CASE OF MINYAYLO AND OTHERS v. UKRAINE

FIFTH SECTION

CASE OF MINYAYLO AND OTHERS v. UKRAINE

(Applications nos. 59356/10 and 2 others)

JUDGMENT
 

This version was rectified on 20 November 2020

under Rule 81 of the Rules of Court

STRASBOURG

24 September 2020

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

In the case of Minyaylo and Others v. Ukraine,

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

Gabriele Kucsko-Stadlmayer, President,
Latif Hüseynov,
Lado Chanturia, judges,
and Anne-Marie Dougin, Acting Deputy Section Registrar,

Having regard to:

the applications (nos. 59356/10, 61038/10 and 59824/12) 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 Anatoliy Anatolyevich Minyaylo, Mr Igor Aleksandrovich Kindra and Mr Leonid Oleksiyovych Kharchenko (“the applicants”), on the various dates indicated in the appended tables;

the decision to give notice of the applications to the Ukrainian Government (“the Government”);

the parties’ observations;

Having deliberated in private on 1 September 2020,

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

INTRODUCTION

1.  The present case concerns alleged ill-treatment of the applicants by police and the allegedly ineffective investigation of their respective complaints. In addition, it also concerns other complaints under the Court’s well-established case-law (Articles 5 §§ 1 and 5 and 6 § 1).

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 VIOLATION OF ARTICLE 3 OF THE CONVENTION

5.  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 Articles 3 and 13 of the Convention.

6.  The Court, which is master of the characterisation to be given in law to the facts of a case, finds that the complaints at issue fall to be examined under Article 3 of the Convention only (see, among other authorities, Barysheva v. Ukraine, no. 9505/12, § 45, 14 March 2017). That provision reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”AdmissibilityApplication no. 59356/10 by Mr A. Minyaylo

7.  The Government alleged that the applicant had not exhausted the available domestic remedies, as he had not appealed against his conviction of 24 December 2010. They also submitted that, should the Court consider that such an appeal did not qualify as an effective remedy, the present complaint should be considered as having been lodged outside the six‑month time-limit, to be calculated from the date of the last decision of the prosecutor’s office not to institute criminal proceedings into the applicant’s ill-treatment allegations, that is, from 15 November 2007. Finally, they submitted that the applicant’s complaint was in any event manifestly ill‑founded.

8.  The applicant disagreed.

9.  The Court notes, firstly, that as regards the Government’s objections concerning non-exhaustion and filing the application outside the six-month period, similar objections have already been dismissed in other cases against Ukraine (see, for example, Kaverzin v. Ukraine, no. 23893/03, §§ 90-99, 15 May 2012; Buglov v. Ukraine, no. 28825/02, § 63, 10 July 2014; and Zyakun v. Ukraine, no. 34006/06, § 35, 25 February 2016). The Court sees no reason to depart from those findings in the present case and therefore considers that this complaint cannot be rejected for failure to exhaust domestic remedies or for non-compliance with the six-month time-limit.

10.  In so far as the Government submitted that the applicant’s complaints were manifestly ill-founded, having regard to all the material in the case file, and in particular the medical documents confirming the applicant’s injuries, the Court does not consider them to be entirely without basis. It further notes that they raise issues of fact and law under the Convention, the determination of which requires an examination of the merits of the case. The Court therefore dismisses the Government’s objection in this connection.Application no. 61038/10 by Mr Kindra and application no. 59824/12 by Mr Kharchenko

11.  The Government filed no objections concerning the admissibility of the applicants’ complaints under Article 3.Court’s overall conclusion concerning all applications

12.  The Court notes that the applicants’ complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.Merits

13.  The applicants alleged that there had been violations of Article 3 of the Convention under both its substantive and procedural limbs in each of their respective cases.

14.  The Government filed no comments in respect of application no. 61038/10, lodged by Mr Kindra. As regards the remaining applications, they contested that view.

15.  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 arguable ill-treatment claims at the domestic level. Those claims triggered an obligation on the part of the national authorities to carry out an effective official investigation with a view to establishing the origin of the applicants’ injuries and identifying and punishing those responsible, should the allegations concerning ill-treatment have proved to be true.

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

17.  The Court notes that in the case of Kaverzin (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 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 the present facts constitute another example of such a failure to ensure prompt and thorough investigation.

18.  The Court further finds that the applicants’ accounts as to the circumstances of their alleged ill-treatment are detailed and coherent, and that the results of the investigations – given their numerous shortcomings – did not disprove those allegations. In those 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’ injuries has been engaged.

19.  The Court’s findings in the preceding paragraph are sufficient to enable it to conclude that the applicants were subjected to inhuman and degrading treatment.

20.  There has, accordingly, been a breach of Article 3 of the Convention under both its substantive and procedural limbs.Other complaints under well-established case-lawApplication no. 59356/10 by Mr Minyaylo

21.  Mr Minyaylo also complained, under Article 6 § 1 of the Convention, that the length of the criminal proceedings against him had been unreasonable. He relied on Article 6 § 1 of the Convention, which, in so far as relevant, reads as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”

22.  The Court reiterates that the reasonableness of the length of the proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities, and what was at stake for the applicant in the dispute (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999‑II, and Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000‑VII).

23.  In the leading case of Merit v. Ukraine (no. 66561/01, 30 March 2004), the Court found a violation in respect of issues similar to those in the present case.

24.  Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion as to the admissibility and merits of the present complaint. Having regard to its case-law on the subject, the Court considers that in the instant case, in so far as it concerns Mr Minyaylo, the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.

25.  This complaint is therefore admissible and discloses a breach of Article 6 § 1 of the Convention.Application no. 61038/10 by Mr Kindra

26.  Mr Kindra also complained, under Article 5 § 1 of the Convention, that on 23 August 2008 he had been arbitrarily deprived of his liberty from about 11 a.m. until about 11-11.50 p.m. He also complained, under Article 13 of the Convention, that the investigation of his complaint in that regard, which had been lodged together with his ill-treatment complaint, had been ineffective.

27.  The Court considers that the above complaint falls to be examined under Article 5 § 1 only (see Lopatin and Medvedskiy v. Ukraine, nos. 2278/03 and 6222/03, § 90, 20 May 2010).

28.  Mr Kindra also complained under Article 5 § 5 of the Convention that he had been unable to obtain an award of compensation for having been arbitrarily deprived of his liberty.

29.  The relevant Convention provisions read as follows:

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a) the lawful detention of a person after conviction by a competent court;

(b) the lawful arrest or detention of a person for noncompliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

...

5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”

30.  Having examined Mr Kindra’s complaints in light of the principles developed in its case-law (see, among other authorities, Creangă v. Romania [GC], no. 29226/03, §§ 84 and 88-93, 23 February 2012), the Court takes note of the applicant’s description of the facts, which has not been contested by the Government, and of the police officers’ testimony in the domestic proceedings (see appended table 2.A (2,4) and 2.C below). It considers that the file contains sufficient material for it to conclude that on 23 August 2008 the applicant was detained in police custody as a suspect in a case concerning arson and that this detention constituted a deprivation of liberty. No records were drawn up in relation to this detention.

31.  The Court reiterates that, as established in its extensive case-law, unacknowledged detention of an individual is a complete negation of the fundamentally important guarantees contained in Article 5 of the Convention, and discloses a serious violation of that provision (see, among other authorities, Smolik v. Ukraine, no. 11778/05, §§ 45-48, 19 January 2012; Grinenko v. Ukraine, no. 33627/06, §§ 74-78, 15 November 2012; and Beley v. Ukraine [Committee], no. 34199/09, §§ 46 and 59-61, 20 June 2019). The Court finds no reason to depart from the aforementioned case-law in the present case.

32.  In light of its well-established case-law (see, as the most recent example, Sinkova v. Ukraine, no. 39496/11, §§ 79-84, 27 February 2018) the Court also finds that, in contravention of Article 5 § 5, Mr Kindra did not have an enforceable right to compensation for having been deprived of liberty on 23 August 2008.

33.  In light of the above, the Court finds that Mr Kindra’s complaints under Article 5 §§ 1 and 5 of the Convention are admissible and disclose breaches of these provisions.APPLICATION OF ARTICLE 41 OF THE CONVENTION

34.  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.”

35.  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.

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,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 all of the applicants;Holds that there has been a violation of Article 6 § 1 of the Convention in respect of the complaint raised in application no. 59356/10 concerning the length of the proceedings;Holds that there has been a violation of Article 5 §§ 1 and 5 of the Convention in respect of the complaints raised in application no. 61038/10;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 24 September 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Anne-Marie DouginGabriele Kucsko-Stadlmayer
Acting Deputy RegistrarPresident

APPENDIX

1.  Application no. 59356/10

by Mr Anatoliy Anatolyevich Minyaylo

Ukrainian national born in 1976 and residing in Berdiansk

Lodged on 30 September 2010

A.  Complaint under Article 3: substantive limb

Alleged ill-treatment

Key issues

1.  Date/places:

13/02/05-15/02/05 – Mukacheve and Lviv railway police stations

2.  Applicant’s description of alleged ill-treatment:

(i)  Mukacheve: three police officers hit him on head and torso with water-filled plastic bottles; punched and kicked him; had him lie on floor undressed; handcuffed his left foot to his right hand; twisted his handcuffed arms behind back forcing him to confess that he had stolen belongings from train passengers

(ii)  Lviv: applicant was handcuffed to radiator for numerous hours and had no food or drink

3.  Medical and other evidence:

(i)  14/02/05-16/02/05 - three ambulance-visit reports: applicant received urgent treatment for hypertensive crises

(ii)  15/02/05 - certificate (Lviv police temporary detention facility – “ITT”): no injuries or complaints on arrival at facility

(iii)  21/02/05 - certificate (Lviv pre-trial detention facility – “SIZO”): abrasions on left calf (5 cm by 0.2 cm), on right knee joint (2 cm by 3 cm), on chin (0.5 cm by 1 cm)

(iv)  12/04/05 - report (Lviv regional forensic medical expert bureau): injuries recorded on 21/02/05 were “minor”; not possible to establish their timing

4.  Other relevant facts:

(i)  12/02/05 - applicant and three others suspected of robbing passenger X were arrested on train en route to Mukacheve

(ii)  13/02/05-14/02/05 - applicant was questioned without access to lawyer

(iii)  14/02/05 - applicant was placed in ITT

(iv)  15/02/05 - applicant was transferred to Lviv SIZO and gave self-incriminating statements

(v)  17/02/05 - applicant was remanded in custody following court order

(vi)  24/12/10[1] - after several rounds of proceedings, Stryy Court convicted applicant of several counts of robberies and sentenced him to six years’ imprisonment (almost entirely served in pre-trial detention by that time); applicant did not appeal against that judgment

(i)  State provided no satisfactory and convincing explanation as to origin of applicant’s documented injuries and did not disprove that they were sustained in custody and 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 Yaroshovets and Others, cited above, § 85)

(ii)  Applicant confessed to crime in setting lacking procedural guarantees such as access to lawyer (for relevant examples, see Kovalchuk v. Ukraine, no. 21958/05, § 60, 4 November 2010 and Belousov v. Ukraine, no. 4494/07, § 63, 7 November 2013)

B.  Complaint under Article 3: procedural limb

Domestic investigation

Key issues

1.  Complaint lodged:

18/02/05, with investigator in charge of applicant’s case

2.  Response by authorities:

(i)  21/03/05, 31/03/05, 12/04/05, 16/05/05 and 15/11/07 – decisions not to institute criminal proceedings: no appearance of ill-treatment (Lviv regional prosecutor’s office). 1st 4 decisions were quashed on appeal (shortcomings in investigation)

(ii)  11/06/10 - General Prosecutor’s Office rejected applicant’s complaint against decision of 15/11/07

(iii)  24/12/10 - Stryy Court examined applicant’s ill-treatment complaint in light of findings by prosecutor’s office and considered it without merit

(iv)  23/06/11 - further complaint by applicant to General Prosecutor’s Office: no response

3.  Findings:

applicant was not subjected to ill-treatment: he could possibly have sustained minor injuries on 12/02/05 during arrest

4.  Evidence collected:

(i)  12/04/05 - applicant was examined by forensic expert

(ii)  various dates - statements were taken from applicant and several police officers

(i)  No full-scale investigation, only repeated pre-investigation inquiries (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)  Delays in procedural steps resulting in loss of evidence; notably, forensic assessment of injuries was scheduled two months after complaint had been lodged (for relevant examples, see Drozd v.  Ukraine, no. 12174/03, § 68, 30 July 2009 and Voykin and Others v. Ukraine, no. 47889/08, § 114, 27 March 2018)

(iii)  Hasty conclusions that applicant was injured during arrest: medical records indicate that injuries were sustained after arrest; no account of arrest operation given (for relevant examples, see Davydov and Others v. Ukraine, cited above, § 286 and Gordiyenko v. Ukraine, no. 27620/09, §§ 94-96, 16 October 2014)

C.  Other complaints under well-established case-law

Article 6 § 1 – length of criminal proceedings against applicant

Period: 12/02/05-24/12/10

Total length: 5 years, 10 months

Levels of jurisdiction: several rounds at 2 levels of jurisdiction; ultimate decision taken at first-instance

D.  Just satisfaction

Parties’ submissions

Court’s award

No claim for damages or costs/expenses was lodged within established time-limit after communication of application to Government

No award

2.  Application no. 61038/10

by Mr Igor Aleksandrovich Kindra

Ukrainian national born in 1955 and residing in Rudakov, the Russian Federation

represented by Mr A.A. Kristenko, a lawyer practising in Kharkiv

Lodged on 14 October 2010

A.  Complaint under Article 3: substantive limb

Alleged ill-treatment

Key issues

1.  Date/place:

23/08/08 – Krasnoarmiysk city police station

2.  Applicant’s description of ill-treatment:

Plain-clothes police officers requested applicant step into their car to discuss possible hire for window replacement. There they handcuffed and took him to police station, demanding confession to having committed arson together with A.K. (applicant’s son). Several officers repeatedly punched and kicked applicant for more than one hour, including in presence of his son. No access to lawyer was given. Between 11 p.m. and 12 a.m. on same day applicant was released after his son had confessed to arson

3.  Medical and other evidence:

(i)  24/08/08-15/09/08 - series of certificates (Krasnoarmiysk central district hospital): applicant arrived at hospital on 24/08/08, about 2.50 a.m.; diagnosis: displaced left cheekbone fracture, hematomas around left eye and haemorrhage into that eye; surgery performed; post-surgery inpatient treatment until 15/09/08

(ii)  26/09/08 - report no. 378 (unspecified forensic medical expert bureau): injuries are “intermediately serious”; timing given by applicant possible; inflicted either by impact of blunt objects or by falling on rigid surface

4.  Other relevant facts:

Applicant’s questioning was documented as questioning of witness in case concerning arson

(i)  State provided no satisfactory and convincing explanation as to origin of applicant’s documented injuries and did not disprove that they were sustained in custody and there is no reason to doubt credibility of applicant’s ill-treatment account (for relevant examples, see Serikov v. Ukraine, no. 42164/09, §§ 65-73, 23 July 2015; and Oleksiy Mykhaylovych Zakharkin v. Ukraine, no. 1727/04, §§ 61-62, 24 June 2010)

B.  Complaint under Article 3: procedural limb

Domestic investigation

Key issues

1.  Complaint lodged:

24/08/08, with Krasnoarmiysk city police and Donetsk regional prosecutor’s office

2.  Response by authorities:

(i)  14/09/08, 29/09/08, 21/10/10 and 17/11/10 - decisions not to institute criminal proceedings: no appearance of police ill-treatment (Krasnoarmiysk prosecutor’s office); these decisions were quashed on appeal (shortcomings in investigation)

(ii)  04/01/11 - criminal proceedings started (Krasnoarmiysk inter-district prosecutor)

(iii)  13/12/11 - criminal proceedings suspended: no perpetrator identified

3.  Present status:

Proceedings suspended, perpetrator not identified

4.  Evidence collected:

(i)  26/09/08 - applicant examined by forensic expert

(ii)  various dates - statements taken from applicant and police officers

5.  Other relevant facts:

Very limited extent of applicant’s involvement: no notification of major procedural steps; notifications of decisions not to institute criminal proceedings by letters only – (no copies of decisions attached)

(i)  More than two years: no full-scale investigation, only repeated pre-investigation inquiries (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)  Length of investigation without any tangible progress and repeated remittals for reinvestigation in view of shortcomings recognised by domestic authorities (for relevant examples, see Belousov v. Ukraine, no. 4494/07, § 56, 28 November 2013 and Adnaralov v. Ukraine, no. 10493/12, § 50, 27 November 2014)

(iii)  Delays in apprising applicant of procedural developments and limited access to documents (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)

C.  Other complaints under well-established case-law

Article 5 §§ 1 and 5 – alleged unrecorded deprivation of liberty and impossibility of obtaining compensation

1.  Period of alleged deprivation of liberty/arresting authority:

23/08/08 from about 11 a.m. until about 11-11.50 p.m. – Krasnoarmiysk police

2.  Official grounds:

Need to question applicant in connection with investigation of arson

3.  Documents regularising alleged deprivation of liberty:

No documents

4.  Other relevant facts and documents:

Prosecutor’s office’s decision of 29/09/08 (see above) indicates that police officers acknowledged that they had brought applicant in for questioning concerning arson on 23/08/08.[2] They also indicated that on that date they fingerprinted him and had him participate in “reconstruction of crime scene” together with his son

D.  Just satisfaction

Parties’ submissions

Court’s award

Applicant:

Non-pecuniary damage: 50,000 euros (EUR)

Costs and expenses: 6,075 dollars (USD) in legal fees to be transferred directly to Mr A. Kristenko, applicant’s lawyer (representation from first date of filing application)

Supporting documents:

(i)  Legal representation contract dated 23/08/10

(ii)  Certificate of acceptance of lawyer’s services by applicant, indicating that lawyer spent 40.5 hours on present case and applicant’s son’s case lodged against Russia

Other relevant information: applicant was granted legal aid (EUR 850)

Government:

No comments received

Non-pecuniary damage:

EUR 15,000

Costs and expenses:

EUR 2,000

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

Plus any tax chargeable to applicant

3.  Application no. 59824/12

by Mr Leonid Oleksiyovych Kharchenko

Ukrainian national born in 1982 and residing in Rokytne

represented by Mr S.M. Miroshnichenko, a lawyer practising in Oleksandriya

Lodged on 1 September 2012

A.  Complaint under Article 3: substantive limb

Applicant’s account of alleged ill-treatment

Key issues

1.  Date/place:

05/01/10 – Kremenchuk district police station

2.  Applicant’s description of alleged ill-treatment:

Police officers forced applicant to confess that he had stolen X’s belongings; they repeatedly punched and kicked him; handcuffed him to chair, and electrocuted his thighs using black device containing two electrodes

3.  Medical and other evidence:

(i)  06/01/10 - report no. 31 (Kremenchuk inter-district forensic medical expert bureau): multiple small burn marks (ranging from 0.6 cm by 0.5 cm to 1.5 cm by 1 cm) on both thighs covering approximately 1-1.5% of body; could have dated to 05/01/10; qualified as “minor” injuries

(ii)  07/12/11 - report no. 178 (unspecified forensic medical expert bureau): probable cause of burns - electric current; causation by contact with cigarette/match not probable

(iii)  03/06/13 - report no. 39 (Poltava regional forensic medical expert bureau): causation by stun gun of model stocked in Kremenchuk police arsenal not probable

4.  Other relevant facts:

(i)  05/01/10 - police brought applicant for questioning on suspicion of theft at 5 p.m.; released by 8 p.m.; applicant questioned without lawyer gave self-incriminating statements (subsequently retracted)

(ii)  13/01/10 - Kremenchuk district police decided not to institute criminal proceedings against applicant: no evidence that item purportedly stolen belonged to X (complainant)

(i)  State provided no satisfactory and convincing explanation as to origin of applicant’s documented injuries and did not disprove that they were sustained in custody and there is no reason to doubt credibility of applicant’s ill-treatment account (for relevant examples, see Serikov v. Ukraine, no. 42164/09, §§ 65-73, 23 July 2015; and Oleksiy Mykhaylovych Zakharkin v. Ukraine, no. 1727/04, §§ 61-62, 24 June 2010)

(ii)  Applicant confessed to crime in setting lacking procedural guarantees such as access to lawyer (for relevant examples, see Kovalchuk v. Ukraine, no. 21958/05, § 60, 4 November 2010 and Belousov v. Ukraine, no. 4494/07, § 63, 7 November 2013)

B.  Complaint under Article 3: procedural limb

Domestic investigation

Key issues

1.  Complaint lodged:

06/01/10, with Kremenchuk district prosecutor

2.  Response by authorities:

(i)  21/01/10, 27/10/10, 08/09/11, 29/12/11, 04/05/12, 01/08/12, 16/10/12 - decisions not to institute criminal proceedings: no appearance of police ill-treatment (Kremenchuk district prosecutor’s office); decisions were quashed on appeal (shortcomings in investigation)

(ii)  22/06/10 - conclusion (Kremenchuk police, internal investigation): presence of irregularities in applicant’s questioning, i.e., his presence in police station not documented, self-incriminating statements obtained but no corroborating evidence to start criminal proceedings

(iii)  28/03/13[3] - criminal proceedings for police misconduct were instituted (Kremenchuk district prosecutor’s office); subsequently they were closed and reopened several times;

(iv)  28/12/13 - criminal proceedings were closed: no evidence of police ill-treatment

3.  Findings:

origin of injuries cannot be established beyond reasonable doubt; possibly self-inflicted

4.  Evidence collected:

(i)  several forensic expert assessments

(ii)  statements by applicant, neighbours, sister, doctor and several police officers

(iii)  forensic experiment, showing that injuries in question could not be inflicted by type of stun gun in Kremenchuk police arsenal

(i)  First three years: no full-scale investigation, only repeated pre-investigation inquiries (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)  Delays in instituting criminal proceedings and taking crucial procedural steps leading to loss of evidence (for relevant examples, see Drozd v.  Ukraine, no. 12174/03, § 68, 30 July 2009 and Voykin and Others v. Ukraine, no. 47889/08, § 114, 27 March 2018)

(iii)  Repeated remittals for reinvestigation in view of shortcomings recognised by domestic authorities (for relevant examples, see Belousov v. Ukraine, cited above, § 56, and Adnaralov v. Ukraine, no. 10493/12, § 50, 27 November 2014)

C.  Just satisfaction

Parties’ submissions

Court’s award

Applicant:

Non-pecuniary damage: EUR 10,000

Pecuniary damage: EUR 2,000

Supporting documents: not provided

Government:

Non-pecuniary damage: claim exorbitant

Pecuniary damage: claim wholly substantiated

Non-pecuniary damage:

EUR 10,000

as claimed

Plus any tax chargeable to applicant

[1] Rectified on 20 November 2020: the text was “24/12/05”.

[2] Rectified on 20 November 2020: the text was “23/09/08”.

[3] Rectified on 20 November 2020: the text was “29/03/13”.

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