Prisoner anal reserch for drugs and its videotaping. Insufficient research. Humiliating treatment (procedural part) and violation of a fair trial
JUDGMENT
Bokhonko v. Georgia 22.10.2020 (app. no. 6739/11)
SUMMARY
Degrading treatment of an inmate and effective investigation. The applicant was arrested for a drug offense. He filed a complaint for inhuman and degrading treatment, claiming that during his arrest he underwent a humiliating physical anal search and was videotaped by police. He also complained that the domestic courts based their decision on this evidence even though it was taken during ill-treatment.
The ECtHR found that the domestic courts did not consider whether the search for films had been implemented as a last resort, whether it had been carried out by trained staff and with due regard for privacy. It considered that the authorities had failed in their duty to investigate the applicant ‘s allegations and that there had therefore been a violation of Article 3 as regards the procedural part. The ECtHR, on the other hand, held that there had been no violation of the merits on the ground that there was insufficient evidence to determine whether the applicant had indeed been subjected to a degrading investigation.
Accordingly, the ECtHR found that the inadequate judicial review of the manner in which the applicant was allegedly searched for drugs, in particular the failure of the domestic courts to examine his allegations of degrading treatment, violated the principles of fair trial. 6§1. On the contrary, the ECtHR held that there had been no violation of Article 6 § 3 (e) of the Convention as the applicant had been assisted by an interpreter throughout its proceedings.
The ECtHR awarded an amount of 10,000 euros for non-pecuniary damage.
PROVISIONS
Article 3,
Article 6§1,
Article 6§3 (e)
PRINCIPAL FACTS
The applicant, Orest Bokhonko, is a Ukrainian national who is currently serving a 23-year prison
sentence in Georgia for drugs offences.
The case concerned his allegation that he had been subjected to police abuse during his arrest, in
particular a strip search and anal inspections.
According to the official version of events, Mr Bokhonko was arrested on 27 September 2008 at
Tbilisi airport following a police tip-off that he was attempting to transport illegal drugs into the
country. A body search was conducted and a yellow balloon containing a white substance, later
identified as methadone, was extracted from his anus.
He was subsequently formally charged with unlawful possession and transportation of a large
quantity of drugs and a judge ordered his pre-trial detention.
On being questioned by the investigating authorities and throughout the ensuing proceedings, the
applicant protested his innocence, alleging that the drugs had been planted by the police. He
submitted that he had been beaten, forced to strip naked and do sit-ups, while the officers filmed
him with their mobile phones. He also alleged that he had been subjected to two anal inspections by
a police officer and had been told that drugs had been found on him when regaining consciousness
after fainting during the second anal inspection.
He was convicted as charged in June 2009, a decision which was upheld on appeal in February 2010.
The courts essentially relied on the drugs seized and the witness statements of the three police
officers and the interpreter present during the search. They confirmed their pre-trial statements
denying any ill-treatment, adding that an officer had been able to retrieve the yellow balloon by
pulling on a piece of string which had emerged during a sit-up. The courts dismissed the applicant’s
allegations of ill-treatment and procedural irregularities as unsubstantiated.
In the meantime, the applicant’s requests to the investigating and prison authorities to have a
medical examination had been refused, while his request to the prosecutor’s office to initiate
criminal proceedings against the arresting police officers had been rejected on 17 October 2008.
An investigation for abuse of power, launched in 2013 by the prosecutor’s office, is currently
ongoing.
Relying on Article 3 (prohibition of inhuman or degrading treatment) and Article 6 §§ 1 and 3 (e)
(right to a fair trial), the applicant complained in particular about the manner in which he had been
arrested and strip searched; the failure of the authorities to conduct an investigation in that regard;
the unfairness of the criminal proceedings conducted against him owing to the domestic courts’ use
of evidence obtained as a result of ill-treatment and/or planted evidence; and the failure to provide
him with adequate interpreting services throughout the criminal proceedings.
THE DECISION OF THE COURT…
ARTICLE 3
The Court finds that the applicant’s allegations amounted, cumulatively, to an arguable claim of ill‑treatment triggering the procedural obligation under Article 3 of the Convention for the State to conduct an effective investigation into them, where the Court held that even a single strip search could amount to degrading treatment in view of the manner in which it is conducted, particularly if it aims to humiliate and debase.
While in most cases the above would suffice for a conclusion that there has been a violation of the procedural duty to carry an effective investigation under Article 3 of the Convention, in the present case the Court finds it necessary to verify, in addition, whether any developments during the applicant’s trial on drug charges may have an impact on its assessment of the above mentioned Convention issue. That is so because, as concluded above, the trial was a forum available to him to voice his grievances regarding the manner in which the search had been conducted. Turning to the events during the trial, the Court notes that the domestic courts, while concluding that the available medical evidence did not support the applicant’s allegations of violence. Also, the courts focused on the physical aspect of the applicant’s alleged ill-treatment, disregarding the psychological effect the alleged treatment could have had on him. Furthermore, at no point did the domestic courts consider whether the strip search had been applied as a last resort, whether it had been performed by trained personnel and with due regard to the applicant’s privacy and dignit.
Last but not least, by concluding, in a rather formulaic statement, that the applicant had failed to corroborate his allegations of a humiliating and degrading search, the domestic courts put the burden of proof entirely on him. They did so despite the applicant’s rather detailed and consistent statements concerning the specific circumstances of the search, and overlooking the fact that his repeated requests for a medical examination and the initiation of a criminal investigation had been refused.
In view of all the above, the Court finds that the authorities failed to discharge their duty to investigate the applicant’s allegations of ill-treatment in relation to the manner in which the strip search had been carried out. The Court therefore concludes that there has been a violation of Article 3 of the Convention under its procedural limb.
Alleged substantive violation concerning the manner the strip search was carried out
The Court notes at the outset that the relevant facts are disputed. The applicant claims that he was subjected to a violent and humiliating strip search accompanied by sit-ups and by repeated anal inspection whereas the Government assert that the strip search was conducted in a manner compatible with Article 3, and that no anal inspection was performed on the applicant. In the present case, the Court considers that the evidence available to it is insufficient to establish beyond a reasonable doubt that an anal inspection of the applicant was carried out in circumstances as described by him. In view of the foregoing, the Court is unable to conclude that the strip search as such had been aimed at intimidating or humiliating the applicant, or/and that it had been performed in a such a manner that it caused him pain or humiliation, to the point that the suffering went beyond the threshold of severity under Article 3. It considers it necessary to emphasise, however, that its inability to reach a conclusion as to whether the applicant’s treatment during the search was contrary to Article 3 derives considerably from the failure of the domestic authorities to effectively investigate his allegations, which, as it already found above, was in breach of their procedural obligations under that provision.
The Court, accordingly, concludes that there has been no violation of Article 3 of the Convention under its substantive limb.
ARTICLE 6
The applicant maintained that his right to a fair trial had been violated in the criminal proceedings against him owing to the domestic courts’ decision to admit and use evidence obtained as a result of ill‑treatment. He also claimed that the drugs allegedly found following the strip search had not belonged to him, that his conviction had been based on planted evidence and that he had been prevented from protecting his interests efficiently in that regard. The applicant further complained that he had not been provided with adequate interpreting services throughout the criminal proceedings. He relied on Article 6 §§ 1 and 3 (e) of the Convention
Τhe Court finds that the alleged manner in which the key evidence against the applicant was obtained could have been such as to cast doubt on its reliability and accuracy. In view of the importance of that evidence, it considers that cumulatively the inadequate judicial scrutiny of the manner the strip search was allegedly conducted, particularly the failure of the domestic courts to adequately examine the applicant’s allegations of the inhuman and degrading nature of the strip search, and the weakness of the corroborating evidence, was such that the overall fairness of the applicant’s trial appears to have been irretrievably prejudiced. In view of this conclusion, it is not necessary for the Court to consider whether the domestic courts should have also dealt with the applicant’s argument that the drugs were planted.
It follows that there has been a violation of Article 6 § 1 of the Convention.
Allegations concerning the inadequacy of the translation
The Court observes at the outset that at no stage of the proceedings, either at domestic level or before the Court, did the applicant allege that he had insufficient command of the Russian language. Furthermore, the case file does not include any objection, formal or informal, by the applicant or any of his lawyers regarding the quality of the interpreting services during the trial.
The Court further observes that, according to the case material submitted to the Court, at all the principal stages of the proceedings the applicant was provided with interpreting services. In the light of the above, and taking into account that the Convention does not require a written translation of all items of official documents and that oral linguistic assistance may satisfy the requirements of the Convention the Court considers that in the present case the applicant received the appropriate linguistic assistance, which allowed him to adequately participate in the trial against him. Thus, in the Court’s view, there has been no violation of Article 6 §§ 1 and 3 (e) of the Convention.
