Aleksey Vladimirovich AFANASYEV against Ukraine

   CONSEIL                            COUNCIL

DE L’EUROPE                       OF EUROPE

COUR EUROPEENNE DES DROITS DE L’HOMME EUROPEAN COURT OF HUMAN RIGHTS

SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 38722/02

by Aleksey Vladimirovich AFANASYEV

against Ukraine

The European Court of Human Rights (Second Section), sitting on 8 June 2004 as a Chamber composed of:

Mr  J.-P. COSTA, President,

Mr  L. LOUCAIDES,

Mr  С BlRSAN,

Mr  K. JUNGWffiRT,

Mr  V. BUTKEVYCH,

Mrs W. Thomassen,

Mrs  A. MULARONi, judges,

and Mr T.L. EARLY, Deputy Section Registrar,

Having regard to the above application lodged on 14 September 2002,

Having  regard  to  the  observations  submitted  by  the  respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Aleksey Vladimirovich Afanasyev, is a Ukrainian national who was born in 1964 and resides in the city of Kharkov, Ukraine. He is represented before the Court by Mr A. P. Bushchenko, a lawyer practising in Kharkiv, Ukraine.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicant

On 1 March 2000 three police officers came to the applicant’s home and requested him to accompany them to the police station. The applicant maintains that he did not resist and they all went together to the Kievsky District Police Station in the applicant’s car. The applicant was handcuffed in the police station and police officers demanded that he confess to having swindled two businesses. The applicant maintains that when he refused to confess, he was severely beaten on several occasions. After each beating he was told that if he did not confess he would be subjected to further beatings. During the last beating one of the police officers, G., hit the applicant on the left ear, causing swelling and partial deafness. After the beatings, the police officers warned the applicant to "think it over" during the night, otherwise he would be beaten again the next day.

The applicant maintains that he had many scratches and bruises on his body. On 2 March 2000, when the police officers wanted to transfer him to a temporary detention centre, the centre refused to admit him on account of the numerous injuries to his body.

On 3 March 2000 the applicant was escorted to a hospital where he was examined.

The same day the applicant was transferred to a temporary detention centre.

On 4 March 2000 the applicant was released following a decision of the Kievsky District Prosecutor of the city of Kharkov.

From 7 March to 5 April 2000 the applicant underwent medical examinations at the forensic medical examination department. The forensic expert recorded various injuries to the applicant’s body. The injuries identified included a damaged left ear. The expert also indicated the approximate date on which the applicant sustained his injuries. That date coincided with the date of the applicant’s detention in the Kievsky District Police Station.

On 13 April 2000 the applicant requested the Kharkiv Regional Prosecutor to institute criminal proceedings against the police officers for torture. The request was transferred to the Kievsky District Prosecutor’s Office for consideration.

On 24 April and 18 May 2000, the applicant requested the Kievsky District Prosecutor’s Office to inform him about the outcome of his request.

On 24 April 2000, the deputy prosecutor of the Kiev District of Kharkiv issued a decree refusing to institute criminal proceedings on the ground that there was no evidence that an offence had been committed. In his decree, the deputy prosecutor stated that criminal proceedings had been initiated against the applicant on 10 February 2000. The applicant confessed voluntarily to having committed the crimes of which he was charged when he learned that his accomplices had also confessed. Furthermore, police officers had been questioned about the applicant’s allegations and had refuted the accusations against them. The deputy prosecutor concluded:

"(...) despite the fact that the forensic medical expert opinion No. 747/c of 5 April 2000 [established that the applicant suffered] minor bodily injuries giving rise to a short-term disability, no evidence has been obtained that those injuries were inflicted by officers of the Kievsky District Police Station of Kharkiv. The [applicant’s] arguments set out in his request must be considered to have been invented by him. He was fully aware that the investigation gave rise to sufficient proof that he had committed the crimes of which he was accused. He is now trying to avoid the punishment he deserves".

On 3 June 2000, the applicant appealed against this decision to the Kievskiy District Court and to the City Prosecutor’s Office.

On 20 July 2000 the Kharkiv City Prosecutor’s Office informed the applicant that it had rejected his request to quash the decree of 24 April 2000.

On 19 October 2000 the Kievsky District Court of Kharkiv quashed the decree of 24 April 2000 and ordered that criminal proceedings be opened against the accused police officers under Article 166 § 2 of the Criminal Code (excess of power). The court stated that the prosecutor had failed to investigate the cause of the applicant’s injuries and that the prosecutor’s refusal to institute criminal proceedings against the police officers in question had been unreasonable.

The criminal case was sent to the Kievsky District Prosecutor’s Office. By a letter of 26 January 2001 the Prosecutor’s Office informed the applicant that it had sent the case file to the Kharkiv Regional Prosecutor’s Office, requesting that an extraordinary appeal be lodged against the decision of the Kievsky District Court of Kharkiv of 19 October 2000.

The Kharkiv Regional Prosecutor’s Office rejected the request of the District Prosecutor for lack of grounds for lodging an extraordinary appeal and returned the case file to the District Prosecutor’s Office. The applicant was informed about this development by letter of 27 April 2001.

The criminal proceedings were initiated on 28 April 2001.

By a decree of the Kievsky District Prosecutor of 3 September 2001 the criminal proceedings were terminated on the ground that there was no evidence that a crime had been committed.

Following the applicant’s complaint, on 29 October 2001 the Kharkiv Regional Prosecutor’s Office quashed the decree of the Kievsky District Prosecutor of 3 September 2001 and transferred the case to the prosecutor’s office in another district of Kharkiv.

Between November 2001 and March 2002 the Oktyabrsky District Prosecutor’s Office conducted an additional investigation. In the course of this investigation the medical evidence in the case file was reviewed on two separate occasions. The experts conducting these reviews reached contradictory conclusions on the possible date on which the applicant sustained his injuries. Although one of the reviews confirmed the previous findings, the other review resulted in a finding that the applicant could have been injured before he was detained in the Kievsky District Police Station.

Following the request of the applicant’s lawyer, one of the medical experts was interviewed in the presence of the lawyer on 21 March 2002. The same day the lawyer requested that an additional medical examination be carried out since, in his view, the second review lacked a scientific basis and was contradicted by the other evidence in the case. Although the prosecutor received the request, the lawyer has never obtained a reply.

According to the applicant, he learned on 16 April 2002 that the Oktyabrsky District Prosecutor’s Office closed the criminal case on 20 March 2002 for want of proof of a crime. In his decree of 20 March 2002, the prosecutor stated, inter alia, that the police officers questioned had denied the accusations against them and had explained the applicant’s allegations with reference to the criminal proceedings brought against him. The prosecutor further stated that the testimonies of T. and O., confirming the applicant’s allegations, had to be disregarded since they were jointly accused along with the applicant with the same offences. The prosecutor also maintained that the medical examination had concluded that the applicant’s injuries could have been caused before he was detained in the police station.

On 16 April and 31 May 2002 the applicant and his lawyer requested the district prosecutor to provide them with the case file. By letter of 10 June 2002, the prosecutor replied that the materials in the case file had been sent to the Regional Prosecutor’s Office for examination.

Following the filing of several complaints by the applicant and his lawyer with the District, Regional and General Prosecutor’s Office, the Kharkiv Regional Prosecutor’s Office informed the applicant on 9 October 2002 that the criminal case, in so far as it concerned the alleged excess of power by police officers, was closed by the Oktyabrsky District Prosecutor’s Office on 28 March 2002. The remaining part of the criminal case (infliction of minor bodily harm) was remitted for further investigation to the Kievsky District Police Station. On 9 August 2002 the Kharkiv City Prosecutor’s Office quashed the decision of 28 March 2002 and remitted the case for additional investigation to the Oktyabrsky District Prosecutor’s Office. In accordance with the instructions of the Kharkiv City Prosecutor’s Office the case file was sent to the Central Office of Forensic Medical Examination in Kiev {Tonoene 6wpo cydoeo-MeduHHitx eKcnepmu3) for further examination.

On 9 July 2003 the Oktyabrskiy District Prosecutor’s Office issued a decree terminating the criminal proceedings on the ground that the actions of the law-enforcement officers had not given risen to any criminal offence. The applicant appealed against this decree to the Oktyabrskiy District Court.

On 31 December 2003 the Oktyabrskiy District Court quashed the decree of 9 July 2003 and sent the criminal case for an additional investigation. The court noted, in particular, that the investigating authorities had failed to take all necessary measures to identify and question independent witnesses, given that the applicant and the law-enforcement officers had given contradictory statements.

On an unspecified date the applicant was found guilty by the domestic court in the framework of the criminal proceedings against him that originally led to his arrest and beatings.

The Government

On 1 March 2000 the applicant was arrested on suspicion of having committed a crime. He was escorted to the Kievsky District Police Station by officers attached to the said station.

From 1 to 4 March 2000 the applicant was detained and interrogated at the station.

On 4 March 2000 the applicant was accused of having committed a crime. The same day the Kievskiy District Prosecutor ordered the applicant’s release on bail subject to an undertaking not to abscond {nidnucxa npo ueeui3d).

From 7 March to 5 April 2000, the applicant underwent a forensic medical examination. It was found that the applicant had minor injuries to his person.

On 13 April 2000 the applicant filed a complaint with the Kharkiv Regional Prosecutor’s Office against the police officers who allegedly beat him in the police station on 1 March 2000.

The Kievskiy District Prosecutor’s Office conducted an inquiry, but found no evidence to support the applicant’s allegations. On 24 April 2000 the deputy prosecutor of the Kiev District of Kharkiv issued a decree refusing to institute criminal proceedings.

On 3 July 2000 the applicant complained of the deputy prosecutor’s refusal to the Kharkiv Regional Prosecutor’s Office.

On 20 July 2000 the Kharkiv City Prosecutor’s Office informed the applicant that it had rejected his complaint.

On 14 September 2000 the applicant lodged a complaint with the Kievskiy District Court of Kharkiv challenging the decree of 24 April 2000.

On 19 October 2000 the Kievsky District Court of Kharkiv quashed the decree of 24 April 2000 and ordered that criminal proceedings be opened against the accused police officers for excess of power. The criminal case was sent to the Kievskiy District Prosecutor’s Office for investigation.

On 10 November 2000 the Kharkiv Regional Prosecutor’s Office requested the Kharkiv Regional Prosecutor’s Office to lodge a supervisory review appeal with the Presidium of the Kharkiv Regional Court against the Kievsky District Court’s decision of 19 October 2000.

On 25 April 2001 the Kharkiv Regional Prosecutor’s Office rejected the request of the district prosecutor on account of the absence of any grounds for lodging a supervisory review appeal. The case file was returned to the District Prosecutor’s Office.

On 28 April 2001 the Kievskiy District Prosecutor’s Office issued a decree for the case to be investigated.

Between May and November 2001 the investigators interviewed several witnesses including the police officers and the applicant’s relatives.

On 3 September 2001, after conducting the investigation, the Kievskiy District Prosecutor’s Office issued a decree terminating the criminal proceedings on the ground that there was no evidence that a crime had been committed.

On 29 October 2001 the Kharkiv Regional Prosecutor’s Office quashed the decree of 3 September 2001 and sent the criminal case to the Kharkiv City Prosecutor’s Office for a decision on the transfer of the case to the prosecutor’s office in another district of Kharkiv.

On 7 November 2001 the Kharkiv City Prosecutor’s Office transferred the case to the Oktyabrskiy District Prosecutor’s Office for a further preliminary investigation.

On 13 November 2001 the Oktyabrskiy District Prosecutor’s Office began the investigation.

In November and December 2001 several other witnesses were questioned and confrontations were organised.

On 20 November 2001 a forensic medical examination was ordered within the framework of the investigation.

On 4 December 2001 the examination was concluded by an expert opinion to the effect that the applicant had suffered bodily harm of medium severity which could have occurred in the circumstances referred to by the applicant.

On 12 December 2001 an additional forensic examination was ordered on account of the incompleteness of the previous examination.

On 25 February 2002 the expert opinion given in the framework of the additional examination established that the applicant had sustained minor bodily harm prior to his detention in the Kievskiy District Police Station.

On 28 March 2002 following the conclusion of the additional investigation, the Oktyabrskiy District Prosecutor’s Office issued a decree terminating the criminal proceedings on the ground that there was no evidence that a crime had been committed.

On 9 August 2002, the Kharkiv City Prosecutor’s Office quashed the decree of 28 March 2002 and sent the criminal case for further investigation.

On 23 August 2002 the Oktyabrskiy District Prosecutor’s Office recommenced the investigation.

Because of the contradictory findings of the previous forensic medical examinations, an additional examination was entrusted to the Central Office of Forensic Medical Examination in Kiev.

On 2 June 2003 the Oktyabrskiy District Prosecutor’s Office received an expert opinion dated 3 February 2003 in which it was stated that the applicant had sustained bodily injury of medium severity that could have been inflicted in the circumstances alleged by the applicant.

On 25 June 2003 the Kharkiv Regional Prosecuted Office instructed the Oktyabrskiy District Prosecutor’s Office to complete the investigation as soon as possible.

B. Relevant domestic law

1. Constitution of Ukraine

Article 28

"Everyone has the right to respect for his or her dignity.

No one shall be subjected to torture, cruel, inhuman or degrading treatment or punishment that violates his or her dignity.

2. Code of Criminal Procedure

Article 4 Obligation to institute criminal proceedings and to solve a crime

"The court, prosecutor, investigator (...) shall, within their competencies, institute criminal proceedings in every case where signs of a crime have been discovered, take all necessary measures provided by law to establish the commission of the crime and the identity of the offenders and punish them.

Article 22 Comprehensive, full and objective examination of circumstances of the case

It shall be prohibited to extract confessions from an accused or any other participant of the proceedings through violence, threats or other illegal means."

3. Code of Civil Procedure

Article 221 of the Code foresees an obligation of the court to suspend proceedings in the case, if the case cannot be examined prior to decision in other case examined under civil, criminal or administrative proceedings.

4. The Law of Ukraine "on the procedure for compensation of damage
caused to the citizen by unlawful actions of bodies of inquiry, pre-trial
investigation, prosecutors and courts "ofl December 1994

Article 2

"The right to compensation for damages in the amount and in accordance with the procedure established by this Law shall arise in the cases of:

1-)  acquittal by a court;

2)  termination of a criminal case on grounds of absence of proof of commission of a crime, absence of corpus delicti, or lack of evidence of the accused’s participation in the commission of the crime;

3)  refusal to initiate criminal proceedings or termination of criminal proceedings  on  the  grounds  stipulated  in  sub-paragraph  2  of paragraph 1 of this Article;

4)  termination of proceedings for an administrative offence.

COMPLAINTS

The applicant complained that he was subjected to torture by police officers in violation of Article 3 of the Convention. He further complained that no immediate and effective investigation was carried out capable of proving that he had been ill-treated.

The applicant also alleged that he had no effective remedies enabling him to seek compensation for having been tortured by agents of the State, in breach of Article 13 of the Convention.

THE LAW

Government’s preliminary objection

1. The Government maintained that the applicant’s complaints should be declared inadmissible since the criminal proceedings arising out of his allegations were still pending. The Government observed in this connection that the applicant and his lawyer have participated actively in these proceedings. The application was therefore premature and the applicant should be required to await the final decision at the domestic level before submitting his application to the Court.

The applicant contested the Government’s submission. He stated that in Ukraine an allegation of torture required the prosecutor to conduct a criminal investigation into the facts. However, in his case the investigation had lasted too long and both he and his lawyer had been precluded from effective participation in the investigation. Moreover, the investigating authority had shown its reluctance to carry out a proper and impartial investigation into his claim.

The Court notes that the Government’s objection is closely linked to the applicant’s complaints under Articles 3 and 13 of the Convention about the ineffectiveness of the investigation. In these circumstances, it considers that the objection should be joined to the merits of the applicant’s complaints.

2. The applicant complained that he had been ill-treated in custody and
that the State authorities failed to undertake a thorough and effective
investigation. He relied on Article 3 of the Convention, which provides:

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

A. Alleged ill-treatment in police custody

The Government submitted that there was no evidence to show that the applicant sustained any injuries at the police station at the hands of police officers. The Government referred to the applicant’s conflicting statements to the domestic authorities as to the details of his alleged beatings.

The applicant maintained that apart from his statement as to the time and nature of his injuries, there was sufficient evidence, including medical opinions, to support his claim that his injuries could only have been inflicted during his detention at the police station. Several witnesses had also given evidence about his state of health prior to his detention. The applicant contested the Government’s submission that he had made contradictory statements when giving details of his beating. The only contradiction concerned the surname of one of the alleged offenders, and this was due to confusion on his part.

The Court considers, in the light of the parties’ submissions, that this complaint raises serious questions of fact and law, the determination of which requires an examination on the merits. The Court concludes therefore that it is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

B. Adequacy of the investigation

The Government submitted that the investigation into the applicant’s allegations was started immediately after the applicant lodged his complaint. According to the Government, the course followed by the investigation, the number of measures taken and the remission of the case for further investigation by the higher prosecutors and courts demonstrated the intent of the State authorities to conduct a comprehensive and objective investigation.

The applicant maintained that despite their duty under law, the investigator and the prosecutor, whom the applicant met after his beating, showed complete indifference to the cause of his injuries. The applicant further maintained that the investigation was conducted in a dilatory manner and lasted too long. The applicant also submitted that the delays in the questioning of witnesses had a damaging effect on the investigation, since some of them could no longer recall clearly the events. The applicant noted that he was prevented from participating actively in the investigation, given the delays in informing him about procedural decisions taken and the refusals to allow him to have full access to the case file.

The Court considers, in the light of the parties’ submissions, that this complaint raises serious questions of fact and law, the determination of which requires an examination on the merits. The Court concludes therefore that it is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

3. The applicant complained under Article 13 of the Convention of the alleged lack of an effective remedy in respect of the violations of Article 3. Article 13 of the Convention provides:

"Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity."

The Government maintained that the applicant had effective remedies and availed himself of them.

The applicant maintained that Article 13 had been violated since the State authorities failed to conduct an effective investigation into his case. The applicant also submitted that national legislation did not provide for the award of compensation in the circumstances of his case since he was found guilty of a crime. He could not therefore claim compensation for the ill-treatment to which he had been subjected at the police station during the investigation of that crime. The applicant further maintained that examination of a civil claim for compensation for damage would in any event be dependent on the outcome of the criminal proceedings which are still pending.

The Court considers, in the light of the parties’ submissions, that this complaint raises serious questions of fact and law, the determination of which requires an examination on the merits. The Court concludes therefore that it is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court unanimously

Joins to the merits the Government’s preliminary objection based on non-exhaustion of domestic remedies;

Declares the application admissible, without prejudging the merits of the case.

T.L. Early                              J.-P. Costa

Deputy Registrar                   President