FIFTH SECTION      CASE OF BELOUSOV v. UKRAINE (Application no. 4494/07)       JUDGMENT   STRASBOURG 7 November 2013  FINAL 07/02/2014 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.In the case of Belousov v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Mark Villiger, President, Angelika Nußberger, Boštjan M. Zupančič, André Potocki, Paul Lemmens, Aleš Pejchal, judges, Stanislav Shevchuk, ad hoc judge,and Claudia Westerdiek, Section Registrar,Having deliberated in private on 15 October 2013,Delivers the following judgment, which was adopted on that date:PROCEDURE1. The case originated in an application (no. 4494/07) 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 Vyacheslav Nikolayevich Belousov (“the applicant”), on 7 December 2006.2. The applicant was represented by Mr A.P. Bushchenko, a lawyer practising in Kharkiv. The Ukrainian Government (“the Government”) were represented successively by their Agents, Mrs V. Lutkovska and Mr N. Kulchytskyy.3. The applicant alleged that the police had unlawfully detained him, tortured him and searched his home, that he had not been brought promptly before a judge for the lawfulness of his arrest to be examined, and that the investigation of his complaint concerning torture was ineffective.4. On 21 March 2011 the application was communicated to the Government.5. 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 CASE6. The applicant was born in 1979 and lives in Kharkiv.A. Criminal proceedings against the applicant, his arrest and detention7. At about 11 a.m. on 18 July 2005 several police officers in civilian clothes came to the hostel where the applicant lived, and invited him to come with them to their office. The applicant followed the officers, who took him to the Kominternivskyy District police station (hereafter “the police station”).8. On arrival the applicant was notified that the police had received complaints from two mothers implicating him in sexual abuse of their minor daughters, and was questioned on this matter.9. At about 5 p.m. on the same day the applicant confessed to the offence and signed permission for the police to inspect his home.10. At about 6 p.m. seven or eight police officers, including those who had questioned the applicant, took him back to the hostel, examined his room, seized a bed cover, a rug and some of the applicant’s personal belongings, and brought the applicant back to the police station. No documentary record of his arrest was drawn up at that stage.11. At about 7 p.m. on 19 July 2005 the applicant, who was still at the police station, had a first meeting with a lawyer, hired for him by his relatives.12. At about 8.40 p.m. on the same date the police investigator B. drew up an arrest report, stating that the applicant had been arrested at that hour as a crime suspect on the basis of Article 115 of the Code of Criminal Procedure.13. On 22 July 2005 the applicant was brought before a judge of the Kominternivskyy District Court of Kharkiv (“the District Court”), who remanded him in custody for ten days pending gathering of personal information to determine feasibility of his further detention.14. On 29 July 2005 the applicant was released subject to an undertaking not to abscond.15. In September 2005 one of the two mothers who had made the complaint of sexual abuse of their daughters withdrew her complaint against the applicant, stating that it had been lodged under pressure from the police.16. The parties did not inform the Court of any outcome of the criminal proceedings against the applicant.B. Investigation of the applicant’s complaints concerning his detention, the search of his home and torture17. During the evening of 18 July 2005 the concierge of the applicant’s hostel and three of his neighbours informed the Kharkiv Human Rights Group (a non-profit organisation), that they had seen the applicant leaving the hostel with the police officers at about 11 a.m. that day. They noted that at that time the applicant had been sober, neatly dressed and in good health. They had also seen him some seven hours later, when the police had brought him back for his room to be searched. They had noticed that the applicant was limping, stooping, and had bruises and swellings on his face, and that his clothes were dirty and wrinkled. Some neighbours also mentioned that the applicant had arrived handcuffed and that the police officers had prevented him from explaining to the neighbours what was going on.18. At about 10 p.m. on the same date an unidentified person telephoned the police hotline, demanding an investigation of the applicant’s arrest and detention.19. At about 10.30 p.m. on the same date M.K., the Kominternivskyy District Police Deputy Chief Officer, arrived to investigate the complaint received via the hotline, and interviewed the applicant, who complained that he had been ill-treated by the police. The Deputy Chief Officer also questioned the police officers, who stated that the applicant had injured himself.20. At about 10 a.m. on 19 July 2005 the applicant was examined by a forensic expert, who certified that the applicant was suffering from minor bodily injuries, including soft tissue swelling, numerous bruises and scratches on various parts of his body, in particular the face and groin area. The expert next concluded that these injuries had been inflicted by blunt objects within the past one to three days, and recorded that according to the applicant these injuries had been inflicted by the police, while according to the police they were self-inflicted.21. On 20 July 2005 the applicant, represented by his lawyer, lodged a formal complaint, requesting the Kominternivskyy District Prosecutor (“the District Prosecutor”) to institute criminal proceedings in respect of his unrecorded detention until 8.40 p.m. on 19 July 2005 and his ill-treatment. The applicant maintained that he had been tortured by a number of police officers, including S.B., A.O. and V.M., and noted that he could identify other officers if he saw them. Subsequently the applicant supplemented his initial submissions, additionally complaining that on 18 July 2005 his home had been unlawfully searched.22. On 1 August 2005 the District Prosecutor’s Office instituted criminal proceedings in respect of the applicant’s complaints.23. On 6 August 2005 the applicant was questioned as a witness in connection with those proceedings. He submitted that upon his arrival at the police station, at about noon on 18 July 2005, three officers, S.B., A.O. and V.M., had urged him to confess to the crime of which he was suspected, under threat of torture. As the applicant had insisted that he was innocent, the officers had cleared the desk of all objects, covered it with a blanket and placed him on it with his hands handcuffed behind his back. Then they had painfully twisted his arms, started punching him in various parts of his body and squeezing his genitals. Subsequently three additional officers, whose names had not been communicated to the applicant, had joined them and had taken turns to apply various techniques to cause him pain, beat and strangle him. Unable to withstand the torture, by 5 p.m. on the same date the applicant had confessed to the crime, which he had never committed.24. On various dates the prosecutor’s office summoned officers S.B., A.O. and V.M. as witnesses for questioning in connection with the above proceedings. According to the applicant, the first such questioning took place on 9 August 2005. The officers maintained that the applicant had made statements of confession of his own accord and had then become very agitated. He had started banging his head against the desk and the wall, attempted to leave the room without authorisation, and had sustained several injuries when the officers had tried to stop him. In view of this inappropriate conduct the officers had had to handcuff him to calm him down. The accounts by the police officers varied, in particular, as to the sequence of events and their individual roles in the incident.25. On 6 September 2005 the applicant complained to the District Prosecutor that the investigation of his complaints was not progressing. He noted, in particular, that the investigator should have summoned the three police officers identified by him as defendants rather than witnesses, and that an arrangement should have been made for him to identify the other officers who had ill-treated him.26. On 7 November 2005 the applicant was again questioned as a witness in the above case.27. On 11 November 2005 the applicant was accorded the status of an injured party in connection with the above proceedings.28. On 13 January 2006 the applicant took part in the reconstruction of the crime scene.29. In February 2006 the applicant had confrontations with the police officers implicated by him in the ill-treatment.30. On two occasions (3 May 2006 and 15 August 2007) the proceedings were stayed on the ground that the perpetrator of the crime could not be identified. On 10 July 2006 and 19 October 2007 respectively the proceedings were renewed following findings by the supervising prosecutorial authority that further investigative actions could have been taken.31. On 26 December 2007 the District Prosecutor’s office discontinued the proceedings for want of evidence that a crime had been committed.32. On 6 February 2008 the Kharkiv Regional Prosecutor’s Office quashed that decision as insufficiently substantiated and remitted the case for further investigation.33. On several occasions following this date the proceedings were again stayed (19 March 2008 and 21 May 2009) and renewed (4 June 2008 and 10 August 2009).34. On 28 December 2009 the District Prosecutor’s Office discontinued the proceedings. It acknowledged that on 18 July 2005 the applicant had been brought to the police station in connection with a criminal complaint lodged against him. That is, de facto he had been arrested on that date as a crime suspect on the basis of Article 115 of the Code of Criminal Procedure. Nevertheless, the applicant’s arrest had been documented only in the evening of 19 July 2005. Such an administrative delay in regularising the applicant’s arrest could possibly give rise to disciplinary proceedings against the officers responsible for it, but could not qualify as a criminal offence. The District Prosecutor’s Office also found that there was insufficient evidence that the applicant had been tortured. Finally, it noted that the visit of the police to the applicant’s home qualified not as a search, but as an inspection of the crime scene, which had been conducted lawfully, since the applicant had given his consent to such an inspection.35. On 7 April 2010 the District Court quashed the above-mentioned decision and remitted the case for additional investigation.36. The investigator questioned several witnesses, who stated that they could no longer remember the details of the events of 18-19 July 2005.37. On 15 July 2010 the District Prosecutor’s Office discontinued the criminal proceedings for want of evidence that a crime had been committed.38. On 30 November 2010 the District Court quashed this decision and remitted the case for further investigation.39. On 18 May 2011 the proceedings were stayed because the perpetrator of the crime could not be identified.40. According to the submissions by the parties, on 21 November 2011 this decision was quashed and the investigation was renewed. The parties did not inform the Court of any further steps in the proceedings.II. RELEVANT DOMESTIC LAWA. Constitution of Ukraine of 199641. Article 29 of the Constitution of Ukraine reads as follows:Article 29“Every person has the right to freedom and personal inviolability.No one shall be arrested or held in custody other than pursuant to a reasoned court decision and only on the grounds and in accordance with a procedure established by law.In the event of an urgent necessity to prevent or stop a crime, bodies authorised by law may hold a person in custody as a temporary preventive measure, the reasonable grounds for which shall be verified by a court within seventy-two hours. The detained person shall be released immediately if he or she has not been provided, within seventy-two hours of the moment of detention, with a reasoned court decision in respect of their holding in custody.Everyone who has been arrested or detained shall be informed without delay of the reasons for his or her arrest or detention, apprised of his or her rights, and from the moment of detention shall be given the opportunity to personally defend himself or herself, or to have the legal assistance of defence counsel.Everyone who has been detained has the right to challenge his or her detention in court at any time.Relatives of an arrested or detained person shall be informed immediately of his or her arrest or detention.”B. Code of Criminal Procedure of Ukraine of 1960 (repealed with effect on 19 November 2012)42. Relevant provisions of the Code of Criminal Procedure of Ukraine of 1960, in force at the material time, read as follows:Article 106. Arrest of a suspect by the body of inquiry“The body of inquiry shall be entitled to arrest a person suspected of a criminal offence for which a penalty in the form of deprivation of liberty may be imposed only on one of the following grounds:(1)  if the person is discovered whilst or immediately after committing an offence;(2)  if eyewitnesses, including victims, directly identify this person as the one who committed the offence;(3)  if clear traces of the offence are found either on the body of the suspect, or on his clothing, or with him, or in his home.If there is other information giving ground to suspect a person of a criminal offence, an inquiry officer may arrest the person if he or she has attempted to flee, or does not have a permanent place of residence, or the identity of that person has not been established.For each case of a suspect’s arrest, the inquiry officer shall draw up an arrest report (протокол затримання) outlining the grounds, the motives, the day, time, year and month, the place of arrest, the explanations given by the person detained and the time when it was recorded that the suspect had been informed of his right to have a meeting with defence counsel as from the moment of his arrest, in accordance with the procedure provided for in paragraph 2 of Article 21 of the present Code. The arrest order shall be signed by the person who drew it up and by the detainee.A copy of the arrest report with a list of his rights and obligations shall immediately be handed to the detainee and sent to the prosecutor. At the request of the prosecutor, the material which served as a ground for the arrest shall be sent to him as well. ...Within seventy-two hours of the arrest, the body of inquiry shall:(1)  release the detainee if the suspicion that he or she committed the crime has not been confirmed, if the statutory term of the preliminary detention has expired or if the arrest has been effected in violation of the requirements of paragraphs 1 and 2 of the present Article;(2)  release the detainee and select a non-custodial preventive measure;(3)  bring the detainee before a judge with a request to impose a custodial preventive measure on him or her. ...Preliminary detention of a suspect shall not last for more than seventy-two hours. ...”Article 115. Arrest of a suspect by an investigator“An investigator may arrest and question a person suspected of a crime according to procedure envisaged by Articles 106, 106-1, and 107 of the Code.”Article 190. Conduct of inspections“...Inspection of a dwelling or another possession of an individual shall be carried out only upon a reasoned decision of a judge ... .In urgent cases connected with the saving of human lives and property or with direct pursuit of individuals who are suspected of having committed a crime, and also with the written consent of the proprietor, inspection of a dwelling or another possession of an individual may be carried out without a judicial order.”43. Other relevant domestic and international materials may be found in the text of the Court’s judgment in the case of Kaverzin v. Ukraine (no. 3893/03, §§ 44-45, 49-50, 55-64, 67 and 69-79, 15 May 2012).THE LAWI. ALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE CONVENTION44. The applicant complained that he had been tortured by the police during his time in custody, in breach of Article 3 of the Convention. He also complained under Article 13 of the Convention that his allegations of torture had not been duly examined.45. The Court is of the opinion that it is appropriate to examine the applicant’s complaint of an inadequate investigation of his allegations of torture under Article 3 of the Convention (see Kozinets v. Ukraine, no. 75520/01, § 44, 6 December 2007). The provision at issue reads as follows:“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”A. Admissibility46. The Government submitted that the applicant’s complaint that he had been tortured was premature, as the domestic investigation of that complaint was pending.47. The applicant submitted that the investigation to which the Government referred was ineffective, and that he was therefore absolved of the requirement to await its outcome. He requested the Court to examine the Government’s objection jointly with the merits of the relevant complaint.48. The Court considers that in the present case it is impossible to establish whether or not the applicant was under an obligation to await the results of the investigation of his complaint concerning torture before an examination of the merits of his complaint concerning the alleged ineffectiveness of the investigation in question.49. The Court therefore joins the Government’s objection to the merits of the applicant’s complaint under the procedural limb of Article 3 of the Convention (see, as a recent authority, Savin v. Ukraine, no. 34725/08, § 57, 16 February 2012).50. The Court further notes that the above complaints are not otherwise manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, and are not inadmissible on any other grounds. They must therefore be declared admissible.B. Merits1. The submissions by the parties51. The applicant submitted that his injuries, attested to by his neighbours and recorded by the medical expert on 19 July 2005, had resulted from acts of torture by the police. He noted that these injuries had been inflicted when he had been held in police custody without procedural guarantees, and that during this period he had signed self-incriminating statements, which he had retracted soon afterwards. These factors were consonant with his submissions that he had been subjected to unlawful pressure. By contrast, the alternative version, according to which the applicant had voluntarily confessed to the offence and subsequently inflicted injuries upon himself, was untrue. The accounts provided by the police officers contained factual discrepancies. Furthermore, if, as suggested by the police, the applicant had been restrained with handcuffs to prevent him from self-harming, the police authorities would have been obliged in law to report this. They had failed to do so.52. The applicant further alleged that the investigation of his complaints of ill-treatment did not meet the minimum standards of effectiveness. The investigation was not sufficiently independent, was directed at exonerating the police rather than at establishing the objective facts, and featured numerous delays. For instance, although the authorities were notified of the applicant’s injuries within twenty-four hours of their infliction, they took ten days to initiate a formal investigation (on 1 August 2005) and ten more days to question the officers implicated in the ill-treatment in question (on 9 August 2005). This delay could have been used by the officers to coordinate their statements and destroy evidence. Furthermore, it was only in November 2005 (nearly four months after the events complained about) that the applicant was granted the status of an injured party in connection with the investigation of his complaint of ill-treatment. The first attempt to reconstruct the events leading to the applicant’s injuries was made only in January 2006 (some six months after the events complained about) and the first confrontation between the applicant and the police officers was held only in February 2006 (seven months after the events in question). Notwithstanding that there was sufficient evidence to give rise to a reasonable suspicion that the police officers identified had committed a crime of violence, they were not summoned as defendants or even as suspects, but were always questioned only as witnesses. No procedure by which the applicant could have identified the other concerned officers, whose names he did not know, was ever set up.53. The Government did not submit any comments on the merits of these complaints.2. The Court’s assessment54. The Court, having regard to its decision to join the objection of non-exhaustion of domestic remedies to the merits of the applicant’s complaint that the investigation of his allegations of torture had been ineffective (see paragraph 49 above), considers that it is appropriate to start with the examination of this complaint.a. Alleged ineffectiveness of the investigation55. According to the Court’s established case-law, when an individual makes a credible assertion that he has suffered treatment infringing Article 3 of the Convention at the hands of agents of the State, it is the duty of the national authorities to carry out “an effective official investigation” capable of leading to the establishment of the facts of the case and, if the allegations prove to be true, to the identification and punishment of those responsible (see, among other authorities, Dedovskiy and Others v. Russia, no. 7178/03, § 87, ECHR 2008 (extracts)). The minimum standards of effectiveness defined by the Court’s case-law include the requirements that the investigation must be thorough, independent, impartial and subject to public scrutiny, and that the competent authorities must act with exemplary diligence and promptness (see, for example, Aleksakhin v. Ukraine, no. 31939/06, § 55, 19 July 2012).56. Turning to the facts of the present case, the Court takes note of the numerous delays, periods of inactivity, suspensions and discontinuations of the investigation, as well as repeated remittals of the case for additional inquiries. It also observes that more than eight years have passed since the events giving rise to the present complaint. As time elapses it is inevitable that material and other evidence becomes difficult or impossible to collect and the witnesses may no longer remember all the details (see, in particular, paragraph 36 above). Although according to the case-file materials the investigation at issue seems to be still pending, the Court does not have a reason to believe that yet another round of inquiries following the quashing of the last decision to discontinue the proceedings would redress the earlier shortcomings and render the investigation effective.57. The Court further refers to its judgment in the case of Kaverzin v. Ukraine, where it noted that similar patterns of investigation were recurrent in Ukraine, that they stemmed from systemic problems at the national level, which allowed for agents of the State who ill-treat crime suspects in order to obtain confessions to go unpunished (see Kaverzin v. Ukraine, no. 23893/03, §§ 172-182, 15 May 2012). In view of the circumstances of the present case and its earlier case-law, the Court concludes that in the present case, too, no serious effort has been made to investigate the allegations of ill-treatment made by the applicant.58.

Outcome for Article 5: violation