CASE OF BASENKO v. UKRAINE
Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation;Positive obligations) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Aleš Pejchal;André Potocki;Ganna Yudkivska;Helena Jäderblom;Josep Casadevall;Síofra O’Leary;Vincent A. De Gaetano
4. The applicant was born in 1958 and lives in Kyiv. 5. On 24 February 2002 the applicant was travelling on a tram and was approached by Mr G. and Mr S., ticket inspectors employed by the Kyivpastrans municipal enterprise (“the transport company”). As subsequently established by domestic authorities in the indictment and in the judgment convicting S. (see paragraphs 31 and 34 below), there was a disagreement between the applicant and the inspectors as to whether he had a valid ticket. They insisted that the applicant pay a fine for travelling without a ticket, while he insisted that he had broken no rules. The applicant was asked to get off the tram. It was then agreed that the applicant would accompany the inspectors to a tram depot to resolve the dispute. While they were on their way to the depot S. kicked the applicant. In response the applicant sprayed the inspectors with tear gas from a can he had on him. S. then kicked the applicant in the left knee, causing a fracture. A struggle between the applicant and S. ensued. G. and S. then left the scene. The applicant could not stand up or walk following the knee fracture, he was helped to the nearby tram stop by the bystanders who called an ambulance for him. According to the applicant, he has been receiving treatment for his injury until early 2005. 6. On 26 February 2002 the applicant made a statement to the police describing the circumstances of the incident. In particular, he stated that on the day of the incident he had been approached by two ticket inspectors who questioned the validity of his ticket, suggesting that he appeared too old to be using a student ticket. While they insisted that he pay a fine he insisted his ticket was in order. He volunteered to go with them to a police station to resolve the dispute. In response they suggested that they go to the tram depot instead and he agreed. On the way to the depot he was kicked from behind. He turned round and sprayed the inspectors with tear gas, and was kicked in the knee. He stated that he did not know the names of the inspectors but could identify them by sight. 7. On 4 March 2002 a police investigator of the Svyatoshynskyy District Police Department (“the District Police Department”) refused to institute criminal proceedings into the incident. The investigator noted that the ticket inspector on duty on the tram line in question at the relevant time was identified as S. He went on to note that S. could not be contacted for an interview since he was said to be on sick leave from work and was not found at his home address. The investigator also noted that the gravity of the applicant’s injuries could only be evaluated after completion of the applicant’s treatment. 8. On 5 March 2002 a forensic medical expert diagnosed the applicant with a knee fracture and classified this as bodily injuries of medium gravity. 9. On 18 December 2002 the Svyatoshynskyy District Prosecutor’s Office (“the District Prosecutor’s Office”) quashed the decision of 4 March 2002 and instituted criminal proceedings on suspicion of deliberate infliction of bodily injuries of medium gravity. On the same day the District Prosecutor’s Office informed the applicant about this decision, also informing him that disciplinary proceedings had been initiated against the investigator who made the decision of 4 March 2002. According to the applicant, he first learned about the decision of 4 March 2002 from this letter from the District Prosecutor’s Office. 10. On 24 December 2002 another investigator of the District Police Department commenced the investigation. 11. On 28 December 2002 the investigator recognised the applicant as an aggrieved party in the criminal proceedings. On the same day the applicant was interviewed in this capacity. 12. On 4 April 2003 the investigator sent a letter to the transport company enquiring whether S. had been working at the relevant time as a ticket inspector and asking the company to identify who S. had been working with on the day of the incident. In April 2003 the company responded that S. had indeed been working as an inspector at the relevant time, that G. had accompanied him on the day of the incident, and that S. had been dismissed on 16 June 2002 for absenteeism. 13. On 9 April 2003 the applicant, in the course of a photo identification, identified S. as the person who had assaulted him. 14. According to the Government, on 18 April 2003 the investigation was suspended for failure to identify the perpetrator. 15. On 18 September 2003 the investigation was resumed. 16. On 9 October 2003, in the course of a photo identification, the applicant identified G. as the person who, together with S., participated in the incident. 17. On 14 October 2003 the investigation was suspended for failure to identify the perpetrator. 18. On 31 August 2004 the District Police Department informed the applicant that the investigation in his case was pending. 19. On 2 February 2005 the District Prosecutor’s Office quashed the decision of 14 October 2003 to suspend the investigation, finding that possible perpetrators had in fact been identified. 20. On 20 February 2005 the investigation was suspended for failure to identify the perpetrator. 21. On 5 April 2005 the investigator resumed the investigation, initiated criminal proceedings against S. and G., and joined the newly initiated proceedings with the existing case file. 22. On 14 April 2005 the investigator charged S. with infliction of bodily injuries of medium gravity, committed in conspiracy with G. The investigator placed S. and G. on the list of wanted persons, and suspended the investigation as the whereabouts of the accused were unknown. 23. On 20 February and 4 May 2006 the investigator decided to resume the investigation, and on 22 February and 4 May 2006 respectively to suspend it again. 24. On 10 June 2006 the investigation was resumed. 25. On 12 June 2006 a face-to-face confrontation was conducted between G. and the applicant, and the applicant was interviewed separately. The applicant stated that S. had kicked him on the knee. While he was not certain that G. had assaulted him, he was assuming that it was G. who had kicked him in the back on 24 February 2002. 26. On 14 June 2006 the investigator discontinued the criminal proceedings against G. for lack of corpus delicti in his actions. He relied on the testimony of G., who denied assaulting the applicant, and the testimony of the applicant to the effect that it was S. and not G. who had assaulted him. On the same day he suspended the remaining part of the investigation for failure to identify the perpetrator. 27. According to the Government, on 24 September 2007 S. was arrested. On the same day the investigation was resumed and the charges were announced to S. 28. On 25 September 2007 a face-to-face confrontation was conducted between S. as the accused and the applicant as the aggrieved party. 29. On 20 October 2007 the investigator charged S. with infliction of bodily injuries of medium gravity. 30. According to the Government, on an unspecified date, upon completion of the pre-trial investigation in S.’s case, the applicant was offered an opportunity to study the case file but refused it. According to the applicant, he was not informed about the completion of the investigation or any of the subsequent developments in the criminal proceedings. 31. On 29 October 2007 the District Prosecutor’s Office approved the bill of indictment indicting S. for infliction of bodily injuries of medium gravity. 32. On 9 November 2007 the Svyatoshynskyy District Court of Kyiv (“the trial court”) held a preliminary hearing in S.’s case, in which S., his lawyer and a prosecutor participated. The record of the hearing states that the applicant was not present at the hearing. 33. On 20 November 2007 the trial court examined the case on the merits in the presence of S., his lawyer and the prosecutor and in the absence of the applicant. The trial court, after obtaining favourable opinions from all parties present, ruled that the hearing should proceed in the absence of the applicant and witness G. who, the court stated, “had been duly notified about the hearing”. The court further ruled that, should their presence prove necessary, measures would be taken to ensure the applicant’s and G.’s appearance. In the course of the hearing the court heard a statement from S.. S. did not contest the charges and admitted his guilt. The court ruled that in view of S.’s confession and admission of guilt there was no call to examine any other evidence. 34. On the same day the trial court convicted S. as charged and sentenced him to two years’ imprisonment, suspended for two years with probation. In sentencing S. the court took into account that S. had admitted his guilt and expressed remorse, the fact that he had no prior convictions, was employed and had positive references from his then-current place of employment. 35. According to the information submitted by the Government, the domestic case file in S.’s case does not contain any copies of summonses or notices sent to the applicant in the course of examination of the case by the trial court or any documents indicating that such summonses or notices were sent. 36. On 7 February 2005 the applicant lodged a civil claim with the Holosiyivskyy District Court of Kyiv, against the transport company, seeking damages for the unlawful actions of its employees. 37. On 15 November 2005 the court rejected his claim on the ground that he had not proved that he had been injured by the employees of the defendant in the performance of their duties. The court noted that the applicant had failed to explain why the individuals identified by him had not yet been charged or convicted, and that the criminal case in connection with the incident was still under investigation. 38. On 24 January 2006 the Kyiv City Court of Appeal upheld the judgment of the first-instance court. 39. On 30 November 2007 the Donetsk Regional Court of Appeal, acting as a court of cassation, upheld the decisions of 15 November 2005 and 24 January 2006.