CASE OF SAVITSKYY v. UKRAINE
Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Torture) (Substantive aspect);Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Fair hearing);Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition);Pecuniary and non-pecuniary damage - award
André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Ganna Yudkivska;Karel Jungwiert;Mark Villiger
5. The applicant was born in 1967 and lives in Potochyshche, Ivano-Frankivsk Region. 6. In the evening of 21 August 1998, after a working day, the applicant and his friend decided to visit a bar in the town of Horodenka before going home. The bar was located in the corner of a small park in the town. The park was in the form of a triangle with a base 70 metres long and two sides each 60 metres long. 7. According to the explanations given to the investigating authorities by the applicant, his friend and the owner of the bar (who served the applicant and the friend), each of them ordered not more than 150 millilitres of horilka (the beverage containing 40% alcohol) and a bottle of beer, together with some snacks. 8. They finished their food and drink at about 10 p.m. and left the bar. They went along the park to the nearby bus station. The applicant had come by bicycle so it was for his friend to take a bus. 9. While the applicant was seeing his friend off on the bus, his bicycle was stolen. The applicant decided to look around, as he thought it might have been a joke. After some time, as he did not succeed in finding the bicycle, he decided to call the police to inform them of the theft, and also to call his wife to tell her he was going to be late. For this purpose he crossed the park and approached the nearby petrol station, located in front of the park on the opposite side, and asked the sales assistant to let him make the calls. The sales assistant refused. Having the impression that the applicant was drunk and did not want to leave the petrol station, the sales assistant decided to call the police himself to get rid of the applicant. 10. A police patrol of three officers from the Horodenka District Police Department arrived by car and grabbed the applicant in the street near the petrol station. They pulled him into the police car and started beating him. They pulled up on the other side of the park with the lights turned off, took the applicant out of the car and continued beating him so that he fell to the ground. Then they continued to beat him while he was lying on the ground. At a certain moment the applicant received a hard blow to his back and lost consciousness. He could not remember for how much longer he was beaten after that. When he regained consciousness he could not move his legs and felt acute pain in the back. He was alone at this point and started crying from the pain. 11. A little later he noticed the police officers and a security guard from the bar approaching him. He heard one of the police officers explaining to the security guard that he should testify that the applicant was so drunk he could not even stand up. 12. The applicant was thrown into the police car and driven to the Horodenka District Hospital. While he was being examined, the police officers repeatedly demanded that the applicant stand still, but he could not, and kept falling over. In the police officers’ opinion this expressly demonstrated to the doctors the level of the applicant’s intoxication. When asked what had happened to him the applicant explained to B., a doctor, that he had been beaten up by the police officers. 13. Statements by the police officers, a police internal inquiry report of 29 September 1998, decisions of 24 November 1998 and 30 April 1999 refusing to open a criminal investigation, and a decision of 20 November 2003 terminating a criminal investigation, indicate the authorities’ version of events, as follows. 14. At about 0.35 a.m. on 22 August 1998 the Horodenka District Police Department received a telephone call from a sales assistant at a petrol station that a drunk man was hanging about at the petrol station and refusing to go away. The complaint was passed on by a radio communication facility to a police patrol consisting of three officers, N., Kh. and M., who were in a car nearby. They arrived at the petrol station ten or fifteen minutes later, to find the sales assistant alone. The latter explained that the man had headed for the park. The police officers pulled up at the bar, which was located at the opposite corner of the park, and met a security guard there. They went into the park together, as they could hear cries for help. They found a man complaining of acute pain in the waist and stomach. They put him into the car; took him to the sales assistant, who identified the man as the one who had disturbed him that night; and went on to Horodenka District Hospital, where he was provided with medical treatment. 15. Upon delivery to the Horodenka District Hospital the applicant was examined and diagnosed with two fractured vertebrae and a spinal cord injury. The applicant was also diagnosed with alcoholic intoxication. However, no test for alcohol was carried out. 16. The same day he was moved to Ivano-Frankivsk Regional Hospital for surgical treatment. The applicant stayed there till 1 October 1998, following which he was moved to Horodenka District Hospital, where he stayed till 19 November 1998. 17. According to the doctor’s certificate of 3 September 1998 issued at Ivano-Frankivsk Regional Hospital, the applicant was also suffering from concussion. 18. Since that incident the applicant has been unable to walk unaided and has been designated Category 1 (the highest category) disabled. 19. At the end of 1998 the applicant’s wife began divorce proceedings. On 12 November 1999 the divorce was registered by the domestic authorities. 20. After the completion of his inpatient treatment the applicant moved to a village to live with his father, who was born in 1928. 21. At 2.05 a.m. on 22 August 1998 the Horodenka District Hospital informed the Horodenka District Police Department about the incident. 22. At about 3 a.m. on the same night, Kh. questioned the sales assistant at the petrol station and the security guard of the bar about the incident. 23. During the same day, the three police officers (N., Kh. and M.) submitted reports to the head of the Horodenka District Police Department setting out their version of the events, which corresponded to the explanations given by the sales assistant and the security guard. 24. Another police officer at the Horodenka District Police Department carried out a site inspection: he found a shoe belonging to the applicant. According to the report describing the site of the incident, part of the park border was fenced; the fence was 120 centimetres high; there was also a concrete ring five metres in diameter at the centre of the park with a fence; the height of the concrete foundation was 20 centimetres while the height of the fence, circling the ring, was 120 centimetres. 25. A few days later the police officers and the investigator at the Horodenka District Police Department once again questioned the sales assistant and the security guard, then the applicant’s friend who had been with him in the bar, the cook at the bar and three doctors at the Horodenka District Hospital, where the applicant had received treatment. The sales assistant and the security guard repeated their statements. The applicant’s friend noted that neither he nor the applicant had had any conflict with anyone in the bar. A similar statement was made by the cook. The doctors noted that, when visually examining the applicant, they did not see any bruises or other injuries on his body suggesting that he might have been beaten; when they asked the applicant about the incident, he could not explain to them what had happened to him. 26. On 29 August 1998 the applicant made a complaint to the Ivano-Frankivsk Regional prosecutor, alleging that he had been severely beaten by police officers. He claimed that the enquiries carried out by the Horodenka District Police Department and the Horodenka District Prosecutor’s Office were not objective; he had not been questioned while he could still identify the police officers; and a number of bruises had disappeared since the incident. He requested that the case be transferred to a different authority to ensure an independent investigation of the matter. 27. On 31 August 1998 a police officer from the Horodenka District Police Department questioned the applicant. The latter repeated his version of the events. 28. On 2 September 1998 the police officer questioned the owner of the bar, who said that he did not see the applicant having any conflict with anyone in the bar, but noted that at a certain moment the applicant had fallen asleep at the table and fallen off his chair. 29. On the same day the Horodenka District Police Department referred the file to the Horodenka District Prosecutor’s Office for further enquiries. 30. During September 1998 the investigator at the Horodenka District Prosecutor’s Office questioned the same people who had been questioned earlier by officers of the Horodenka District Police Department. Those witnesses essentially repeated their original statements. One of the doctors, however, specified that the applicant had told him that he had been beaten by police officers. 31. On 24 November 1998 a forensic medical expert issued a report concerning the nature of the injuries sustained by the applicant. The expert noted in the descriptive part of the report that between 22 August and 1 October 1998 the applicant was treated in the hospital for spinal injuries and concussion. In his conclusions the export noted that the vertebral and spinal cord injuries “had been caused by blunt solid objects or, possibly, by the applicant’s falling on to blunt solid objects”. He further opined that after sustaining those injuries the applicant could not move his lower limbs. He also specified that it was hardly probable that those injuries had been inflicted by a rubber truncheon or shoes. 32. The same day, 24 November 1998, the investigator refused to open criminal proceedings against the police officers, finding that the material collected in the course of “pre-investigation” enquiries did not suggest that the police officers had committed any crime in respect of the applicant. He noted that the applicant had been drunk, while the conclusions of the forensic medical expert suggested that the injuries might have been caused by the applicant’s falling on to blunt solid objects, and that it was hardly probable that the injuries had been inflicted by a rubber truncheon or shoes. 33. The applicant was not sent the last pages of the decision and could therefore not know its final reasoning. Nevertheless, the applicant challenged the decision before the supervising prosecutor’s office. 34. On 30 November 1998 the Ivano-Frankivsk Regional Prosecutor’s Office quashed the decision of 24 November 1998 as unsubstantiated, and opened a criminal investigation in connection with the grievous bodily injuries caused to the applicant by unknown persons. The prosecutor considered that the case file suggested that a crime had been committed in respect of the applicant, while the police officers who had delivered the applicant to the hospital had not taken any hot pursuit measures to catch the possible perpetrators. The case was referred to the Snyatyn District Prosecutor’s Office for the investigation. 35. Meanwhile, during September 1998, the Ivano-Frankivsk Regional Police Department carried out an internal inquiry in connection with the complaints by the applicant. 36. The inquiring officers examined the material collected by the Horodenka District Police Department in the course of “pre-investigation” enquiries, and issued a report on 29 September 1998 concluding that the applicant’s complaints were unsubstantiated. 37. On 30 December 1998 the case was assigned to an investigator at the Snyatyn District Prosecutor’s Office. The next day the investigator commenced with an inspection of the site of the incident. The investigator noted in the report that the park zone was partly fenced with a metal fence 80 centimetres high; in the centre of the park was a concrete ring with a metal fence; the concrete base of the ring was 20 centimetres high; the fence around the ring was 80 centimetres high. 38. On 31 December 1998 the applicant was given the status of victim in the proceedings and questioned about the incident. The applicant repeated his account, that he had been beaten up by the police officers. In the course of questioning he also specified that at a certain moment while he was being beaten up by the police officers he fell to the ground; when he attempted to rise, one of the officers hit him hard on the back and the applicant fell to the ground again and lost consciousness. 39. Between January and March 1999 the investigator took a number of measures in the course of the investigation. In particular, on 18 January 1999 he carried out a reconstruction of the events, with the participation of the security guard, who indicated the place where the applicant had been found lying on the ground. The investigator noted that the distance to the road, from which the park was fenced off, was twenty-four metres. The report was accompanied by photographs showing the place of the incident from different angles. 40. The investigator further questioned witnesses and the police officers involved. The police officers maintained their version of the events. One of the police officers, Kh., specified that when they had delivered the applicant to the Horodenka District Hospital Kh. had asked for particular doctors; he knew them because his parents were working at that hospital. He also noted that after he had left the hospital he had met the sales assistant and the security guard and had taken written statements from them. 41. The sales assistant also confirmed that at 3 a.m. on 22 August 1998 police officer Kh. came to see him and said that the man who had disturbed him that night, had been severely beaten up and that it was necessary for the sales assistant to make a statement. The statement was written down by the police officer and signed by the sales assistant. 42. Identification parades were held at which the applicant identified the three police officers. Confrontations were held between the applicant and the police officers at which the applicant maintained his version of events while the police officers all denied that version. 43. On 6 March 1999 the same forensic medical expert carried out another forensic medical examination of the applicant’s injuries, relying on the applicant’s medical history as recorded by the two hospitals where the applicant had been treated. The expert also stated that according to the medical history the applicant was also suffering from concussion. He further concluded that the applicant had sustained the following injuries: compressive fractures of the body of the eleventh thoracic vertebra and the body of the third lumbar vertebra (компресійний перелом тіла одинадцятого грудного хребця та тіла третього поперекового хребця); fractures of the neural arches of the eleventh thoracic vertebra (перелом дужок одинадцятого грудного хребця); fractures of the transverse processes of the first, second, third lumbar vertebrae (перелом поперечних відростків першого, другого, третього поперекових хребців); fractures of the spinous processes of the tenth thoracic vertebra and the first lumbar vertebra (перелом остистих відростків десятого грудного і першого поперекових хребців), and bruises on the back over the spinal column. These injuries resulted in paresis of the lower limbs. 44. The expert opined that the spinal fractures could have resulted from the endwise compression of the spine and bending of the trunk. These movements might have been made by the applicant falling on his heels, buttocks, or head. The bruises on the back in the area of the first and second lumbar vertebra might have been caused by blunt solid objects or by the applicant’s falling on to blunt solid objects. The expert repeated his earlier conclusion that after the injuries the applicant could not move his lower limbs. 45. On 16 March 1999 the investigator decided to order another forensic medical examination to clarify whether the injuries could have been caused in the way described by the applicant who had stated that he had received a hard blow on the back when he was getting up and his spine was bent. 46. On 9 April 1999 a board of forensic medical experts, having examined the relevant materials, concluded that the spinal injuries could not have been caused when the applicant was getting up and his spine was bent. They upheld the previous forensic medical expert’s opinion as to the manner in which the spinal fractures could have been sustained. 47. On 30 April 1999 the investigator adopted a decision refusing to open a criminal investigation against N., Kh. and M. in connection with the applicant’s injuries. Relying on the statements given by the police officers and other persons, the experts’ opinions and the other evidence in the file, the investigator concluded that the police officers had not been involved in injuring the applicant. The applicant was not sent a copy of that decision. 48. On 14 May 1999 the criminal case in respect of the grievous bodily injuries caused to the applicant by unknown persons was referred to the investigator of the Horodenka District Police Department for further investigation. 49. On 7 June 1999 the investigator having examined the case file and questioned the sales assistant once again, terminated the criminal proceedings holding that no crime had been committed. In particular, the investigator found that the applicant’s allegations of ill-treatment by police officers were not supported by the evidence available in the file. He referred to the experts’ opinions suggesting that the spinal injuries could not have been caused by a rubber truncheon and that they could have been sustained if the applicant had fallen back on to his heels, buttocks, or head, bending his spine in the process. A number of witnesses had confirmed that the applicant was drunk that night. The applicant had been found near the fence around the concrete ring in the centre of the park. The investigator therefore concluded that the applicant had sustained injuries as a result of his own negligence. 50. The applicant was informed of the decisions taken by the authorities on 30 April 1999 and 7 June 1999 by a letter of 28 August 2000. No copies of those decisions were enclosed. 51. The applicant continued to complain to various law-enforcement authorities about ill-treatment. He also asked different authorities to provide him with legal representation, claiming that he could not properly represent himself owing to his physical disability. The requests were unsuccessful. 52. On 13 July 2000, further to the applicant’s complaint, the national ombudsman sent a letter to the General Prosecutor’s Office asking it to consider the applicant’s allegations of inappropriate investigation of his alleged ill-treatment by police officers. 53. On 30 October 2003 the Ivano-Frankivsk Regional Prosecutor’s Office quashed the decision of 7 June 1999 terminating the criminal proceedings for the reason that the investigation had not been thorough and further measures were deemed necessary. The case was remitted for further investigation. 54. On 20 November 2003 the investigator of the Horodenkа District Police Department terminated the proceedings in the criminal case, holding that no crime had been committed. In his decision the investigator referred to the same evidence as previously and concluded that the applicant had been very drunk and had caused the injuries to himself by his own negligence when falling either from the fence separating the park from the road or the fence on the concrete circle foundation in the centre of the park. 55. Following the applicant’s request, on 30 December 2005 he was sent a copy of that decision. The applicant challenged the decision in court. 56. On 30 January 2007 the Horodenka District Court of the IvanoFrankivsk Region, considered the applicant’s claim and upheld the investigator’s decision of 20 November 2003 as substantiated, after finding that the investigation had been conducted in accordance with the domestic legislation. The applicant appealed. On 22 June 2011, after the application was communicated to the Government, the registry of the district court found that the case file had not been sent to the court of appeal. 57. On 1 July 2011 the Ivano-Frankivsk Regional Court of Appeal, after the receipt of the case file, considered the applicant’s appeal and quashed the decision of 30 January 2007. The case was remitted to the first-instance court for a fresh hearing. At a certain point the case was transferred to the Tlumach District Court of the Ivano-Frankivsk Region, for further consideration. 58. On 27 September 2011 that court refused the applicant’s claim after finding that the decision of 20 November 2003 terminating the investigation had been well reasoned and substantiated. The applicant appealed. 59. On 24 October 2011 the court of appeal quashed the decision of 27 September 2011 and remitted the case to the first-instance court for a fresh hearing. 60. On 6 February 2012 the first-instance court found that the investigation had been carried out properly and the decision of 20 November 2003 had been substantiated. It therefore rejected the applicant’s claim. 61. The applicant appealed but on 1 March 2012 he withdrew his appeal for the reason that the time-limits for criminal responsibility for the alleged crime had expired. 62. On 14 October 2005 the applicant lodged an application with the Court. 63. On 15 November 2005 the Registry of the Court asked the applicant to provide copies of the decisions taken between 1998 and 2005 opening and closing the criminal proceedings concerning his complaints of ill-treatment. 64. On 29 November 2005 the applicant requested copies of those decisions from the prosecutor’s office. He enclosed a copy of the Court Registry’s letter of 15 November 2005. 65. On 30 December 2005 the local prosecutor sent the applicant a copy of the decision of 20 November 2003. He refused the remainder of the applicant’s request, stating that the Code of Criminal Procedure did not provide the applicant with a right to receive copies of the requested decisions. 66. On 25 January 2006 the applicant instituted administrative proceedings in the local court against the local prosecutor’s office, seeking to be given copies of the procedural decisions taken by the domestic authorities between 1998 and 2005 in the course of the examination of his complaints of ill-treatment. In his claim the applicant specified that the documents had been requested by the Court in the context of the consideration of his application. 67. On 14 February 2006 the Registry of the Court asked the applicant to provide copies of all the procedural decisions taken by the domestic authorities in the course of the examination of the applicant’s complaints of ill-treatment. The Court’s Registry informed the applicant that under Article 34 of the Convention, State authorities cannot hinder the applicant in the effective exercise of his right of application to the Court. 68. On 28 May 2006 the local court refused the applicant’s administrative claim as unsubstantiated. It noted that the prosecutor’s office had acted in accordance with the Code of Criminal Procedure. 69. The applicant appealed, relying in particular on Article 34 of the Convention. 70. On 12 October 2006 the Ivano-Frankivsk Regional Court of Appeal quashed the judgment of 28 May 2006 and allowed the applicant’s claim. It found that the applicant’s access to information concerning his rights had been unlawfully restricted. The court ordered therefore that the prosecutor’s office give the copies of the requested documents to the applicant. On the same day the judgment came into force but was not executed. 71. On 5 March 2008 the applicant lodged a claim with the Ivano-Frankivsk Regional Administrative Court against the local prosecutor, the judges of the local court, and the State Treasury Department, requesting that the execution of the judgment of 12 October 2006 no longer be hindered by the defendants and seeking damages on account of failure to execute that judgment. 72. On 2 June 2009 the Ivano-Frankivsk Regional Administrative Court refused the applicant’s claim as unsubstantiated. 73. On 10 February 2010 the Higher Administrative Court rejected the prosecutor’s appeal on points of law against the judgment of 12 October 2006. 74. On 12 May 2011 the judgment of 12 October 2006 was executed. The applicant was given the copies of the procedural decisions requested, including the decision of 30 April 1999 refusing to open a criminal investigation against the police officers. 75. On 30 August 2011, in reply to the applicant’s enquiry about legal aid, the Ivano-Frankivsk Regional Department of Justice informed the applicant that the representation of citizens in criminal cases by the legal advice offices of Regional and District Departments of Justice was not foreseen by the legislative acts governing their operation. 76. The relevant provisions of the Constitution read as follows: “Everyone has the right to respect for his or her dignity. No one shall be subjected to torture, cruel, inhuman or degrading treatment or punishment that violates his or her dignity. ...” “Everyone has the right to legal assistance. Such assistance is provided free of charge in cases envisaged by law. Everyone is free to choose his or her own defence counsel. In Ukraine, advocacy acts to ensure the right to mount a defence against an accusation and to provide legal assistance during the determination of cases by the courts and other State bodies.” 77. The relevant provisions of the Code can be found in the in the judgment of Oleksiy Mykhaylovych Zakharkin v. Ukraine, no. 1727/04, §§ 41, 42 and 44, 24 June 2010). 78. According to the preamble of that Act, it lays down the organisational and legal principles for the provision of social services to individuals who are in difficult circumstances and need outside support. 79. According to section 5 of the Act, social services shall be provided either at home or at various social institutions, including social services centres and social support centres. The same section further provides a list of social services, which include legal services, that individuals are entitled to request under that Act. 80. Section 7 of the Act states, inter alia, that social services shall be provided free of charge to individuals who cannot satisfy their needs owing to their old age, illness or disability, provided that they do not have relatives obliged to support them. 81. According to the preamble of the Act, it defines the contents of the right to free legal assistance and the way that right should be exercised; the grounds and the procedure for granting free legal assistance as well as the State guarantees in respect of free legal assistance. 82. Chapter II of the Act deals with “primary legal assistance”, which, according to section 7 of the Act, comprises the following types of legal services: provision of legal information; consultancy on legal matters; drafting applications, complaints and other legal documents (except for procedural documents); and help with gaining access to “secondary legal assistance”. 83. Chapter III of the Act deals with “secondary legal assistance”, which, according to section 13 of the Act, comprises the following types of legal services: defence against criminal charges; representation of individuals before the courts and other State authorities, local selfgovernment bodies, and other persons; drafting procedural documents. 84. The “Final and Transitional Provisions” of the Act provide for a gradual implementation of Chapter III of the Act starting from 1 January 2013.