CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 22 septembre 2022

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sD9DA4929 { margin-top:72pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s34DFC730 { margin-top:0pt; margin-bottom:0pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s2E932ED2 { margin-top:0pt; margin-bottom:0pt; font-size:11pt } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .sEB98FB19 { margin-top:0pt; margin-left:14.2pt; margin-bottom:0pt } .s1AE6489F { width:14.15pt; display:inline-block } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .sECF8538A { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s58699FB5 { margin-top:14pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s434D37A9 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s6B505E72 { margin:0pt; padding-left:0pt } .sD11CFAB7 { margin-top:14pt; margin-left:15.01pt; margin-bottom:3pt; text-align:justify; padding-left:1.99pt; font-family:Arial } .sFBC99493 { font-style:italic } .s51DFF5CF { margin-top:0pt; margin-left:34pt; margin-bottom:0pt; text-indent:-17pt; text-align:justify } .sE5BF05B1 { width:2.33pt; font:7pt 'Times New Roman'; display:inline-block } .s7F175FE6 { margin-top:0pt; margin-left:51.05pt; margin-bottom:0pt; text-indent:-17.05pt; text-align:justify } .sE5C1F6E3 { width:3.33pt; font:7pt 'Times New Roman'; display:inline-block } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .s4598CDF { width:70.9pt; display:inline-block } .sBD1BE8CC { width:33.89pt; display:inline-block } .s36359848 { width:112.09pt; display:inline-block } .s5D826FD4 { width:25.88pt; display:inline-block } .s1B61D60 { width:156.43pt; display:inline-block }       FIFTH SECTION CASE OF MELIKSETYAN v. UKRAINE (Application no. 40057/11)           JUDGMENT   STRASBOURG 22 September 2022           This judgment is final but it may be subject to editorial revision. In the case of Meliksetyan v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:   Stéphanie Mourou-Vikström , President,   Lado Chanturia ,   Mykola Gnatovskyy , Judges, and Martina Keller, Deputy Section Registrar , Having regard to: the application (no.   40057/11) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 21 June 2011 by a Ukrainian national, Mr Edgar Samvelovich Meliksetyan, born in 1980 and living in Kharkiv (“the applicant”) who had been granted legal aid and was represented before the Court by Mr M.   Tarakhkalo, a lawyer practising in Kyiv; the decision to give notice of the application to the Ukrainian Government (“the Government”), represented, most recently, by their acting Agent, Ms   O.   Davydchuk; the parties’ observations; Having deliberated in private on 1 September 2022, Delivers the following judgment, which was adopted on that date: SUBJECT MATTER OF THE CASE 1.     The present case concerns allegations, under Articles 3 and 13 of the Convention, that the applicant was tortured by the police, his complaint was not properly investigated and no effective remedies were available in respect of that complaint. 2.     On 6 April 2010 the applicant complained to the Ministry of the Interior, stating that from about 2   p.m. until 7   p.m. on the previous day he had been arbitrarily detained by three police officers (subsequently identified as B., P. and Sh.) who had tortured him in the Frunzenskyi district police station in Kharkiv to coerce him into giving self-incriminating statements and that they had subsequently taken him to see expert S., who had issued a false report indicating that he had no injuries. 3.     Following the applicant’s complaints, forensic assessments were ordered and the experts concluded (reports of 18   May   2010 and 9   December   2013) that on or around 5   April   2010 he had sustained the following injuries classified as “minor”: cerebral trauma, bruising (on the face, head, neck, chest, lumbar area, arms and knee joints); abrasions on arms; and a subcapsular kidney haematoma. 4.     On 7 June 2010 the Kharkiv regional prosecutor’s office instituted criminal proceedings, within the context of which on 17 February 2011 officers Sh. and P. were arrested and remanded in custody. As regards officer   B., criminal proceedings against him were initiated on 15 January 2013 and, after having been terminated on several occasions and reopened following appeals by the applicant, were eventually closed on 7 October 2013 for want of any evidence that he had committed an offence. Further appeals by the applicant against that decision were dismissed by the Frunzenskyi District Court and the Kharkiv Regional Court of Appeal on 11   October and 4   November   2013 respectively. 5.     In the meantime, on 29   August   2011 officers P.   and Sh. were committed for trial at the Leninskyi District Court in Kharkiv. As appears from the summary made by that court, the indictment was based on the following presentation of facts: at about 2   p.m. on 5 April 2010, having allegedly obtained unofficial operational information that the applicant had committed criminal acts, Sh., accompanied by B., dragged the applicant out of a car, handcuffed him and took him to the police station. The officers kept the applicant handcuffed there until about 7   p.m. without regularising his presence at the police station. During that period, Sh., subsequently joined by P., tried to coerce the applicant into giving self-incriminating statements. The applicant refused and Sh. grabbed him by his head and threw him to the floor. P. punched him in the left kidney and hit him on the face, stomach, neck and back. On several occasions the applicant, who remained handcuffed, lost consciousness. It also appears from the court’s summary that B. was present during the questioning. 6.     On 20   February   2014 the court found that the facts as established in the indictment had been corroborated by sufficient evidence and that P. and Sh. had committed an offence under Article 365   §   2 of the Criminal Code. The provision described abuse of authority by a law-enforcement officer as involving “violence ... [and the] application of ... special means or acts [which were] painful or degrading for the victim, [but] lacking any elements of torture”. The court sentenced the officers to seven years and six months’ imprisonment, deprived them of their ranks as officers, and prohibited them, for a period of three years, from occupying posts as law-enforcement officers. The Leninskyi District Court also allowed in part a civil claim lodged by the applicant, compensating his medical treatment costs in so far as they were found to be substantiated, and awarded him 20,000 Ukrainian hryvnias in respect of non-pecuniary damage. 7.     On 8 July   2014 the Kharkiv Regional Court of Appeal, reviewing the case on appeal by the parties, decided that P. and Sh. (still detained on remand) could be released from further detention under the Amnesty Act of 2014, in particular because they had already served more than one-quarter of their prison sentence and because their offences had not involved “violence [which posed] a danger to life and health.” The court also reversed the prohibition on their occupying posts in law-enforcement bodies. 8.     The applicant lodged a cassation appeal, arguing in particular that, regard being had to the nature of the offences, amnesty laws could not be applied. He also complained that the courts had not obliged the prosecution to further investigate B.’s role in the events in question, although they had established that he had participated in them and that expert S., who had issued a statement falsely indicating, at the request of police officers, that the applicant had no injuries upon his release, should have also been criminally prosecuted. 9.     On 26 September   2014 the Higher Specialised Civil and Criminal Court found that the applicant had no standing to lodge that complaint. THE COURT’S ASSESSMENT ALLEGED VIOLATIONS OF ARTICLES 3 and 13 OF THE CONVENTION 10.     In their initial observations submitted on 31   March   2014, the Government argued that the applicant’s complaints concerning the alleged ill-treatment had been premature, as the criminal proceedings against Sh. and P. had been pending at that time. They further submitted that there was no reason to consider that the relevant investigation had been ineffective and that that complaint was therefore manifestly ill-founded. Lastly, they argued that there had been no breach of Article   13. 11.     The applicant maintained his complaints. He argued, in particular, that officers P. and Sh. should not have been released from punishment; and that officer B. and expert S. had been unfairly spared criminal liability as a result of flawed investigation. 12.     The Court dismisses the Government’s non-exhaustion argument, as it has lost its rationale on completion of the proceedings (see, in particular, Cestaro v. Italy , no. 6884/11, §§   145-49, 7 April 2015, with further references). It further considers that the applicant’s complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds and must be declared admissible. 13.     The relevant general principles in respect of Article 3 of the Convention have been summarised in Gäfgen v. Germany ([GC], no.   22978/05, §§   87-93 and 115-19, ECHR 2010) and Cestaro (cited above, §§   204-12 and 215). 14.     The Court notes that in the present case the domestic courts found two police officers guilty of having ill-treated the applicant with a view to coercing him to give self-incriminating statements (see paragraph 6 above). These findings constitute sufficient grounds for the Court to conclude that the State is responsible for his ill-treatment. Regard being had to the multiplicity of the injuries sustained by the applicant, their dispersed locations and the circumstances in which they were sustained – including the duration of the ill-treatment, its deliberate nature, its purpose and the applicant’s vulnerability vis-à-vis the officers’ detaining and questioning him in blatant breach of the applicable law – the Court considers that this treatment attained the level of severity to be classified as torture (for relevant examples, see Valeriu and Nicolae Roşca v. Moldova , no. 41704/02, §   64, 20   October   2009; and Belousov v. Ukraine , no. 4494/07, §§   67-68, 7   November   2013). 15.     As regards the alleged ineffectiveness of the investigation, the Court notes that P. and Sh. were convicted of abuse of authority within the meaning of the Criminal Code which expressly excluded acts amounting to torture (see paragraph   6 above). Moreover, on 8   July   2014 the Court of Appeal released both officers from serving the outstanding part of their prison sentence and reversed the prohibition on their occupying posts in law-enforcement bodies, having found that their offences “did not involve violence [which posed] a danger to life and health” (see paragraph   7 above). 16.     Criminal proceedings against B. (the third officer implicated by the applicant in his alleged torture), instituted nearly three years after the events in issue and marked by repeated remittals for reinvestigation, were eventually closed for want of any evidence that he had committed an offence. It also appears that no disciplinary action or any other liability was imposed on him, although, as established during Sh. and P.’s trial, he took part in the applicant’s arrest and forceful transfer to the police station, which were not regularised in any manner, and was present during the applicant’s questioning (see paragraph 6 above). 17.     In the light of its well-established case-law, the Court considers that the elements presented in paragraphs   15-16 above are sufficient for it to conclude that the investigation into the applicant’s alleged torture was not in compliance with the requirements of Article   3 (see Yeter v. Turkey , no.   33750/03, §   70, 13   January   2009, with further references; Valeriu and Nicolae Roşca , cited above, §§   71-74; Myumyun v. Bulgaria , no.   67258/13, §§   70-78, 3 November 2015; and Shestopalov v. Russia , no.   46248/07, §§   51 ‑ 54, 28 March 2017). 18.     There has accordingly been a violation of Article   3 of the Convention under its substantive and procedural limbs. 19.     Having regard to the above findings, the Court considers that the main legal questions raised in the present application have been addressed, and that there is no need to address any further matters under Article   3 or examine the complaint under Article   13 separately (see Centre for Legal Resources on behalf of Valentin Câmpeanu v.   Romania   [GC], no.   47847/08, §   156, ECHR   2014). APPLICATION OF ARTICLE 41 OF THE CONVENTION 20.     The applicant, who had been granted legal aid, claimed 50,000 euros (EUR) in respect of non-pecuniary damage. He also claimed EUR 7,125 in respect of legal fees incurred before the domestic courts and the Court and EUR   865 in unspecified administrative and postal expenses. The fees being outstanding, the applicant requested that the award be transferred directly to the account of his lawyer, Mr   M.   Tarakhkalo. He submitted a copy of a contract and time sheets, from which it appears that the lawyer spent seventy ‑ five hours at the rate of EUR   95 per hour and incurred EUR   855 in postal and other unspecified expenses. 21.     The Government submitted that those claims were excessive and that no evidence justifying the lawyer’s expenses had been presented. 22.     Ruling on an equitable basis, the Court awards the applicant EUR   8,000 in respect of non-pecuniary damage, plus any tax that may be chargeable. It further awards the applicant EUR   1,500 for legal fees, plus any tax that may be chargeable to him, to be transferred to the account of Mr   M.   Tarakhkalo, as requested by the applicant. 23.     The Court further 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, Declares the application admissible; Holds that the   applicant was subjected to torture by the police officers in violation of Article 3 of the Convention; Holds that there has been a violation of Article 3 of the Convention on account of the lack of an effective investigation into the applicant’s allegations of torture; Holds that it is not necessary to examine separately the complaint under Article   13 of the Convention; Holds (a)   that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i)   EUR 8,000 (eight thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii)   EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable to the applicant, in respect of legal fees, to be transferred to the account of Mr   M.   Tarakhkalo, the applicant’s lawyer; (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; Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 22 September 2022, pursuant to Rule   77   §§   2 and 3 of the Rules of Court.     Martina Keller   Stéphanie Mourou-Vikström   Deputy Registrar   President