FIFTH SECTION
CASE OF LUTAYENKO AND OTHERS v. UKRAINE
(Applications nos. 1781/14 and 4 others – see appended table)
JUDGMENT
STRASBOURG
16 September 2021
This judgment is final but it may be subject to editorial revision.
In the case of Lutayenko 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. 1781/14, 23274/14, 74276/14, 78541/14 and 4989/15) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by five Ukrainian nationals, whose details are set out in the appended tables (“the applicants”), on the various dates indicated in those tables;
the decision to give notice to the Ukrainian Government (“the Government”) of the complaints concerning the alleged police ill-treatment and the lack of an effective domestic investigation into the allegations in that regard (all applications); compulsion to undergo sobriety and psychiatric fitness tests and the lack of effective redress for the relevant complaint (application no. 23274/14); allegedly unlawful deprivation of liberty, the lack of effective redress for the relevant complaint, and the length of criminal proceedings (application no. 4989/15) and to declare inadmissible the remainder of the applications nos. 23274/14 and 4989/15;
the decision to grant legal aid to some of the applicants (see appended tables for details);
the parties’ observations;
Having deliberated in private on 26 August 2021,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The applicants alleged, in particular, under Article 3 of the Convention, that they had been ill-treated by the police and that the investigation into their respective complaints had been ineffective. In addition, some applicants also raised other complaints under Articles 5 § 1, 6 § 1, 8 and 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.
THE LAWJOINDER OF THE APPLICATIONS
4. 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
5. The applicants complained that they had been ill-treated by the police and that their respective complaints had not been properly investigated. The applicants invoked various Convention provisions in respect of the above complaints.
6. The Court, which is master of the characterisation to be given in law to the facts of a case (see, among other authorities, Barysheva v. Ukraine, no. 9505/12, § 45, 14 March 2017), finds that the complaints in issue fall to be examined under Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”Admissibility
7. The Court finds that the present complaints are neither manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention nor inadmissible on any other grounds. They must therefore be declared admissible.Merits
8. 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.
9. Regard being had to the evidential gaps and contradictions in the domestic case files and in the factual submissions by the parties (see appended tables for details), the Court finds it impossible to establish beyond a reasonable doubt that the applicants had sustained injuries under the control of the police, as alleged. The Court considers that the difficulty in determining the substance of the applicants’ allegations of ill-treatment stems from the authorities’ failure to investigate their complaints effectively (see, in particular, Popa v. Moldova, no. 29772/05, §§ 39 and 45, 21 September 2010; Grimailovs v. Latvia, no. 6087/03, §§ 109 and 119, 25 June 2013; and Barysheva v. Ukraine, no. 9505/12, § 55, 14 March 2017).
10. From the documents before the Court, it appears that the domestic investigations did not reflect a serious effort to determine the relevant facts.
11. The Court notes that in the case of Kaverzin (no. 23893/03, §§ 173‑80, judgment of 15 May 2012) 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 within the meaning of Article 46 of the Convention. In view of the circumstances of the present applications and its earlier case-law, the Court considers that they constitute another example of such a failure to ensure prompt and thorough investigation.
12. The Court therefore concludes that the present complaints disclose a breach of Article 3 of the Convention.OTHER COMPLAINTS UNDER WELL-established case-lawMrs G. Lysak (application no. 23274/14)
13. Mrs G. Lysak additionally complained that the police officers had compelled her to undergo sobriety and psychiatric fitness tests without any legal basis. She referred to Article 8 of the Convention in this respect, which reads as follows:
“1. Everyone has the right to respect for his private ... life, ... .
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law ... .”
14. The Government argued that the present complaint was manifestly ill‑founded, as the applicant herself had volunteered to undergo the tests and there had been no interference with her rights protected by Article 8 of the Convention.
15. Having examined the material before it, and, in particular, the records of the substance abuse and psychiatric health centres (see table 2 section A(6‑iii, iv) and section B for details), the Court is unable to conclude that the applicant volunteered to undergo the aforementioned tests, contrary to what has been suggested by the Government. It further concludes that the fact that the police officers took the applicant to the medical facilities with a view to testing her sobriety and psychiatric fitness constituted an interference with her right to respect for private life protected by Article 8 of the Convention. It is not evident either from the file, or from the Government’s observations what was the legal basis for that interference.
16. In the light of its findings in a number of other cases (see, in particular, mutatis mutandis, Y.F. v. Turkey, no. 24209/94, §§ 33-36 and 41‑44, ECHR 2003‑IX; Fyodorov and Fyodorova v. Ukraine, no. 39229/03, §§ 82-86, 7 July 2011; Konovalova v. Russia, no. 37873/04, §§ 48-50, 9 October 2014; and Y.Y. v. Russia, no. 40378/06, §§ 55-60, 23 February 2016) the Court concludes that the present complaint is admissible and that it discloses a violation of Article 8 of the Convention.Mr S. Patsev (application no. 4989/15)
17. Mr S. Patsev submitted other complaints which also raised issues under Article 5 § 1 and Article 6 § 1 of the Convention, given the relevant well-established case‑law of the Court (see appended table 5, section B for details).
18. Having examined all the material before it, the Court concludes that these complaints are admissible and disclose the following violations:
(a) a violation of Article 5 § 1 of the Convention on account of the applicant’s complaint concerning unrecorded detention on 6 and 7 October 2009, 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
(b) a violation of Article 6 § 1 of the Convention on account of the applicant’s complaint concerning the length of the criminal proceedings against him, in the light of the Court’s findings in Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999‑II; Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000‑VII; and Merit v. Ukraine (no. 66561/01, judgment of 30 March 2004).OTHER ALLEGED VIOLATIONS OF THE CONVENTION
19. Mrs G. Lysak (application no. 23274/14) and Mr S. Patsev (application no. 4989/15) additionally complained that they had been unable to obtain redress for their complaints under Articles 8 and 5 § 1 respectively. They invoked Article 13 of the Convention.
20. The Court considers that it has already addressed the main legal questions raised in the present applications, and that there is no need to make a separate assessment of the admissibility and merits of the complaints mentioned in paragraph 19 above (see, for example, Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014, and Borzykh and Others v. Ukraine [Committee], no. 5353/14 and others, §§ 48-49, 25 June 2020). APPLICATION OF ARTICLE 41 OF THE CONVENTION
21. 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.”
22. 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.
23. 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,Decides to join the applications;Declares the complaints concerning the alleged police ill-treatment and ineffective investigation in that regard raised in all applications, the complaint concerning compulsion to undergo sobriety and psychiatric fitness tests raised in application no. 23274/14, and the complaint concerning unrecorded detention and length of the proceedings raised in application no. 4989/15 admissible;Holds that there has been a violation of Article 3 of the Convention on account of the failure of the domestic authorities to conduct an effective investigation concerning complaints of police ill-treatment raised by all applicants;Holds that there has been a violation of Article 8 of the Convention in respect of the complaint concerning compulsion to undergo sobriety and psychiatric fitness tests raised in application no. 23274/14;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. 4989/15;Holds that there has been a violation of Article 6 § 1 of the Convention in respect of the complaint concerning the length of criminal proceedings raised in application no. 4989/15;Holds that it is not necessary to examine the admissibility and merits of other complaints raised under Article 13 of the Convention in applications nos. 23274/14 and 4989/15;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 16 September 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
{ {signature_p_2}
Martina Keller Stéphanie Mourou-Vikström
Deputy Registrar President
APPENDIX
1. Application no. 1781/14
by Mr Yuriy Oleksiyovych Lutayenko
Ukrainian national born in 1977 and residing in Pyryatyn
Represented by Ms L.G. Ibadova, a lawyer practising in Kharkiv
Lodged on 2 December 2013
A. Complaint under Article 3 concerning alleged police ill-treatment
Applicant’s account of alleged ill-treatment
Arrested on 30 December 2008, the applicant was detained and repeatedly ill-treated until 9 January 2009 by officers of the Poltava police forcing him to confess to having participated in a series of various crimes together with his friend O.K. In particular, they punched, kicked and verbally assaulted the applicant, deprived him of food and sleep. On 5 January 2009 police officer V.T. accompanied by two others repeatedly administered electric shocks to the applicant through electrodes attached to his ears. Several days after these events the applicant noticed that his pre-existing myopia started deteriorating.
Relevant facts and documents
Key issues
1. Medical and other evidence:
(i) 19/01/09 – medical examination certificate (Poltava temporary detention facility (“SIZO”)): no injuries or complaints;
(ii) 21/10/09 – medical record (Poltava SIZO ophtalmologist): high myopia; retinal angiopathy;
(iii) 28/03/14 - report no. 50 (Poltava regional forensic medical expert bureau): based on available documents not possible to conclude whether applicant’s high myopia could be caused by ill-treatment: (a) applicant had already suffered from myopia before arrest; (b) no medical records indicating that he had sustained any injuries on dates of alleged ill‑treatment; and (c) no detailed records tracing progress of myopic disease;
(iv) 10/06/15 - letter from investigator to Poltava regional forensic medical expert board: not possible to identify any additional records concerning applicant’s health;
(v) 03/07/15 – report no. 96 (Poltava regional medical forensic expert bureau): previous conclusions reiterated.
2. Ill-treatment complaint lodged:
29/10/09, with Leninskyy District Court in Poltava, during applicant’s trial.
3. Response by authorities:
(i) 29/10/09 – Leninskyy District Court in Poltava requested prosecutor’s office to investigate alleged ill-treatment;
(ii) 26/11/09, 26/03/12, 23/08/12 and 08/10/12 – decisions not to institute criminal proceedings: no appearance of police ill-treatment; decisions subsequently quashed on appeal (more senior prosecutors/courts): shortcomings in inquiry;
(iii) 10/02/14 – criminal proceedings instituted (Poltava regional prosecutor’s office);
(iv) 07/03/14 and 14/05/15 - medical expert assessments ordered to investigate probability that applicant’s high myopia could have been caused by ill-treatment;
(v) 31/03/14, 31/09/14 – criminal proceedings closed: no appearance of police ill-treatment; decisions subsequently quashed on appeal (courts): shortcomings in investigation;
(vi) 23/07/15 - criminal proceedings closed.
4. Key actions:
(i) Statements taken from applicant, his co-defendant O.K. and several police officers;
(ii) two assessments by forensic medical experts.
5. Key findings:
No arguable police ill-treatment case; not possible to establish causal link between alleged ill-treatment and development of high myopia.
6. Other relevant facts:
(i) 30/12/08 – applicant and O.K. arrested while attempting to sell weapon and subsequently remanded in custody by court decision pending investigation of various charges against them;
(ii) 04/03/16 – applicant and O.K. convicted of having committed a series of offences and released from detention, having been sentenced to time served (Poltavskyy District Court)
(i) For over three years after applicant lodged complaint 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);
(ii) Significant delays in arranging forensic medical examinations and instituting criminal proceedings leading to loss of evidence (for relevant examples, see Oleksiy Mykhaylovych Zakharkin v. Ukraine, no. 1727/04, §§ 68‑69, 24 June 2010, 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).
B. Just satisfaction
Parties’ submissions
Court’s award
Applicant:
Non-pecuniary damage : 30,000 euros (EUR).
Costs and expenses: EUR 720 in legal fees (preparation of application) and EUR 850 (representation before Court after communication).
Supporting documents: contract for legal representation dated 10/10/13 and timesheet (twelve hours at EUR 60 per hour for preparing application to Court).
Other relevant information: applicant granted EUR 850 in legal aid.
Government:
Non-pecuniary damage: Claim exorbitant and unsubstantiated.
Costs and expenses: claim of EUR 850 for legal representation after communication not supported by any documents.
Non-pecuniary damage:
EUR 7,500
plus any tax chargeable to applicant
2. Application no. 23274/14
by Ms Galyna Mykolayivna Lysak
Ukrainian national born in 1963 and residing in Nova Ukrayinka
Represented by Mr M.S. Glotov, a lawyer practising in Rivne
Lodged on 13 March 2014
A. Complaint under Article 3 concerning police ill-treatment
Applicant’s account of alleged ill-treatment
On 8 February 2013 three police officers of the Rivne municipal police were sent to the applicant’s home in response to her complaint that S.Y., her neighbour, had threatened her with physical violence during an argument. Having interviewed the applicant and S.Y., the officers demanded her to follow them with a view to undergoing sobriety and psychiatric fitness check-ups. The applicant complied with that demand and the officers escorted her to the substance abuse and psychiatric fitness centres. Having verified that the applicant was sober and having received a medical opinion that she did not suffer from any mental disorders, the officers returned to their base station and told the applicant that she could go back home. However, considering that she had been treated unfairly and had been arbitrarily compelled to undergo the tests, the applicant insisted that the officers bring her home in their car. In response, officer M.M. shoved and punched the applicant, attempting to ensure that she was out of the car. As the applicant kept protesting and resisting, the officers decided to leave her alone in the car. After some time, the applicant, feeling cold and unwell, left the car and entered the police station seeking help. The officer on duty at the reception desk called ambulance. The applicant was diagnosed with hypertensive crisis and situational neurosis, taken to the Rivne municipal hospital, administered medication and discharged on the same day.
Relevant facts and documents
Key issues
1. Medical and other evidence:
(i) 08/02/13 – record no. 142 (Rivne ambulance station): at 4.45 p.m. applicant hospitalised to Rivne municipal hospital: hypertensive crisis, situational neurosis; medication administered by intramuscular injection;
(ii) 09/04/13 – report no. 207 (Rivne regional forensic medical expert bureau, “RRFMEB”): minor injuries possibly sustained on 08/02/13: hematomas, 7x3 cm (buttock); and 0.6x0.4cm (finger) resulting from impact of blunt object(s) with limited contact surface; possibly as indicated by applicant (i.e., shoving and punching);
(iii) 30/04/13 – supplementary report no. 207/D-501 (RRFMEB): during investigative experiment conducted on 17/04/13, applicant demonstrated how M.M. had allegedly inflicted injuries; her demonstration was plausible concerning circumstances of infliction of buttock hematoma, but not finger hematoma;
(iv) 02/07/13 – letter and internal inquiry report (Rivne municipal hospital, to Rivne prosecutor’s office): no injuries were detected or ill-treatment complaints were received from applicant when she was hospitalised on 08/02/13; intramuscular injection on that date could have possibly caused buttock hematoma;
(v) 29/07/13 – report no. 207/D-501/D-846 (RRFMEB): regard being had to additional medical documents, it cannot be excluded that buttock hematoma had been consequence of intramuscular injection (according to applicant, she found out that present assessment had been carried out only once investigation of her ill-treatment complaint was closed).
2. Complaint lodged:
10/02/13, with Rivne district prosecutor
3. Response by authorities:
(i) 11/02/13 - criminal proceedings instituted into suspected abuse of authority by police officers (Rivne district prosecutor’s office);
(ii) 13/05/13 – criminal proceedings closed on following grounds: “[applicant’s] testimony concerning infliction of ... injuries by police officers has not been confirmed by any eyewitnesses; accordingly the injuries at issue could be sustained in a trivial accident or inflicted by unidentified third parties”;
(iii) 10/06/13 – decision to close proceedings quashed on appeal (Rivne district court): superficial inquiry; origin of injuries not established;
(iv) 29/07/13 – criminal proceedings closed: same grounds and added possibility that injuries could result from injection of medicaments;
(v) 30/08/13 – decision notified to applicant;
(vi) 19/09/13 and 30/09/13 – applicant’s appeals rejected (Rivne District Court and Rivne Regional Court of Appeal): following thorough investigation, no appearance of police ill-treatment or abuse of authority.
4. Key actions:
(i) Statements taken from applicant, her husband and neighbours, police officers, and several medical professionals;
(ii) Forensic assessments;
(iii) Investigative experiment: applicant demonstrated how officer M.M. had allegedly shoved and punched her.
5. Key findings:
Injuries could have been sustained in trivial incident, inflicted by unidentified third parties or resulted from injection of medicaments.
6. Other relevant facts and documents:
(i) 08/02/13, 9.30 a.m. – telephone call log (Rivne police): complaint from applicant that S.Y., neighbour, threatened to resort to physical violence;
(ii) 08/02/13, 10.25 a.m. – telephone call log (Rivne police): complaint from S.Y. that applicant threatened to resort to physical violence;
(iii) 08/02/13, 2.30 p.m. – admission journal entry (Rivne substance abuse centre): applicant brought in by police for sobriety check; grounds: administrative offence/suspicion of having committed crime; no physical injuries or traces of alcohol consumption detected; applicant is in agitated emotional state, uttering threats against police officers;
(iv) 08/02/13, unspecified time – medical record (Rivne psychiatric health centre): applicant brought in by police for psychiatric fitness check-up; grounds: conflict with neighbour, who alleged that she had record of psychiatric disturbances; results of examination: agitated emotional state (reaction to stress); no previous history or actual signs of psychiatric disorders.
(i) Grounds for second decision to close investigation almost identical to first, quashed by court with reference to shortcomings in inquiry (compare Dzhulay v. Ukraine, no. 24439/06, § 55 and 59, 3 April 2014);
(ii) Delays in taking medical and other evidence; impairments in apprising applicant of procedural developments and ensuring her access to investigative procedure (for relevant examples, see Danilov v. Ukraine, no. 2585/06, § 70, 13 March 2014; Kirpichenko v. Ukraine, no. 38833/03, §§ 86, 88, 2 April 2015; and Barysheva v. Ukraine, no. 9505/12, § 61, 14 March 2017);
(iii) No appearance of sufficient effort to collect objective evidence, in particular, no confrontations or other measures aimed at reconciling conflicting medical evidence and incident accounts or clarifying actual origin of injuries (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);
(iv) Hasty conclusion that reported injuries could not be inflicted by police officers, which was based essentially on their own testimonies taken at face value (for relevant examples, see Gordiyenko v. Ukraine, no. 27620/09, §§ 95‑96, 16 October 2014; and Kleutin v. Ukraine, no. 5911/05, § 68, 23 June 2016).
B. Other complaints under well-established case-law
Artricles 8 and 13 of the Convention – compulsion to undergo sobriety and psychiatric fitness tests
1. Date/nature of alleged interference:
08/02/13, allegedly arbitrary compulsion by police officers to undergo sobriety and psychiatric fitness tests (see details in Section A above).
2. Relevant domestic complaints:
Complaint to Rivne prosecutor’s office (see details in Section A (2, 3) above).
3. Response by authorities:
Decision of 29/07/13 to close criminal proceedings in respect of alleged abuse of authority by police officers: there was no compulsion; according to police officers, sobriety and psychiatric fitness tests were organised at applicant’s own initiative and in response to her direct request.
C. Just satisfaction
Parties’ submissions
Court’s award
Applicant: EUR 5,000 in non-pecuniary damage.
Government: Exorbitant claim.
EUR 5,000 (non‑pecuniary damage) plus any tax chargeable to applicant
3. Application no. 74276/14
by Mr Roman Borysovych Fedoryshyn
Ukrainian national born in 1977 and residing in Severynivka
Represented by Mr P.A. Strepetov, a lawyer practising in Kyiv
Lodged on 21 November 2014
A. Complaint under Article 3 concerning police ill-treatment
Applicant’s account of alleged ill-treatment
On 25 September 2010 body of G.Ch., the applicant’s mother-in-law, was discovered with traces of violent death. On the same date the applicant, invited for questioning as a witness by the Vasylkiv police, was detained, without any record being made, and ill-treated until he agreed to write a “statement of surrender” indicating that he had come to the police office for reporting, of his own free will, that he had murdered G. Ch. In particular, the officers repeatedly kicked and hit the applicant with a truncheon, attempted to insert it in his anal orifice, put a plastic bag on the applicant’s head to blindfold him; put a gas mask on his head and filled it with smoke, electrocuted the applicant and threatened to prosecute his wife as an accomplice to murder.
Relevant facts and documents
Key issues
1. Medical and other evidence:
29/10/10 – report no. 436 (Kyiv regional forensic medical expert bureau): hematomas on both buttocks (16x10 cm and 19x12 cm) and abrasions (left buttock, both knees) sustained five to seven days before examination, which took place on 29/09/10; no injuries in or around anal orifice.
2. Complaint lodged:
28/09/10, with Vasylkiv inter-district prosecutor’s office.
3. Response by authorities:
(i) 07/10/10, 05/11/10, 07/12/11, 16/12/11, 14/05/12 - decisions not to institute criminal proceedings (Vasylkiv inter-district prosecutor’s office): no appearance of ill-treatment;
(ii) 16/09/13, 24/12/13 and 22/05/14 – ill-treatment complaints raised by applicant at trial rejected (Vasylkiv Court, Kyiv Regional Court of Appeal, and Higher Specialised Court in Civil and Criminal Matters, respectively): based on prosecutor’s office’s inquiry, there was no appearance of ill-treatment.
4. Key actions:
(i) Statements taken from several police officers, who denied allegations of ill-treatment;
(ii) Forensic assessment of injuries.
5. Key findings:
According to expert assessment, timing of documented injuries pre-dated arrest; there was therefore no police ill-treatment case to answer.
6. Other relevant facts and documents:
(i) 25/09/10 – reports on applicant’s questionings as witness in G.Ch.’s murder case (Vasylkiv police);
(ii) 26/09/10 – “statement of surrender” (addressed to Vasylkiv police): applicant confessed that he had killed G.Ch.;
(iii) 27/09/10, 3.15 p.m. – applicant formally arrested on suspicion of having killed G.Ch. (Vasylkiv police); he pleaded guilty during questioning;
(iv) 30/09/10 – applicant retracted confessional statements as made under duress;
(v) 16/09/13 – applicant convicted of having killed G.Ch. and sentenced to imprisonment (Vasylkiv Court);
(vi) 24/12/13 and 22/05/14 – applicant’s appeals rejected (Kyiv Regional Court of Appeal and Higher Specialised Court in Civil and Criminal Matters, respectively).
(i) 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);
(ii) Inquiry limited in scope and without genuine effort to collect objective evidence and establish timing and origin of injuries (applicant himself not questioned; no effort to elucidate circumstances in which he submitted “statement of surrender”; allegations of unrecorded detention dismissed based on submissions of police officers taken at face value (for relevant examples, see Grinenko v. Ukraine, no. 33627/06, § 62, 15 November 2012; and Kleutin v Ukraine, no. 5911/05, § 68, 23 June 2016).
B. Just satisfaction
Parties’ submissions
Court’s award
Applicant:
Non-pecuniary damage: EUR 20,000
Costs and expenses: EUR 2,220 in legal fees (domestic and Convention proceedings)
Supporting documents: legal representation contract dated 14/11/10; payment receipts
Government:
Claims exorbitant; information concerning method of lawyer’s fees calculation insufficiently detailed
Non-pecuniary damage:
EUR 7,500
Costs and expenses:
EUR 2,220
plus any tax chargeable to applicant
4. Application no. 78541/14
by Mr Oleksiy Igorovych Diryavskyy
Ukrainian national born in 1992 and residing in Tokmak
Represented by Mr M. O. Tarakhkalo, a lawyer practising in Kyiv
Lodged on 9 December 2014
A. Complaint under Article 3 concerning police ill-treatment
Applicant’s account of alleged ill-treatment
On 18 April 2012, in the premises of the Tokmak police station, officer S.Ch. punched the applicant in the chest and in the chin forcing him to confess that he had stolen Y.Sh.’s mobile telephone.
Relevant facts and documents
Key issues
1. Medical and other evidence:
19/04/12 – report no. 03 (specialist, Tokmak forensic medical expert bureau, private consultation): minor injury possibly sustained on 18/04/12: bruise (chin, 1,3x0,3 cm).
2. Complaint lodged:
20/04/12, with Tokmak inter-district prosecutor’s office.
3. Response by authorities:
(i) 03/05/12, 21/05/12, 07/07/12 - decisions not to institute criminal proceedings (Tokmak inter-district prosecutor’s office): no appearance of ill-treatment; decisions quashed on appeal (more senior prosecutors): superficial inquiry;
(ii) 19/11/12 – fresh decision not to institute criminal proceedings.
4. Key actions:
Statements taken from police officers, applicant, and his relatives.
5. Key findings:
It is apparent from explanations by police officers that no ill‑treatment took place.
6. Other relevant facts and documents:
(i) 18/04/12 – record of applicant’s questioning (investigator, Tokmak police): applicant confessed that he had stolen Y.Sh.’s mobile telephone;
(ii) Same date - visitors log (Tokmak police station): applicant left police station at 3.35 p.m.;
(iii) 30/11/12 – judgment (Tokmak District Court): applicant convicted on charges of having stolen Y.Sh.’s mobile telephone;
(iv) 04/03/13 – judgment of 30/11/12 quashed on appeal (Zaporizhzha Regional Court of Appeal): ill-treatment allegations should be scrutinised in depth;
(v) 24/02/14 – judgment (Tokmak District Court): applicant convicted on charges of mobile telephone theft; ill-treatment complaint unsubstantiated, as prosecutor’s office’s inquiry had established that no ill-treatment had taken place; applicant sentenced to payment of fine and ordered to compensate damages to Y.Sh.;
(vi) 24/04/14 and 01/07/14 – applicant’s appeals rejected (Zaporizhzha Regional Court of Appeal and Higher Specialised Court in Civil and Criminal Matters).
(i) 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);
(ii) Inquiry limited in scope and without genuine effort to collect objective evidence (no forensic assessment of injuries ordered; no effort to elucidate origin of documented injuries or circumstances in which applicant confessed to having committed crime (for relevant examples, see Grinenko v. Ukraine, no. 33627/06, § 62, 15 November 2012; and Kleutin v Ukraine, no. 5911/05, § 68, 23 June 2016).
B. Just satisfaction
Parties’ submissions
Court’s award
Applicant:
Pecuniary damage: 850 hryvnias (UAH): fine (criminal penalty)
Non-pecuniary damage: EUR 100,000
Costs and expenses:
Legal fees, domestic proceedings: UAH 7,100 (representation by Ms L.Y. in criminal proceedings; receipts of payment for unspecified services provided)
Legal fees, Convention proceedings: EUR 3,900 to be paid directly to account of applicant’s lawyer, Mr M. O. Tarakhkalo (legal representation contract dated 04/07/16 (post-communication stage); timesheet (26 hours at EUR 150 per hour)
Other costs and expenses: UAH 1,711 (transportation: bus and train tickets provided); and UAH 148 (postal expenses: receipts provided)
Other relevant information: applicant granted EUR 850 in legal aid
Government:
Claims exorbitant and insufficiently substantiated
Non-pecuniary damage:
EUR 7,500
Costs and expenses:
EUR 150 in legal fees to be transferred to Mr M.O. Tarakhkalo, as requested
EUR 10 in postal expenses
plus any tax chargeable to applicant
5. Application no. 4989/15
by Mr Sergey Anatolyevich Patsev
Ukrainian national born in 1974 and residing in Kramatorsk
Represented by Ms N.G. Okhotnikova, a lawyer practising in Kharkiv
Lodged on 25 December 2014
A. Complaint under Article 3 concerning police ill-treatment
Applicant’s account of alleged ill-treatment
At about 11 a.m. on 6 October 2009 five police officers in plain clothes met the applicant at the entrance to his home, punched him in the stomach, twisted his arms, handcuffed and brought him to the Kramatorsk police station, forcing him to confess that, along with three other accomplices, he had inflicted grave injuries on F.B. the night before. As the applicant alleged that he had not taken part in that offence, the officers repeatedly punched him, hit him on the head with a book; suffocated him by putting a plastic bag over his head, and administered electric shocks. Under duress, the applicant gave false self-incriminating statements. After that, police officers formally questioned the applicant as a suspect in presence of a legal-aid lawyer and completed several other investigative procedures. In between them, the applicant was locked in one of the offices in the police station without any record of his detention having been made. On 7 October 2009, sometimes between 3 p.m. and 4 p.m., the applicant was released under undertaking not to abscond.
Relevant facts and documents
Key issues
1. Medical and other evidence:
07/10/09 – report no. 992 (expert with Kramatorsk forensic medical expert bureau): applicant examined at 1.10 a.m., in Kramatorsk police station - haemorrhages (back, thoracic area; knees; and right buttock); period of infliction: no more than twenty-four hours before examination.
2. Complaint lodged:
03/11/09, with investigator handling case against applicant and his co-defendants.
3. Response by authorities:
(i) 19/03/10 – complaint forwarded to Kramatorsk prosecutor’s office for investigation;
(ii) 16/04/10, 03/08/11, 01/09/11, 23/09/11, 30/03/12, 19/04/12, 20/07/12, 10/09/12 – decisions not to institute criminal proceedings (Kramatorsk prosecutor’s office): no appearance of ill-treatment; decisions quashed on appeal (more senior prosecutors/judicial authorities): shortcomings in inquiry;
(iii) 06/02/13 – criminal proceedings instituted (Kramatorsk prosecutor’s office);
(iv) 30/04/13, 23/09/13, 28/03/14, 25/12/15, 29/11/16, 27/02/17, 17/08/17, 27/05/19, 17/10/19, 20/12/19, 24/04/20 ‑ criminal proceedings closed (Kramatorsk prosecutor’s office): no appearance of ill-treatment/unlawful detention; decisions quashed on appeal (more senior prosecutors/judicial authorities): shortcomings in investigation.
4. Key findings/present status:
Injuries apparently predated encounter with police; applicant’s description of alleged ill-treatment and sequence of events is incoherent with forensic expert’s findings and testimonies of his relatives; not possible to establish exact timing of applicant’s arrival at and leaving police station; investigation pending.
5. Other relevant facts and documents:
(i) various dates, statements by N.R., applicant’s neighbour (Kramatorsk prosecutor’s office): N.R. alleged that she witnessed applicant’s arrest at 11 a.m. on 06/10/09;
(ii) 06/10/09 – Kramatorsk police visitors’ log: applicant’s presence in police premises documented from 7 p.m. until 10 p.m. on that date;
(iii) 07/10/09 – record of applicant’s questioning as suspect (Kramatorsk police station, 1.49 a.m.-3.03 a.m.): applicant gave self-incriminating statements; record of inspection of applicant’s garage by police (in his presence, 7.55 a.m.-8.15 a.m.); record of applicant’s release under undertaking not to abscond (unspecified time);
(iv) 03/11/09 – applicant retracted self-incriminating statements of 07/10/09 as given under duress;
(v) 21/01/16 – after several rounds of proceedings, criminal case against applicant and his co-defendants remitted to police for further investigation (Druzhkovka Court).
(i) For more than three 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);
(ii) 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).
B. Other complaints under well-established case-law
Articles 5 § 1 and 13 – unlawful detention
1. Period of alleged deprivation of liberty/arresting authority:
06/10/09, about 11 a.m. – 07/10/09, about 3 p.m.; Kramatorsk police
2. Official grounds:
Need to question applicant in connection with investigation of criminal offences against F.B.
3. Documents regularising alleged deprivation of liberty:
No documents. According to police officers, applicant voluntarily accepted their invitation to be brought for questioning and stayed to participate in various investigative activities. Exact timing of his arrivals/departures was not traced.
4. Domestic complaints by applicant:
Same as in respect of ill-treatment (see Section A above).
5. Other relevant facts and documents:
See Section A (5) above.
Article 6 § 1 – length of criminal proceedings against applicant
1. Period:
06/10/09 – pending (last update from applicant: April 2021; last procedural document on file: 21 March 2019)
2. Total length:
More than ten years
3. Levels of jurisdiction:
Several rounds at two levels; remittal of case for further investigation
C. Just satisfaction
Parties’ submissions
Court’s award
Applicant:
EUR 100,000 in non-pecuniary damage
Government:
Claim exorbitant and unsubstantiated
EUR 10,000
(non-pecuniary damage)
plus any tax chargeable to applicant
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