Case of Kapustyak v. Ukraine

8/19/2019 Case of Kapustyak v. Ukraine

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FIFTH SECTION

CASE OF KAPUSTYAK v. UKRAINE

(Application no. 26230/11)

JUDGMENT

STRASBOURG

3 March 2016

This judgment will become final in the circumstances set out in Article 44

§ 2 of the Convention. It may be subject to editorial revision.


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KAPUSTYAK v. UKRAINE JUDGMENT 1

In the case of Kapustyak v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a

Chamber composed of:Angelika Nußberger, President,

Ganna Yudkivska,

André Potocki,

Faris Vehabović, Síofra O’Leary,

Carlo Ranzoni,

Mārtiņš Mits, judges,

and Claudia Westerdiek, Section Registrar,

Having deliberated in private on 9 February 2016,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 26230/11) 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 Petr Petrovich Kapustyak (“the applicant”), on

20 April 2011.

2. The Ukrainian Government (“the Government”) were represented by

their Agent, most recently Mr B. Babin, of the Ministry of Justice.3. The applicant alleged, in particular, that he had been subjected to

ill-treatment by the police, that his complaints in this respect had not been

duly investigated and that he had not had a fair trial because the domestic

courts had refused to call a number of witnesses.

4. On 1 December 2014 the above complaints were communicated to the

Government and the remainder of the application was declared inadmissible

pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1982 and is currently detained in

Gorodyshche prison.


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2 KAPUSTYAK v. UKRAINE JUDGMENT

A. Events of 30 November 2008 and their aftermath

6. On 30 November 2008 the applicant, Mr A.S. and Mr V.S. broke intothe home of Mr N., a local businessman, which was located in the

Pustomyty District. The applicant had four prior convictions for theft,

burglary, robbery and carjacking. According to the findings of the domestic

court that subsequently convicted the applicant, Mr N. had fought with the

intruders and, unable to overcome his resistance otherwise, they had stabbed

him to death. As a result of the attack Ms P., N.’s wife, sustained injuries of

medium severity. Numerous valuables and documents were stolen,

including some jewelry, a reserve officer ’s card belonging to N. and

certificates showing his achievements in sports.

7. On 1 December 2008 the Pustomyty District police instituted criminal

proceedings in connection with the incident.8. On 5 December 2008 V.S. was arrested and questioned. He stated that

the applicant had stabbed N. in the course of the burglary. V.S. had hit

Ms P., who had tried to come to N.’s rescue.

B. The applicant’s arrest and the pre-trial investigation

9. At around 9 p.m. on 5 December 2008 I.Kot., V.Ye., I.G. and R.D.,

detectives from the Lviv Regional Police, located the applicant in

Chervonograd and apprehended him in the street. According to the

subsequent submissions of the applicant and the detectives to the domestic

authorities, the applicant attempted to flee; in order to stop him from fleeing

the detectives tripped him up, he fell on the asphalt pavement and was then

handcuffed. According to the applicant, after he had been handcuffed the

police officers continued to hit and kick him.

10. The applicant also claimed that following his arrest he had been

ill-treated by the police in order to extract his confession.

11. At 10.30 a.m. on 6 December 2008 an arrest report was drawn up by

the Pustomyty Police. According to a document provided by the

Government, at the same time the applicant was admitted to the Lviv

temporary detention facility (ізолятор тимчасового тримання, “the

ITT”). 12. On the same day an investigator, K., asked a forensic medical expertto record any injuries on the applicant’s body and to provide an expert

opinion as to when and how they had been inflicted.

13. On the same day the forensic medical expert, G. (referred to as

Mr H. by the Government), issued a report stating that the applicant had the

following injuries: a bruise on his forehead and, overlapping it, four long,

deep, vertical parallel scratches; bruises on the bridge of his nose, his chin,

wrists and neck; nine small bruises on the fingers of his right hand; and

swelling of the back of his right hand. The bruises on his wrists were soft


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and pink in colour. The other bruises were covered in dry scabs. The expert

classified the injuries as minor and expressed the opinion that they could

have been inflicted on 30 November 2008. According to the report, theapplicant explained to the expert that he had injured his face and hands

when he fell trying to run away from the police.

14. At 2.30 p.m. on the same day K., the investigator from the

Pustomyty Police, questioned the applicant as a suspect. The applicant

stated that on 29 November 2008 he had agreed with V.S.’s proposal to

burgle Mr N.’s home. The applicant had not taken a knife with him and hadnot seen V.S. or A.S. do so. Once they had broken into the house, the

applicant switched off the television set N. had been watching, while V.S.

and A.S. started punching N. Hearing N.’s screams, P. tried to enter theroom, and the applicant hit and kicked her. Afterwards the applicant kicked

N. three or four times. While the others continued hitting N., the applicantstarted looking for money, then took a knife from V.S. and cut some

paintings out of their frames. He also took other valuables from the house.

15. At 9.22 p.m. on the same day, following the applicant’s complaintabout his health, an ambulance was called to the ITT for the applicant. The

ambulance staff noted that the applicant had bruises on his face and right

hand, and was suffering from concussion, hypertension and an oedema.

16. On 8 December 2008 the applicant was charged with aggravated

burglary and infliction of grievous bodily harm resulting in the death of the

victim. Questioned on the same day as an accused, the applicant confirmed

the account of events he had given on 6 December 2008 and added that he

had seen V.S. hitting N. but not stabbing him. The applicant reiterated that

he had not stabbed N. and had had no intention of murdering him. He had

used the knife to cut paintings out of their frames. Prior to the burglary V.S.

had promised that he would take it upon himself to force N. to give up the

money.

17. On 9 December 2008 the applicant was examined by medical staff

on his admission to the Lviv pre-trial detention centre (слідчий ізолятор,

hereinafter “the SIZO”). According to a certificate issued by the SIZO on20 January 2015, the applicant did not raise any complaints during that

examination.

18. In the period from 5 February to 8 July 2009 the police took theapplicant from the SIZO at least eight times in order to carry out

investigative measures with him.

19. On 6 February 2009 Mr Ch. was appointed as the applicant’sdefence counsel. On the same day the applicant was questioned in Ch. ’s

presence. The applicant confirmed the account of events he had given on

6 and 8 December 2008, including the statement that at N.’s house he had

used the knife to cut paintings out of their frames, and added that there had

been no plan to murder N. but simply to burgle his house. When he and his


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co-defendants had learned that N. would be home, the plan had been simply

to tie him up.

20. According to the Government, on 6 February 2009 the applicant wasfamiliarised with the medical expert’s report of 6 December 2008 and madeno comments or requests.

21. On 18 March 2009, having examined the applicant as an inpatient, a

panel of psychiatric experts issued a report concluding that the applicant

was not suffering from a mental illness. In discussing the applicant’s mental

health history the experts noted that in October 2008 he had been involved

in a fight, suffered a blow to the head and had received outpatient treatment

for the injury. On 17 April 2009 the applicant and his lawyer signed a

statement confirming that they had examined the report and had no

comments or requests to make.

22. On 7 May 2009 the applicant was questioned again in the presenceof his lawyer. He reiterated his earlier statement. In the course of the

questioning the investigator asked the applicant why he had not initially

joined his co-defendants in attacking N. The applicant refused to answer.

23. In the course of the pre-trial investigation A.S. stated that it had been

the applicant who had stabbed N. In the course of a confrontation between

the applicant and A.S., the latter reaffirmed his statement. The applicant

denied A.S.’s allegations but refused to testify.

24. P. stated that it had been V.S., and not the applicant, who had

attacked and hit her.

25. Ms I.M. stated that on 1 December 2008 the applicant had given her

a mobile phone and a silver chain which he had stolen from N. and P.

C. Trial

26. On 30 July 2009 the case against the applicant and his co-

defendants, A.S. and V.S., was sent for trial to the Lviv Regional Court of

Appeal (“the Court of Appeal”), sitting as a trial court.27. On 16 November 2009 the trial court informed the applicant that the

question of whether an additional psychiatric examination should be ordered

would be examined in the course of the trial.

28. The applicant pleaded guilty to the charge of theft of documents,guilty in part to the charge of aggravated burglary, and not guilty to the

charge of murder. He refused to testify at length, but in response to a

question stated that he had used a knife to cut the paintings out of their

frames at the victims’ house. V.S. pleaded guilty to the charge of aggravated

burglary and A.S. pleaded guilty to that charge in part. They largely

reiterated the statements they had given during the pre-trial investigation

concerning the applicant’s role in the crime, in particular stating that theyhad not stabbed N. and had seen the applicant, knife in hand and covered in


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blood, lead N., also covered in blood, to a safe to extract N.’s money. V.K.also stated that the applicant had told him that he had stabbed N.

29. Ms M.M. and Ms A.V. testified that late on the night of the murderthe defendants had left the house where they had been staying together. A.S.

had been carrying a knife. The defendants had then returned with various

objects, including paintings and documents. M.M. testified that she had seen

blood on the applicant’s clothes when he returned that night. A.V. alsotestified that when the applicant had returned, he had given her his clothes

and had instructed her to burn them. However, she had left the clothes in the

house.

30. Two other witnesses testified that on 5 December 2008 they had

witnessed the owner of the house in question handing over to the police a

bag of clothes which had been left there by the defendants. According to

DNA expert reports, the applicant’s hair and blood possibly originatingfrom the victims were found on the clothes in the bag.

31. On 11 March 2010 the applicant asked the trial court to call G., the

medical expert, as a witness, on the grounds that in her report of

6 December 2008 she had failed to specify exactly when the injuries had

been inflicted on the applicant. In support of his request he stated that he

had been ill-treated in the course of and following his arrest. The applicant

also asked for I.Ku., an investigator from the Pustomyty Police to be called

as a witness, arguing that his statements during the pre-trial investigation

were untrue and had been dictated to him and given under pressure. He also

asked for police detectives I.Kot., V.Ye., I.G. and R.M. of the Lviv

Regional Police to be called as witnesses, arguing that they had ill-treated

him in the course of arrest and in the course of his initial interrogation,

causing the injuries recorded in the medical expert’s report of 6 December

2008. The trial court refused those requests. According to the Government,

the grounds for the refusal were that the trial court had in its possession the

transcripts of the interviews with the police officers in question conducted

during the pre-trial investigation. Moreover, the trial court considered that

the applicant’s allegations of ill-treatment had already been examinedwithin the framework of pre-investigation enquiries, in the course of which

no corroboration of the applicant’s allegations had been found.

32. On 25 March 2010 the trial court convicted all three applicants ofmurder, of aggravated burglary, and of theft of documents. In respect of the

conviction for murder the applicant was sentenced to life imprisonment with

confiscation of all of his property, V.S. to thirteen years’ and A.S. to twelveyears’ imprisonment. Additional prison sentences were imposed in respect

of the other charges but because of the sentencing rules, the overall

sentences imposed were the same as the sentences for murder.

33. The court found it established that the applicant and his two co-

defendants, A.S. and V.S., had committed aggravated burglary of Mr N. and

Ms P. While it was the applicant who had stabbed N. to death, all the


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defendants had used violence against N. to overcome his resistance and so

were guilty of his murder. As evidence of the applicant’s guilt the court

referred to the testimony of the co-defendants, of Ms P., Ms I.M., Ms M.M.,Ms A.V. (see paragraphs 24, 25 and 29 above), and of a number of other

witnesses who had described how the defendants had disposed of their

clothing and of the objects taken from the victims’ house. The court alsorelied on physical and expert evidence. In reaching its finding that it had

been the applicant who had stabbed N., the court referred to the testimony

of his co-defendants, noting that it was consistent with P.’s testimony to theextent that all three had testified, contrary to the applicant, that it was V.S.,

and not the applicant, who had attacked P. The court also referred to the

DNA expert evidence which had found blood, possibly originating from N.,

on the trousers worn by the applicant on the night of the murder and seized

by the police at the house where the applicant had left them. The court alsoreferred to the applicant’s admission during the pre-trial investigation thathe had used the knife, that is the murder weapon, to cut paintings out of

their frames.

34. On 18 January 2011 the Supreme Court upheld the applicant ’s

conviction and mitigated his sentence to fifteen years’ imprisonment.

D. Investigation into the applicant’s allegations of ill-treatment

1. Pre-investigation enquiries under the Code of Criminal Procedure

of 196035. On 12 July 2009 the applicant wrote to the head of the Security

Service of Ukraine in the Lviv Region complaining that he had been

ill-treated in the course of his arrest and afterwards by the police. In

particular, he stated that on the day of his arrest he had been going to a

meeting with a certain Ms Z. when he had been approached by a stranger,

who had turned out to be a police officer. Thinking that the stranger was

trying to steal his phone, the applicant started running away. However, other

officers tripped him up. He fell and the officers started kicking and

punching him. The police officers continued to kick him once he was in

their car and subsequently, in the place to which he was taken after his

arrest.36. On 24 July 2009 the Chervonograd prosecutor ’s office and on

27 August 2009 the Pustomyty prosecutor ’s office refused to institute

criminal proceedings in connection with the applicant’s complaint.

37. On 26 February 2010 the Lviv regional prosecutor ’s office (“theLRPO”) quashed the decisions of 24 July and 27 August 2009 and remittedthe case to the Chervonograd and Pustomyty prosecutors for further

examination. The LRPO concluded that the pre-investigation enquiries had

been incomplete. The LRPO indicated that the Chervonograd prosecutor ’s


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office should undertake a number of additional measures to establish the

circumstances of the incident, most notably: (i) interview Ms Z. whom the

applicant had been going to meet when he had been arrested; (ii) identifythe ambulance staff who had visited the applicant on 6 December 2008 and

interview them; (iii) interview the forensic medical expert to find out

whether the injuries observed by the expert on the applicant on 6 December

2008 were consistent with the applicant’s allegations of ill-treatment.38. On 26 March 2010 the Chervonograd prosecutor ’s office again

refused to institute criminal proceedings against detectives I.Kot., V.Ye.,

I.G., R.M. of the Lviv Regional Police. The decision was based on the

statements of the police detectives and the expert report of 6 December

2010. The detectives had stated that they had tripped up the applicant while

he had been attempting to escape. The prosecutor ’s office concluded that

that fall explained the applicant’s injuries. On 28 March 2012 theChervonograd Court upheld that decision, rejecting as unsubstantiated the

applicant’s argument that his injuries had resulted from ill-treatment.

39. On 31 March 2010 the Pustomyty prosecutor ’s office refused toinstitute criminal proceedings against the investigator I.Ku. and two other

officers of the Pustomyty Police. The decision was based on the interviews

with the officers. The prosecutor ’s office also referred to the ITT recordsand an unspecified forensic medical expert report, according to which the

applicant had had no injuries at the relevant time. The applicant was

informed of that decision on 5 May 2011.

40. On an unspecified date the decision of 31 March 2010 was

overruled.

41. On 18 May 2012 the Pustomyty prosecutor ’s office again refused to

institute criminal proceedings against the police officers of the Pustomyty

Police and of the Lviv Regional Police for lack of corpus delicti in their

actions. The decision was based on the statements of the officers, who had

denied the applicant’s allegations.42. On 20 June 2013 the Pustomyty District Court quashed the decision

of 18 May 2012. The court found numerous omissions in the pre-

investigation inquiry, in particular that the authorities had failed to explore

under what circumstances an ambulance had been called for the applicant

while he had been in the ITT; they had also failed to examine the recordsfrom the facilities where the applicant had been detained.

2. Investigation under the Code of Criminal Procedure of 2012

43. On 19 November 2012 a new Code of Criminal Procedure came into

force. Under the new Code an investigation is commenced by creating an

entry in the Unified Register of Pre-Trial Investigations (“the Register ofInvestigations”) (see paragraph 51 below).

44. On 15 March 2013 the Chervonograd Court granted the applicant’sclaim and ordered the Chervonograd prosecutor ’s office to create an entry in


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the Register of Investigations in order to investigate the applicant’sallegations of ill-treatment.

45. On 20 March 2013 the entry was created.46. On 21 March 2013 the Chervonograd prosecutor ’s office decided to

discontinue the investigation. On an unspecified date the Chervonograd

Court overruled that decision.

47. On 2 July 2013 the Chervonograd prosecutor ’s office reopened theinvestigation and the applicant was questioned. He insisted that he had been

ill-treated by police detectives I.Kot., V.Ye., I.G. and R.M. in the course of

his arrest and on the way to the Pustomyty police station, where his arrest

had been recorded. The police detectives were interviewed and denied any

ill-treatment, insisting that the applicant had been injured when he had

fallen while trying to flee.

48. On 24 September 2013 the Chervonograd prosecutor ’s officedecided to discontinue the investigation for lack of corpus delicti in the

actions of detectives I.Kot., V.Ye, I.G. and R.M. The decision referred to an

earlier decision of July 2009 to refuse to institute criminal proceedings,

according to which the applicant had fallen while trying to flee from the

police. As a result, he had sustained concussion and bruises. The decision

also referred to a number of pieces of evidence supporting that version of

events, most notably the statements of the police officers and the medical

expert’s report of 6 December 2008.

49. The decision of 24 September 2013 was upheld by the Chervonograd

Court on 7 February 2014 and by the Court of Appeal on 11 March 2014.

II. RELEVANT DOMESTIC LAW AND PRACTICE

50. The provisions of the Code of Criminal Procedure of 1960

concerning pre-investigation enquiries can be found in the judgment in the

case of Kaverzin v. Ukraine (no. 23893/03, § 45, 15 May 2012).

51. The Code of Criminal Procedure of 28 December 1960 was repealed

with effect from 19 November 2012 when the new Code of Criminal

Procedure of 2012 came into force. The new Code abolished the stage of

pre-investigation enquiries. The relevant provisions of the new Code can be

found in the decision Nagorskiy v. Ukraine (no. 37794/14, § 38, 4 February2016).


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THE LAW

I. SCOPE OF THE CASE

52. In his reply to the Government’s observations, the applicant

submitted new complaints. He alleged that the conditions of his detention in

the prisons where he had been held in the period after his conviction and

until its review by the Supreme Court and in 2012 had been unacceptable.

He further complained that the domestic courts had extended his pre-trial

detention in his absence and had failed to provide him with copies of

relevant orders. He also alleged that in 2010 the detention facility

administration had interfered with his correspondence with his lawyer

concerning his complaint against the police. The Court notes that these new, belated complaints are not an elaboration of the applicant’s original

complaints, on which the parties have commented. The Court considers,

therefore, that it is not appropriate now to take up these matters in the

context of the present case (see Khomullo v. Ukraine, no. 47593/10, § 40,

27 November 2014).

II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

53. The applicant complained that he had been ill-treated by the police

and that there had been no effective investigation of his complaint in this

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

54. The Government submitted that the applicant had tried to run away

from the police and had fallen on the asphalt pavement. In view of his

conduct, the applicant had been handcuffed. The applicant had not voiced

any complaints either to the medical staff at the ITT or to the medical expert

who had examined him on 6 December 2009. Nor had he complained to the

SIZO medical staff upon admission to the SIZO on 9 December 2008, even

though from that time on, he had no longer been under the control of the

police and had had no reason to fear reprisals. The medical expert had noted

that the injuries she had observed on the applicant on 6 December 2009

could have been inflicted on 30 November 2008. Moreover, in view of the

results of the psychiatric examination, which the applicant had undergone

during the pre-trial investigation, he could well have suffered the

concussion before his arrest. The applicant and his defence counsel, having

examined the medical expert’s report of 6 December 2009 and the results of


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the psychiatric examination of 18 March 2009, had not raised any

objections. The Government also questioned the applicant’s allegation that

the supposed reason for the alleged ill-treatment had been to extract aconfession from him. They submitted that in the course of his trial, the

applicant had never altered his account of the events at the victims ’ house

which he had originally given to the police on 6 December 2008. In view of

these considerations, the Government maintained that the applicant’scomplaint under the substantive limb of Article 3 was manifestly

ill-founded.

55. Concerning the procedural limb of Article 3, the Government

submitted that the investigation had been effective and there had been no

violation of this aspect of Article 3. They submitted in particular that the

prosecution authorities had conducted enquiries into the applicant’s

allegations, in the course of which they had had regard to the results of themedical examination of 6 December 2008, and had interviewed the police

officers concerned and the applicant. The police officers had not disputed

the fact that they had tripped up the applicant, as a result of which he had

fallen on the asphalt, and used handcuffs to prevent his escape. The

Government submitted that the overruling of refusals to institute criminal

proceedings and the fact that the case had been remitted for further

investigation showed the authorities’ willingness to investigate the incident

effectively.

56. The applicant maintained his complaint. He stressed that there had

been a gap between the time of his arrest and the time at which his arrest

had been recorded which was unaccounted for. It was in that period of time

that he had been ill-treated. Concerning the delay in raising his complaint,

he submitted that even after he had been transferred from police custody to

the SIZO he had continued to fear reprisals from the police because they

had frequently taken him out of the SIZO and could have ill-treated him.

For that reason, he had not started complaining of ill-treatment until the pre-

trial investigation had been completed. He submitted that he had challenged

the results of the medical and psychiatric expert examinations before the

Court of Appeal but without success.

B. The Court’s assessment

1. Alleged ill-treatment

(a) Admissibility

57. The Court notes that the complaint of ill-treatment raises serious

issues requiring an examination on the merits. Therefore, contrary to the

Government’s submissions, the complaint is not manifestly ill-foundedwithin the meaning of Article 35 § 3 (a) of the Convention (compare


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Serikov v. Ukraine, no. 42164/09, § 53, 23 July 2015). It is not inadmissible

on any other grounds. It must therefore be declared admissible.

(b) Merits

(i) General principles

58. The Court reiterates that Article 3 of the Convention enshrines one

of the most fundamental values of a democratic society. It prohibits in

absolute terms torture or inhuman or degrading treatment or punishment,

irrespective of the circumstances and the victim’s behaviour (see Kudł a

v. Poland [GC], no. 30210/96, § 90, ECHR 2000-XI).

59. When the police or other agents of the State, in confronting

someone, have recourse to physical force which has not been made strictly

necessary by the person’s own conduct, it diminishes human dignity and isan infringement of the right set forth in Article 3 of the Convention (see

Kop v. Turkey, no. 12728/05, § 27, 20 October 2009, and Timtik v. Turkey,

no. 12503/06, § 47, 9 November 2010).

60. In assessing evidence, the Court has adopted the standard of proof

“beyond reasonable doubt”. According to its established case -law, proofmay follow from the coexistence of sufficiently strong, clear and concordant

inferences or of similar unrebutted presumptions of fact. Furthermore, it is

to be recalled that Convention proceedings do not in all cases lend

themselves to a strict application of the principle affirmanti incumbit

probatio. Where the events in issue lie within the exclusive knowledge of

the authorities, as in the case of persons under their control in custody,strong presumptions of fact will arise in respect of injuries and death

occurring during that detention. The burden of proof in such a case may be

regarded as resting on the authorities to provide a satisfactory and

convincing explanation (see El-Masri v. the former Yugoslav Republic of

Macedonia [GC], no. 39630/09, §§ 151 and 152, ECHR 2012, with further

case-law references).

(ii) Application of the above principles to the present case

61. Turning to the facts of the case, the Court considers that there is

sufficient evidence (see paragraphs 13 and 15 above) that the applicantsustained injuries which were serious enough to fall within the ambit of

Article 3. It remains to be considered whether the State should be held

responsible under Article 3 for inflicting those injuries.

62. The Court observes that it is not disputed between the parties that the

police officers used some force to arrest the applicant. The parties disagree,

however, on whether the use of force against the applicant in the course of

his arrest amounted to a breach of Article 3 and whether he was subjected to

ill-treatment contrary to Article 3 after the arrest. Accordingly, the Court

will examine two issues:


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(i) whether the physical force used against the applicant in the course of

his arrest was compatible with the requirements of Article 3 of the

Convention;(ii) whether the applicant was ill-treated after his arrest while in the

hands of the police.

(α) Whether the physical force used against the applicant in the course of hisarrest was compatible with the requirements of Article 3 of the

Convention

63. The applicant, by his own admission, attempted to flee from the

police, even though he sought to explain his escape attempt by a

misunderstanding (see paragraph 35 above). This circumstance counts

against the applicant, with the result that the burden on the Government to

prove that the use of force was not excessive is less stringent (see, mutatismutandis, Spinov v. Ukraine, no. 34331/03, § 49, 27 November 2008, and

Berliński v. Poland , nos. 27715/95 and 30209/96, § 62, 20 June 2002).

64. While the applicant was arrested by four police officers, the Court

does not consider that the number of police officers deployed excessively

outnumbered him. Account should be taken of the fact that, in planning the

applicant’s arrest, the police faced the task of arresting an individual wanted

for aggravated burglary and murder (compare Zalevskiy v. Ukraine,

no. 3466/09, § 67, 16 October 2014).

65. Against this background, the Court further notes that the cause of the

applicant’s injuries was plausibly explained by the domestic authorities.

They found that the injuries had been caused in the course of the applicant’sstruggle with the victim on 30 November 2008 and when the applicant had

fallen while trying to flee, had been restrained and handcuffed. Given that

the applicant admitted that he had tried to run away from the police and had

fallen as a result, it is plausible that some of the injuries could also have

been sustained on that occasion. In particular, the applicant could have

suffered the bruises on his face and body and the concussion when he was

tripped up to prevent him from fleeing, fell on the asphalt pavement and was

subsequently restrained by the police officers. The bruises on his wrists

could have been caused by the handcuffs (compare Spinov, cited above,

§ 50).

66. Moreover, the medical evidence suggests also that some of the

applicant’s injuries recorded on 6 December 2008 could have been caused by the victim, Mr N., who, according to the findings of the domestic

authorities, had offered stiff resistance to his attackers (see paragraphs 6 and

33 above). It is relevant that on 6 December 2008 the medical expert

observed scabbing on the applicant’s bruises and stated that they could have been inflicted on 30 November 2008. It would appear that the expert

concluded, in light of the degree of scabbing, that at least some of the


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applicant’s injuries were relatively old and pre-dated the arrest (compareGöçmen v. Turkey, no. 72000/01, §§ 10, 11, 56, 17 October 2006).

67. The Court also notes the Government’s submissions that some of theapplicant’s injuries could be explained by the blow to the head which theapplicant suffered in October 2008 and which was recorded in the

psychiatric experts’ report (see paragraph 21 above). However, given thatthis possibility was apparently not explored in the course of the domestic

investigation, the Court does not consider it appropriate to examine it. In

any event, as the Court concluded above, the applicant’s injuries can besufficiently explained even without having to consider this possibility.

68. In the light of these circumstances the Court finds no reason to

conclude that the recourse to physical force by the police was not made

strictly necessary by the applicant’s own conduct. It was, therefore,

compatible with the requirements of Article 3 of the Convention.

(β) Whether the applicant was ill-treated while in the hands of the police

following his arrest

69. The Court is mindful of the fact that there was an unexplained gap of

about thirteen hours between the actual arrest of the applicant on

5 December 2008 and the time at which his arrest was recorded on

6 December 2008. Some, but apparently not all, of this period was no doubt

needed to transport the applicant from the place of his arrest in

Chervonograd to Pustomyty, a distance of about 109 kilometres. The Court

considers that in the present case the fact of unrecorded detention alone is

not sufficient to support a finding that the applicant was ill-treated.

70. None of the documents submitted to the Court contains reliable

information that the injuries observed on the applicant on 6 December 2008

had been inflicted while he had been in the hands of police following his

arrest. The Court also reiterates its finding that there was a plausible

explanation for those injuries.

71. Therefore, given all the information in its possession, the Court finds

it impossible to establish “beyond reasonable doubt” that the applicantsuffered ill-treatment while in the hands of the police following his arrest, as

alleged by him.

(γ) Conclusion

72. There has, therefore, been no violation of the substantive limb of

Article 3 of the Convention.

2. Effectiveness of the investigation

(a) Admissibility

73. The Court notes that this part of the application is not manifestly

ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It


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further notes that it is not inadmissible on any other grounds. It must

therefore be declared admissible.

(b) Merits

(i) General principles

74. The Court reiterates that where an individual makes a credible

assertion that he has suffered treatment infringing Article 3 at the hands of

the police or other similar agents of the State, that provision, read in

conjunction with the State’s general duty under Article 1 of the Convention

to “secure to everyone within their jurisdiction the rights and freedomsdefined in ... [the] Convention”, requires by implication that there should be

an effective official investigation. Such an investigation should be capable

of leading to the identification and punishment of those responsible (see Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000-IV).

75. Any investigation into serious allegations of ill-treatment must be

both prompt and thorough. That means that the authorities must always

make a serious attempt to find out what has happened and should not rely

on hasty or ill-founded conclusions to close their investigation or to use it as

the basis for their decisions. They must take all reasonable steps available to

them to secure the evidence concerning the incident, including, inter alia,

eyewitness testimony and forensic evidence. Any deficiency in the

investigation which undermines its ability to establish the cause of injuries

or the identity of the persons responsible will risk falling foul of this

standard (see, for example, El-Masri, cited above, § 183).

(ii) Application of the above principles to the present case

76. The Court notes that substantial injuries were observed on the

applicant on 6 December 2008, shortly after he had been arrested. It is true

that the applicant waited until 12 July 2009, that is for more than seven

months after the event, to complain that those injuries had been inflicted on

him while in police custody. In this context 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 thecase (see, mutatis mutandis, Mocanu and Others v. Romania [GC],

nos. 10865/09, 45886/07 and 32431/08, § 265, ECHR 2014 (extracts)). In

this connection the Court observes that until 8 July 2009 the police had

frequently taken the applicant from the SIZO to participate in various

investigative measures (see paragraph 18 above). In view of this, the Court

is willing to lend some credence to the applicant’s explanation that he fearedreprisals from the police had he raised his complaint earlier.

77. In such circumstances the Court considers that once the applicant

had raised his ill-treatment complaint, accompanied as it was by medical


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evidence of the injuries, the domestic authorities were under an obligation to

carry out an effective investigation of the facts alleged by the applicant.

While the applicant’s lack of expedition in lodging the complaint no doubtmade the authorities’ task more difficult, it cannot alone explain thedeficiencies of the investigation which followed (compare Drozd

v. Ukraine, no. 12174/03, § 65, 30 July 2009).

78. The Court observes that once the applicant had raised his complaint,

the authorities took five decisions not to institute criminal proceedings, four

of which were overruled as premature. The Court has held on numerous

previous occasions that the repetition of such decisions usually discloses a

serious deficiency in the proceedings (see ibid., § 66).

79. Moreover, in overruling the initial decisions not to institute criminal

proceedings on 26 February 2010, the Lviv regional prosecutor ’s office

identified a number of avenues of additional inquiry which should have been undertaken, most notably the need to interview the medical expert and

the ambulance staff who had examined the applicant on 6 December 2008

(see paragraph 37 above).

80. It does not appear, however, that the investigating authorities

followed those instructions, since the subsequent decisions not to institute

criminal proceedings of 31 March 2010 and 18 May 2012 were based

exclusively on the statements of the police officers. The police officers ’

version of events prevailed and no effort was made to verify it through other

means of inquiry (compare Kaverzin, cited above, § 175). It appears that the

applicant was not interviewed until the full criminal investigation was

opened on 20 March 2013, more than four years after the alleged events

(compare Aleksandr Smirnov v. Ukraine, no. 38683/06, § 60, 15 July 2010).

It appears, moreover, that the medical expert and the ambulance staff were

never questioned, even after criminal proceedings were finally instituted on

20 March 2013.

81. It is evident, moreover, that the applicant experienced difficulties in

accessing the investigation procedure. In particular, he was not informed

about the decision of 31 March 2010 not to institute criminal proceedings

until 5 May 2011, nearly eleven months later. No explanation was provided

for that delay.

82. In the above circumstances, the Court concludes that the domesticauthorities did not ensure that an effective investigation was carried out into

the applicant’s allegations of ill-treatment.83. There has, therefore, been a violation of Article 3 of the Convention

under its procedural limb.

III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

84. The applicant complained, under Article 6 of the Convention, that

despite his request, the medical expert G., the investigator I.Ku. of the


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Pustomyty Police and police detectives I.Kot., V.Ye., I.G. and R.M. of the

Lviv Regional Police were not summoned as witnesses in the course of the

trial.85. As the requirements of Article 6 § 3 are to be seen as particular

aspects of the right to a fair trial guaranteed by Article 6 § 1 (see, among

many other authorities, Van Mechelen and Others v. the Netherlands,

23 April 1997, § 49, Reports of Judgments and Decisions 1997-III), the

Court will examine this complaint under those two provisions taken

together. The relevant parts read as follows:

“1. In the determination of ... any criminal charge against him, everyone is entitledto a fair ... hearing ... by [a] ... tribunal ...

...

3. Everyone charged with a criminal offence has the following minimum rights:

...

(d) to examine or have examined witnesses against him and to obtain the attendance

and examination of witnesses on his behalf under the same conditions as witnesses

against him ...”

A. Admissibility

86. The Court notes that this part of the application is not manifestly

ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It

further notes that it is not inadmissible on any other grounds. It must

therefore be declared admissible.

B. Merits

1. The parties’ submissions

87. The applicant maintained his complaint. He argued that the expert

G.’s report did not fully correspond to the injuries he had, that the

investigator I.Ku. and police detectives I.Kot., V.Ye., I.G. and R.M. had

ill-treated him to force him to confess and that investigator I.Ku. had

‘falsified’ the record of his questioning of 6 December 2008.

88. The Government submitted that the medical expert G., whom theapplicant had wanted to call as a witness, had answered all the questions put

to her by the investigator. The applicant had examined her report during the

pre-trial investigation but neither he nor his counsel had raised any

objections. The Government argued that the expert would not have been in a

position to give an opinion as to the exact timing of the injuries at the court

hearing, more than a year and three months after the examination had been

conducted. As to the applicant’s request to call the police officers as

witnesses, the Government submitted that the applicant’s allegations had


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already been examined within the framework of pre-investigation enquiries.

The officers had also been questioned during the pre-trial investigation and

the court had had the transcripts of those interviews at its disposal and hadread them out in the course of the trial. It was not up to the court to conduct

its own investigation into the allegations of ill-treatment, but the court could

refuse to take into account any evidence it considered inadmissible. The

court’s refusal to call the witnesses indicated by the applicant had not,therefore, influenced the fairness of the proceedings. Accordingly, the

Government maintained that there had been no violation of Article 6 §§ 1

and 3 (d).

2. The Court ’ s assessment

(a) General principles

89. The Court reiterates that the right to call witnesses is not absolute

and can be limited in the interests of the proper administration of justice.

Article 6 § 3 (d) does not require the attendance and examination of every

witness on the accused’s behalf; its essential aim, as indicated by the words“under the same conditions”, is full equality of arms in the matter . The task

of the European Court is to ascertain whether the proceedings in issue,

considered as a whole, were fair (see Vidal v. Belgium, 25 March 1992,

§ 33, Series A no. 235-B). An applicant claiming a violation of his right to

obtain the attendance and examination of a defence witness should show

that the examination of that person was necessary for the establishment of

the truth and that the refusal to call that witness was prejudicial to his

defence rights (see Guilloury v. France, no. 62236/00, § 55, 22 June 2006).

Although it is normally for the national courts to assess the evidence before

them, as well as the relevance of the evidence which defendants seek to

adduce, there might be exceptional circumstances which could prompt the

Court to conclude that the failure to hear a person as a witness was

incompatible with Article 6 (see Bricmont v. Belgium, 7 July 1989, § 89,

Series A no. 158, and Destrehem v. France, no. 56651/00, § 41, 18 May

2004).

(b) Application of the above principles to the present case

90. The Court notes that the applicant sought examination of a number

of witnesses in an apparent attempt to corroborate his allegation that he had

been ill-treated by the police to make him confess. While the testimony of

the witnesses requested by the applicant could have shed light on the

question of his possible ill-treatment, this testimony would have been

relevant for the applicant’s trial had he made a confession to the police and

the domestic courts had relied on it securing his conviction (compare

Tarasov v. Ukraine, no. 17416/03, § 105, 31 October 2013), or if this

testimony would be of other importance to his conviction (see, for example,


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“If the Court finds that there has been a violation of the Convention or the Protocolsthereto, and if the internal law of the High Contracting Party concerned allows only

partial reparation to be made, the Court shall, if necessary, afford just satisfaction to

the injured party.”

98. The applicant did not submit a claim for just satisfaction.

Accordingly, the Court considers that there is no call to award him any sum

on that account.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;

2. Holds that there has been no violation of Article 3 of the Convention

under its substantive limb;

3. Holds that there has been a violation of Article 3 of the Convention

under its procedural limb;

4. Holds that there has been no violation of Article 6 §§ 1 and 3 (d) of the

Convention.

Done in English, and notified in writing on 3 March 2016, pursuant to

Rule 77 §§ 2 and 3 of the Rules of Court.

Claudia Westerdiek Angelika Nuβ berger

Registrar President

Documents

Case of Kapustyak v. Ukraine