in respect of the alleged violation of Article 3
of the Convention and holds that he may still claim to be a victim for the
purpose of Article 34 of the Convention;
2. Declares the application admissible;
3. Holds that the applicant has been
subjected to torture in violation of Article 3 of the Convention;
4. Holdsthat there has been a violation of
Article 3 of the Convention on account of the lack of an effective
investigation into the applicant’s allegation of torture by the police;
5. Holds that there is no need to examine the
complaint under Article 6 § 1 of the Convention;
6. 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, the
following amounts, to be converted into Ukrainian hryvnias at the rate
applicable onthe date of settlement:
(i) EUR 20,000 (twenty thousand euros), plus any
tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 4,144 (four thousand one hundred and
forty-four euros), plus any tax that may be chargeable to the applicant, in
respect of costs and expenses;
(b) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the above
amounts at a rate equal to the marginal lending rate of the European Central
Bank during the default period plus three percentage points;
7. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 19 July 2012,
pursuant to Rule77§§2 and3 of the Rules of Court.
Claudia Westerdiek Dean
Spielmann Registrar President
