CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 27 avril 2017

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s598389FB { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:14pt } .sF5E1C6CF { font-family:Arial; font-weight:bold; text-decoration:underline; color:#ff0000 } .sE208486F { font-family:Arial; color:#ff0000 } .s598389F8 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:11pt } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sB9D5CABB { width:28.35pt; display:inline-block } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s79DE5897 { margin-top:18pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; page-break-inside:avoid; page-break-after:avoid } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sA20670C4 { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s59DEA84 { margin-top:12pt; margin-left:59.5pt; margin-bottom:6pt; text-indent:-17.85pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s7ACB8D74 { margin-top:0pt; margin-left:14.2pt; margin-bottom:0pt; text-indent:14.2pt } .sB206C230 { margin-top:12pt; margin-left:68.65pt; margin-bottom:6pt; text-indent:-16.75pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sBB355983 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s583D00FA { margin-top:0pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s26FF04E7 { margin-top:0pt; margin-left:17.3pt; margin-bottom:0pt } .s64E792FA { margin-top:0pt; margin-left:39.7pt; margin-bottom:0pt } .s4B243ECC { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .sF7A4323 { margin-top:36pt; margin-bottom:0pt; text-align:left } .sBF964C40 { width:8.54pt; display:inline-block } .s9E304268 { width:190.42pt; display:inline-block } .sA2E62387 { width:204.97pt; display:inline-block }       FIFTH SECTION             CASE OF ZHERDEV v. UKRAINE   (Application no. 34015/07)             JUDGMENT   This judgment was revised in accordance with Rule 80 of the Rules of Court in a judgment of 25 January 2018.         STRASBOURG   27 April 2017   FINAL   27/07/2017   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Zherdev v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:   Angelika Nußberger, President,   Erik Møse,   Ganna Yudkivska,   André Potocki,   Yonko Grozev,   Carlo Ranzoni,   Mārtiņš Mits, judges, and Milan Blaško, Deputy Section Registrar, Having deliberated in private on 21 March 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 34015/07) 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 Artyom Leonidovich Zherdev (“the applicant”), on 30 June 2007. 2.     The applicant, who had been granted legal aid, was represented by Mr   E.   Markov, a lawyer admitted to practice in Odessa. The Ukrainian Government (“the Government”) were represented, most recently, by their Agent, Mr I.   Lishchyna, of the Ministry of Justice. 3.     The applicant alleged, in particular, that he had been subjected to physical and psychological ill-treatment by the police in order to extract a confession; that he had been questioned in the presence of a lawyer he had not freely chosen and that the confessions obtained as a result of those alleged breaches of his rights had been used for his conviction; that he had not been assisted by a lawyer at an identification parade and in other investigative actions; and that his pre-trial detention had been unlawful and unreasonably long. 4.     On 3 June 2013 the application was communicated to the Government. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born on 12 May 1988 and at the time of his most recent communication with the Court was detained in Toretsk (previously Dzerzhynsk). 6 .     Early on the morning of 16 February 2005 Mrs D., a night security guard at a shop in Toretsk, was found dead and partially undressed at her place of work, with injuries on her head and genitals. It was established that a grinder tool had also gone missing. The prosecutor’s office instituted criminal proceedings on the same day and over the following days proceeded to interview a number of witnesses. A.     The events of 20 and 21 February 2005 7.     At about 10 a.m. on 20 February 2005 two police officers arrived at the applicant’s home and asked him, at the time sixteen years of age, and his father to go to the police station with them. 8 .     Once at the police station, the applicant was separated from his father and questioned as to whether he had any information about the grinder which had disappeared from the shop.   According to the applicant, then the police had started urging him to plead guilty to the murder and theft. According to him, as he repeatedly denied those allegations, three officers allegedly beat him on various parts of his body and threatened him that he would be raped in prison. 9.     At an unspecified time the same day the applicant’s father and grandfather, who lived in the same house as the applicant, made statements to the police about the presence of the grinder in their house. The father stated that the applicant had apparently brought the grinder home around the time of the murder and had originally told him that a stranger had been offering the grinder for sale. On learning that the police were searching for a grinder, the applicant had told him the story he had told the police (see paragraphs 8 above and 13 below). However, in the applicant’s story as retold by the father, the grinder was found in a different street. On hearing this, the father had hidden the grinder. The grandfather’s account of events was similar to the father’s. On the same day the police also obtained a statement of Mr S., the applicant’s friend, about the time they had spent together on the night of the murder and the circumstances under which they had parted. 10.     From 12.30 p.m. to 1.20 p.m. the police went to the place where the applicant’s father had hidden the grinder. The father pointed to where the grinder was and the police seized it. 11.     At about 3   p.m. the applicant signed a document explaining his rights as a suspect, including the right to remain silent and to consult a lawyer before his first questioning. When signing the document, the applicant added that he did not object to L. representing him. The applicant alleged that he had mistakenly understood that L. had been asked to appear on his behalf by his parents. In fact, L. had been asked to represent the applicant by the investigator. 12 .     Subsequently the Qualifications Commission of the Bar of Ukraine, at the time the highest authority in charge of the advocates’ qualifications and discipline, examined the applicant’s parents’ complaint concerning the procedure used in the appointment of L. The Commission established that there was no evidence that L. had been appointed through a bar association, as required by law, in particular there was no order of the bar association or agreement with the client appointing L. It also established that there was no evidence that the investigator had issued a formal decision appointing L. as the applicant’s lawyer, as he had been required to do by law. 13 .     At 3.20 p.m. the applicant was questioned in the presence of L. He stated that on the night of the murder he had been walking home after a night out with friends. He had observed a stranger running down the street with a grinder and had started running after him. Once the man had dropped the grinder, the applicant had picked it up and run away. When he had brought the grinder home he had said to his father that someone had been offering to sell a grinder. When he had learned the next day that a night security guard had been killed and that grinders had been stolen, he had revealed the truth to his father, who had then hidden the grinder. 14 .     At 3:55 p.m. the applicant was examined by a forensic medical expert, who concluded that he had several light injuries that had been inflicted two to seven days before the examination. 15 .     At 4 p.m. the investigator K. drew up an arrest report, whereby the applicant was arrested on suspicion of D.’s murder. According to the report, the applicant was being arrested on the grounds that “eyewitnesses indicate the person who committed the crime”. According to the Government, the applicant’s parents were informed of the applicant’s arrest at that time. According to the applicant, no such notification was made. 16.     At the same time most of the applicant’s clothes were seized for a forensic examination. 17.     The applicant’s father was taken to the family home to accompany the police during a search. 18.     At about 6.20 p.m. the police completed the search of the applicant’s home, seizing some clothes. According to the applicant it was only then that the police officers who had conducted the search brought replacement clothes from the applicant’s home to the police station. 19.     According to the applicant, he was left handcuffed at the police station, wearing just his underwear, for the entire period from the seizure of his clothes until the end of the search and return of the police officers who conducted it, feeling very cold and vulnerable. During that time police officers continued urging the applicant to confess to the murder and beat him with plastic water bottles. 20 .     On the evening of 20 February 2005 the applicant was placed in a cell in the police’s temporary detention facility with two adult detainees, K., born in 1975, and O., born in 1956, who were at the time registered as suffering from drug addiction. O. had also been suffering from tuberculosis and had had a prior conviction (see paragraphs 62 and 63 below). It is unclear whether the applicant knew of the above background of his co ‑ detainees at the time he had been held with them. According to the applicant, the two other detainees were secret police informants. They advised the applicant that as he was a minor and if he chose to cooperate the investigative authorities would prosecute him on less serious charges and he would not receive a real prison sentence. K. was diagnosed with tuberculosis in November 2005. O. and K. died in January and December 2006 respectively, the former allegedly of an overdose and the latter of a disease. 21.     The applicant continued to be detained in the cell with O. and K. until a court detention order arrived on 23 February 2005 and he was transferred to the remand prison (see paragraph 26 below). 22 .     According to the applicant, on the morning of 21 February 2005 two police officers took him out of his cell without registering it. They threatened to make sure he got a long prison sentence, to charge him with rape, which would lead to him being raped and harassed in prison by other inmates, and to create “problems” for his family, unless he confessed. Unable to withstand such pressure, the applicant agreed to copy by hand a statement prepared for him by the police officers, acknowledging his guilt for murder in “self-defence”. According to the authorities, on the morning of 21 February 2005 the applicant asked to see the officer in charge of the police detention facility. 23.     The applicant then made a handwritten statement of surrender to Officer G., the head of the police detention facility. In his statement, the applicant noted that early on 16   February 2005, while in a state of alcoholic intoxication, he had decided to burgle the shop. Having suddenly run into the victim, who had tried to attack him with a grinder, he had defended himself and had hit her with a brick. When she had become unconscious, the applicant, scared of what had happened, had carried her to a couch and had undressed her to make it look as though there had been a rape. Then he had picked up the grinder and taken it home. 24.     Later on the same day the applicant repeated the above confessions in a formal questioning session in the presence of his lawyer, L. 25 .     On the same day the applicant, unaccompanied by L., was taken to an identification parade, where Y., a shop assistant who had been working on a night shift at a kiosk close to the scene of the crime on the night of the murder, picked the applicant out of a four-person line-up as the person she had seen by her kiosk shortly before D. had been killed. In the course of one of the subsequent trials Y. stated that she had not identified the applicant with total certainty but had merely thought that there was a resemblance between him and the person she had seen that night. B.     Subsequent investigation and the first trial 26 .     On 22 February 2005 the applicant was charged with murder without aggravating circumstances and theft. Accordingly, his procedural status changed from that of “suspect” to “accused”. Questioned on the same day in the presence of L. the applicant repeated his previous confession. 27.     On 23 February 2005 the Toretsk Court remanded the applicant in custody pending the completion of the investigation. That decision was not appealed against and became final. 28.     On the same day the applicant’s cellmates, K. and O., were released. 29.     On 25 February 2005 the applicant was transferred from the police detention facility to the remand prison in Bakhmut (at the time Artemivsk). 30 .     On 31 March 2005 the applicant was questioned in the presence of B., a lawyer engaged by his parents. He stated that he confirmed his prior statements about the murder. In the course of the subsequent investigation he was again questioned in the presence of the same lawyer and made detailed statements that repeated his confession. 31 .     On 6 April 2005 a commission of psychologists and psychiatrists produced a report at the request of the investigator concerning the applicant’s mental state at the time of the crime and at the time of his examination by the experts. The experts concluded, in particular, that the applicant, according to his own account, had committed the killing in self-defence, without premeditation and through an unexpected confluence of circumstances. As a result, he had suffered a serious shock and confusion. At the remand prison he had suffered from sleep troubles, fear, and confusion and had displayed inappropriate behaviour. When examined by a prison psychiatrist he had been diagnosed with an acute reaction to stress, put in the prison’s medical wing and treated with sedatives, which had helped. 32.     In the course of the trial, conducted in the presence of his lawyer A.Kh. and his mother acting as a lay defender, the applicant confirmed the account of the attack on D. which he had given in the course of the pre-trial investigation. 33.     On 21 July 2005 the Toretsk Court convicted the applicant of murder without aggravating circumstances and theft and sentenced him to seven and a half years’ imprisonment. 34 .     On 5 August 2005 the applicant, represented by his parents and a new lawyer, Y.K., appealed against the judgment. Additional appeals were also lodged by them on later dates. In the appeals the applicant retracted his confessions as false. He and his representatives alleged that the confessions had been extracted from him under physical and psychological pressure from the police, namely that he had been subject to “physical pressure”, “threats and beatings”, “moral and physical influence”, that his statement of surrender “resulted from beatings” (“ применены меры силового давления ”, “ угрозами, избиваниями ”, “ моральные и физические воздействия ”, “ выбита явка с повинной ” respectively). According to him, he had been told that unless he confessed to murder he would be falsely accused of rape making his life in prison extremely difficult. He stated that two cellmates at the police detention facility also urged him to confess. He also noted that he had kept to his initial confessions until his conviction because his cellmates and the police had told him that the police would make his life difficult in prison if he told anyone of the pressure on him. On the other hand, they had assured him that if he chose to cooperate with the police they would make sure the charges against him were not serious and that he would be released from custody right after his trial. Accordingly, he had said nothing to his lawyers about his ill-treatment. 35.     The prosecutor also appealed, in particular arguing that the sentence was excessively lenient. 36.     On 4 October 2005 the Donetsk Regional Court of Appeal (“the Regional Court”) quashed the judgment of 21 July 2005 and returned the case for further investigation. The court noted that the judgment had been poorly reasoned. As far as the motives for the applicant’s actions were concerned, it had also been based heavily on the applicant’s confessions, without sufficient corroboration from other evidence. The description of the crime scene, for instance that the lock had been sawn off rather than broken off, had not matched the trial court’s conclusion, based on the applicant’s account, that the applicant had simply been exploring the shop out of curiosity. The victim had also had unexplained injuries on her genitals. C.     Further investigations and retrials 37.     On 19 December 2005 and on several subsequent occasions the investigators attempted to question the applicant within the framework of the further investigations. However, he refused to answer any questions and denied any involvement in the crimes he had been charged with. 38.     On 11 and 12 January 2006 the investigator reclassified the charges against the applicant from simple murder to aggravated murder for gain, and from theft to robbery. The applicant was also charged with theft of a friend’s cell phone. 39 .     On 17 February 2006 the Regional Court released the applicant from custody, finding that a further extension of his detention would be in breach of the applicable procedural time-limits. 40.     On 21 April 2006 the applicant’s case was submitted for a retrial. 41 .     On 10 May 2006 the Toretsk Court again remanded the applicant in custody. It held that while the applicant had no prior convictions and had positive character references, he had no employment and had been charged with grave offences. Accordingly, it held that detention was necessary to prevent the applicant from absconding or interfering with the investigation and to ensure his compliance with procedural decisions. No time-limit for his detention was fixed in that decision or in those made on 30 November 2006, 21 May 2007, 24 July and 30 December 2008, and 27 May 2009 (see below). 42.     On 30 November 2006 the Toretsk Court returned the case for further investigation and ruled that the applicant should remain in custody. The court based its decision on the gravity of the charges which, according to the court, made the applicant likely to abscond. 43.     On 21 March 2007 the applicant’s case was submitted to the Regional Court for a retrial. 44.     On 21 May 2007 the Regional Court again sent the case back for further investigation and, without giving reasons, ruled that the applicant should remain in custody. 45.     On 25 January 2008 the Regional Court convicted the applicant of robbery and the murder of D. 46.     On 24 July 2008 the Supreme Court quashed the conviction, returning the case for further investigation. The Supreme Court also ruled that the applicant should remain in custody. It gave no reasons for the latter part of its decision. 47.     On 30 December 2008 the Regional Court returned the case, which in the meantime had been re-submitted to it, for further investigation. It also ruled that the applicant should remain in custody. By way of reasoning it stated that there were no grounds to order his release given that, in view of the gravity of the charges against him, it could not be ruled out that the applicant would attempt to abscond. On 9 April 2009 the Supreme Court quashed that decision. D.     Final re-trial and conviction 48 .     On 27 May 2009 the Regional Court committed the applicant for trial and ruled that he should remain in custody for the same reasons as given in the order of 10 May 2006 (see paragraph 41 above). 49.     In the course of the final retrial the applicant denied any involvement in the attack on D. and said that he had found the grinder, describing essentially the same circumstances as on 20 February 2005 (see paragraph 13 above). To explain the presence of his fingerprint in the shop where the victim had been killed he stated that he had bought cigarettes there on 15   February 2005. 50 .     On 11 November 2009 the Regional Court convicted the applicant of robbery and aggravated murder and sentenced him to thirteen years’ imprisonment. In particular, it made the following findings. (a)     It found established that the applicant had broken into the shop intending to burgle it, had discovered D. sleeping, had repeatedly hit her on the head with a brick and then, after she had become unconscious, had inserted the neck of a vodka bottle into her vagina. (b)     In finding the applicant guilty, the court referred to various pieces of evidence, including forensic examinations, witness statements and the applicant’s confessions “given by him when questioned as a suspect and as an accused” (see paragraph 26 above), and the presence of the applicant’s fingerprint at the crime scene. In particular, the trial court referred to the pre-trial identification of the applicant by witness Y. and to the testimony of V.B., who had seen the applicant near the shop around the time of the murder. The court considered the applicant’s explanation for the presence of his fingerprint in the shop unconvincing since he had first mentioned the supposed visit to the shop on 15 February 2005 in the course of the retrial and had not previously mentioned that visit. (c)     The court rejected the applicant’s argument that his confessions had been inadmissible because they had been obtained under duress. It noted in particular that there was no evidence that the applicant had suffered any physical injuries at the hands of the police. Moreover, the applicant had consistently repeated his confessions in the presence of his lawyers, mother, and psychiatric experts in the course of the first investigation and trial. His parents had voluntarily paid the victim’s burial costs. Still, the applicant’s confessions had only partially reflected the truth. In particular, according to the forensic and other evidence, D. had been raped with a vodka bottle, which was not in line with the applicant’s initial statements that he had accidentally killed her after being surprised by her and had then run away almost immediately. (d)     The absence of the applicant’s lawyer from the identification parade on 21 February 2005 had not breached the applicant’s defence rights since he had not made any statements on that occasion and had simply been physically shown with other men in the line-up to the witness Y. through a one-way glass partition. It had been Y., and not the applicant, who had actively participated in that investigative measure, and therefore it had not had any impact on his chosen defence strategy. Moreover, contrary to the applicant’s submissions, Y.’s statements concerning the applicant’s presence near the crime scene on the night of the murder had been consistent with the statements of other witnesses. (e)     On an application by the defence the court ruled certain expert evidence inadmissible. (f)     While the statement in the arrest report that “eyewitnesses indicate the person who had committed the crime” (see paragraph 15 above) had been technically incorrect in the applicant’s case, the discovery of the grinder in the applicant’s home had in fact constituted an independent legal basis for his arrest. Accordingly, the Regional Court refused to declare the applicant’s arrest unlawful. 51 .     In an appeal to the Supreme Court the applicant gave the account of alleged ill-treatment by the police set out above. He stressed, however, that he had managed to withstand most of the pressure from the police. What had made him finally agree to plead guilty to a murder he had not committed had been the threat that he would be charged with rape and that that would lead to him being raped in prison. That threat had had a particularly strong impact on him given that he had already been made to spend several hours in a state of undress and vulnerability. He had chosen the false confession as a lesser evil. He had then maintained his confession throughout the trial because he had been assured by the lawyer B., who had good relations with the investigator in charge of the case, that the trial court would reclassify the charges against him from murder to a lesser charge of a “killing committed while exceeding the limits of legitimate defence”. He had hoped that such a reclassification would allow him to get probation instead of an actual prison sentence. It was not true that, as stated by the Regional Court, he had repeated his confession to psychiatrists. In fact the investigator had assured him that the psychiatric assessment was pre ‑ arranged to allow for reclassification and its results would be worded accordingly. The applicant had not talked to the experts and his mother assured him that she had arranged for the psychiatrists’ report to be worded in such terms that it may justify reclassification of charges against him. 52 .     On 3 June 2010 the Supreme Court upheld the above judgment and it became final. E.     Investigation into the applicant’s allegations of ill-treatment 53.     It would appear that the applicant first raised his allegations of ill ‑ treatment in his appeals against his first conviction (see paragraph 34 above). In those appeals his allegations were framed in rather general terms and were limited essentially to allegations of “beatings” and “psychological pressure”. He also stated, more specifically, that he had been told that, unless he confessed, charges of rape would be brought against him and this would make his life in prison extremely difficult. Afterwards the applicant’s parents also lodged complaints about his alleged ill-treatment with the prosecutor’s office. It appears that the applicant’s mother lodged first such complaints on 23 December 2005 and 16 January 2006. The Court has not been provided with copies of those complaints. 54 .     On 26 January 2006 the Toretsk prosecutor’s office, in response to the applicant’s mother’s complaint of 16 January 2006, refused to institute criminal proceedings in relation to the applicant’s complaints for lack of a corpus delicti in the police officers’ actions, concluding that there was no evidence of any physical or psychological ill ‑ treatment. The prosecutors referred essentially to the lack of medical evidence of any injuries suffered by the applicant at the time of the alleged ill-treatment and the lack of any complaints from him before his first conviction. The prosecutors also stated that there had been no irregularities in the applicant’s placement and holding in the police detention facility and that O. and K. with whom the applicant had been placed at that facility had had no prior convictions. 55 .     In the course of examination of the case against the applicant, on 14   June 2006, the applicant complained to the trial court about the beatings, handcuffing, stripping and the threats of prison rape he had allegedly been subjected to by the police. On 15 June 2006 the trial court ordered the prosecutor’s office to investigate the allegations. 56 .     On 29 June 2006 the prosecutor’s office again refused to institute criminal proceedings essentially on the same grounds. No mention was made of the applicant’s placement with adults in the detention facility. 57 .     On 26 September 2006 the applicant’s mother complained to the regional prosecutor’s office, reiterating her allegations that the applicant had been physically ill-treated by the police, left in a state of undress and handcuffed and threatened that he would be charged with rape and would, therefore, be raped in prison. She referred to her previous complaint of 23   December 2005 on the same subject and complained that she had received no satisfactory answer to it. 58 .     On 16 October 2006 the regional prosecutor’s office overruled the decisions of 26 January and 29 June 2006. 59.     On 3 November 2006 the Toretsk prosecutor’s office again refused to institute criminal proceedings, essentially on the same grounds as in its previous decisions. The prosecutors stated, with no further explanation, that there were no irregularities in the course of the applicant’s placement and holding in the police detention facility. On 25 June 2007 the regional prosecutor’s office overruled that decision as premature. 60 .     On 10 July 2007 the Toretsk prosecutor’s office again refused to institute criminal proceedings essentially on the same grounds. No mention was made of the applicant’s detention with adults. On 8 February 2008 the regional prosecutor’s office upheld that decision. 61.     Subsequently, other decisions refusing to institute criminal proceedings were taken, the most recent one on 31 December 2008. The copies of those decisions have not been provided to the Court. 62 .     On 6 January 2011 the Toretsk prosecutor’s office wrote to the applicant’s father in response to his complaint. It said that the records of local medical institutions showed that at the time the applicant had been placed in the cell with O. the latter had been registered as suffering from tuberculosis but, according to his file, he had not posed a danger of infection to others. He had been admitted to hospital in March 2005 to treat his tuberculosis. O. had had a conviction at some point in the past but his conviction had been considered sufficiently old to have been considered expunged by time the applicant had been detained with him. 63 .     On 14 March 2011 the Toretsk prosecutor’s office wrote to the applicant’s father, again in response to his complaint, stating that the placing of adult arrestees in the same cell with the applicant, a minor, had been in breach of domestic law (section 8 of the Pre-Trial Detention Act) and had constituted a disciplinary infraction on the part of the police officers who had taken that decision. However, they could not be disciplined because the six-month limitation period for disciplinary measures had expired. The prosecutor’s office also confirmed that the applicant’s cellmates were at the time registered as drug users. II.     RELEVANT DOMESTIC LAW A.     Code of Criminal Procedure of 1960 (repealed with effect from 20   November 2012) 64.     Under Article 45 of the Code participation of a defence counsel was mandatory in the cases of persons who committed an offence while under eighteen years of age, from the moment they acquired the procedural status of “suspects” or “accused”. Under Article 43 and 43-1 of the Code the procedural status of a “suspect” was acquired when the person was arrested on suspicion of a crime and the status of the “accused” when he or she was formally charged with a crime. Article 47 § 3 of the Code authorised the investigator to appoint a defence counsel, according to the procedure provided by law, through a bar association, the investigator’s demand being obligatory for the head of the bar association. According to Article 44 of the Code the authority of a lawyer appointed as a defence counsel had to be confirmed by an order of the bar association unless the lawyer appointed was not a member of a bar association in which case his or her authority was to be confirmed by written agreement with the client. 65 .     Under Article 48 of the Code a defence counsel had the right to be present at all investigative actions, including questioning, search and seizure and identification parades, in which the defendant participated. 66.     Other relevant provisions of the Code of Criminal Procedure are quoted in the Court’s judgments in Osypenko v. Ukraine (no. 4634/04, § 33, 9 November 2010), and Smolik v. Ukraine (no. 11778/05, §   32, 19 January 2012). B.     Pre-Trial Detention Act of 1993 67 .     Section 8 of the Pre-Trial Detention Act requires that minors are to be kept separately from adults and that those being prosecuted for the first time are to be held separately from those with a prior criminal record. THE LAW I.     ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 68.     The applicant complained that he had been physically and psychologically ill-treated by police officers and that there had been no effective investigation into his complaints in that respect. 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.     The parties’ submissions 1.     Alleged ill-treatment 69.     The Government submitted that the applicant’s complaint was ill ‑ founded. They pointed out that there was no evidence that any injuries had been inflicted on him while he had been in police custody. Officer G., who had taken the applicant’s original confession, had testified that the applicant’s statement of surrender had been voluntary. The applicant had failed to refute that testimony, in particular by refusing to participate in a formal confrontation with G. The applicant had been questioned in the presence of his lawyer L. and his parents had failed to engage another lawyer. The applicant had not raised any complaints until after he had been convicted. While the applicant had indeed received psychiatric care in detention, his psychological troubles had been caused by the stress of his having committed a crime. The content of the expert report (see paragraph 31 above), not challenged by the applicant or his lawyer, supported that conclusion. The applicant’s cellmates, K. and O., had been ordinary arrestees and not police agents. 70.     The applicant insisted that his complaint was admissible. He submitted that he had been beaten and threatened by the police on 20 and 21   February 2005. In addition to beatings and threats, he had been left handcuffed and in a state of undress from 4 p.m. to 7.30 p.m. on 20   February 2005 and had been placed in a cell with adult detainees who had allegedly been police informants. He maintained that such treatment had amounted to sustained psychological pressure contrary to Article 3, as a result of which he had been forced to make his confession. According to him, physical ill-treatment and the threat that he would be raped in prison had been decisive factors in his decision to make a false confession. 71.     He explained the delay in raising his complaint before the domestic authorities by his desire to ensure that he would get a speedy investigation and trial and a light sentence, as had been promised to him by the investigating authorities. 72.     The mental troubles the applicant had suffered after transfer from police custody to the remand prison, recorded in the psychiatrists’ report of 6 April 2005 (see paragraph 31 above), had been a consequence of that treatment. In his view, certain other circumstances also provided corroboration for his allegations. In particular: (i) while he had been de   facto detained on the morning of 20 February 2005, his arrest had only been documented with a report at 4 p.m. that day, (ii) he had been kept “incommunicado” (by which the applicant apparently meant without contact with his parents) during the first few days of the investigation, (iii) he had been kept handcuffed in a state of undress after his clothes had been taken for forensic examination, (iv) he had been detained with adults suffering from a contagious disease. His vulnerability as a minor separated from his parents had to be taken into account. According to the applicant, his sudden confession on the morning of 21 February 2005, combined with the above circumstances and the lack of an effective investigation into his allegations of ill-treatment, allowed for a presumption that he had been ill-treated. 2.     Effectiveness of the investigation 73.     The applicant submitted that his complaint had been “arguable” given that he had provided a coherent account of the alleged ill-treatment, the irregularities in his arrest and questioning and the overall context of his detention. The authorities had made no attempt to question the officers who had seized the applicant’s clothes, his cellmates, doctors, or the applicant himself. The decisions to refuse to initiate criminal proceedings had been repeatedly overruled. The applicant alleged that the authorities’ conduct in his case had reflected the general pattern of the ineffectiveness of domestic investigations described in Kaverzin v. Ukraine (no.   23893/03, §§   172-80, 15 May 2012). 74.     The Government submitted that the enquiries conducted by the prosecutor’s office into the applicant’s allegations had been effective. The prosecutor’s office had relied on medical evidence which showed that the applicant had had no injuries. The effectiveness of the investigation had been undermined by the applicant’s delay in raising his complaints. Accordingly, there had been no violation of the procedural limb of Article 3. B.     The Court’s assessment 1.     Admissibility 75.     In assessing the admissibility of the applicant’s complaint the Court considers that a distinction must be made between the various elements of his allegations. (a)     Physical ill-treatment and threats against the applicant’s family 76.     As far as the applicant’s allegations of physical ill-treatment or threats of “problems” for his family are concerned, they are not supported by any evidence. In particular, there is no evidence that the applicant suffered any injuries in police custody: it is notable in this respect that the applicant was examined on the day of arrest by a forensic medical expert who established that his injuries predated the arrest (see paragraph 14 above). No further injuries were ever recorded. That part of the applicant’s allegations is, therefore, wholly unsubstantiated. For the same reason they were not “arguable” for the purposes of the procedural limb of Article 3. 77 .     Therefore, that part of the application should be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention. (b)     Other elements of the alleged ill-treatment 78 .     Unlike the applicant’s allegations of physical ill-treatment and threats against his family, other elements of the applicant’s allegations find some support in the material before the Court. In particular, the applicant alleged that: (i) he had been left handcuffed and in his underwear for several hours at the police station, (ii) he had been placed in the same cell as adult detainees, at least one of whom was suffering from a contagious disease, and (iii) he had been threatened that unless he confessed to murder he would be charged with rape, which would result in him being raped and harassed in prison by fellow inmates. 79.     While those allegations were raised before the domestic authorities after a substantial delay, the case file nevertheless contains important elements corroborating them. 80 .     In particular, the relevant search and seizure records show that all of the applicant’s clothes were seized from him for forensic analysis at 4 p.m. on 20 February 2005 and that the search of his home was completed at 6.20   p.m. the same day, after which he allegedly first received replacement clothes. His account of what occurred in those hours is coherent and plausible. In contrast, the Government failed to provide any alternative account of those events. In particular, neither any domestic authority in the course of the domestic investigations nor the Government before the Court stated that he had been provided with any other clothes or a covering immediately after his clothes had been seized. The Government also did not contest his allegation that throughout that time he had remained handcuffed. The applicant’s placement with adults in breach of domestic law was admitted by the authorities (see paragraph 63 above). As to the threat that the applicant could be charged with rape and that this would expose him to the risk of prison rape, it can be noted that clear signs that the victim might have been subjected to some sort of sexual assault had been discovered early on and that that was eventually confirmed by the domestic courts in convicting the applicant (paragraphs 6 and 50 above). Therefore the Court cannot rule out the possibility that a sex offence charge was discussed with the applicant on 20 or 21 February 2005 (see paragraphs 8 and 22 above). Given that such a charge could have been warranted by the facts of the case, the mere discussion of such a possibility would not fall within the ambit of Article 3. However, the possibility that such a discussion may have taken place can be taken into account when assessing the likely impact on the applicant’s state of mind of the other objective elements of the applicant’s treatment that have been proven (see paragraph 91 below). 81 .     The Government failed to provide any evidence, resulting from the domestic investigations or otherwise, to rebut the applicant’s allegations other than to point out that his allegations had been raised after a substantial delay. The Court reiterates that in accordance with its case-law the scope of the obligation to apply promptly to the domestic authorities, which is part of the duty of diligence incumbent on the applicants, must be assessed in the light of the circumstances of the case (see, mutatis mutandis , Mocanu and Others v. Romania [GC], nos. 10865/09, 45886/07 and 32431/08, § 265, ECHR   2014 (extracts)). Turning to the circumstances of the present case, the Court observes that the applicant explained his tardiness in bringing up this complaint by referring to his hope that by cooperating with the investigating authorities he would get a more lenient sentence. On the one hand, such an explanation would appear to undermine the applicant’s credibility. After all, if he believed it to be beneficial to maintain a false confession in the hope of a lenient sentence, he might also be prepared to make a false ill-treatment allegation to achieve the same result or some other goal. On the other hand, the applicant’s explanation is not necessarily inconsistent with his allegations. After all, the treatment described by the applicant might well have been a “stick” accompanied by a “carrot” in the form of an offer to plead guilty in return for favourable legal treatment in terms of the charges brought against him. Therefore, in the light of the available evidence (see paragraph 80 above), the Court cannot consider that the applicant’s delay in raising his allegations is in itself decisive for determining the credibility of his allegations. 82 .     Accordingly, the Court finds that the applicant’s complaint under the substantive and procedural limbs of Article 3 – that he was left in a state of undress for hours and placed in a cell with adults and that the domestic authorities failed to effectively investigate his allegations in that respect – raises serious issues of fact and law requiring an examination of the merits. Therefore, contrary to the Government’s submissions, this part of the application 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. 2.     Merits 83.     The relevant general principles of the Court’s case-law concerning the substantive and procedural aspects of obligations under Article 3 of the Convention are summarised in Bouyid v. Belgium ([GC], no. 23380/09, §§   81-90 and 100-101 ECHR 201581-90), and El-Masri v. the former Yugoslav Republic of Macedonia ([GC], no. 39630/09, §§ 182-85, ECHR   2012) respectively. (a)     Alleged ill-treatment 84.     In the light of the preceding discussion concerning admissibility, the Court finds that the two elements of the applicant’s allegations – his stripping and placement with adult detainees on 20 February 2005 – have been proven to the required standard of proof. 85.     The Court considers that those elements are insufficient to make an arguable case that the applicant was subjected to either “torture” or “inhuman treatment”. The question for the Court is whether those elements are sufficient to find that the applicant suffered “degrading” treatment contrary to Article 3 of the Convention. 86 .     In Bouyid (cited above), the Court held that any conduct by law ‑ enforcement officers vis-à-vis an individual which diminishes human dignity constitutes a violation of Article 3 of the Convention. Treatment which arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance may equally be characterised as degrading and fall within the prohibition set forth in Article 3 (ibid., §§ 101 and 87 respectively). Moreover, in Bouyid the Court also reiterated that ill ‑ treatment is liable to have a greater impact – especially in psychological terms – on a minor and emphasised that it was vital for law-enforcement officers who are in contact with minors in the exercise of their duties to take due account of the vulnerability inherent in their young age. Police behavior towards minors may be incompatible with the requirements of Article 3 of the Convention simply because they are minors, whereas it might be deemed acceptable in the case of adults. Therefore, law-enforcement officers must show greater vigilance and self-control when dealing with minors (ibid., §§ 109 and 110, with further references). 87.     Turning to the circumstances of the present case,   the Court finds it established that the applicant was left handcuffed in just his underwear at the police station for at least two and a half hours on 20 February 2005. The authorities clearly had a valid reason for taking his clothes as they could have provided physical proof of his involvement in the crime. However, the Government have not provided any explanation to the Court as to why the authorities allowed the applicant to remain in a state of undress for at least two and a half hours afterwards. 88.     The Court notes that the forced stripping of a person is a strong measure which often implies a certain level of distress. In certain circumstances it might fall within the ambit of Article 3 of the Convention (see, for example, Lyalyakin v. Russia , no. 31305/09, §§ 75-78, 12   March   2015, which concerned the stripping of a nineteen-year-old army recruit down to his briefs). 89 .     In the present case, there is no conclusive evidence before the Court that the authorities’ intention was to humiliate or debase the applicant. This is a relevant factor, even though the absence of such an intention is not decisive (see, among other authorities, V. v. the United Kingdom [GC], no.   24888/94, § 71, ECHR 1999 ‑ IX). 90.     In contrast to