CASE OF PETRAKOVSKYY AND LEONTYEV v. UKRAINE

FIFTH SECTION

CASE OF PETRAKOVSKYY AND LEONTYEV v. UKRAINE

(Applications nos. 26815/16 and 43612/16)

JUDGMENT
 

STRASBOURG

21 March 2024

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

In the case of Petrakovskyy and Leontyev v. Ukraine,

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

 Lado Chanturia, President,
 Carlo Ranzoni,
 María Elósegui, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the applications against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by the two applicants listed in the appended tables (“the applicants”), on the dates indicated therein;

the decision to give notice of the complaints set out in paragraphs 1 and 2 below to the Ukrainian Government (“the Government”), represented, most recently, by their Agent, Ms M. Sokorenko;

the parties’ observations;

Having deliberated in private on 22 February 2024,

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

SUBJECT MATTER OF THE CASE

1.  The applicants alleged, under Article 3 of the Convention, that they had been ill-treated by the police with a view to extracting false self‑incriminating statements from them and that the investigations into their respective complaints had been ineffective.

2.  Mr D. I. Leontyev (application no. 43612/16) additionally relied on Articles 3 and 13 of the Convention, complaining that the conditions of his detention in Zaporizhzhia SIZO had been inhuman and degrading and that there had been no effective domestic remedies in that regard. In addition, he complained under Article 6 of the Convention that the length of the criminal proceedings initiated against him had been excessive.

3.  The facts relevant to the individual applications are set out in detail in the appended tables.

THE COURT’S ASSESSMENT

4.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.

5.  The applicants complained that they had been ill-treated by the police and that their respective complaints had not been properly investigated. They relied on Article 3 of the Convention.

6.  The Government argued that the above complaints were manifestly ill‑founded.

7.  Reviewing the facts of the present case in the light of the general principles established in its case-law (see 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’ injuries, as well as identifying and punishing those responsible, should the allegations of ill-treatment have proven to be true.

8.  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 reasonable doubt that the applicants sustained their injuries while under the control of the police, as they 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).

9.  From the documents before the Court, it appears that the domestic investigations did not constitute a serious effort to determine the relevant facts.

10.  The Court notes that in the case of Kaverzin v. Ukraine (no. 23893/03, §§ 173-80, 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. The Court considers that the present applications, in view of their circumstances and its previous case-law, constitute another example of such a failure to ensure a prompt and thorough investigation.

11.  The Court therefore concludes that the present complaints are admissible and disclose a breach of Article 3 of the Convention.

12.  Having examined all the material before it, the Court further concludes that the complaints raised by Mr D.I. Leontyev (application no. 43612/16) under Articles 3 and 13 of the Convention concerning the conditions of detention in the Zaporizhzhia pre-trial detention centre (SIZO) and the lack of domestic remedies in that regard (see appended table 2 for details) are admissible and disclose breaches of the Convention in the light of the Court’s well-established case-law (see, in particular, Muršić v. Croatia, [GC], no. 7334/13, §§ 122-41, ECHR 2016; Melnik v. Ukraine, no. 72286/01, §§ 110-12, 28 March 2006; and, as a more recent example, Beketov v. Ukraine [Committee], no. 44436/09, §§ 125-30, 19 February 2019).

13.  As regards the remaining complaint raised by Mr D.I. Leontyev (application no. 43612/16) under Article 6 of the Convention, concerning an allegedly excessive length of the criminal proceedings against him, the Court notes that these proceedings were initiated on 20 February 2014 and lasted until 13 February 2020, that is, five years and eleven months, at three levels of jurisdiction. The Court considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, this complaint does not disclose an appearance of a violation of that provision.

14.  It follows that this part of the application must be rejected in accordance with Article 35 § 4 of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

15.  The applicants lodged just satisfaction claims under Article 41 of the Convention (see appended tables for details).

16.  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 claim for just satisfaction brought by Mr D.I. Leontyev.

17.  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,

(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;

Done in English, and notified in writing on 21 March 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Martina Keller Lado Chanturia
 Deputy Registrar President

APPENDIX

1.  Application no. 26815/16

by Mr Dmytro Igorovych Petrakovskyy

Ukrainian national born in 1994 and residing in Fedurnovo, Moscow region, Russia

Represented by Mr D.M. Yama, a lawyer practising in Zaporizhzhia

Lodged on 30 April 2016

Facts and documents relevant to the alleged ill-treatment

Key issues concerning the alleged ill-treatment

(i)  Applicant’s account:

At about 8 a.m. on 21 February 2011, two officers of the Khortytskyy district police in Zaporizhzhia approached the applicant, a seventeen-year-old minor, on the street. They handcuffed him and took him to the police station. While there he was suspended by his handcuffed hands from a hook on the wall, several officers took turns slapping, punching and hitting him with a cloth-wrapped truncheon, seeking to compel him to confess to stealing a mobile telephone from another minor. The applicant was released at about 8 p.m. on the same date, after signing self-incriminating statements. Two days later, on 23 February 2011, the applicant complained to a medical practitioner about having been beaten, and on 24 February 2011 he approached a forensic expert to record his injuries.

(ii)  Medical and other evidence:

(a)  Certificate no. 306/c dated 24 February 2011 and Report no. 1774 (Zaporizhzhia regional forensic expert bureau) dated 10 July 2013: minor injuries (oedema of soft tissues (occiput) and abrasions (upper lip, right shoulder, left hand) sustained within two to four days of the examination (24 February 2011);

(b)  Expert report no. 776-D (same bureau) dated 19 February 2014: infliction of the documented injuries during a martial arts training match (sparring) could not be excluded.

(iii)  Domestic findings:

It was possible that the injuries could have been sustained during martial arts training (sparring) attended by the applicant; it was not possible to establish either the date of the relevant training or any surrounding circumstances owing to the unavailability of relevant records (final decision to discontinue proceedings: 16 June 2015; applicant’s appeals dismissed on 12 August 2015 and 4 November 2015 by the Ordzhonikidzivskyy District Court in Zaporizhzhia and the Zaporizhzhia Regional Court of Appeal respectively).

(i)  First medical examinations conducted two days after the applicant’s release; no conclusive evidence indicating that injuries were sustained under police control (for relevant examples, see Kulyk v. Ukraine, no. 30760/06, §§ 82-83, 23 June 2016, and Barysheva v. Ukraine, no. 9505/12, §§ 55-56, 14 March 2017).

(ii)  Delay in opening a full‑scale investigation (complaint lodged on 1 March 2011, Khortytskyy district prosecutor’s office, Zaporizhzhia; investigation launched on 21 December 2012), preceded by 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, and Chernega and Others v. Ukraine, no. 74768/10, § 167, 18 June 2019).

(iii)  Repeated remittals for reinvestigation in view of the shortcomings recognised by the domestic courts (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)  Hasty conclusion that the injuries could have been sustained during a sparring match, relying essentially on officers’ statements denying ill-treatment and on the delayed questioning of a martial arts coach, who could not recall the February 2011 training schedule (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).

Just satisfaction

Parties’ submissions

The Court’s award

Applicant:

Non-pecuniary damage: 5,000 euros (EUR)

Government:

Claim unsubstantiated

Non-pecuniary damage:

EUR 5,000

as claimed by the applicant

plus any tax that may be chargeable

2.  Application no. 43612/16

by Mr Dmytro Ivanovych Leontyev

Ukrainian national born in 1986 and residing in Melitopol

Represented by Mr A.V. Pustyntsev, a lawyer practising in Dnipro

Lodged on 10 April 2016

Facts and documents relevant to alleged ill-treatment

Key issues concerning alleged ill-treatment

(i)  Applicant’s account:

At about 9.30 p.m. on 19 February 2014, several officers of the Yakymivskyy district police (Zaporizhzhia region) found the applicant sitting nearby his house, set on fire, by the stabbed and burnt body of Mrs L., his mother. After making him first follow them to a local council building for questioning, the officers started forcing him to confess to murdering his mother, whose body showed numerous cut wounds and multiple head injuries. As the applicant protested, the officers repeatedly punched, slapped and hit him with a truncheon on the head, limbs and torso, and in the kidney and groin area. Later the same day, the applicant was taken to the police station, where he continued to be beaten and was then blindfolded for an unspecified period. In addition, a burn was inflicted on his left hand. Under the pressure of the ill-treatment, he falsely confessed to murdering his mother in the heat of a domestic argument while intoxicated with alcohol.

(ii)  Medical and other evidence:

(a)  Report no. 30 (Zaporizhzhia regional forensic expert bureau) dated 20 February 2014: minor injuries (abrasions to the left ear, right arm, left palm, right knee and right leg) most likely sustained on 19 February 2014. The injuries could have been inflicted while the applicant’s body was in various positions; abrasions to the ear were likely caused by another person’s fingers. During the examination the applicant raised no complaints against any police officers and provided no explanations concerning the origin of his injuries. He alleged that he had not fought with his mother or anyone else on the day preceding the examination.

(b)  Expert report no. 70 (same bureau) dated 17 April 2014: infliction of the injuries documented in Report no. 30 and infliction of a burn on the left hand could have taken place within the time frame indicated by the applicant.

(iii)  Domestic findings:

The minor injuries found on the applicant within the day of Mrs L.’s murder, which, as he had confessed, he had committed in the course of a household argument, were not characteristic of the types of alleged ill-treatment described by him (final decision to discontinue proceedings: 25 November 2014; applicant’s appeals dismissed on 29 December 2015 and 17 February 2016 by the Ordzhonikidzivskyy District Court in Zaporizhzhia and Zaporizhzhia Regional Court of Appeal respectively).

(iv)  Other relevant facts

(a)  Between 4 June and 8 September 2019, the applicant was detained in Zaporizhzhia SIZO in allegedly cramped, unventilated and insanitary environment (14-square-metre cell shared with three other inmates, who constantly smoked); the toilet was not separated from the living quarters; worn-out linen and bedding; food of unacceptable quality; highly restricted access to shower and no hygienic supplies available;

(b)  On 13 February 2020 the Higher Specialised Court for Civil and Criminal Cases dismissed the applicant’s appeal on points of law against his conviction for murdering Mrs L. handed down on 3 December 2015 by the Yakymivskyy District Court in Zaporizhzhia Region and upheld by the Zaporizhzhia Regional Court of Appeal on 21 August 2019.

(i)  Regard being had to the circumstances of the applicant’s arrest and his account of the alleged ill-treatment in relation to the nature and timing of the documented injuries, the available material does not conclusively establish that the applicant was taken into custody in good health and sustained injuries when he was under control of the police (for relevant example, see Kozinets v. Ukraine, no. 75520/01, §§ 56‑57, 6 December 2007, and Aleksandr Smirnov v. Ukraine, no. 38683/06, § 54, 15 July 2010).

(ii)  Inquiry limited in scope and with no apparent genuine effort to elucidate the origin of the documented injuries (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).

(iii)  No apparent thorough effort to collect objective evidence, in particular: police officers’ accounts taken at face value; no face-to-face confrontations between the applicant and the officers implicated by him in the ill-treatment or other steps with a view to reconciling discrepancies between their accounts and verifying the origin of the documented injuries (for relevant examples, see Danilov v. Ukraine, no. 2585/06, § 70, 13 March 2014, and A.N. v. Ukraine, no. 13837/09, §§ 67-70, 29 January 2015).

Just satisfaction

Parties’ submissions

The Court’s award

Applicant:

Non-pecuniary damage: 35,000 euros (EUR)

Costs and expenses: EUR 6,000 in legal fees (Convention proceedings; payment outstanding) to be paid directly to the applicant’s lawyer, Mr A.V. Pustyntsev (time sheet provided: 40 hours at EUR 150 per hour)

Government:

Claims unsubstantiated and exorbitant

Non-pecuniary damage:

EUR 8,000

Costs and expenses:

EUR 1,000

To be paid to Mr A.V. Pustyntsev, as requested

plus any tax chargeable to the applicant on the above amounts