FIFTH SECTION

CASE OF KRYAT v. UKRAINE

(Application no. 21533/07)

JUDGMENT

STRASBOURG

15 December 2016

This judgment is final but it may be subject to editorial revision.

In the case of Kryat v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
	Erik Møse, President,
	Yonko Grozev,
	Mārtiņš Mits, judges,
and Anne-Marie Dougin, Acting Deputy Section Registrar,
Having deliberated in private on 22 November 2016,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 21533/07) 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 Aleksandr Yakovlevich Kryat (“the applicant”), on 5 May 2007.
2.  The applicant was represented by Ms Y. Zavgorodnyaya, a lawyer practising in Dnipro. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr Ivan Lishchyna of the Ministry of Justice.
3.  On 13 October 2011 the application was communicated to the Government.
THE FACTS
Article I.	I.  THE CIRCUMSTANCES OF THE CASE
4.  The applicant was born in 1968 and lives in Novomoskovsk.
Section 1.01	A.  Criminal proceedings against the applicant
5.  At about 5.30 p.m. on 1 August 2004 a fight took place involving the applicant, Z. and Sh. On 15 November 2005 the Novomoskovsk Court convicted the applicant of gang hooliganism committed against Z. and Sh., and gave him a suspended prison sentence of three years. On 10 February and 19 December 2006 respectively the Court of Appeal and the Supreme Court upheld the applicant’s conviction and sentence. According to the applicant, his conviction had been based on an incorrect assessment of the evidence.
Section 1.02	B.  Alleged ill-treatment of the applicant
6.  At about 7 p.m. on 1 August 2004 a group of people, including Z. and Sh. and two volunteer citizen guards (добровільна народна дружина), who were identified in the course of the ensuing proceedings (see paragraphs 9-11 below), entered the yard of the applicant’s house and, according to the applicant, assaulted him. In particular, he was punched, hit with a gas pistol and kicked in the head and torso and as a result briefly lost consciousness. According to the material available in the case (see paragraph 9 below), the volunteer citizen guards used force against the applicant while exercising their powers under the relevant regulations (see paragraph 13 below) in an attempt to take him to a police station in relation to the incident of 1 August 2004 (see paragraph 5 above).
7.  Subsequently, the applicant was admitted to Novomoskovsk Central Hospital, where a physician found two bruises near the applicant’s right eye, a wound on the back of his head and numerous abrasions on the right side of his back. The applicant was also diagnosed with concussion. During subsequent examinations by a forensic expert in December 2004 and April 2006, the applicant was found to have developed post-traumatic otitis media. The applicant’s injuries were classified as being partly minor and partly moderate.
8.  On 1 August 2004 the applicant filed a complaint with the Novomoskovsk police, seeking to have criminal proceedings instituted against those who had beaten him.
9.  The applicant’s complaint was examined initially by the police and later by prosecutors. Between December 2004 and March 2009 they issued a number of decisions rejecting the applicant’s complaint, finding, inter alia, that the applicant had been injured after disobeying the lawful orders of the volunteer citizen guards, who had lawfully resorted to force in order to take him to a police station in relation to the incident of 1 August 2004 (see paragraph 5 above). Those decisions were overturned by different courts, which considered, principally, that the applicant’s complaint had not been examined thoroughly.
10.  On 12 March 2009 the Novomoskovsk Prosecutor opened criminal proceedings related to the applicant’s complaint and ordered the police to investigate the incident of 1 August 2004 at the applicant’s house.
11.  In the course of the investigation the two volunteer citizen guards who had taken part in the incident on 1 August 2004 at the applicant’s house died. For that reason, the proceedings concerning those two people were terminated on 17 July 2009. On the same date the police terminated the proceedings concerning Z. and Sh., finding that there had been no elements of a crime in their actions. The police noted that two witnesses had stated that the volunteer citizen guards who had died had beaten the applicant on 1 August 2004.
12.  On 16 December 2009 the police suspended the investigation, finding that it was impossible to identify any other people involved in the incident of 1 August 2004 at the applicant’s home. No further investigation was carried out.
Article II.	II.  RELEVANT DOMESTIC LAW
13.  Under section 1 of the Participation of Citizens in the Guarding of Public Order and the State Border Act (Про участь громадян в охороні громадського порядку і державного кордону), as worded at the material time, citizens of Ukraine could set up public associations to take part in the maintenance of public order (volunteer citizen guards). According to sections 3 and 20, the day-to-day activities of such associations were managed and supervised by the police, while their overall activities were overseen by local authorities. Section 13(3) (11) empowered volunteer citizen guards to use measures of physical restraint and self-defence.
THE LAW
Article III.	I.  ALLEGED ILL-TREATMENT OF THE APPLICANT AND ALLEGEDLY INEFFECTIVE INVESTIGATION INTO HIS COMPLAINT OF ILL-TREATMENT
14.  Relying on Article 5 of the Convention, the applicant complained that his right to “personal inviolability” had been breached on account of the assault on him on 1 August 2004 (see paragraph 6 above). He further complained under Article 13 of the Convention of an inadequate response by the authorities to the arbitrary actions of the volunteer citizen guards and, in particular, of the authorities’ failure to examine thoroughly his complaint of ill-treatment.
15.  Being master of the characterisation to be given in law to the facts of a case, and having regard to the substance of the applicant’s complaints, the Court has decided to examine them under Article 3 of the Convention (see, for example, Dembele v. Switzerland, no. 74010/11, § 33, 24 September 2013).
16.  Article 3 of the Convention reads:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
17.  The Government submitted no observations as regards the admissibility and merits of the case.
Section 3.01	A.  Admissibility
18.  The Court notes that this part of the application 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.
Section 3.02	B.  Merits
19.  The Court observes that the applicant’s complaints concern both the substantive and procedural aspects of Article 3 of the Convention, namely (i) his alleged beating by volunteer citizen guards and (ii) the allegedly ineffective investigation into the incident of 1 August 2004 at the applicant’s home. As regards the former aspect, the Court notes that there is sufficient material demonstrating that the applicant was injured during his encounter with a group of people, including volunteer citizen guards (see paragraphs 6, 9 and 11 above). His injuries were substantial and serious enough to amount to the treatment prohibited by Article 3 of the Convention (see paragraph 7 above).
20.  The applicant’s complaint of ill-treatment, which he duly raised at the domestic level (see paragraph 8 above), was thus prima facie arguable and, given the Court’s settled case-law on the matter, the authorities were required to conduct an effective official investigation into the alleged ill‑treatment, even if such treatment was inflicted by private individuals (see M.C. v. Bulgaria, no. 39272/98, § 151, ECHR 2003‑XII, and Denis Vasilyev v. Russia, no. 32704/04, § 99, 17 December 2009).
21.  The Court is sensitive to the subsidiary nature of its task and recognises that it must be cautious in taking on the role of a first-instance tribunal of fact where this is not rendered unavoidable by the circumstances of a particular case (see, for example, Dembele, cited above, § 40). The Court therefore considers it appropriate to examine first whether the applicant’s complaint was properly investigated by the authorities. Subsequently, it will turn to the question of whether the alleged ill-treatment took place, regard being had to the relevant domestic findings.
(a)	1.  The alleged failure to investigate the applicant’s complaint of ill‑treatment
22.  The Court reiterates that Article 3 of the Convention requires that an investigation into arguable allegations of ill-treatment be thorough. This means that the authorities must always make a serious attempt to find out what happened and should not rely on hasty or ill-founded conclusions in order to close their investigation or as the basis of their decisions (see Assenov and Others v. Bulgaria, 28 October 1998, §§ 103 et seq., Reports of Judgments and Decisions 1998‑VIII). They must take all the reasonable steps available to them to obtain evidence concerning the incident, including, inter alia, eyewitness testimony and forensic evidence (see, mutatis mutandis, Tanrıkulu v. Turkey [GC], no. 23763/94, §§ 104 et seq., ECHR 1999‑IV, and Gül v. Turkey, no. 22676/93, § 89, 14 December 2000).
23.  The investigation should be capable of leading to the identification and punishment of those responsible. Otherwise, the general legal prohibition of torture and inhuman and degrading treatment and punishment would, despite its fundamental importance, be ineffective in practice and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity (see Assenov and Others, cited above, § 102, and Labita v. Italy [GC], no. 26772/95, 6 April 2000, § 131, ECHR 2000-IV).
24.  As regards the circumstances of the present case, the Court observes that the applicant’s complaint of ill-treatment was examined by the police, prosecutor’s office and various courts on a number of occasions. For over four and a half years the authorities were at odds over the question of whether an official criminal investigation of the applicant’s complaint should be launched. The criminal investigation which was eventually opened did not clarify the course of events and the way the injuries had been inflicted on the applicant. Ultimately, it was blocked as two of the suspects died and the police could not identify all those who had taken part in the incident of 1 August 2004 at the applicant’s home.
25.  The foregoing considerations are sufficient to enable the Court to conclude that the investigation of the applicant’s complaint of ill-treatment did not meet the requirements of Article 3 of the Convention. Accordingly, there has been a violation of the procedural aspect of that provision.
(b)	2.  The substantive aspect of Article 3
26.  A Contracting State will be responsible under the Convention for violations of human rights caused by acts of its agents carried out in the performance of their duties (see, for example, Krastanov v. Bulgaria, no. 50222/99, § 53, 30 September 2004). However, a State may also be held responsible even where its agents are acting ultra vires or contrary to instructions (see Ireland v. the United Kingdom, 18 January 1978, § 159, Series A no. 25, and Moldovan and Others v. Romania (no. 2), nos. 41138/98 and 64320/01, § 94, ECHR 2005‑VII (extracts)). In order to establish whether a State can be held responsible for the unlawful actions of its agents taken outside their official duties, the Court needs to assess the totality of the circumstances and consider the nature and circumstances of the conduct in question (see, mutatis mutandis, Sašo Gorgiev v. “the former Yugoslav Republic of Macedonia”, no. 49382/06, § 48, ECHR 2012 (extracts)).
27.  According to the Court’s case-law, the fact that a State chooses a form of delegation in which some of its powers are exercised by another body cannot be decisive for the question of State responsibility ratione personae. In the Court’s view, the exercise of State powers which affects Convention rights and freedoms raises an issue of State responsibility regardless of the form in which those powers happen to be exercised, including, for instance, by a body to which the State delegates those powers (see, mutatis mutandis, Woś v. Poland (dec.), no. 22860/02, § 72, 1 March 2005).
28.  Turning to the present case, the Court notes that those who took part in the incident of 1 August 2004 included two volunteer citizen guards, whose day-to-day activities were under the control of the police and who were empowered to apply measures of physical restraint and self-defence (see paragraph 13 above). It is not clear whether those volunteer citizen guards were on duty during the impugned incident, in so far as their principal function of maintaining public order is concerned. Nevertheless, having regard to the findings at the domestic level, there is a sufficient basis to suggest that they used force against the applicant at least in part with a view to exercising their powers under the relevant regulations (see paragraphs 9, 11 and 13 above). Accordingly, their actions were imputable to the respondent State (compare with Basenko v. Ukraine, no. 24213/08, §§ 60 and 90, 26 November 2015). It also transpires from the domestic findings that the applicant’s injuries were caused by the volunteer citizen guards in the course of those events (see paragraphs 9 and 11 above). As the domestic investigation fell short of the requirements of Article 3 of the Convention, it remains unclear in what way the injuries were inflicted on the applicant and whether force was used lawfully and in a proportionate manner (see paragraph 24 above). However, the Court is not precluded from finding a breach of Article 3 of the Convention in such circumstances, that is to say when no exact course of events has been established (see, for instance, Sylenok and Tekhnoservis‑Plus v. Ukraine, no. 20988/02, §§ 69‑70, 9 December 2010). Accordingly, there has been a violation of that provision in that the applicant was subjected to inhuman and degrading treatment by the volunteer citizen guards on 1 August 2004.
Article IV.	II.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
29.  The applicant complained of a violation of Article 6 § 1 of the Convention, stating that his conviction had been based on an incorrect assessment of the evidence (see paragraph 5 above).
30.  In the light of all the material in its possession, the Court finds that this complaint is manifestly ill-founded and rejects it pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
Article V.	III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
31.  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.”
Section 5.01	A.  Damage
32.  The applicant alleged that he had suffered non-pecuniary damage, but did not indicate any amount. He left the matter to the Court’s discretion.
33.  The Government considered that the applicant’s claim was unsubstantiated.
34.  The Court, deciding in equity, awards the applicant 8,000 euros (EUR) in respect of non-pecuniary damage.
Section 5.02	B.  Costs and expenses
35.  The applicant did not submit a claim for costs and expenses.
Section 5.03	C.  Default interest
36.  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, UNANIMOUSLY,
1.  Declares the applicant’s complaints concerning his alleged beating by volunteer citizen guards and the allegedly ineffective investigation into the incident of 1 August 2004 at the applicant’s home admissible and the remainder of the application inadmissible;

2.  Holds that there has been a violation of Article 3 of the Convention under its procedural limb;

3.  Holds that there has been a violation of Article 3 of the Convention under its substantive limb;

4.  Holds
(a)  that the respondent State is to pay to the applicant, within three months, EUR 8,000 (eight thousand 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;
Done in English, and notified in writing on 15 December 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Anne-Marie Dougin	Erik Møse
	Acting Deputy Registrar	President