FIFTH SECTION    CASE OF BASENKO v. UKRAINE (Application no. 24213/08)       JUDGMENT    STRASBOURG 26 November 2015 FINAL 26/02/2016 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.In the case of Basenko v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Josep Casadevall, President, Ganna Yudkivska, Vincent A. De Gaetano, André Potocki, Helena Jäderblom, Aleš Pejchal, Síofra O’Leary, judges,and Milan Blaško, Deputy Section Registrar,Having deliberated in private on 20 October 2015,Delivers the following judgment, which was adopted on that date:PROCEDURE1. The case originated in an application (no. 24213/08) 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 Aleksandr Anatolyevich Basenko (“the applicant”), on 5 May 2008.2. The applicant was represented by Mr A.A. Kristenko, a lawyer practising in Kharkiv. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr B. Babin, of the Ministry of Justice.3. On 26 November 2012 the application was communicated to the Government.THE FACTSI. THE CIRCUMSTANCES OF THE CASE4. The applicant was born in 1958 and lives in Kyiv.5. On 24 February 2002 the applicant was travelling on a tram and was approached by Mr G. and Mr S., ticket inspectors employed by the Kyivpastrans municipal enterprise (“the transport company”). As subsequently established by domestic authorities in the indictment and in the judgment convicting S. (see paragraphs 31 and 34 below), there was a disagreement between the applicant and the inspectors as to whether he had a valid ticket. They insisted that the applicant pay a fine for travelling without a ticket, while he insisted that he had broken no rules. The applicant was asked to get off the tram. It was then agreed that the applicant would accompany the inspectors to a tram depot to resolve the dispute. While they were on their way to the depot S. kicked the applicant. In response the applicant sprayed the inspectors with tear gas from a can he had on him. S. then kicked the applicant in the left knee, causing a fracture. A struggle between the applicant and S. ensued. G. and S. then left the scene. The applicant could not stand up or walk following the knee fracture, he was helped to the nearby tram stop by the bystanders who called an ambulance for him. According to the applicant, he has been receiving treatment for his injury until early 2005.A. Criminal proceedings6. On 26 February 2002 the applicant made a statement to the police describing the circumstances of the incident. In particular, he stated that on the day of the incident he had been approached by two ticket inspectors who questioned the validity of his ticket, suggesting that he appeared too old to be using a student ticket. While they insisted that he pay a fine he insisted his ticket was in order. He volunteered to go with them to a police station to resolve the dispute. In response they suggested that they go to the tram depot instead and he agreed. On the way to the depot he was kicked from behind. He turned round and sprayed the inspectors with tear gas, and was kicked in the knee. He stated that he did not know the names of the inspectors but could identify them by sight.7. On 4 March 2002 a police investigator of the Svyatoshynskyy District Police Department (“the District Police Department”) refused to institute criminal proceedings into the incident. The investigator noted that the ticket inspector on duty on the tram line in question at the relevant time was identified as S. He went on to note that S. could not be contacted for an interview since he was said to be on sick leave from work and was not found at his home address. The investigator also noted that the gravity of the applicant’s injuries could only be evaluated after completion of the applicant’s treatment.8. On 5 March 2002 a forensic medical expert diagnosed the applicant with a knee fracture and classified this as bodily injuries of medium gravity.9. On 18 December 2002 the Svyatoshynskyy District Prosecutor’s Office (“the District Prosecutor’s Office”) quashed the decision of 4 March 2002 and instituted criminal proceedings on suspicion of deliberate infliction of bodily injuries of medium gravity. On the same day the District Prosecutor’s Office informed the applicant about this decision, also informing him that disciplinary proceedings had been initiated against the investigator who made the decision of 4 March 2002. According to the applicant, he first learned about the decision of 4 March 2002 from this letter from the District Prosecutor’s Office.10. On 24 December 2002 another investigator of the District Police Department commenced the investigation.11. On 28 December 2002 the investigator recognised the applicant as an aggrieved party in the criminal proceedings. On the same day the applicant was interviewed in this capacity.12. On 4 April 2003 the investigator sent a letter to the transport company enquiring whether S. had been working at the relevant time as a ticket inspector and asking the company to identify who S. had been working with on the day of the incident. In April 2003 the company responded that S. had indeed been working as an inspector at the relevant time, that G. had accompanied him on the day of the incident, and that S. had been dismissed on 16 June 2002 for absenteeism.13. On 9 April 2003 the applicant, in the course of a photo identification, identified S. as the person who had assaulted him.14. According to the Government, on 18 April 2003 the investigation was suspended for failure to identify the perpetrator.15. On 18 September 2003 the investigation was resumed.16. On 9 October 2003, in the course of a photo identification, the applicant identified G. as the person who, together with S., participated in the incident.17. On 14 October 2003 the investigation was suspended for failure to identify the perpetrator.18. On 31 August 2004 the District Police Department informed the applicant that the investigation in his case was pending.19. On 2 February 2005 the District Prosecutor’s Office quashed the decision of 14 October 2003 to suspend the investigation, finding that possible perpetrators had in fact been identified.20. On 20 February 2005 the investigation was suspended for failure to identify the perpetrator.21. On 5 April 2005 the investigator resumed the investigation, initiated criminal proceedings against S. and G., and joined the newly initiated proceedings with the existing case file.22. On 14 April 2005 the investigator charged S. with infliction of bodily injuries of medium gravity, committed in conspiracy with G. The investigator placed S. and G. on the list of wanted persons, and suspended the investigation as the whereabouts of the accused were unknown.23. On 20 February and 4 May 2006 the investigator decided to resume the investigation, and on 22 February and 4 May 2006 respectively to suspend it again.24. On 10 June 2006 the investigation was resumed.25. On 12 June 2006 a face-to-face confrontation was conducted between G. and the applicant, and the applicant was interviewed separately. The applicant stated that S. had kicked him on the knee. While he was not certain that G. had assaulted him, he was assuming that it was G. who had kicked him in the back on 24 February 2002.26. On 14 June 2006 the investigator discontinued the criminal proceedings against G. for lack of corpus delicti in his actions. He relied on the testimony of G., who denied assaulting the applicant, and the testimony of the applicant to the effect that it was S. and not G. who had assaulted him. On the same day he suspended the remaining part of the investigation for failure to identify the perpetrator.27. According to the Government, on 24 September 2007 S. was arrested. On the same day the investigation was resumed and the charges were announced to S.28. On 25 September 2007 a face-to-face confrontation was conducted between S. as the accused and the applicant as the aggrieved party.29. On 20 October 2007 the investigator charged S. with infliction of bodily injuries of medium gravity.30. According to the Government, on an unspecified date, upon completion of the pre-trial investigation in S.’s case, the applicant was offered an opportunity to study the case file but refused it. According to the applicant, he was not informed about the completion of the investigation or any of the subsequent developments in the criminal proceedings.31. On 29 October 2007 the District Prosecutor’s Office approved the bill of indictment indicting S. for infliction of bodily injuries of medium gravity.32. On 9 November 2007 the Svyatoshynskyy District Court of Kyiv (“the trial court”) held a preliminary hearing in S.’s case, in which S., his lawyer and a prosecutor participated. The record of the hearing states that the applicant was not present at the hearing.33. On 20 November 2007 the trial court examined the case on the merits in the presence of S., his lawyer and the prosecutor and in the absence of the applicant. The trial court, after obtaining favourable opinions from all parties present, ruled that the hearing should proceed in the absence of the applicant and witness G. who, the court stated, “had been duly notified about the hearing”. The court further ruled that, should their presence prove necessary, measures would be taken to ensure the applicant’s and G.’s appearance. In the course of the hearing the court heard a statement from S.. S. did not contest the charges and admitted his guilt. The court ruled that in view of S.’s confession and admission of guilt there was no call to examine any other evidence.34. On the same day the trial court convicted S. as charged and sentenced him to two years’ imprisonment, suspended for two years with probation. In sentencing S. the court took into account that S. had admitted his guilt and expressed remorse, the fact that he had no prior convictions, was employed and had positive references from his then-current place of employment.35. According to the information submitted by the Government, the domestic case file in S.’s case does not contain any copies of summonses or notices sent to the applicant in the course of examination of the case by the trial court or any documents indicating that such summonses or notices were sent.B. Civil proceedings36. On 7 February 2005 the applicant lodged a civil claim with the Holosiyivskyy District Court of Kyiv, against the transport company, seeking damages for the unlawful actions of its employees.37. On 15 November 2005 the court rejected his claim on the ground that he had not proved that he had been injured by the employees of the defendant in the performance of their duties. The court noted that the applicant had failed to explain why the individuals identified by him had not yet been charged or convicted, and that the criminal case in connection with the incident was still under investigation.38. On 24 January 2006 the Kyiv City Court of Appeal upheld the judgment of the first-instance court.39. On 30 November 2007 the Donetsk Regional Court of Appeal, acting as a court of cassation, upheld the decisions of 15 November 2005 and 24 January 2006.II. RELEVANT DOMESTIC LAWA. Code of Administrative Offences of 198440. Under Article 135 of the Code, travelling on municipal transport without a ticket shall be punishable with a fine equal to twenty times the fare.41. Under Article 189-9 of the Code, malicious disobedience of a lawful demand or request of a transport employee exercising supervision over the transportation of passengers associated with physical resistance, insult or other unlawful acts shall be punishable by a fine or a term of correctional service.42. Under Article 229 of the Code, cases of administrative offences associated with breaches of rules governing the use of passenger electric transport (tram, trolleybus) may be examined, in particular, by the heads of the tram and trolleybus depots and by ticket inspectors.B. Criminal Code of 200143. The relevant provisions of the Code concerning the offence of deliberately inflicting bodily injuries of medium gravity can be found in the Court’s judgment in the case of Sizarev v. Ukraine (Sizarev v. Ukraine, no. 17116/04, § 82, 17 January 2013). The provisions of the Code concerning the offence of abuse of authority of office and the offence of exceeding authority or official powers can be found in the Court’s judgment in the case of Lutsenko v. Ukraine (no. 6492/11, § 41, 3 July 2012).C. Code of Criminal Procedure of 1960 (repealed on 20 November 2012)44. According to Article 28 of the Code a person who has sustained pecuniary damage as a result of a crime may lodge a civil claim against an accused or persons liable for the actions of the accused.45. The relevant parts of Articles 49 and 206 of the Code provided:Article 49. Aggrieved party“A person who has suffered non-pecuniary, physical or property damage from a crime may be recognised as an aggrieved party. ...A citizen who has been recognised as an aggrieved party shall be entitled to give evidence in the case. An aggrieved party, or his or her representative, shall be entitled to ... make requests; to study all the materials of the case file when the pre-trial investigation is completed ... to lodge complaints against the actions of the inquirer, investigator, prosecutor and court ...”Article 206. Grounds and procedure for the suspension of an investigation“Pre-trial investigation in a criminal case shall be suspended:1)  when the whereabouts of the accused are unknown;2)  when a psychiatric or other serious illness of the accused prevents completion of the proceedings in the case;3)  when the investigation has failed to identify the perpetrator.In the cases provided in paragraphs 1 and 2 of this Article a pre-trial investigation may be suspended only after the investigation has charged a specific person as the accused and has taken all the investigative steps which can be taken in the absence of the accused, and has taken measures to preserve documents and other potential evidence in the case.In cases provided in paragraph 3 of this Article pre-trial investigation can be suspended only after all necessary and possible investigative steps have been taken to identify the perpetrator ...”46. Article 217 of the Code required the investigator to inform the aggrieved party about the completion of the pre-trial investigation in the case which was to be sent to court for trial, and also about the aggrieved party’s right to study the case file. The investigator was required to draw up a report of this notification or to add a copy of the notice sent to the case file.Articles 348 and 349 of the Code provided that an aggrieved party could lodge an appeal against a first-instance court’s judgment within fifteen days of its delivery, and that arguments presented in such an appeal had to be limited to the scope of claims presented by the aggrieved party during the trial.D. Civil Codes of 1963 and 200347. The Civil Code of 1963 (“the 1963 Code”) remained in effect until 31 December 2003. With effect from 1 January 2004 it was repealed and replaced by the Civil Code of 2003 (“the 2003 Code”).48. The relevant parts of Article 441 of the 1963 Code and Article 1172 of the 2003 Code provide that a legal entity must compensate for any damage caused by its employee in the performance of work-related (official) duties.E. Companies Act of 1991 (repealed on 1 January 2004)49. The relevant section of the Act provided:Section 2Types of companies“Companies of the following type may operate in Ukraine ...municipal companies [komunalne pidpryemstvo], founded on the property of a municipality ...”F. Rules concerning municipal transport and the powers of ticket inspectors50. Resolution no. 386 of the Cabinet of Ministers of Ukraine of 22 April 1997 approved the Rules for the Provision of Transportation Services on Municipal Electric Transport. Paragraphs 31 and 32 of the Rules provided that ticketless passengers were subject to administrative liability and their cases could be considered, in particular, by the heads of the tram and trolleybus depots and by ticket inspectors.51. By its Order no. 22 of 18 November 1997 the State Committee for Construction, Architecture and Housing Policy enacted Rules for Using Trams and Trolleybuses in the Cities of Ukraine. Under sub-paragraph 4.3 of the Rules fines could be imposed for breaches of transportation rules, in particular by the heads of tram and trolleybus depots and by ticket inspectors, and were to be collected on the spot. Under sub-paragraph 4.4 of the Rules a passenger refusing to pay a fine сould be directed to get off at the next stop. In the event of malicious disobedience the passenger could be escorted to the nearest police station.THE LAWI. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION52. Referring to Article 5 the applicant complained that his right to “personal inviolability” had been breached, and that as a result he had suffered serious injuries. Under Article 6 the applicant complained that the criminal investigation against S. and G. had been delayed, and that he had not been informed about its progress and was thus deprived of the opportunity to challenge the repeated decisions to suspend the criminal investigation. Under Article 6 the applicant also complained that he had been denied access to a court to adjudicate his civil claim, because the domestic courts had rejected his claim against the transport company as criminal proceedings against S. had not yet been completed. He further referred to Article 7 § 2 of the Convention, arguing that his right of access to court had been breached.53. Being master of the characterisation to be given in law to the facts of the case, and having regard to the substance of the applicant’s complaints, the Court decides to examine them under Article 3 of the Convention (see, for example, Dembele v. Switzerland, no. 74010/11, § 33, 24 September 2013).54. Article 3 of the Convention reads:“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”A. Concerning the procedural limb of Article 31. Admissibility55. The Government did not raise any objections to the admissibility of this complaint. The Court notes that this complaint 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.2. Merits(a)  The parties’ submissions56. The applicant argued that the investigation had been ineffective. He submitted that it was unjustifiably lengthy, that there had been periods when the investigative authorities had neglected to act, and that in particular his original statement to the police and the results of the identification of S. and G. had been ignored for a long time. According to him, he had not been informed about the progress of the pre-trial investigation, its completion or S.’s trial. The applicant submitted that as a result he had been prevented from appealing against the judgment by which S. was convicted and sentenced, which, the applicant maintained, was unfair and failed to hold S. genuinely accountable.57. The Government argued that the investigation conducted by domestic authorities had met the requirements of Article 3 of the Convention. In particular, the authorities had conducted a number of investigative actions, interviewing S., G., and the applicant, conducting photo identifications and face-to-face confrontations, ordering medical examinations, and collecting information from the transport company. The applicant was recognised as a victim and informed about the progress of the investigation.(b)  The Court’s assessment(i)  Relevant principles58. The Court reiterates that Article 3 of the Convention requires the authorities to investigate allegations of ill-treatment when they are “arguable” and “raise a reasonable suspicion”. The minimum standards of effectiveness defined by the Court’s case-law include the requirements that the investigation be independent, impartial and subject to public scrutiny. It is beyond doubt that a requirement of promptness and reasonable expedition is implicit in this context. A prompt response by the authorities in investigating allegations of ill-treatment may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts. When an official investigation has led to the institution of proceedings in the national courts, the proceedings as a whole, including the trial stage, must satisfy the requirement of the prohibition of ill-treatment. While there is no absolute obligation for all prosecutions to result in conviction or in a particular sentence, the national courts should not under any circumstances be prepared to allow major attacks on physical and moral integrity to go unpunished (see, for example, Mesut Deniz v. Turkey, no. 36716/07, § 52, 5 November 2013, with further references).59. According to the Court’s case-law the investigation must afford a sufficient element of public scrutiny to secure accountability. Whilst the degree of public scrutiny required may vary, the complainant must be afforded effective access to the investigative procedure in all cases (see Batı and Others v. Turkey, nos. 33097/96 and 57834/00, § 137, ECHR 2004-IV, and Oleksiy Mykhaylovych Zakharkin v. Ukraine, no. 1727/04, § 67, 24 June 2010).(ii)  Application of the above principles to the present case60.

Outcome for Article 3: violation