FIFTH SECTION

CASE OF SKOROKHODOV v. UKRAINE

(Application no. 56697/09)

JUDGMENT

STRASBOURG

14 November 2013

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 Skorokhodov v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
	Mark Villiger, President,
	Angelika Nußberger,
	Boštjan M. Zupančič,
	Ganna Yudkivska,
	André Potocki,
	Paul Lemmens,
	Aleš Pejchal, judges,
and Claudia Westerdiek, Section Registrar,
Having deliberated in private on 15 October 2013,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 56697/09) 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 Dmitriy Leonidovich Skorokhodov (“the applicant”), on 14 October 2009.
2.  The Ukrainian Government (“the Government”) were represented by their Agent, Mr N. Kulchytskyy.
3.  The applicant alleged, in particular, that the authorities had failed to carry out an effective investigation into the circumstances of his alleged ill‑treatment and that the length of the proceedings in his case had been excessive. He relied on Articles 3, 6 and 13 of the Convention.
4.  On 12 January 2012 the application was communicated to the Government.
THE FACTS
I.  THE CIRCUMSTANCES OF THE CASE
5.  The applicant was born in 1981 and lives in Kharkiv.
6.  At the relevant time he was working as a shipping agent at a private company. According to the applicant, on 28 November 2005 R., the deputy director of the company, and L., the head of security there, decided to question the applicant about the disappearance of cash from one of the company’s shops. In the course of the argument the applicant was beaten up.
7.  On the same day, the applicant was taken to hospital and diagnosed with a closed traumatic head injury and numerous injuries to his body. The incident was reported to the police.
8.  On 2 December 2005 the applicant lodged a complaint with the law-enforcement authorities about the ill-treatment.
9.  On 7 December 2005 the police refused to open an investigation into the applicant’s allegations of ill-treatment, noting that the medical assessment of the applicant’s injuries had not been completed.
10.  On 26 December 2005 a forensic medical expert issued a report finding that on 28 November 2005 the applicant had sustained the following injuries: a closed traumatic head injury; bruises to his nose, eyes, lower jaw, upper lip and left ear; a cut to his right upper eyelid; an injury to the left side of his waist affecting the kidney; bruises to the left side of his groin and scrotum; and bruises to his limbs. The expert classified the injuries as minor.
11.  On 23 January 2006 the prosecutor quashed the decision of 7 December 2005 as unfounded and ordered further pre-investigation enquiries.
12.  The police adopted decisions refusing to open an investigation on 16 February, 2 March, 4 April 2006 for the reason that there had been no corpus delicti. The decisions were quashed by the supervising prosecutors as unsubstantiated and the police officers were given instructions to conduct further pre-investigation enquiries.
13.  On 21 May 2006 the police once again decided not to open an investigation considering that there had been no corpus delicti.
14.  On 14 June 2006 the Deputy Prosecutor of the Kharkiv Region quashed the decision of 21 May 2006 as unfounded. He noted that the file did not disprove the applicant’s consistent allegations that he had been beaten by R. and L. with a wooden bat and cut with a knife with the aim of making him confess to taking the cash in the shop. The prosecutor further found that the available evidence was sufficient for the institution of criminal proceedings against R. and L. under Article 127 § 1 of the Criminal Code (torture). He therefore opened proceedings and remitted the case to the police for an investigation. The police officer responsible for the previous decisions not to open an investigation was disciplined.
15.  In the course of investigation the authorities seized medical documentation in respect of the applicant, ordered a forensic medical examination, questioned the applicant and witnesses, and carried out a reconstruction of the events with the participation of a forensic medical expert. As a preventive measure, R. and L. were required to give a written undertaking not to abscond. They were questioned as suspects.
16.  On 12 June 2007 the police closed the investigation. According to their decision, the injuries sustained by the applicant in the course of the conflict with R. and L. were classified as minor and the specific elements of torture set out in Article 127 § 1 of the Criminal Code were not present. The police therefore recommended that the applicant bring a private prosecution against R. and L., according to Article 27 of the Code of Criminal Procedure.
17.  On 28 September 2007 the supervising prosecutor reversed that decision as unfounded and remitted the case for further investigation. The prosecutor noted, inter alia, that confrontations between the applicant, the witnesses and R. and L. should have been carried out; another reconstruction of the events was also required. The prosecutor also pointed out that R. and L. were official persons at the company and no decision was taken whether it was appropriate to investigate the crimes of exceeding or abuse of office by them.
18.  Subsequently, the applicant complained to the authorities that the proceedings had been unreasonably delayed. He received the response that the investigation had been carried out properly and that most of the delay had been due to the forensic medical examination centre, which was heavily overloaded.
19.  As of 2 July 2012 the investigation was still pending. The parties did not comment on further proceedings in that case.
II.  RELEVANT DOMESTIC LAW
A.  Criminal Code of 2001
20.  Article 125 of the Code provides:
“1. Intentional infliction of a minor bodily injury shall be punished ...
2. Intentional infliction of a minor bodily injury leading to short-time health disorder shall be punished ...”
21.  Article 127 of the Code, as worded at the relevant time, provided:
“1. Torture, that is, the intentional causing of severe physical pain or physical or moral suffering by way of beating, tormenting or committing other violent acts with the purpose of compelling the victim or other person to commit an act against his or her will ... shall be punished by imprisonment for a period of from three to five years.
2. The same acts, if committed repeatedly or premeditatedly by a group of persons, shall be punished by imprisonment for a period of from five to ten years. ...”
B.  Code of Criminal Procedure of 1960 (in force at the relevant time)
22.  Article 27 § 1 of the Code provided, inter alia, that proceedings concerning the crimes stipulated in Article 125 of the Criminal Code could be instituted only upon a complaint by the victim, who was entitled to conduct the prosecution in court. In the event of such a private prosecution, there was no pre-trial investigation.
23.  The other relevant provisions of the Code can be found in the judgment in the case of Kaverzin v. Ukraine (no. 23893/03, § 45, 15 May 2012).
C.  Code of Civil Procedure of 18 March 2004
24.  Article 201 of the Code provides, inter alia, that a court is obliged to suspend its examination of a civil case if that case cannot be examined prior to the outcome of other pending criminal proceedings.
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
25.  The applicant complained under Article 3 of the Convention that the authorities had failed to carry out an effective investigation into the circumstances of his ill-treatment.
26.  Article 3 of the Convention provides as follows:
Article 3 (Prohibition of torture)
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
A.  Admissibility
27.  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.
B.  Merits
1.  Submissions by the parties
28.  The Government submitted that during the pre-investigation enquiries and the subsequent pre-trial investigation the authorities had taken all the necessary steps in order to establish the circumstances of the incident. The applicant’s requests and complaints had been properly considered. Moreover, by virtue of Article 27 of the Code of Criminal Procedure of 1960, the applicant could have instituted a private prosecution against R. and L. in a court in order to seek their punishment.
29.  The applicant insisted that the investigation of his ill-treatment had been ineffective.
2.  The Court’s assessment
30.  The Court notes at the outset that the violent treatment to which the applicant was subjected on 28 November 2005 reached the threshold of severity necessary to fall within the scope of Article 3 of the Convention (see, a contrario, Tonchev v. Bulgaria, no. 18527/02, § 38-40, 19 November 2009).
31.  Article 3 requires States to put in place effective criminal-law provisions to deter the commission of offences against personal integrity, backed up by law-enforcement machinery for the prevention, suppression and punishment of breaches of such provisions. On the other hand, it goes without saying that the State’s general duty under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken together with Article 3, cannot be interpreted as requiring the State to guarantee through its legal system that inhuman or degrading treatment is never inflicted by one individual on another or that, if it is, criminal proceedings should necessarily lead to a particular sanction. In order that a State may be held responsible it must in the view of the Court be shown that the domestic legal system, and in particular the criminal law applicable in the circumstances of the case, fails to provide practical and effective protection of the rights guaranteed by Article 3 (see Beganović v. Croatia, no. 46423/06, §§ 70 and 71, 25 June 2009, with further references).
32.  In particular, the Court’s case-law has been consistent on the point that Article 3 of the Convention requires that the authorities conduct an effective official investigation into alleged ill-treatment even if such treatment has been inflicted by private individuals (see Denis Vasilyev v. Russia, no. 32704/04, § 99, 17 December 2009 and Biser Kostov v. Bulgaria, no. 32662/06, § 77, 10 January 2012).
33.  The minimum standards of effectiveness laid down by the Court’s case-law include the requirements that the investigation must be independent, impartial and subject to public scrutiny, and that the competent authorities must act with exemplary diligence and promptness (see Muta v. Ukraine, no. 37246/06, § 61, 31 July 2012).
34.  In the present case the authorities were informed of the incident on the same day. A few days later the applicant lodged a formal complaint seeking the public prosecution of R. and L. It is to be noted that for more than half a year the applicant’s allegations of ill-treatment were examined exclusively in “pre-investigation” enquiries. However, the Court has held in various contexts that this investigative procedure does not comply with the principles of an effective remedy because the enquiring officer can take only a limited number of procedural steps within that procedure at a point where victims have no formal status, thus excluding their effective participation in the procedure (see Davydov and Others v. Ukraine, nos. 17674/02 and 39081/02, §§ 310-312, 1 July 2010; Golovan v. Ukraine, no. 41716/06, § 75, 5 July 2012; and Savitskyy v. Ukraine, no. 38773/05, § 105, 26 July 2012). There is no reason to depart from those findings in the present case. It is remarkable that during the period of “pre-investigation” enquiries the police took several decisions refusing the opening of a criminal investigation. However, the supervising authorities found that those decisions had been unsubstantiated and each time remitted the case for a new round of enquiries (see paragraphs 11 and 12 above). The repetition of such remittal orders within one set of proceedings discloses a serious deficiency by itself (see, for example, Spinov v. Ukraine, no. 34331/03, § 56, 27 November 2008).
35.  As regards the pre-trial investigation which was opened on 14 June 2006, it does not appear that the investigator took all the necessary steps in order to investigate the case thoroughly before terminating the proceedings on 12 June 2007. In particular, the prosecutor’s decision of 28 September 2007 suggested that a substantial number of investigatory measures had not been taken and the case had not been examined comprehensively (see paragraph 17 above). The investigation was therefore reopened and more than six and a half years after the incident it was still pending.
36.  It follows therefore that the authorities, who were empowered to open and conduct a criminal investigation, did not make a genuine attempt to take a prompt and thorough examination of the matter, establish the facts and, if necessary, bring those responsible to account. As regards the Government’s reference to Article 27 of the Code of Criminal Procedure of 1960, the Court considers that in the present case, where there were grounds for the authorities to carry out an investigation into the possible crime of torture, as provided by Article 127 of the Criminal Code of 2001, the applicant was not required to concurrently pursue the matter by way of a private prosecution of R. and L. capable of leading to criminal responsibility for a less serious crime.
37.  The foregoing considerations are sufficient to enable the Court to conclude that the domestic authorities failed to carry out an effective investigation into the applicant’s allegations of ill-treatment. There has therefore been a violation of Article 3 of the Convention under its procedural limb.
II.  ALLEGED VIOLATION OF ARTICLES 6 AND 13 OF THE CONVENTION
38.  The applicant complained under Articles 6 and 13 of the Convention that the proceedings in the criminal case had been excessively lengthy and that this unreasonable length of the criminal proceedings prevented him from obtaining compensation for the damage sustained as a result of the criminal actions against him.
39.  Articles 6 and 13 of the Convention provide as follows:
Article 6 (right to a fair hearing)
“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”
Article 13 (right to an effective remedy)
“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.”
40.  The Government claimed that Article 6 was inapplicable to the criminal proceedings in question since they did not involve the determination of any civil claim. The Government further maintained that the applicant had no “arguable claim” for the purpose of Article 13 of the Convention. They submitted that the complaints were therefore inadmissible.
41.  The applicant insisted that his complaint under Article 6 § 1 of the Convention concerning the length of the criminal proceedings could not be rejected as inadmissible.
42.  The Court considers that the “reasonable time” guarantee under Article 6 is not applicable to the criminal proceedings in the present case because the applicant never lodged any civil claim (see Kositsina v. Ukraine (dec.), no. 35157/02, 15 January 2008) and those proceedings did not relate to the determination of any criminal charge against him. As to Article 13 of the Convention, the applicant failed to elaborate on the complaint under that provision. In any event, it appears that the applicant’s submissions under this head were eventually limited to the matter of the excessive length of the criminal proceedings, an issue which has been given due consideration under Article 3 of the Convention above.
43.  In these circumstances, the Court considers that this part of the application should be rejected as inadmissible in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
III.  OTHER ALLEGED VIOLATION OF THE CONVENTION
44.  The applicant also complained that there had been a violation of Article 14 of the Convention on account of the ineffective investigation into his ill-treatment.
45.  The Court has examined this complaint and considers that, in the light of all the materials in its possession and in so far as the matters complained of are within its competence, it does not disclose any appearance of a violation of Article 14 of the Convention. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
46.  Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, 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.”
A.  Damage
47.  The applicant claimed 250,000 euros (EUR) in respect of non‑pecuniary damage.
48.  The Government considered that the claim was excessive and unfounded.
49.  The Court considers that the applicant must have suffered distress and anxiety on account of the violations it has found. Ruling on an equitable basis, as required by Article 41 of the Convention, it awards the applicant EUR 7,500 in respect of non-pecuniary damage.
B.  Costs and expenses
50.  The applicant also claimed 5,000 Ukrainian hryvnias for the costs and expenses incurred before the Court.
51.  The Government submitted that the claim was unsubstantiated.
52.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the above criteria, the Court rejects the claim as unsubstantiated.
C.  Default interest
53.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT
1.  Declares, unanimously, the complaint under Article 3 of the Convention concerning ineffective investigation admissible;

2.  Declares, by a majority, the remainder of the application inadmissible;

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

4.  Holds, unanimously,
(a)  that the respondent State is to pay the applicant, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 7,500 (seven thousand five hundred euros), plus any tax that may be chargeable, to be converted into the currency of the respondent State at the rate applicable at the date of settlement, in respect of non-pecuniary damage;
(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5.  Dismisses, unanimously, the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 14 November 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Claudia Westerdiek	Mark Villiger
	Registrar	President