FIFTH SECTION     CASE OF GRINENKO v. UKRAINE (Application no. 33627/06)      JUDGMENT   STRASBOURG 15 November 2012 FINAL 15/02/2013 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.In the case of Grinenko v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Dean Spielmann, President, Mark Villiger, Karel Jungwiert, Boštjan M. Zupančič, Angelika Nußberger, Paul Lemmens, judges, Stanislav Shevchuk, ad hoc judge,and Claudia Westerdiek, Section Registrar,Having deliberated in private on 16 October 2012,Delivers the following judgment, which was adopted on that date:PROCEDURE1. The case originated in an application (no. 33627/06) 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 Vladislav Leonidovich Grinenko (“the applicant”), on 2 August 2006.2. The applicant was represented by Mr A.P. Bushchenko, a lawyer practising in Kharkiv. The Ukrainian Government (“the Government”) were represented by their Agent, Mr N. Kulchytskyy.3. The applicant complained, in particular, of police brutality and the lack of an effective investigation in that respect, the unlawfulness of his arrest and preliminary detention, and the violation of his rights under Article 6 §§ 1 and 3 of the Convention.4. On 14 February 2011 the application was communicated to the Government. Mrs G. Yudkivska, the judge elected in respect of Ukraine, was unable to sit in the case (Rule 28 of the Rules of Court). The President of the Chamber decided to appoint Mr S. Shevchuk to sit as an ad hoc judge (Rule 29 § 1(b)).THE FACTSI. THE CIRCUMSTANCES OF THE CASE5. The applicant was born in 1983 and lives in Kharkiv.6. On 17 November 2004 I. and D.K. were arrested on suspicion of attempting to arrange the murder of V., a businessman working in Kharkiv. Both suspects were questioned. D.K. admitted his involvement in the crime and said that the applicant had initiated the plot and agreed to pay for the crime.7. On 19 November 2004 the Kyiv Prosecutor’s Office instituted criminal proceedings against the applicant, I. and D.K. on suspicion of attempting to arrange the murder of V.8. The investigative authorities submitted the following account of events. The applicant’s father and V. were business partners. The applicant was well acquainted with V. and persuaded him to enter into a deal with R. R. then swindled V., causing him serious financial damage. V. suspected the applicant of collusion with R., and their relationship seriously deteriorated. The applicant then decided to arrange the murder of V. For this purpose, the applicant met D.K., who lived in Kyiv and offered to assist him in arranging the murder of V. The applicant wired money to D.K. to buy a gun. D.K. started to look for a gun and an assassin to hire. He met I., who suggested that he speak to Yu.K. as a possible assassin. When they met, Yu.K. asked D.K. for information about V. and gave him a list of questions. The applicant provided some of the answers to D.K. He also gave D.K. some money to be transferred to Yu.K. After Yu.K. had received the information and the money, he refused to commit the murder and approached the law-enforcement authorities.9. At about 11 p.m. on 20 November 2004 the police arrested the applicant at his apartment in Kharkiv, took him to the police station in Kharkiv and then escorted him to Kyiv (about 450 kilometres away).10. During that night and the morning of 21 November 2004 the applicant was allegedly beaten by police officers to make him confess to the crime. According to the applicant, the police officers placed a gas mask over his head and blocked the access to air; they also hung him up by handcuffs fixed to his wrists. He had no access to a doctor in that period.11. In the morning of 21 November 2004 the applicant’s father hired a lawyer from Kharkiv, N.B., to represent the applicant.12. Between 8.10 a.m. and 11.05 a.m. on that date a police officer questioned the applicant as a witness in the case. The questioning was carried out without a lawyer. Before being questioned the applicant had been warned that refusing to give evidence and giving false evidence were criminal offences. At the same time he was apprised of Article 63 of the Constitution, which provides that a person is not liable for refusal to give evidence regarding himself or herself and his or her relatives.13. During questioning the applicant admitted that he had asked D.K. to find someone who could murder V. in exchange for money. D.K. had answered in the affirmative and they had agreed a price and the terms. They later met in Kharkiv to inspect the locality. D.K. had taken part of the payment from the applicant. Subsequently, D.K. had been arrested and the plan to murder V. had fallen through.14. After questioning, the applicant wrote a confession and submitted it to the police officer who had questioned him. According to the applicant, he wrote a confession, as dictated by a police officer, to avoid any further ill‑treatment.15. At 1.05 p.m. on 21 November 2004 an investigator of the Shevchenkivskyy District Prosecutor’s Office of Kyiv questioned I. in the presence of her lawyer. I. admitted that she had helped D.K. to look for a gun and someone who could commit a contract murder. She had assisted him in approaching Yu.K. as a possible assassin. She further stated that she knew nothing about the applicant.16. At 1.30 p.m. on 21 November 2004 the investigator, relying on Articles 106 and 115 of the Code of Criminal Procedure, issued an arrest report in respect of the applicant. According to the report, the applicant was arrested on the grounds that he had been identified by an eyewitness. The applicant was apprised of his procedural rights as a suspect.17. At 1.50 p.m. on 21 November 2004 the investigator apprised the applicant of his rights under Article 63 of the Constitution and his right to have a lawyer. The applicant designated two lawyers who had been admitted to the proceedings: a legal aid lawyer provided by the investigator and N.B., hired by his father.18. At 2 p.m. on 21 November 2004 the investigator questioned the applicant as a suspect. Before the questioning, the applicant’s rights under Article 63 of the Constitution were explained to him. The applicant was questioned in the presence of the legal aid lawyer. Lawyer N.B. was absent. During questioning the applicant gave details of his communication with D.K. and claimed that he had not taken any action with a view to arranging the murder of V.19. On 22 November 2004 a confrontation between the applicant and the other suspect, D.K., was arranged with the assistance of the applicant’s legal aid lawyer. The applicant contended that he had not asked D.K. to arrange the murder; D.K. insisted that the applicant had asked him to do so.20. On 24 November 2004 the Shevchenkivskyy District Court of Kyiv extended the applicant’s preliminary detention to ten days.21. On 25 November 2004 the investigator arranged confrontations between I. and D.K., and later between D.K. and Yu.K. Both I. and D.K. were assisted by lawyers.22. On 30 November 2004 the applicant and I. were charged with the crime and questioned. According to the verbatim record, they were questioned at the same time.23. On the same date the applicant was questioned in the presence of both of his lawyers. He maintained his previous statements of 21 November 2004 when he had been questioned as a suspect.24. I. was also questioned in the presence of her lawyer. She stated that in September 2004 D.K. had approached her to help him find a gun. She had assisted him in looking for a gun, but to no avail. She had further arranged and participated in the meeting between D.K. and Yu.K. during which the former had explained that the latter’s task would be to “remove” a person living in Kharkiv. She had acted as an intermediary in passing money between D.K. and Yu.K.25. On the same date, 30 November 2004, the Shevchenkivskyy District Court of Kyiv ordered the applicant’s pre-trial detention for two months.26. On 21 December 2004 I. died in a road accident.27. On 14 and 28 January 2005 the applicant was questioned in the absence of N.B. but in the presence of the legal aid lawyer. According to the verbatim record provided by the Government, while being questioned on 14 January 2005 the applicant had informed the investigator that his confession of 21 November 2004 had been obtained by means of ill‑treatment.28. The trial of the applicant and D.K. commenced in March 2005 at the Kyiv Court of Appeal, acting as a first-instance court. Before the trial, the applicant dismissed N.B. and subsequently, on 28 March 2005, he also dismissed the legal aid lawyer and appointed another lawyer.29. During the trial the applicant and D.K. denied the charges. The applicant insisted that his negotiations with D.K. and the other persons had not meant that he had wanted V. dead; his intention had been to make R. explain to V. that the applicant had not been involved in R.’s fraud.30. The applicant further submitted that he had been arrested at 11 p.m. on 20 November 2004, taken to the police station in Kharkiv and then escorted to Kyiv. He alleged that police officers had hit him in the stomach with truncheons, placed a gas mask over his head and blocked his access to air, which had made it impossible to breathe, and that his hands had swelled because the handcuffs had been too tight. This treatment had resulted in his confessing to the crime.31. D.K. asserted that after his arrest, the police officers had started to threaten him so he had simply given up and signed all the documents he had been told to sign. The court called his girlfriend as a witness. She stated that on 17 November 2004 she had also been taken to the police station together with D.K. On that day she had been questioned for six hours, during which the police officers had sworn and shouted at her, and threatened to rape her. After her release, she had gone to a doctor for examination.32. When the court summoned the police officers, the applicant identified one police officer who had hit him in the stomach and another who had placed a gas mask over his head. D.K. identified the police officer who had abused him psychologically. The girlfriend of D.K. identified the police officer who had shouted at her and threatened to rape her. The police officers denied the allegations of psychological and physical ill-treatment. They admitted that they had arrested the applicant in Kharkiv and had taken him to Kyiv.33. The court also questioned the investigator, who submitted that the applicant had made no complaints of ill-treatment and that the applicant had been assisted by the legal aid lawyer during questioning. In the investigator’s opinion, this had been sufficient to ensure the applicant’s defence rights.34. On 25 June 2005 the court found the applicant guilty of attempting to arrange a murder and sentenced him to four and a half years’ imprisonment. The court also found that there had been no indication of a plan for the murder to be committed by a group of people and dismissed that part of the accusation.35. The court based its findings on the applicant’s confession of 21 November 2004 and other self-incriminating statements given throughout the pre-trial investigation; the evidence provided by the co-defendant at the pre-trial investigation; and the witness evidence provided by Yu.K. and others during the pre-trial investigation and the trial. Given the fact that by the time the trial took place, I. had died, the court examined the statements that I. had made during the pre-trial investigation. The court also referred to the material evidence and the expert opinions.36. The court rejected the argument of the defence that the applicant should have been regarded as having voluntarily refused to commit the crime. It found in this regard that the applicant had been prevented from committing the crime by the witness, Yu.K., who had informed the law-enforcement authorities that the crime was being arranged.37. The court further dismissed the arguments of the defence that the evidence obtained by the investigation had been inadmissible. It noted that there had been no indication that the applicant had been unlawfully arrested and detained, or that he had been subjected to ill-treatment; neither had there been any violation of the applicant’s rights of defence. Those rights had been properly explained to him and he had been properly represented by lawyers during the investigation. The fact that the records of the applicant’s and I.’s questioning of 30 November 2004 indicated that they had been carried out at the same time did not compromise the validity of those two separate measures.38. On 15 and 18 July the applicant’s lawyer submitted objections, which were included in the verbatim record of the hearings.39. On 25 July 2005 the applicant’s lawyer appealed in cassation, claiming that the first-instance court had misinterpreted the facts; wrongly assessed the evidence; failed properly to examine the applicant’s submissions, including those concerning his unlawful detention and ill‑treatment and the violation of his defence rights; and unduly relied on I.’s statements.40. On 2 February 2006 the Supreme Court held a hearing on the applicant’s case. After it had heard the parties to the proceedings, including the applicant and his lawyer, and examined the evidence in the case, the Supreme Court dismissed the cassation appeal as groundless. It referred to the available evidence, including the applicant’s confession of 21 November 2004, and found that the applicant’s guilt had been well established. It also found that the applicant had been arrested and detained lawfully, the police officers had not pressurised the applicant and his defence rights had not been impaired. It therefore upheld the judgment of the first-instance court in respect of the applicant.II. RELEVANT DOMESTIC LAWA. Constitution of Ukraine41. The relevant provisions of the Constitution can found in the judgment in the case of Shabelnik v. Ukraine (no. 16404/03, § 25, 19 February 2009) and Osypenko v. Ukraine (no. 4634/04, § 32, 9 November 2010).B. Code of Criminal Procedure of 28 December 1960 (“the CCP”)42. The relevant provisions of the CCP are quoted in Osypenko v. Ukraine (cited above, § 33), Smolik v. Ukraine (no. 11778/05, § 32, 19 January 2012) and Kaverzin v. Ukraine (no. 23893/03, § 45, 15 May 2012).C. The Act “On procedure for compensation for damage caused to citizens by the unlawful acts of bodies of enquiries, pre-trial investigation authorities, prosecutor’s offices and courts” of 1 December 1994 (“the Compensation Act”)43. The relevant provisions of the Compensation Act (as worded at the relevant time) can be found in the judgment of Afanasyev v. Ukraine (no. 38722/02, § 52, 5 April 2005).III. RELEVANT INTERNATIONAL MATERIALReport to the Ukrainian Government on the visit to Ukraine carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) from 9 to 21 October 200544. The relevant extracts from the report read as follows:“38. It appears from the information gathered during the 2005 visit that the prompt and accurate recording of a person’s detention (i.e. from the moment he/she is obliged to remain with the Internal Affairs staff) remains a considerable area of concern. The delegation’s findings revealed that, in many instances, periods of detention (from several hours up to one day) went unrecorded in the protocols of detention. At the same time, custody registers often contained incorrect data, and on occasion, misleading information. By way of illustration, the register of a district police station indicated that a person was detained there for two hours while it was subsequently established that the person in question was in fact held at the police station concerned for three days. Resolute action is required on the part of the Ukrainian authorities to put an end to this state of affairs.The CPT recommends that steps be taken immediately to ensure that whenever a person is deprived of liberty by the Militia, for whatever reason, this fact is formally recorded without delay. Further, once a detained person has been placed in a cell, all instances of his/her subsequent removal from the cell should be recorded; that record should state the date and time the detained person is removed from the cell, the location to which he/she is taken and the officers responsible for taking him/her, the purpose for which he/she has been removed from the cell, and the date and time of his/her return.”THE LAWI. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION45. The applicant complained that on 20 and 21 November 2004 he had been ill-treated by the police and that there had been no effective investigation of his allegations. The applicant 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. Admissibility1. The parties’ submissions46. The Government contended that the applicant had mentioned his allegation of ill-treatment to the authorities for the first time on 14 January 2005. He had maintained that complaint during the criminal trial. This, however, had not been an effective way of raising the complaint of ill-treatment at the domestic level. The applicant should have submitted a separate application to the prosecutor’s office requesting that criminal proceedings be instituted against the police officers concerned. Such an application would have enabled the authorities to carry out pre-investigative enquiries and decide whether to open an investigation in that respect. The refusal to investigate could have been further challenged before the higher prosecutor or the courts, as provided for by Articles 99-1 and 236-1 of the CCP. The Government thus asserted that the applicant had failed to exhaust domestic remedies in respect of his complaint of ill-treatment.47. The applicant disagreed and claimed that he had informed the investigator and the courts dealing with his criminal case about the alleged ill-treatment. If they had not been empowered to investigate such issues, they should have referred the complaint to the appropriate authority, as required by Article 97 of the CCP.2. The Court’s assessment48. The Court notes that under Article 97 of the CCP a prosecutor, investigator, inquiry officer or judge is obliged to accept applications or notifications as to a committed or planned crime, including in cases that are outside their competence. Upon receipt of such information, those public officers should either institute criminal proceedings, refuse to institute criminal proceedings, or remit the material for examination in accordance with the rules of jurisdiction.49. In the present case the applicant notified the investigator in charge of his criminal case about the alleged ill-treatment (see paragraph 27 above), but the investigator did not take a separate decision on this issue and later even claimed before the trial court that the applicant had not complained of ill-treatment (see paragraph 33 above). The applicant further made that complaint before the trial court, which, rather than referring the matter to the investigative authorities, took cognisance of the applicant’s complaint and dismissed it after examination on the merits. The applicant then raised the issue in his cassation appeal to the Supreme Court. It follows that the applicant sufficiently informed the domestic authorities of the alleged ill-treatment and provided them with appropriate opportunities to address the matter effectively.50. Accordingly, the complaint cannot be rejected on the grounds of non-exhaustion of domestic remedies and the Government’s objection in this regard should be dismissed. Neither can the applicant be reproached for having missed the six-month time-limit as he reasonably expected that the courts would give attention to those issues in the course of the criminal proceedings against him (see Kaverzin v. Ukraine, cited above, § 99).51. The Court further notes that the applicant’s complaints under Article 3 of the Convention are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. They are not inadmissible on any other grounds. They must therefore be declared admissible.B. Merits1. Alleged ill-treatment(a)  The parties’ submissions52. The Government contended that the applicant’s allegations of ill-treatment had not been supported by appropriate evidence and therefore could not be established beyond reasonable doubt.53. The applicant disagreed and asserted that his allegations had been supported by the statements made by the co-defendant and his girlfriend during the trial. He further claimed that his undocumented detention on the night of 20 November 2004 had also supported his version of the events.(b)  The Court’s assessment54. The Court reiterates that Article 3 of the Convention prohibits in absolute terms torture and inhuman or degrading treatment. Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim. In respect of a person deprived of his liberty, recourse to physical force that has not been made strictly necessary by his own conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3 (see Labita v. Italy [GC], no. 26772/95, §§ 119-20, ECHR 2000-IV).55. In assessing evidence, the Court has generally applied the standard of proof “beyond reasonable doubt” (see Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no. 25, pp. 64-65, § 161). However, proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Where the events in issue lie wholly, or in large part, 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 occurring during such detention. Indeed, the burden of proof may be regarded as lying with the authorities to provide a satisfactory and convincing explanation (see Ribitsch v. Austria, 4 December 1995, Series A no. 336, § 34, and Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII).56. In the present case the applicant made fairly detailed submissions as to the methods of ill-treatment employed by the police officers against him (see paragraphs 10, 30 and 32 above). These methods of ill-treatment (in particular, the alleged beating with truncheons and suspending the applicant by handcuffs fixed to his wrists) would normally have caused the applicant to sustain visible physical injuries. The applicant himself claimed that his hands had swelled because the handcuffs had been too tight (see paragraph 30 above). According to the case file, the applicant’s lawyer saw him on the afternoon of 21 November 2004, immediately after the alleged ill-treatment, but made no statement that the applicant had suffered any injuries. Nor is there any explanation as to why the applicant and his lawyers failed to request a medical examination and to report the injuries.57. While the statements made by the applicant’s co-defendant and his girlfriend during the trial could to some extent be considered to support the applicant’s account of events, this evidence was given by individuals who could not be considered unbiased. Moreover, these individuals were referring to their own treatment by the police, not the ill-treatment allegedly inflicted on the applicant.58. In sum, the material in the case file is not sufficient to conclude beyond reasonable doubt that the applicant was subjected to treatment prohibited under Article 3 of the Convention. Procedural obligations under Article 3 of the Convention(a)  The parties’ submissions59. The Government contended that as the applicant had not complained of ill-treatment to the prosecutor’s office, the State had been under no procedural obligation to investigate the alleged events.60. The applicant disagreed and argued that the State had failed in its obligation to investigate his allegations of ill-treatment effectively.(b)  The Court’s assessment61. The Court reiterates that where an individual makes an arguable claim that he has been ill-treated by the State authorities in breach of Article 3, that provision, read in conjunction with the State’s general duty under Article 1 of the Convention, requires by implication that there should be an effective official investigation. For the investigation to be regarded as “effective”, it should in principle be capable of leading to the establishment of the facts of the case and to the identification and punishment of those responsible. This is not an obligation of result, but one of means. The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony, forensic evidence, and so on. 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, and a requirement of promptness and reasonable expedition is implicit in this context (see, among many authorities, Mikheyev v. Russia, no. 77617/01, § 107 et seq., 26 January 2006, and Assenov and Others v. Bulgaria, 28 October 1998, Reports 1998-VIII, §§ 102 et seq.).62. As to the present case, the Court considers that the applicant made an arguable complaint of ill-treatment before the domestic authorities which triggered their procedural obligation under Article 3 of the Convention to carry out an effective investigation of the alleged facts. Meanwhile, the applicant’s allegations were examined exclusively by the courts in the course of legal argument concerning the admissibility of evidence at trial. This examination was limited in scope as it amounted only to the questioning of the police officers, the defendants and one witness. Accordingly, there has been no full-scale investigation of the matter for the purpose of Article 3 of the Convention. Furthermore, following that examination the courts decided to give preference to the police officers’ account of the facts without making any genuine attempt to remove the discrepancies between the applicant’s specific and concrete statements and the submissions by the police officers. In these circumstances the Court considers that the State has failed to take the necessary steps aimed at effective investigation of the allegations of ill-treatment.63.

Outcome for Article 3: no_violation