CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 14 novembre 2013

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UKRAINE   (Application no. 54755/08)           JUDGMENT         STRASBOURG   14 November 2013   FINAL   14/02/2014   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Aleksandr Nikonenko 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 Stephen Phillips, Deputy Section Registrar , Having deliberated in private on 22 October 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 54755/08) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Aleksandr Vasilyevich Nikonenko (“the applicant”), on 27 October 2008. 2.     The applicant, who had been granted legal aid, was represented by Mr   V.   Valko and Mr   I.   Lishchyna, lawyers practising in Zaporizhzhya and Kyiv, respectively. The Ukrainian Government (“the Government”) were represented by their Agent, Mr N. Kulchytskyy. 3.     The applicant alleged that the authorities had failed to carry out an effective investigation into the circumstances of his ill-treatment, that the length of the proceedings in the criminal case had been excessive and that he had no effective remedy. He relied on Articles   3, 6 and 13 of the Convention. 4.     On 12 January 2012 the application was communicated to the Government. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1958 and lives in Zaporizhzhya. 6.     On the afternoon of 21 July 2001 the applicant was beaten up by another individual. The incident took place at the market and was observed by numerous witnesses. 7.     The applicant was taken to the hospital where he was diagnosed with a fractured right cheekbone and bruise to the right infraorbital region. Subsequently, he was also diagnosed with an injury to the right knee joint. A.     Criminal proceedings 8.     On 22 November 2001 the applicant complained to the police on account of his injuries. On the same date a police officer referred the applicant to a forensic examination centre to have the seriousness of his injuries assessed. 9.     On 29 November 2001 a forensic medical expert completed the examination and stated that the applicant had suffered from complete ruptures of the cruciate ligament and tibial collateral ligament in his right knee; a fractured right cheekbone and a bruise on the face. The injuries were classified as being of medium severity. 10.     On 1 December 2001 a police investigator opened criminal proceedings in connection with the injuries sustained by the applicant. 11.     On 4 December 2001 the applicant was admitted to the proceedings as an aggrieved party. On the same date he was granted the status of civil claimant. 12.     On 7 June 2002 the investigator suspended the proceedings for the reason that the individual who had inflicted injuries on the applicant could not be identified. 13.     On 13 June 2002 the supervising prosecutor quashed that decision as unsubstantiated and ordered further investigation. 14.     On 6 August 2002 the investigator opened a criminal case against R., a private individual, noting that during an altercation between R. and the applicant on 21 June 2001 the latter had sustained injuries. 15.     On 6 September 2002 the investigator terminated the proceedings against R. for lack of corpus delicti . 16.     On 16 October 2002 the supervising prosecutor quashed that decision as unlawful, noting that the investigator had failed to properly assess the witness evidence suggesting that R. had inflicted injuries on the applicant. The prosecutor therefore ordered further investigation. 17.     On 20 November 2002 the investigator suspended the proceedings for the reason that the individual who had inflicted injuries on the applicant could not be identified. 18.     On 18 April 2005 the supervising prosecutor quashed the decision of 20 November 2002 as unfounded and ordered further investigation. 19.     On 6 February 2006 the proceedings were again suspended on the ground that the individual who had inflicted injuries on the applicant could not be identified. 20.     On 30 March 2006 the supervising prosecutor quashed that decision as unfounded and ordered further investigation. 21.     By letter of 31 August 2006 the police informed the applicant that the investigator deserved a disciplinary penalty for the delays in the investigation of the case; however, he had been dismissed by that time. 22.     On 17 October 2007 the investigator obtained from R. a written undertaking not to abscond. 23.     On 26 October 2007 R. was charged with the crime of inflicting medium severity injuries on the applicant. On the same date the applicant was once again granted the status of civil claimant and his civil claim was added to the file. 24.     On 28 May 2008 the Prosecutor of the Komunarskyy District of Zaporizhzhya approved the investigator’s decision to apply to the court for the discontinuation of the criminal proceedings against R. as time-barred. 25.     On 10 June 2008 the Komunarskyy District Court of Zaporizhzhya (“the District Court”) terminated the proceedings against R. as time-barred. It further noted that the civil claim was to be considered in the course of separate civil proceedings. On the same date the District Court issued a separate ruling informing the Prosecutor of the Komunarskyy District of Zaporizhzhya that the investigation had been needlessly delayed. 26.     On 20 August 2008 the decision to close the proceedings as time-barred was upheld by the Zaporizhzhya Court of Appeal (“the Court of Appeal”). On the same date the Court of Appeal issued a separate ruling informing the Prosecutor of the Zaporizhzhya Region that the investigation had been unnecessarily and inordinately delayed. It considered that the protraction of the investigation had occurred because of a lack of control on the part of the prosecutor. B.     Civil proceedings 27.     In 2008 the applicant lodged a civil claim seeking compensation for pecuniary and non-pecuniary damage sustained as a result of the injuries inflicted on him on 21 July 2001. 28.     On 19 March 2009 the District Court partly allowed the applicant’s claim and ordered R. to pay 2,808.25 [1] Ukrainian hryvnias (“UAH”) in respect of pecuniary damage and UAH   2,500 [2] in respect of non-pecuniary damage. It also awarded the applicant costs and expenses. The applicant appealed, arguing that the award in respect of non-pecuniary damage was insufficient. 29.     On 3 June 2009 the Court of Appeal partly allowed the applicant’s appeal and increased the award in respect of non-pecuniary damage to UAH   7,000 [3] . II.     RELEVANT DOMESTIC LAW 30.     The relevant provisions of the Code of Criminal Procedure of 1960 (in force at the relevant time) can be found in the judgment in the case of Kaverzin v. Ukraine (no. 23893/03, § 45, 15 May 2012). THE LAW I.     ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 31.     The applicant complained under Article 3 of the Convention that the authorities had failed to carry out an effective investigation into the circumstances of his ill-treatment. 32.     Article 3 of the Convention provides as follows: Article 3 (prohibition of torture) “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A.     Admissibility 33.     The Government submitted that the applicant had not exhausted domestic remedies in respect of his complaint. They noted that in the separate rulings of 10 June and 20 August 2008 the domestic courts had acknowledged that the investigation of the criminal case had been ineffective and excessively lengthy. In these circumstances the applicant should have lodged a claim for damages with the domestic courts, which could have offered him appropriate civil redress for the ineffective investigation of the criminal case. 34.     The applicant argued that the remedy suggested by the Government had been neither effective nor accessible to him. 35.     The Court reiterates that it is incumbent on the Government claiming non ‑ exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say that it was accessible, was capable of providing redress in respect of the applicant’s complaints, and offered reasonable prospects of success (see M.   v. Ukraine, no. 2452/04, § 83, 19 April 2012). 36.     The Court notes that the Government merely referred to the theoretical possibility of lodging a claim for damages for the ineffectiveness of the investigation but have not shown that this remedy was available in practice. In particular, the Government failed to produce any case in which the courts had ruled on such a complaint. While it is not for the Court to give a ruling on an issue of domestic law that is as yet unsettled, the absence of any case-law indicates the uncertainty of that remedy in practice (see Štrucl and others v. Slovenia , nos. 5903/10, 6003/10 and 6544/10, §127, 20   October 2011). Therefore, leaving aside the question of whether the remedy suggested by the Government could have offered adequate redress in respect of the applicant’s complaint under Article 3, the Court considers that the applicant was not required to exhaust that remedy and the Government’s related objection is dismissed. 37.     The Court further notes that this complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It is not inadmissible on any other grounds. It must therefore be declared admissible. B.     Merits 38.     The applicant maintained that the State failed to carry out an effective investigation concerning the injuries he had sustained on 21   July   2001. 39.     The Government did not comment on the merits of the complaint. 40.     The Court notes at the outset that the violent treatment to which the applicant was subjected on 21 July 2001 reached the threshold of severity necessary to fall within the scope of Article 3 of the Convention (see, a contrario , Tonchev v. Bulgaria , no. 18527/02, § 38-40, 19 November 2009). 41.     The Court further considers that the mere fact that the applicant was awarded compensation in the civil proceedings against R. does not suggest that the authorities complied with their positive obligations under the Convention. 42.     Article 3 requires States to put in place effective criminal-law provisions to deter the commission of offences against personal integrity, backed up by law-enforcement machinery for the prevention, suppression and punishment of breaches of such provisions. On the other hand, it goes without saying that 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, taken together with Article 3, cannot be interpreted as requiring the State to guarantee through its legal system that inhuman or degrading treatment is never inflicted by one individual on another or that, if it is, criminal proceedings should necessarily lead to a particular sanction. In order that a State may be held responsible it must in the view of the Court be shown that the domestic legal system, and in particular the criminal law applicable in the circumstances of the case, fails to provide practical and effective protection of the rights guaranteed by Article 3 (see Beganović v. Croatia , no.   46423/06, §§ 70 and 71, 25   June   2009, with further references). 43.     In particular, the Court’s case-law has been consistent on the point that Article 3 of the Convention requires that the authorities conduct an effective official investigation into alleged ill-treatment, even if such treatment has been inflicted by private individuals (see Denis Vasilyev v.   Russia , no. 32704/04, § 99, 17 December 2009 and Biser Kostov v.   Bulgaria , no. 32662/06, §   77, 10 January 2012). 44.     The minimum standards of effectiveness laid down 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 Muta v.   Ukraine, no. 37246/06, § 61, 31 July 2012). The investigation of 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. They must take all 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 (see Karabet and Others v. Ukraine , nos.   38906/07 and 52025/07, § 259, 17 January 2013). 45.     In the present case, it is not a matter of dispute between the parties that the investigation of the criminal case was ineffective and excessively lengthy. The Court, for its part, does not find any reason to take a different view on this point. It notes that the case before the national authorities was not legally or factually complex. During the pre-trial investigation the domestic authorities took groundless decisions to close or suspend the case, with the result that the case was eventually terminated by the court as time ‑ barred. The ineffective investigation into the applicant’s allegations of ill ‑ treatment led to the relevant time-limit expiring without necessary action having been taken and made it impossible to pursue the prosecution any further. 46.     There has therefore been a violation of Article 3 of the Convention under its procedural limb. II.     ALLEGED VIOLATION OF ARTICLES 6 AND 13 OF THE CONVENTION 47.     The applicant complained under Articles 6 § 1 and 13 of the Convention that the proceedings in the criminal case, which had involved the determination of his civil claim, had been excessively lengthy and that he had not had an effective remedy in respect of his complaint under Article   3 of the Convention about the ineffectiveness of the investigation. 48.     Articles 6 and 13 of the Convention provide as follows: Article 6 (right to a fair hearing) “In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...” Article 13 (right to an effective remedy) “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.” 49.     The Government admitted that Article 6 had been applicable to the criminal proceedings in question, as the applicant had introduced a civil claim against R. within the framework of those proceedings. As regards Article 13, the Government maintained that the applicant had had no “arguable claim” for the purpose of this provision of the Convention and that the relevant complaint was therefore inadmissible. 50.     The applicant insisted that his complaint under Article 6   §   1 of the Convention concerning the excessive length of the criminal proceedings, involving the determination of his civil claim, was admissible. He also insisted that his complaint under Article 13 of the Convention was admissible and required consideration on the merits. 51.     The Court notes that the complaints under Articles 6 and 13 are closely linked to the complaint examined above under Article 3 and must therefore likewise be declared admissible. However, given the Court’s findings under Article 3 and the facts of the present case, the Court considers that no separate issue arises under Articles 6 and 13. Consequently, the Court holds that it is not necessary to examine the complaints under Articles   6 and 13 of the Convention separately. III.     APPLICATION OF ARTICLE 41 OF THE CONVENTION 52.     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 53.     The applicant claimed 15,000 euros (EUR) in respect of non ‑ pecuniary damage. 54.     The Government considered that the claim was excessive and unfounded. 55.     The Court considers that the applicant must have suffered distress and anxiety on account of the violation it has found. Ruling on an equitable basis, as required by Article 41 of the Convention, it awards the applicant EUR   7,500 in respect of non-pecuniary damage. B.     Costs and expenses 56.     The applicant also claimed EUR 4,310 for costs and expenses incurred before the Court. 57.     The Government submitted that the claim was unsubstantiated. 58.     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 700 covering costs under all heads. C.     Default interest 59.     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;   3.     Holds that there is no need to examine separately the complaints under Article 6 and 13 of the Convention;   4.     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 7,500 (seven thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii)     EUR 700 (seven hundred 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;   5.     Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 14 November 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stephen Phillips   Mark Villiger Deputy Registrar   President [1] .     About EUR 265 as of the date of the decision. [2] .     About EUR 236 as of the date of the decision. [3] .     About EUR 638 as of the date of the decision.