CASE OF DEBELYY AND OTHERS v. UKRAINE

FIFTH SECTION

CASE OF DEBELYY AND OTHERS v. UKRAINE

(Applications nos. 7174/11 and 2 others - see appended list)

JUDGMENT
 

STRASBOURG

27 May 2021

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

In the case of Debelyy and Others v. Ukraine,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

Stéphanie Mourou-Vikström, President,
Ganna Yudkivska,
Lado Chanturia, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the applications (nos. 7174/11, 49391/12 and 4173/13) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three Ukrainian nationals, Mr Andrey Nikolayevich Debelyy, Mr Roman Anatoliyevich Korolev and Mr Oleksandr Anatoliyovych Rafalskyy (“the applicants”), on the various dates indicated in the appended tables;

the decision to give notice to the Ukrainian Government (“the Government”) of the complaints concerning alleged police ill-treatment and the lack of an effective domestic investigation into the allegations in that regard (all applications); conditions of detention and lack of domestic remedies in respect of the complaints in that regard, as well as length of pre‑trial detention (application no. 7174/11); and allegedly unlawful deprivation of liberty (application no. 49391/12) and to declare inadmissible the remainder of the applications;

the parties’ observations;

Having deliberated in private on 22 April 2021,

Delivers the following judgment, which was adopted on that date:

INTRODUCTION

1.  The applicants allege under Article 3 of the Convention that they were ill-treated by the police and that the investigation into their respective complaints was ineffective. In addition, some applicants also raise other complaints under the Court’s well-established case-law (Article 3, Article 5 §§ 1 and 3 and Article 13 of the Convention).

THE FACTS

2.  The applicants’ details and the relevant facts are set out in the appended tables.

3.  The Government were represented by their Agent, Mr I. Lishchyna.

4.  Mr O. Rafalskyy (application no. 4173/13) died in October 2016, while the case was pending before the Court. His mother, Mrs Tamara Mykhaylivna Rafalska, informed the Court of her wish to pursue the application.

THE LAWPRELIMINARY OBSERVATION CONCERNING APPLICATION NO. 4173/13

5.  The Government alleged that Mr O. Rafalskyy’s complaints of ill‑treatment and an ineffective investigation concerned non-transferable rights. The applicant’s mother, Mrs T. Rafalska, therefore had no standing to pursue the application in his stead.

6.  The Court finds that, while the applicant’s mother has not been directly affected by the violations of the Convention complained of by the applicant, following his death she has standing to pursue the present proceedings on his behalf (see Kirpichenko v. Ukraine, no. 38833/03, § 55, 2 April 2015, with further references). However, reference will still be made to Mr O. Rafalskyy as the applicant throughout the ensuing text.JOINDER OF THE APPLICATIONS

7.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.ALLEGED POLICE ILL-TREATMENT AND LACK OF AN EFFECTIVE INVESTIGATION

8.  The applicants complained that they had been ill-treated by the police and that their respective complaints had not been properly investigated. They referred to Article 3 of the Convention, which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”AdmissibilityApplication no. 7174/11 lodged by Mr A. Debelyy

9.  The Government noted that the investigation of ill-treatment complaints raised by Mr A. Debelyy (application no. 7174/11), was still ongoing. He had therefore not exhausted domestic remedies in respect of his complaints.

10.  Viewing the available documents and the parties’ submissions in the light of the principles developed in the Court’s case law (see, in particular, Savin v. Ukraine, no. 34725/08, § 57, 16 February 2012; Kaverzin v. Ukraine, no. 23893/03, §§ 91-98 and 172-80, 15 May 2012; and Belousov v. Ukraine, no. 4494/07, §§ 48-49 and 56-58, 7 November 2013) the Court finds that Mr A. Debelyy provided the domestic authorities with appropriate opportunities to deal with his ill-treatment allegations and that the Government’s objections concerning non-exhaustion of domestic remedies should be dismissed.Application no. 49391/12 lodged by Mr R. Korolev

11.  The Government filed no objections in respect of the complaints lodged by the aforementioned applicant under Article 3 of the Convention. Application no. 4173/13 lodged by Mr O. Rafalskyy

12.  The Government submitted that Mr O. Rafalskyy (application no. 4173/13) had failed to inform the Court that in 2008 he had submitted the same complaint for consideration to the United Nations Working Group on Arbitrary Detention (“WGAD”), which had delivered an opinion in his case on 4 September 2009 (see appended table 3, section A(5-iv, 5-v) for details). His application to the Court was therefore inadmissible as being substantially the same as a matter submitted to another procedure of international investigation or settlement within the meaning of Article 35 § 2 (b) of the Convention. In addition, the application constituted an abuse of the right of individual application under Article 35 § 3 (a) of the Convention, as the applicant had deliberately concealed this information from the Court, thus attempting to mislead it.

13.  The applicant disagreed. He submitted, in particular, that the proceedings before the WGAD concerned his allegedly arbitrary detention, while the proceedings before the Court concerned his alleged ill-treatment.

14.  Reviewing the matter in the light of the principles developed in its case-law (see, in particular, Folgerø and Others v. Norway (dec.), no. 15472/02, 14 February 2006; compare to Peraldi v. France (dec.), no. 2096/05, 7 April 2009, and Gross v. Switzerland [GC], no. 67810/10, § 28, ECHR 2014, with further references) the Court finds that notwithstanding the common facts giving rise to the application lodged before it and the communication submitted to the WGAD, Mr O. Rafalskyy’s ill-treatment complaint and allegations of an ineffective investigation in that regard, lodged under Article 3 of the Convention, cannot be considered substantially the same as the complaint raised before the WGAD concerning his allegedly arbitrary detention. The present application can therefore not be declared inadmissible under Article 35 § 2 (b) of the Convention.

15.  Neither can the applicant’s omission to inform the Court about the WGAD proceedings therefore be considered misleading or otherwise to amount to an abuse of the right of individual application within the meaning of Article 35 § 3 (a) of the Convention.

16.  The Court therefore dismisses the Government’s objections.Overall conclusion as to admissibility

17.  The Court further considers that the aforementioned complaints lodged by the applicants 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.Merits

18.  The applicants alleged that they had been victims of police ill‑treatment and that their complaints had not been investigated properly.

19.  The Government submitted no observations on the merits in respect of application no. 4173/13 (lodged by Mr O. Rafalskyy). They alleged that no violation of Article 3 of the Convention had taken place in respect of the other two applicants, reiterating, at the same time, that the complaint under substantive limb of Article 3 raised by Mr A.Debelyy (application no. 7174/11) was premature.

20.  Reviewing the facts of the present case in the light of the general principles established in its case-law (see, as a recent authority, Bouyid v. Belgium [GC], no. 23380/09, §§ 81-90 and 114-23, ECHR 2015), the Court considers that the applicants raised credible ill-treatment claims at the domestic level. Those claims triggered an obligation on the part of the national authorities to carry out an effective and thorough investigation with a view to establishing the origin of the applicants’ alleged injuries, as well as identifying and punishing those responsible, should the ill-treatment allegations prove to be true.

21.  From the documents before the Court, it appears that the domestic investigations did not reflect a serious effort to determine the relevant facts (see appended tables for details).

22.  The Court notes that in the case of Kaverzin v. Ukraine (cited above, §§ 173-80) it found that the reluctance of the authorities to ensure a prompt and thorough investigation of ill-treatment complaints lodged against police authorities constituted a systemic problem for the purposes of Article 46 of the Convention. In view of the circumstances of the present applications and its earlier case-law, the Court considers that the present applications constitute another such example of a failure to ensure a prompt and thorough investigation.

23.  The Court further finds that the applicants’ accounts as to the circumstances of their alleged ill-treatment are detailed and coherent. While some of the allegations are not corroborated by medical or other objective evidence, the results of the investigations, given their numerous shortcomings, did not disprove the applicants’ allegations that they had been victims of police ill-treatment. In these circumstances, and given the onus on the State to provide a plausible explanation for injuries sustained by persons under the control of the police (see Bouyid, cited above, § 83, and also, by way of example, Adnaralov v. Ukraine, no. 10493/12, § 45, 27 November 2014; Kulik v. Ukraine, no. 10397/10, § 59, 19 March 2015; and Yaroshovets and Others v. Ukraine, nos. 74820/10 and 4 others, § 85, 3 December 2015), the Court concludes that the State’s responsibility for the applicants’ ill-treatment is engaged.

24.  The above findings are sufficient for the Court to establish that the applicants were subjected to ill-treatment which must be classified as inhuman and degrading.

25.  The Court therefore concludes that there has been a breach of Article 3 of the Convention in respect of the applicants’ alleged ill-treatment under both its procedural and substantive limbs.Other complaints under well-established case‑law

26.  Mr A. Debelyy (application no. 7174/11) and Mr R. Korolev (application no. 49391/12) submitted other complaints which also raised issues under Article 3, Article 5 §§ 1 and 3 and Article 13 of the Convention, given the relevant well-established case‑law of the Court (see appended table 1, sections B and C, and table 2, section B, for details).

27.  These complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor are they inadmissible on any other ground. Accordingly, they must be declared admissible.

28.  Having examined all the material before it, the Court concludes that these complaints disclose the following violations:

(a)  violations of Articles 3 and 13 (application no. 7174/11) concerning the conditions of detention in the Kharkiv pre-trial detention centre (SIZO) and lack of domestic remedies for the relevant complaint, in the light of the Court’s findings in Muršić v. Croatia ([GC], no. 7334/13, §§ 122-41, ECHR 2016); Melnik v. Ukraine (no. 72286/01, §§ 110-12, judgment of 28 March 2006); and, as a recent example, Beketov v. Ukraine [Committee], no. 44436/09, §§ 125-30, judgment of 19 February 2019);

(b)  a violation of Article 5 § 1 (application no. 49391/12) concerning unrecorded detention on 7 April 2012, in the light of the Court’s findings in Smolik v. Ukraine (no. 11778/05, §§ 45-48, judgment of 19 January 2012); Grinenko v. Ukraine (no. 33627/06, §§ 74-78, judgment of 15 November 2012); and Belousov (cited above, § 85); and

(c)  a violation of Article 5 § 3 (application no. 7174/11) concerning the length of pre-trial detention, in the light of the Court’s findings in Kharchenko v. Ukraine (no. 40107/02, §§ 79-81, judgment of 10 February 2011); and Ignatov v. Ukraine (no. 40583/15, §§ 40-42, judgment of 15 December 2016).APPLICATION OF ARTICLE 41 OF THE CONVENTION

29.  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.”

30.  Regard being had to the documents in its possession and to its case-law, the Court considers it reasonable to award the applicants the sums indicated in the appended tables. It dismisses the remainder of the applicants’ claims for just satisfaction.

31.  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,Holds that the mother of Mr O. Rafalskyy, Mrs T. Rafalska, has standing to continue the present proceedings in his stead;Decides to join the applications;Declares the applications admissible;Holds that there has been a violation of Article 3 of the Convention under both its substantive and procedural limbs in respect of the complaints concerning police ill-treatment raised in all applications;Holds that there has been a violation of Article 3 of the Convention in respect of the complaint concerning the conditions of detention raised in application no. 7174/11;Holds that there has been a violation of Article 5 § 1 of the Convention in respect of the complaint concerning unrecorded detention raised in application no. 49391/12;Holds that there has been a violation of Article 5 § 3 of the Convention in respect of the complaint concerning the length of pre-trial detention raised in application no. 7174/11;Holds that there has been a violation of Article 13 of the Convention in conjunction with Article 3 of the Convention in respect of the complaint raised in application no. 7174/11;Holds

(a)  that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended tables, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b)  that from the expiry of the above-mentioned three months until settlement, simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period, plus three percentage points;Dismisses the remainder of the applicants’ claims for just satisfaction.

Done in English, and notified in writing on 27 May 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

_1} {signature_p_2}

Martina Keller Stéphanie Mourou-Vikström
Deputy RegistrarPresident

APPENDIX

1.  Application no. 7174/11

by Mr Andrey Nikolayevich Debelyy

Ukrainian national born in 1975 and residing in Kharkiv

Represented by Mr A.A. Kristenko, a lawyer practising in Kharkiv and Kyiv

Lodged on 21 December 2010

A.  Complaint under Article 3 concerning police ill-treatment

Applicant’s account of alleged ill-treatment

At about 9 a.m. on 2 June 2010, as the applicant entered a vending kiosk, a stranger grabbed him from behind and started choking him, while two others punched him in the stomach and groin. After having knocked the applicant to the floor, the strangers handcuffed him and, having introduced themselves to him as police officers, pushed him roughly into a civilian car, where they kept hitting him and squeezing his genitals. When they had arrived in a deserted forest area, the officers demanded that the applicant give self-incriminating statements concerning various crimes. One officer twisted the applicant’s handcuffed hands behind his back and tried to raise them up, causing severe pain, while the others punched and kicked him all over his body. In addition, the officers jumped on the applicant’s arms, pointed a gun at the applicant, threatening to kill him, and on several occasions they suffocated him by wrapping his clothes around his head, until he lost consciousness. After about an hour, when the applicant had succumbed to the pressure and agreed to sign false confessional statements, he was taken to the Moskovskyy district police station in Kharkiv for questioning and then, by 7 p.m. on the same date, taken to the temporary police detention facility (“ITT”).

Relevant facts and documents

Key issues

1.  Medical and other evidence:

(i)  02/06/10, medical journal entry (ITT): 7.25 p.m. ambulance call (hypertensive crisis, swollen arms, complaint of body numbness, suspected arm fracture, facial contusions);

(ii)  03/06/10, certificate no. 1673 (Kharkiv municipal hospital no. 18): contusions of wrist joints;

(iii)  14/07/10, report no. 3331-aя/10 (Kharkiv regional forensic medical bureau): minor injuries (scars from contused injuries on wrists and left knee joint, from impact of blunt objects one to three months beforehand)

2.  Complaint lodged:

(i)  Unspecified date before 13/07/10, with Moskovskyy district prosecutor’s office in Kharkiv;

(ii)  Further unspecified date after opening of criminal trial against applicant, with judicial authorities

3.  Response by authorities:

(i)  13/07/10, forensic assessment of applicant’s injuries ordered (Moskovskyy district prosecutor’s office);

(ii)  29/07/10, decision not to institute criminal proceedings (Moskovskyy district prosecutor’s office): no appearance of ill-treatment;

(iii)  20/12/13, decision to instruct Kharkiv regional prosecutor’s office to carry out investigation (Kharkiv Regional Court of Appeal);

(iv)  30/01/14, criminal proceedings instituted (Kharkiv regional prosecutor’s office);

(v)  26/02/14, 28/05/14, criminal proceedings closed: no evidence of ill‑treatment;

(vi)  16/04/14, 17/07/14, decisions to close criminal proceedings quashed (Chervonozavodskyy District Court in Kharkiv): superficial inquiry

4.  Present status:

Proceedings pending; no conclusion concerning origin of documented injuries

5.  Key actions:

(i)  Statements taken from applicant and police officers;

(ii)  Forensic assessment of injuries

6.  Other relevant facts and documents:

(i)  02/06/10: applicant arrested on suspicion of having robbed vending kiosk in February 2010;

(ii)  04/06/10: applicant remanded in custody (Moskovskyy District Court);

(iii)  03/04/13: applicant convicted of having robbed vending kiosk and sentenced to nine years’ imprisonment (Moskovskyy District Court);

(iv)  04-07/02/14: P.O., O.T. and G.P., questioned in connection with applicant’s ill-treatment complaints, reported that they had arrested him “in the morning” on 02/06/10, “in the course of operational activity” and had taken him for questioning to police station; they denied having applied physical force to applicant or having seen any injuries on his body upon his arrest;

(v)  15/05/14: applicant’s request to be accorded victim status in criminal proceedings concerning his ill-treatment complaints rejected (Kharkiv regional prosecutor’s office): insufficient evidence that he had suffered any prejudice or damage;

(vi)  11/07/14: applicant’s criminal case remitted for retrial; applicant released from detention (Kharkiv Regional Court of Appeal);

(vii)  25/12/14: applicant convicted of having robbed a vending kiosk in February 2010 and sentenced to time served in pre-trial detention (Moskovskyy District Court)

(i)  State provided no plausible satisfactory and convincing explanation as to origin of applicant’s injuries and did not disprove that they had been sustained in custody; there is no reason to doubt credibility of applicant’s ill-treatment account (for relevant examples, see Oleksiy Mykhaylovych Zakharkin v. Ukraine, no. 1727/04, §§ 61-62, 24 June 2010; and Dushka v. Ukraine, no. 29175/04, § 48, 3 February 2011);

(ii)  Significant delay in instituting criminal proceedings (for relevant examples, see Oleksiy Mykhaylovych Zakharkin, cited above, §§ 68-69, and Savitskyy v. Ukraine, no. 38773/05, § 105, 26 July 2012);

(iii)  Overall length of investigation and repeated remittals for reinvestigation in view of shortcomings recognised by domestic authorities (for relevant examples, see Belousov v. Ukraine, no. 4494/07, § 56, 7 November 2013, and Adnaralov v. Ukraine, no. 10493/12, § 50, 27 November 2014);

(iv)  Applicant was not accorded victim status (for relevant examples, see Yatsenko v. Ukraine, no. 75345/01, § 47, 16 February 2012, and Zhyzitskyy v. Ukraine, no. 57980/11, § 50, 19 February 2015);

(v)  No appearance of sufficient effort to collect objective evidence; it appears that no steps were taken beyond questioning of police officers and ordering forensic assessment after traces of alleged ill-treatment had started fading away; no attempts to organise confrontations or take other steps to verify applicant’s account (for relevant examples, see Drozd v. Ukraine, no. 12174/03, §§ 69-70, 30 July 2009, and Kapustyak v. Ukraine, no. 26230/11, § 80, 3 March 2016)

B.  Articles 3 and 13: conditions of detention, lack of effective remedies

Facility: Pre-trial detention centre (SIZO) no. 27 in Kharkiv

Period of detention: 05/06/10 – 11/07/14

Specific grievances: overcrowding, lack of ventilation, grossly inadequate hygiene facilities and insanitary environment, lack of and poor quality of food, mould, dampness, foul odour, lack of daylight

C.  Article 5 § 3 of the Convention: length of pre-trial detention

Period: 02/06/10 (date of arrest) – 03/04/13 (date of first conviction)

Total length: two years and ten months

D.  Just satisfaction

Parties’ submissions

Court’s award

Applicant:

Non-pecuniary damage: 100,000 euros (EUR)

Costs and expenses: legal fees amounting to 10% of non-pecuniary damage award (observations in Convention proceedings) to be transferred directly to account of Mr A.A. Kristenko, applicant’s representative

Supporting documents: Legal representation contract dated May 2019

Government:

Claims exorbitant and poorly substantiated

Non-pecuniary damage:

EUR 15,000

Costs and expenses:

EUR 1,000

To be transferred to applicant’s lawyer directly, as requested

Plus any tax chargeable to applicant on above amounts

2.  Application no. 49391/12

by Mr Roman Anatoliyevich Korolev

Ukrainian national born in 1979 and residing in Melitopol

Represented by Mr Y.V. Nepomnyashchiy, a lawyer practising in Melitopol

Lodged on 20 July 2012

A.  Complaint under Article 3 concerning police ill-treatment

Applicant’s account of alleged ill-treatment

At about 10.30 a.m. on 7 April 2012, when the applicant, an off-duty police officer, entered a cobbler’s workshop, he was suddenly approached by officers A.B. and A.D. from the Internal security police department, who alleged that he had recently received a bribe and insisted on searching him. The applicant protested, considering that demand to be unlawful. In response, the officers, accompanied by the cobbler and two civilians who had been invited as attesting witnesses to the search, knocked the applicant down, handcuffed, punched, kicked and attempted to strangle him, and inserted their fingers in his eyes. Then an envelope containing 500 hryvnias (UAH), which had been planted by A.B. and A.D., was seized from his folder. Subsequently the applicant (still handcuffed) was taken to the police station for questioning and then to an alcohol testing facility. After 5 p.m. on the same date the applicant was released without any procedural documents concerning his arrest or detention having been drafted. He immediately went to the hospital traumatology department and was admitted as an inpatient.

Relevant facts and documents

Key issues

1.  Medical and other evidence:

(i)  07-17/04/12, medical record no. 3425 (Melitopol city hospital no. 1, traumatology department): admission at 5.40 p.m. on 07/04/12; inpatient treatment until 17/04/12 (cerebral concussion, contusions of soft cerebral tissue and limbs);

(ii)  24/05/12, report no. 249 (Zaporizhzhya regional forensic medical bureau): minor injuries (cerebral concussion; abrasions; haemorrhage in left eyeball; traumatic oedema of soft cerebral tissue; bruises on head, shoulders, abdomen, chest, hips, knee joints and shins; wrist abrasions) from impact of blunt objects on or around 07/04/12

2.  Complaint lodged:

07/04/12, with Melitopol police

3.  Response by authorities:

(i)  20/04/12, 25/06/12, 01/10/12: decisions not to institute criminal proceedings (investigator Y.D. of Melitopol inter-district prosecutor’s office); these decisions were quashed and case was remitted for fresh investigation by supervising prosecutorial authorities: shortcomings in inquiry;

(ii)  15/11/12: fresh decision not to institute criminal proceedings (Melitopol inter-district prosecutor’s office, investigator P.K.);

(iii)  27/02/13 and 14/03/13: applicant’s appeals against decision of 15/11/12 dismissed (Melitopol Town Court and Zaporizhzhya Regional Court of Appeal respectively)

4.  Key actions:

(i)  Forensic medical assessment of injuries;

(ii)  Police officers, several eyewitnesses, medical doctor and attesting witnesses to search questioned

5.  Key findings:

Officers A.B. and A.D. applied legitimate force and used handcuffs to break applicant’s resistance and to stop his disorderly conduct and flight attempt

6.  Other relevant facts and documents:

(i)  07/04/12: Y.B. (farmers’ market controller) notified police officer A.B. that he had given UAH 500 as bribe to applicant;

(ii)  18-20/04/12: testimonies given to investigator Y.D. (officers A.B. and A.D., cobbler and attesting witnesses to search): applicant sprayed pepper gas and attempted to flee, when approached by officers A.B. and A.D. Those officers then managed to catch and handcuff him; no force was used by any civilian;

(iii)  28/04/12: administrative offence proceedings instituted against applicant (charge of acceptance of bribe): Melitopol inter-district prosecutor’s office, investigator Y.D.;

(iv)  06/06/12: applicant convicted: sentence to pay fine (Melitopol Town Court);

(v)  03/07/12: conviction upheld (Zaporizhzhya Regional Court of Appeal)

(i)  Having regard to nature, gravity and dispersed location of injuries, and account of arrest operation, it has not been convincingly shown that all of applicant’s injuries resulted from application of legitimate force (for relevant examples, see Rehbock v.  Slovenia, no. 29462/95, § 76, ECHR 2000‑XII; Danilov v. Ukraine, no. 2585/06, §§ 65-67, 13 March 2014; and Sylenok and Tekhnoservis-Plus v.  Ukraine, no. 20988/02, §§ 69-70, 9 December 2010);

(ii)  No full-scale investigation, only repeated pre-investigation inquiry (for relevant examples, see, mutatis mutandis, Davydov and Others v. Ukraine, nos. 17674/02 and 39081/02, §§ 310-12, 1 July 2010; Lyapin v. Russia, no. 46956/09, §§ 129 and 132-36, 24 July 2014; and Chernega and Others v. Ukraine, no. 74768/10, § 167, 18 June 2019);

(iii)  Insufficient effort to collect objective evidence. Conclusions as to facts reached predominantly based on unverified testimonies by persons implicated in ill‑treatment; no attempts to organise confrontations or take other steps to for verifying them (for relevant examples, see Lopatin and Medvedskiy v. Ukraine, nos. 2278/03 and 6222/03, § 67, 20 May 2010, and Kapustyak v. Ukraine, no. 26230/11, § 80, 3 March 2016);

(iv)  No attempt made to assess proportionality of force used to restrain applicant during arrest, or probability of his allegation that he had been knocked down and assaulted (for relevant examples, see Kaverzin v. Ukraine, no. 23893/03, §§ 110‑15, 15 May 2012, and Sadkov v. Ukraine, no. 21987/05, § 96, 6 July 2017);

(v)  Initial inquiry lacked independence (for relevant examples, see Kirpichenko v. Ukraine, no. 38833/03, § 87, 2 April 2015 and Zyakun v. Ukraine, no. 34006/06, § 44, 25 February 2016)

B.  Article 5 § 1 of the Convention: unrecorded detention

1.  Period of deprivation of liberty complained of /arresting authority

07/04/12, about 10.30 a.m. - 07/04/12, about 5.40 p.m., Melitopol internal security police

2.  Grounds and documents regularising alleged deprivation of liberty during above period:

No documents

3.  Domestic complaints by applicant:

Same as in respect of ill-treatment (see Section A above)

4.  Other relevant facts and documents:

Police officers A.B. and A.D. explained (within framework of ill-treatment investigation) that, having been notified by Y.B. at about 10.15 a.m. on 07/04/12 that he had paid bribe to applicant, they had immediately approached him and demanded to produce envelope with bribe money. In view of applicant’s disorderly conduct and his attempt to flee, they had immobilised and handcuffed him. Once applicant had calmed down, handcuffs had been removed and he had been taken to police station for questioning. After applicant’s questioning and alcohol intoxication test, he was released

C.  Just satisfaction

Parties’ submissions

Court’s award

Applicant:

Pecuniary damage: EUR 30,000 (no documents provided)

Non-pecuniary damage: EUR 30,000

Costs and expenses: EUR 2,000 (no details or documents provided)

Government:

Claims exorbitant and unsubstantiated

Non-pecuniary damage:

EUR 3,900

plus any tax chargeable to applicant

3.  Application no. 4173/13

by Mr Oleksandr Anatoliyovych Rafalskyy

Ukrainian national born in 1971 and deceased in 2016

Represented by Mr A.P. Bushchenko

, a lawyer formerly practicing in Kharkiv[1] and Ms O.Y. Sapozhnikova, a lawyer practising in Kharkiv

Lodged on 27 December 2012

A.  Complaint under Article 3 concerning alleged police ill-treatment

Applicant’s account of alleged ill-treatment

On 13 June 2001 the applicant was arrested in his acquaintance’s flat in Kyiv and severely beaten during and after his arrest by a group of police officers. Between 13 and 26 June 2001 the applicant was placed in various detention facilities in the Kyiv region under a false pretext that he was a vagrant without identity papers and repeatedly beaten, suffocated, and electrocuted by various police officers who demanded that he confess to having organised and participated in the murders of five persons with a view to appropriating their belongings.

Relevant facts and documents

Key issues

1.  Medical and other evidence:

(i)  13/06/01, medical record (Obukhiv central district hospital): applicant examined at 11.30 p.m.: contused head wound, multiple body contusions;

(ii)  17/06/01, ambulance calls logbook entry (Stavyshche central hospital): call from applicant: contusion in torso, kidney and loin area, vegetative dystonia;

(iii)  02/07/01 and 19/07/01, reports nos. 65 and 47-D (Kyiv regional forensic medical bureau): abrasions on both knees; shoulder bruise (measuring 10 cm x 4 cm); forehead scar from impact of blunt objects;

(iv)  20/09-13/10/01, medical record (Bila Tserkva central district hospital): inpatient treatment and surgical removal of necrotising purulent post-traumatic left foot-joint haematoma

2.  Complaint lodged:

27 June 2001, with investigator V.K. of Kyiv regional prosecutor’s office, during applicant’s questioning

3.  Response by authorities:

(i)  27/08/01, conclusion (Kyiv regional police internal inquiry): on 13/06/01 applicant was arrested in Kh.’s flat as suspect in a series of murder cases; he resisted arrest and attempted to flee through ventilation duct in WC; force was applied to combat resistance (martial arts; dragging applicant down from ventilation duct; immobilisation techniques and handcuffs); case should be transferred to prosecutor’s office for deciding on legitimacy of police officers’ actions;

(ii)  15/09/01, decision not to institute criminal proceedings (Kyiv regional prosecutor’s office, investigator V.K.): no appearance of ill‑treatment; applicant notified of decision on 1 June 2009;

(iii)  13/05/2011: case remitted for fresh investigation (Kyiv City Court of Appeal);

(iv)  04/07/11, 22/07/11, 17/11/11, 13/01/12 and 13/09/12: further decisions not to institute criminal proceedings (decisions quashed on appeal by more senior prosecutor or courts): superficial inquiry;

(v)  08/07/13, criminal proceedings instituted;

(vi)  11/02/14, criminal proceedings closed: minor injuries resulted from application of legitimate force during arrest;

(vii)  23/05/14, case remitted for fresh investigation (Kyiv City Court of Appeal);

(viii)  21/01/15: applicant notified of his rights as victim in criminal proceedings;

(ix)  17/09/19: Kyiv city prosecutor’s office informed applicant’s lawyer that proceedings had been closed on 15/09/17 (no case to answer); no copy of decision provided

4.  Key actions and findings:

No copy of decision of 15/09/17 provided

5.  Other relevant facts and documents:

(i)  14/06/01: Obukhkiv district prosecutor approved of applicant’s arrest on 13/06/01 as vagrant and ordered his detention in order to establish his identity;

(ii)  25/06/01: police report on applicant’s arrest as suspect in murder case (case assigned to investigator V.K. of Kyiv regional prosecutor’s office);

(iii)  30/07/04 and 01/12/05: applicant found guilty of having organised and participated in several murders, and sentenced to life imprisonment (Kyiv Regional Court of Appeal and Supreme Court respectively);

(iv)  27/11/08: applicant, represented by Mr A. Bushchenko, submitted complaint to the Working Group on Arbitrary Detention established by the United Nations Commission on Human Rights (“WGAD”) alleging that from 13 until 25/06/01 he had been detained on false pretext as vagrant, while being questioned as murder suspect and tortured to obtain self-incriminating statements;

(v)  04/09/09: WGAD issued opinion no. 16/2009 inviting Government to provide further information

(i)  State provided no plausible satisfactory and convincing explanation as to origin of applicant’s injuries and did not disprove that they had been inflicted by police officers; there is no reason to doubt credibility of applicant’s ill‑treatment account (for relevant examples, see Oleksiy Mykhaylovych Zakharkin v. Ukraine, no. 1727/04, §§ 61-62, 24 June 2010; and Dushka v. Ukraine, no. 29175/04, § 48, 3 February 2011);

(ii)  For over twelve years there was no full-scale investigation, only repeated rounds of pre-investigation inquiry (for relevant examples, see, mutatis mutandis, Davydov and Others v. Ukraine, nos. 17674/02 and 39081/02, §§ 310-12, 1 July 2010; Lyapin v. Russia, no. 46956/09, §§ 129 and 132-36, 24 July 2014; and Chernega and Others v. Ukraine, no. 74768/10, § 167, 18 June 2019);

(iii)  Overall length of investigation and repeated remittals for reinvestigation in view of shortcomings recognised by domestic authorities (for relevant examples, see Belousov v. Ukraine, no. 4494/07, § 56, 7 November 2013, and Adnaralov v. Ukraine, no. 10493/12, § 50, 27 November 2014);

(iv)  Initial inquiry lacked independence (for relevant examples, see Kirpichenko v. Ukraine, no. 38833/03, § 87, 2 April 2015 and Zyakun v. Ukraine, no. 34006/06, § 44, 25 February 2016);

(v)  Delays in apprising applicant of procedural developments (for relevant examples, see Danilov v. Ukraine, no. 2585/06, § 70, 13 March 2014, and Barysheva v. Ukraine, no. 9505/12, § 61, 14 March 2017);

(vi)  No attempt made to assess proportionality of force used to restrain applicant during arrest, or probability of his allegation that he had been ill-treated after arrest to extort confession (for relevant examples, see Kaverzin v. Ukraine, no. 23893/03, §§ 110-15, 15 May 2012, and Sadkov v. Ukraine, no. 21987/05, § 96, 6 July 2017);

(vii)  Delay in according victim status to applicant (for relevant examples, see Yatsenko v. Ukraine, no. 75345/01, § 47, 16 February 2012, and Zhyzitskyy v. Ukraine, no. 57980/11, § 50, 19 February 2015)

B.  Just satisfaction

Parties’ submissions

Court’s award

Applicant:

Non-pecuniary damage: EUR 70,000 to applicant’s mother

Costs and expenses: legal fees in following amounts to be transferred directly to applicant’s lawyers: EUR 4,800 to Mr V.Kolbantsev (domestic proceedings); EUR 8,300 to Mr Bushchenko (domestic proceedings, lodging present application and handling correspondence) and EUR 4,800 to Ms Sapozhnikova (domestic proceedings, submitting observations and handling correspondence)

Supporting documents: legal representation contracts, time sheets

Government:

Non-pecuniary damage: claim exorbitant and unsubstantiated; applicant’s mother is not victim

Costs and expenses: claims exorbitant

Non-pecuniary damage:

EUR 15,000

to applicant’s estate

Costs and expenses:

EUR 1,500 to each of the three lawyers, to be transferred directly to their accounts as indicated by applicant party

plus any tax chargeable to applicant’s estate

[1] Mr A.P. Bushchenko ceased practicing as an advocate and withdrew from the case while the proceedings were pending

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