FIFTH SECTION  CASE OF KOBETS v. UKRAINE  (Application no. 16437/04)   JUDGMENT   STRASBOURG  14 February 2008   FINAL  14/05/2008  This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Kobets v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Peer Lorenzen, President, Snejana Botoucharova, Volodymyr Butkevych, Margarita Tsatsa-Nikolovska, Rait Maruste, Javier Borrego Borrego, Renate Jaeger, judges,and Claudia Westerdiek, Section Registrar,Having deliberated in private on 22 January 2008,Delivers the following judgment, which was adopted on this date:PROCEDURE1. The case originated in an application (no. 16437/04) 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 Aleksey Viktorovich Kobets (“the applicant”), on 25 March 2004.2. The applicant, who had been granted legal aid, was represented by Messrs V. Kasko and R. Kyrylyuk, lawyers practising in Kyiv, Ukraine. The Ukrainian Government (“the Government”) were represented by their Agents, Mrs V. Lutkovska and Mr Y. Zaytsev.3. On 7 September 2005 the Court decided to communicate the complaints under Article 3 of the Convention concerning alleged ill-treatment of the applicant by a police officer to the Government. Under the provisions of Article 29 § 3 of the Convention, the Court decided to examine the merits of the application at the same time as its admissibility. The case was given priority under Rule 41 of the Rules of the Court.THE FACTSI. THE CIRCUMSTANCES OF THE CASE4. The applicant was born in 1977 and lives in Kyiv, Ukraine.A. The events of 7-8 July 20025. On 7 July 2002 at 11 p.m. the applicant, with K. and M., had a fight with a taxi driver, B., and damaged his car. The taxi driver informed an operator at the taxi call centre that he had been assaulted. Two more taxis, which at that time were nearby, arrived and the taxi drivers tried to stop the fight. Another fight broke out, at the end of which the applicant and K. were thrown to the ground and held face down. M. ran away. In the meantime police arrived and arrested the applicant and K.6. They were brought to the Kyiv City Drug-Addiction Clinic (Київська міська наркологічна лікарня) where on 8 July 2002 at 1.25 a.m. the applicant was examined by a doctor, who concluded that the applicant was drunk and noted, inter alia, that he had some scratches on his forehead and a bruise to his eye. The applicant and K. were subsequently taken to the Solomyanskyy District Police Station (Територіальне відділення міліції Солом’янського районного управління ГУ МВС України в м.Києві).7. According to the applicant, the police officer, R., demanded that the applicant sign a statement admitting that he had been involved in an assault. When the applicant refused to do so, he was allegedly beaten with a truncheon.8. When the applicant complained of a headache and nausea, around 6 p.m. an ambulance was called for him. The applicant was found to have sustained numerous injuries to his face, head and ears. His body and especially his back had numerous bruises from blows, possibly from sticks. The ambulance doctor further concluded that the applicant had symptoms of concussion. According to the ambulance medical report, the applicant told the doctors that he had been beaten up by taxi drivers. The doctors recommended that the applicant be hospitalised.9. On 8 July 2002 at 9 p.m. the applicant was released from the police station. The applicant’s mother called an ambulance to the police station and at 10 p.m. the applicant was hospitalised with a closed cerebral trauma, concussion and numerous bruises on his back. The applicant told doctors that he had been beaten up by the police officers during his arrest.10. On 9 July 2002 the ambulance doctor informed the police that the applicant and K. had been hospitalised. According to the doctor, the applicant and K. had said that they had been beaten up by the police. The police officer, S., noted this and reported it to the head of the Solomyanskyy District Police Station. His report was added to the evidence in the criminal case against the applicant (see below).11. On the same day an expert medical examination performed at the applicant’s request, revealed that the applicant had had minor physical injuries (numerous scratches and bruises and concussion), some of which could have been inflicted by a rubber truncheon. The applicant told the expert that unknown persons had beaten him with sticks on the night of 7‑8 July 2002.12. On 15 July 2002 the applicant left the hospital. According to the applicant, he was forced to leave, though he was not fully recovered; he stayed at home afterwards for two more weeks.B. Criminal proceedings against the applicant13. On 10 July 2002 the police instituted criminal proceedings against the applicant for hooliganism.14. On 5 February 2003 the applicant was charged with the above crime.15. On 17 March 2003 the preliminary investigation was completed and the case was referred to the court for examination.16. On 5 August 2003 the Solomyanskyy District Court of Kyiv discharged the applicant from criminal liability in view of “the change in the situation eliminating public danger of the offence and of the applicant”. The applicant appealed, stating, inter alia, that he had never agreed to the termination of the criminal proceedings on this ground. On 7 October 2003 the Kyiv City Court of Appeal upheld the decision of 5 August 2003. On 30 March 2004 the Supreme Court rejected the applicant’s cassation appeal.17. By a letter of 23 June 2004 the Supreme Court informed the applicant’s mother that it had been decided to request the applicant’s case file in order to decide whether to review his case under the extraordinary review procedure. The applicant did not inform the Court of the outcome of these proceedings.C. The investigation into the alleged ill-treatment18. On 14 December 2002 the applicant’s mother complained of his ill-treatment and unlawful detention through the special police hotline “The Telephone of Trust”. The applicant’s mother was then invited to a meeting with police officials at the Ministry of Interior on 16 December 2002 to give evidence and submit an official complaint.19. On 29 January 2003 the investigating officer, M., sent the materials of the case related to the applicant’s allegations that he had been beaten up by the police officer, for additional scrutiny to the Solomyanskyy District Prosecutor’s Office (прокуратура Солом’янського району м. Києва).20. On 5 February 2003 the applicant filed with the prosecution authorities a similar complaint about having been assaulted by the police. On 18 February 2003 the Solomyanskyy District Prosecutor’s Office refused to institute criminal proceedings for want of evidence of any ill-treatment by the police, since they held that the injuries in question had been inflicted upon the applicant by the taxi drivers during the fight. On an unidentified date between March and August 2003 this decision was quashed and the case was remitted for further investigation.21. In a letter of 1 April 2003 the human resources officer at the Kyiv City Police Department (Головне управління МВС України в м. Києві) informed the applicant that the materials of the internal inquiry had been forwarded to the Solomyanskyy District Prosecutor’s Office. The unnamed officials at the Solomyanskyy District Police Station were disciplined for keeping the applicant in custody without any record of his detention.22. On 26 August 2003 the Solomyanskyy District Prosecutor’s Office decided not to bring any charges against the police officers for alleged ill-treatment of the applicant.23. On 20 October 2003 the Kyiv City Prosecutor’s Office (прокуратура м. Києва) found that the inquiry was flawed, quashed the conclusions of the Solomyanskyy District Prosecutor’s Office and ordered further inquiries into the applicant’s allegations. On 31 October 2003 the Solomyanskyy District Prosecutor’s Office instituted criminal proceedings against the police for exceeding their powers.24. Between February and April 2004 these proceedings were twice terminated and subsequently reopened by the prosecutor.25. On 22 June 2004 the investigator with the Solomyanskyy District Prosecutor’s Office found that the police were not responsible for the injuries sustained by the applicant.26. On 19 August 2004 the Kyiv City Prosecutor’s Office quashed the decision of 22 June 2004 and the case was remitted to the Shevchenkivskyy District Prosecutor’s Office (прокуратура Шевченківського району м. Києва) for further inquiries.27. On 30 July 2005 the Shevchenkivskyy District Prosecutor’s Office terminated the criminal proceedings in the absence of evidence of crime. In particular, V. and W. (taxi passengers) and B. (taxi driver) testified that the police officers had not beaten the applicant during his arrest. It was further found that the injuries could have been inflicted on the applicant by the taxi drivers. It was also stated that in a court hearing during the consideration of the criminal case against him K. had testified that four or five taxi drivers had beaten him and the applicant. As a result K. had had his nose and one rib broken.28. On 31 May 2006 the Shevchenkivskyy District Court quashed this decision and remitted the case for a further investigation to the Shevchenkivskyy District Prosecutor’s Office. The court pointed out that B. and K. had not been properly questioned about the argument which had led to another fight; other taxi drivers had not been questioned; confrontations had not been held, in particular, between the applicant and R. Moreover, the court found that after the case had been remitted for further investigation the investigating officer, M., had not taken any action and had based his decision entirely on already existing materials.The investigation still appears to be pending.D. Proceedings related to the applicant’s detention29. On an unidentified date the applicant instituted proceedings in the Solomyanskyy District Court of Kyiv complaining of unlawful detention on 8 July 2002. On 11 May 2006 the court rejected the applicant’s complaint. On 25 May 2006 the Kyiv City Court of Appeal quashed this decision and found that the applicant’s detention had been unlawful.II. RELEVANT DOMESTIC LAWA. Constitution of Ukraine, 199630. The relevant provision of the Constitution of Ukraine reads as follows: Article 28“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. ...”B. Code of Criminal Procedure, 196131. Article 4 of the Code provides that the court, prosecutor or investigator must, to the extent that it is within their power to do so, institute criminal proceedings in every case where evidence of a crime has been discovered, take all necessary measures provided by law to establish whether a crime has been committed and the identity of the perpetrators and punish them.32. Articles 99(1) and 215 of the Code provides that an investigator’s decision not to institute or to discontinue the proceedings can be appealed against to the prosecutor or to the court.THE LAWI. ALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE CONVENTION33. The applicant complained under Article 3 of the Convention that he had been subjected to ill-treatment by the police officer, R., and that there had been no adequate or effective investigation of his complaints. The applicant further complained under Article 13 of the Convention of the absence of effective remedies for his complaints. The relevant Articles read as follows:Article 3“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”Article 13“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”A. Admissibility34. In their observations of 2 December 2005 the Government submitted that the applicant had not exhausted effective domestic remedies in respect of the alleged violations of Article 3 of the Convention as he had failed to challenge in court the decision of 30 July 2005 by which the criminal proceedings had been terminated.35. In his observations of 1 February 2006 the applicant submitted that there were no grounds to declare his complaints inadmissible. In particular, the applicant stated that he had learned about the decision of 30 July 2005 only from the Government’s observations and, in any event, an appeal to the court against the decision to terminate criminal proceedings would not render the investigation effective since these proceedings had already lasted for a considerable period of time and had been marked by numerous flaws.36. The Court notes that the Government’s objection is closely linked to the substance of the applicant’s complaints under Articles 3 and 13 of the Convention. In these circumstances, it joins the objection to the merits of the applicant’s complaints.37. The Court further finds that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and is not inadmissible on any other grounds. It must therefore be declared admissible.B. Merits1. The submissions of the parties38. The Government admitted that the applicant had indeed sustained minor physical injuries. However, the Government maintained that there were no indications that the applicant had ever been assaulted by the police officers. According to them, the injuries in question had been sustained by the applicant during his fight with the taxi drivers. The Government pointed out that although during the first medical examination of the applicant, which took place on 8 July 2002 at 1.25 a.m., it had been revealed that the applicant had had only some scratches on his forehead and a bruise to his eye, this examination had been limited to verifying whether the applicant had been intoxicated. Therefore, the doctor did not check whether the applicant had other injuries but noted only the most visible ones. The Government further submitted that it had only been when the applicant was hospitalised that he had been diagnosed with concussion because due to the applicant’s being under the influence of alcohol it had been impossible to diagnose it earlier. Moreover, once the applicant had complained that he was not feeling well an ambulance had immediately been called for him by the police officers. The Government further indicated that the applicant had changed his allegations several times as to who had beaten him up. On different occasions he had told doctors that he had been beaten by unknown persons, by the taxi drivers and by the police officers on his arrest but he had never stated that he had been beaten up in the police station. Furthermore, the Government maintained that the investigation in the applicant’s case had been adequate and effective. In particular, all important witnesses of the events at issue had been questioned (police officers, taxi drivers and passengers and so on). Although the outcome of the investigation had not been favourable for the applicant, this did not automatically mean that the investigation had been ineffective.

Outcome for Article 3: no_violation