CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 24 octobre 2013

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display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block }       FIFTH SECTION             CASE OF SERGEY SAVENKO v. UKRAINE   (Application no. 59731/09)                 JUDGMENT     STRASBOURG   24 October 2013       FINAL   24/01/2014   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision . In the case of Sergey Savenko v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:   Mark Villiger, President,   Angelika Nußberger,   Boštjan M. Zupančič,   Ganna Yudkivska,   André Potocki,   Paul Lemmens,   Aleš Pejchal, judges, and Claudia Westerdiek, Section Registrar , Having deliberated in private on 1 October 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 59731/09) 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 Aleksandrovich Savenko (“the applicant”), on 29 October 2009. 2.     The applicant was represented by Mr A.   Bushchenko, a lawyer practising in Kharkiv. The Ukrainian Government (“the Government”) were represented by their Agent, Mr N. Kulchytskyy. 3.     The applicant alleged under Article 3 of the Convention that he had been ill-treated by a prison officer and that there had not been an effective investigation of the incident. He also complained under Article 13 of the Convention that he had not had effective remedies, including a civil remedy, at his disposal in respect of his allegations of ill-treatment. 4.     On 12 March 2012 the application was communicated to the Government. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1975. When lodging his application, the applicant was serving a prison sentence in Temnivka no.   100 Prison, in the Kharkiv Region. 6.     On 10 July 2008 the applicant was placed in a disciplinary cell as punishment for a disciplinary offence committed in the prison. Another prisoner was also placed in the same cell for a disciplinary offence. 7.     According to the applicant, on 11 July 2008 the first deputy governor of the prison took the applicant to a storage room and asked him for certain information about alleged unlawful activities on the part of other prisoners. When the applicant refused to give any information, the deputy governor cuffed the applicant’s hands behind his back, pushed him onto a mattress and put a plastic bag over his head. When the applicant chewed a hole in the bag, the deputy governor threw several mattresses on top of him and, presumably, jumped on them. The applicant lost consciousness. When he regained consciousness, he noticed injuries on his forearms caused by the handcuffs. 8.     On 14 July 2008, during a meeting with his lawyer, the applicant wrote a complaint of ill-treatment on 11 July 2008 and described the circumstances as noted above. 9.     On 15 July 2008 the applicant’s lawyer submitted the complaint to the Prosecutor of Kharkiv Region. On the same date the applicant was examined by a doctor, who noted that the applicant had suffered injuries on his forearms. The applicant explained to the doctor that the injuries had been caused to him by the handcuffs used on him on 11 July 2008. 10.     On 18 July 2008 the applicant was examined by a medical expert, who had about one year of experience. During the medical examination, the applicant explained that he had caused the injuries himself using coarse yarn. The expert reported abrasions to both forearms and opined that the injuries could have been sustained at the time indicated by the applicant, namely on 11 July 2008, and could have been caused by either metal handcuffs or coarse yarn. The expert classified the injuries as light. 11.     On 19 July 2008 the applicant wrote a statement that he had inflicted the injuries himself with the use of coarse yarn which he had detached from a floor cloth. His cellmate stated that the applicant had inflicted the injuries himself using a rope he made out of a floor cloth. His cellmate also stated that the applicant had rubbed salt into the skin of his forearms to deepen the injuries. The first deputy governor of the prison asserted that no physical or psychological pressure had been applied to the applicant. 12.     On 21 July 2008 the applicant wrote a statement that the events he had described in his complaint of 14 July 2008 were fictitious and that he himself had inflicted the injuries on his forearms with the purpose of framing the prison administration. 13.     On 25 July 2008, following pre-investigation enquiries, the prosecutor’s office responsible for supervising the lawfulness of the enforcement of sentences adopted a decision refusing to open an investigation into the applicant’s allegations of ill-treatment, finding that there had been no corpus delicti . The prosecutor noted that the applicant had withdrawn his initial allegations of ill-treatment and had submitted that the injuries had been self-inflicted, and the applicant’s cellmate had confirmed that the applicant had inflicted the injuries himself using yarn detached from a floor cloth; the medical report had suggested that the injuries might have been inflicted by either metal handcuffs or coarse yarn, as was maintained by the applicant. The allegations of ill-treatment were therefore unsubstantiated. 14.     On 28 July 2008 the applicant explained in writing to his lawyer that the prison staff had exerted psychological pressure on him, as a result of which he had stated that his injuries had been self-inflicted. 15.     The applicant’s lawyer challenged the decision of 25 July 2008 before the Kharkiv Regional Prosecutor’s Office, arguing that the applicant had retracted his compliant involuntarily and that the evidence supporting the decision was unreliable. 16.     By letter of 15 January 2009 the Kharkiv Regional Prosecutor’s Office informed the applicant’s lawyer that his complaint against the decision of 25 July 2008 was rejected as unfounded. 17.     On 26 January 2009 the applicant’s lawyer challenged the decision of 25 July 2008 before the Kyivskyy District Court of Kharkiv. The lawyer claimed that the prosecutor’s office had failed to examine the reasons for the applicant’s change in his statements and had not scrutinised whether that change had been voluntary. He noted in that regard that the applicant was under the control of the individual against whom he had made his initial complaint. The lawyer stated that following the impugned decision the applicant had confirmed his initial allegation of ill-treatment and referred in this regard to the applicant’s statement of 28 July 2008. Furthermore, the applicant’s cellmate had not been questioned in detail about the incident and the medical examination had not been comprehensive. 18.     On 23 March 2009, in response to a request made by the applicant’s lawyer, a medical expert, whose experience exceeded thirty-seven years, examined the medical documentation in respect of the applicant’s injuries. The expert issued a report in which he concluded that the applicant’s injuries could not have been inflicted by yarn or rope; there was no indication that salt had been applied to the affected areas of skin; and the applicant’s initial statements that the injuries had been caused by metal handcuffs corresponded to the objective medical information. 19.     On 12 May 2009 the court upheld the decision of 25 July 2008 as lawful and substantiated. It noted that: in the course of pre-investigation enquiries the applicant had denied his initial allegation of ill-treatment; his statement that his injuries had been self-inflicted was consistent with the other evidence in the file which could not be disproved by the medical report of 23 March 2009; and the applicant’s explanation that he had had the aim of framing the prison administration by injuring himself refuted the arguments advanced by the lawyer. The claim that the applicant had been vulnerable during the pre-investigation enquiries was considered groundless, unsubstantiated and farfetched. The applicant’s lawyer appealed. 20.     On 4 June 2009 the Kharkiv Regional Court of Appeal rejected the appeal as unfounded. It noted that the allegation of ill-treatment had been subsequently withdrawn by the applicant and had been refuted by the other evidence in the file. It concluded that the prosecutor’s office had correctly refused to open an investigation and the first-instance court had taken a lawful and substantiated decision. 21.     On 14 December 2009 the Supreme Court rejected the applicant’s lawyer’s cassation appeal as unfounded. II.     RELEVANT DOMESTIC LAW 22.     The relevant provisions of the Code of Criminal Procedure of 1960 can be found in the judgment in the case of Davydov and Others v. Ukraine (nos. 17674/02 and 39081/02, §   112, 1 July 2010). THE LAW I.     ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 23.     The applicant complained that he had been ill-treated by a prison officer and that there had not been an effective investigation of the incident. He relied on Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A.     Admissibility 24.     The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.     Merits 1.     Procedural obligations under Article 3 of the Convention (a)     The parties’ submissions 25.     The Government contended that the domestic authorities had taken all reasonable steps in order to discharge their procedural obligations under Article 3 of the Convention. They specified that the examination of the applicant’s complaint had been carried out with the requisite expediency and thoroughness; the requirement for independent investigation had been complied with. 26.     The applicant disagreed and argued that the State had failed to investigate his allegations of ill-treatment effectively. (b)     The Court’s assessment 27.     The Court reiterates that where an individual makes an arguable claim that he has been ill-treated by the State authorities in breach of Article   3, that provision, read in conjunction with the State’s general duty under Article 1 of the Convention, requires by implication that there should be an effective official investigation. For the investigation to be regarded as “effective”, it should in principle be capable of leading to the establishment of the facts of the case and to the identification and punishment of those responsible. This is not an obligation of result, but one of means. The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony, forensic evidence, and so on. Any deficiency in the investigation which undermines its ability to establish the cause of injuries or the identity of the persons responsible will risk falling foul of this standard, and a requirement of promptness and reasonable expedition is implicit in this context (see, among many authorities, Assenov and Others v. Bulgaria , 28   October 1998, §§ 102 et seq., Reports of Judgments and Decisions 1998-VIII, and Mikheyev v. Russia , no. 77617/01, §   107 et seq., 26 January 2006). 28.     As to the present case, the Court considers that the applicant made an arguable complaint of ill-treatment before the domestic authorities which triggered their procedural obligation under Article 3 of the Convention to carry out an effective investigation of the allegation. The Court further notes that the applicant’s allegation was examined by means of pre-investigation enquiries without a full-scale investigation being opened. However, the Court has previously held in various contexts that this investigative procedure does not comply with the principles of an effective remedy for the following reasons: the enquiring officer can take only a limited number of procedural steps within that procedure; the victims have no formal status, with the result that their effective participation in the procedure is excluded; any other remedy available to the victims, including a claim for damages, had limited chances of success and could be considered as theoretical and illusory (see Davydov and Others, cited above, §§ 310-312; Golovan v.   Ukraine, no. 41716/06, §   75, 5 July 2012; and Savitskyy v. Ukraine, no.   38773/05, § 105, 26 July 2012). 29.     The Court next notes that, in refusing to open an investigation, the prosecutor’s office relied on the retraction by the applicant of his complaint of ill-treatment. The Court has held that persons in detention may be vulnerable to pressure (see, mutatis mutandis , Shanin v. Russia , no.   24460/04, §   67, 27 January 2011). This consideration is pertinent to the present case which originated from the complaint of a prisoner that he had been ill-treated by a deputy governor of the prison and the latter continued to perform his functions throughout the examination of the matter. The Court considers that the domestic authorities should have carefully scrutinised the reasons for the applicant’s change of mind and clearly established that the retraction of the initial complaint had been made voluntarily. It is notable that the authorities were expressly informed of the applicant’s subsequent statement that the retraction had been made due to psychological pressure having been exerted on him. Nevertheless, it appears that the authorities relied on the intervening retraction of the ill-treatment complaint without properly examining the circumstances in which that complaint was withdrawn. 30.     Similarly, the Court considers that the authorities should have taken additional steps in order to clarify the medical opinions concerning the cause of the applicant’s injuries in so far as the medical reports of 18 July 2008 and 23 March 2009 did not give a concordant answer to this question. No special diligence was shown in terms of establishing specific circumstances of the alleged ill-treatment of the applicant by the deputy prison governor. 31.     In these circumstances, the Court considers that the State has failed to take the necessary steps aimed at effective investigation of the allegation of ill-treatment. There has therefore been a violation of Article 3 of the Convention in its procedural limb. 2.     Alleged ill-treatment (a)     The parties’ submissions 32.     The Government contended that the applicant’s allegation of ill-treatment had not been supported by appropriate evidence and therefore the facts as alleged by the applicant could not be established beyond reasonable doubt. In contrast, the conclusions of the domestic authorities suggesting that the applicant’s injuries had been self-inflicted had been properly reasoned and substantiated by the relevant evidence. 33.     The applicant disagreed and asserted that the evidence used by the authorities to reject his allegation of ill-treatment had been unreliable. In particular, the applicant and his cellmate had been in vulnerable positions when they submitted that the injuries had been self-inflicted. While the medical report of 18 July 2008 had suggested that the injuries on his forearms could have been caused by either metal handcuffs or coarse yarn, another report of 23 March 2009 had expressly suggested that the injuries had been caused by metal handcuffs and had therefore supported his version of events. (b)     The Court’s assessment 34.     The Court reiterates that Article 3 of the Convention prohibits in absolute terms torture and inhuman or degrading treatment. Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim. In respect of a person deprived of his liberty, recourse to physical force that has not been made strictly necessary by his own conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3 (see Labita v. Italy [GC], no. 26772/95, §§ 119-20, ECHR 2000-IV). 35.     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, proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons under their control in custody, strong presumptions of fact will arise in respect of injuries occurring during such detention. Indeed, the burden of proof may be regarded as lying with the authorities to provide a satisfactory and convincing explanation (see Ribitsch v. Austria , 4   December 1995, § 34, Series A no. 336, and Salman v. Turkey [GC], no.   21986/93, § 100, ECHR 2000-VII). 36.     In the present case the applicant made fairly detailed submissions as to the methods of ill-treatment allegedly employed by the deputy prison governor against him. His version of events, which involved the prison official using force and special means of restraint (in particular, handcuffs and a plastic bag) to exert physical and psychological pressure on him, indicates that the ill-treatment, if it indeed occurred, was serious enough to fall within the ambit of Article 3 of the Convention. 37.     Given that the alleged ill-treatment took place in respect of a person who was under the control of the authorities in prison, the Court considers that the State was obliged under Article 3 of the Convention to provide a satisfactory and convincing explanation of the alleged events. Accordingly, the State’s failure to discharge this burden of proof may prompt the Court to accept the applicant’s account of the facts. 38.     In this regard, the Court notes that on the basis of the evidence available in the file the domestic authorities found that the injuries on the applicant’s forearms had been inflicted by the applicant himself in front of another prisoner who had also been placed in a disciplinary cell. They further concluded that the allegation that the applicant had been ill-treated by the prison officer was unsubstantiated. 39.     The Court notes that the available medical evidence suggested that at the relevant time the applicant had suffered injuries on the forearms. According to the report of 18   July 2008, which was based on a direct examination of the applicant, the injuries could have been caused by either metal handcuffs or coarse yarn. It follows that this report equally supported the authorities’ and the applicant’s versions of the events. Meanwhile, the second report of 23 March 2009, prepared at the applicant’s lawyer’s request on the basis of the medical documentation, excluded yarn or rope as the cause of injury, thereby disproving the version of the authorities. In these circumstances it cannot be concluded that the medical evidence conclusively supported the finding that the injuries were self-inflicted by rope or yarn. On the contrary, it could be rather suggested that this evidence was in fact in favour of the applicant’s allegation involving the use of handcuffs. 40.     The authorities further relied on the statements of the applicant which he made between 18 and 21 July 2008 and on the statements of the applicant’s cellmate. Those statements excluded the use of handcuffs and suggested that the injuries had been self-inflicted. However, the reliability of this evidence is doubtful for the Court because, as noted above, the applicant and his cellmate remained under the control of the individual against whom the allegation of ill-treatment had been made. Moreover, the applicant subsequently withdrew those statements, arguing that they were false and had been made under pressure. 41.     In addition, it does not appear that the authorities established all the relevant circumstances to explain how the applicant had injured himself. In particular, the applicant’s and his cellmate’s statements to this effect did not coincide in full and it had not been clarified whether the applicant had applied salt to aggravate his injuries, as noted by the applicant’s cellmate, and, if so, how the applicant had obtained salt in a disciplinary cell. Likewise, the floor cloth had not been examined in order to support or disprove the version of the events maintained by the authorities. 42.     In the light of the above, the Court considers that the authorities failed to provide a plausible explanation for the causation of the injuries found on the applicant at the relevant time and did not satisfactorily disprove the applicant’s allegation of ill-treatment by the prison officer. For this reason the Court holds that the State must be held responsible for the alleged ill-treatment which should be classified as inhuman and degrading. 43.     There has therefore been a violation of the substantive limb of Article 3 of the Convention. II.     ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 44.     The applicant complained that he had not had effective remedies, including a civil remedy, for the complaint of ill-treatment under Article 3 of the Convention, as required by Article 13 of the Convention, which 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.”   A.     The submissions by the parties 45.     The Government argued that the applicant had had effective remedies at his disposal in respect of his complaint of ill-treatment. Accordingly, there had been no violation of Article 13 of the Convention. 46.     The applicant argued that the investigation of his complaint was ineffective and a civil claim for damages had not been available to him. B.     The Court’s assessment 47.     The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. 48.     However, given the Court’s reasons under the procedural limb of Article 3 of the Convention and the facts of the present case, the complaint under Article 13 does not give rise to any separate issue. Consequently, the Court holds that it is not necessary to examine the complaint under Article   13 of the Convention separately. III.     APPLICATION OF ARTICLE 41 OF THE CONVENTION 49.     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 50.     The applicant claimed 15,000 euros (EUR) in respect of non-pecuniary damage. 51.     The Government submitted that this claim was unsubstantiated. 52.     The Court considers that the applicant must have suffered distress and anxiety on account of the violation found. Ruling on an equitable basis, as required by Article 41 of the Convention, it awards the applicant EUR   7,000 in respect of non-pecuniary damage. B.     Costs and expenses 53.     The applicant also claimed EUR 7,313.6 for costs and expenses incurred before the domestic authorities and the Court. He asked that any award in respect of this claim be paid directly into the bank account of his representative. 54.     The Government submitted that this claim was unfounded and excessive. 55.     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 the above criteria, the Court considers it reasonable to award, in addition to the legal aid granted, the sum of EUR 1,000 for costs and expenses for the proceedings before the Court. The latter amount is to be paid directly into the bank account of the applicant’s representative (see, for example, Hristovi v. Bulgaria , no. 42697/05, § 109, 11 October 2011, and Singartiyski and Others v. Bulgaria , no. 48284/07, § 54, 18 October 2011). C.     Default interest 56.     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.     Declares the application admissible;   2.     Holds that there has been a violation of Article 3 of the Convention in its substantive limb;   3.     Holds that there has been a violation of Article 3 of the Convention in its procedural limb;   4.     Holds that there is no need to examine the complaint under Article 13 of the Convention separately;   5.     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, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i)     EUR 7,000 (seven thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii)     EUR 1,000 (one thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be paid into the bank account of the applicant’s lawyer, Mr A. Bushchenko; (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 24 October 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Claudia Westerdiek   Mark Villiger   Registrar   President