FIFTH SECTION
CASE OF POGIBKO AND OTHERS v. UKRAINE
(Application no. 43002/20 and 2 others –
see appended list)
JUDGMENT
STRASBOURG
11 April 2024
This judgment is final but it may be subject to editorial revision.
In the case of Pogibko and Others v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Mārtiņš Mits, President,
Kateřina Šimáčková,
Mykola Gnatovskyy, judges,
and Viktoriya Maradudina, Acting Deputy Section Registrar,
Having deliberated in private on 21 March 2024,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in applications against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table
2. The Ukrainian Government (“the Government”) were given notice of the applications.
THE FACTS
3. The list of applicants and the relevant details of the applications are set out in the appended table.
THE LAW
JOINDER OF THE APPLICATIONS4. 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 Convention5. The applicants complained of the ineffective investigation into ill‑treatment inflicted by private parties or in circumstances that exclude involvement of State agents. They relied, expressly or in substance, on Article 3 of the Convention.
6. The Court notes at the outset that the violent treatment in question fell within the scope of Article 3 of the Convention. The Court reiterates that Article 3 of the Convention requires that the authorities conduct an effective official investigation of alleged ill‑treatment, even if such treatment has been inflicted by private individuals (see M.C. v. Bulgaria, no. 39272/98, § 151, ECHR 2003‑XII, and Denis Vasilyev v. Russia, no. 32704/04, § 99, 17 December 2009). The minimum standards of effectiveness laid down by the Court’s case-law include the requirements that the investigation must be independent, impartial and subject to public scrutiny, and that the competent authorities must act with exemplary diligence and promptness (see, mutatis mutandis, Menesheva v. Russia, no. 59261/00, § 67, ECHR 2006-III).
7. The procedural requirements of Article 3 go beyond the preliminary investigation stage when the investigation leads to legal action being taken before the national courts: the proceedings as a whole, including the trial stage, must meet the requirements of Article 3. This means that the domestic judicial authorities must on no account be prepared to let the physical or psychological suffering inflicted go unpunished. This is essential for maintaining the public’s confidence in, and support for, the rule of law and for preventing any appearance of the authorities’ tolerance of or collusion in unlawful acts (see, mutatis mutandis, Okkalı v. Turkey, no. 52067/99, § 65, ECHR 2006 XII (extracts)).
8. Reviewing the facts of the present cases in the light of those principles, the Court considers that the authorities, who were empowered to open and conduct a criminal investigation, did not make a genuine attempt to take a prompt and thorough examination of the matter, establish the facts and, if necessary, bring those responsible to account. The specific shortcomings are indicated in the appended table.
9. In the leading case of Muta v. Ukraine (no. 37246/06, 31 July 2012), the Court already found a violation in respect of issues similar to those in the present cases.
10. 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 on the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case failed to meet the criteria of effectiveness.
11. These complaints are therefore admissible and disclose a breach of Article 3 of the Convention under its procedural limb.
APPLICATION OF ARTICLE 41 OF THE CONVENTION12. Regard being had to the documents in its possession and to its case‑law (see, in particular, Pobokin v. Ukraine, no. 30726/14, 6 April 2023), the Court considers it reasonable to award the sums indicated in the appended table.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
Decides to join the applications;Declares the applications admissible;Holds that these applications disclose a breach of Article 3 of the Convention concerning the ineffective investigation into ill-treatment inflicted by private parties or in circumstances that exclude involvement of State agents; Holds(a) that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, 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 11 April 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Viktoriya Maradudina Mārtiņš Mits
Acting Deputy Registrar President
APPENDIX
List of applications raising complaints under Article 3 of the Convention
(ineffective investigation into ill-treatment inflicted by private parties or in circumstances that exclude involvement of State agents)
No.
Application no.
Date of introduction
Applicant’s name
Year of birth
Representative’s name and location
Background to the case and domestic proceedings
Key issues
Amount awarded for non-pecuniary damage per applicant
(in euros)[1]
Amount awarded for costs and expenses per application
(in euros)[2]
43002/20
10/09/2020
Oleksandr Olegovych POGIBKO
1981
On 02/05/2014 a group of unknown people attacked and robbed the applicant threatening him with a sharp object (presumably a knife). The attack took place on the territory of a recreation facility in the Odesa Region. As a result, the applicant sustained moderate injuries, including a broken jaw. He immediately reported the incident to the Ovidiopol Local Police Station in the Odesa Region which launched the respective criminal investigation. On the same day an investigator questioned several witnesses.
On 28/07/2014 the applicant was questioned as a victim. On 05/08/2014 he provided the investigator with his medical certificate.
On 17/11/2014 the investigator ordered a forensic examination. The relevant expert report was received on 18/12/2014. Also, according to the Government, new witnesses were questioned on 02/06/2014, 12-13/12/2014 and
15-16/12/2014. No significant investigative steps have been taken since then. In response to the applicant’s numerous complaints and requests, the Illichivsk Local Prosecutor’s Office sent several letters in which it recognised that the investigation had been sporadic, ineffective and protracted. From 2017 to 2021 the criminal proceedings were terminated by the investigator on five occasions. Such decisions were quashed by the local prosecutor each time as premature due to the failure to conduct all the necessary investigative actions and to follow the prosecutor’s instructions. By a ruling of 23/02/2021 an investigating judge ordered the investigator to complete the investigation within 30 days. Despite the above ruling, the investigation is still pending.
Groundless and significant periods of inactivity (Muta v. Ukraine,
no. 37246/06, § 65, 31 July 2012);
groundless decisions to close or suspend the case (Aleksandr Nikonenko v. Ukraine,
no. 54755/08, § 45, 14 November 2013);
overall protracted character of the investigation and court proceedings (Muta v. Ukraine, no. 37246/06,
§ 65, 31 July 2012);
shortcomings recognised by the national authorities themselves (Muta v. Ukraine, no. 37246/06,
§ 65, 31 July 2012);
failure to take the necessary steps to investigate the case thoroughly (Skorokhodov v. Ukraine,
no. 56697/09, §§ 34-35,
14 November 2013).
3,000
3307/21
23/12/2020
Sergiy Oleksandrovych KULBACH
1983
Culbaci Oxana
Limoges
On 30/01/2014 the applicant was beaten by unknown persons. As a result, he sustained a head trauma, brain concussion and some bruises. The applicant complained to the Amur‑Nyzhnyodniprovskyy District Police Station of Dnipro. On the same day a police investigator launched a criminal investigation.
On 04/02/2014 the applicant was granted victim status and questioned in that capacity. After the interrogation of certain eyewitnesses, on 31/07/2014 the investigator terminated the criminal proceedings due to the lack of constituent elements of the crime.
On 15/01/2015 a prosecutor of the Amur‑Nyzhnyodniprovskyy District Prosecutor’s Office of Dnipro quashed the above decision as ill-reasoned and premature.
It follows from the available materials that from 2015 to 2020, despite the applicant’s numerous motions, no investigative steps were taken. The applicant was prevented from learning about the progress of the investigation or about any decisions that had been taken. His repeated requests to grant him access to the case file were ignored by the investigator.
In 2020 an investigating judge of the Amur‑Nyzhnyodniprovskyy District Court of Dnipro acknowledged the police inactivity and granted the applicant’s complaints by several rulings. According to the Government, the investigation is still ongoing.
Failure to secure the applicant’s right to participate effectively in the investigation (Chernega and Others v. Ukraine, no. 74768/10, § 165-166, 18 June 2019, with further references);
failure to take the necessary steps to investigate the case thoroughly (Skorokhodov v. Ukraine,
no. 56697/09, §§ 34-35,
14 November 2013);
groundless and significant periods of inactivity (Muta v. Ukraine,
no. 37246/06, § 65, 31 July 2012);
groundless decisions to close or suspend the case (Aleksandr Nikonenko v. Ukraine,
no. 54755/08, § 45, 14 November 2013);
overall protracted character of the investigation and court proceedings (Muta v. Ukraine,
no. 37246/06, § 65, 31 July 2012);
shortcomings recognised by the national authorities themselves (Muta v. Ukraine, no. 37246/06,
§ 65, 31 July 2012).
3,000
250
37440/21
08/07/2021
Anatoliy Panasovych SHKURIN
1945
On 16/06/2012, at the border of the applicant’s country house land plot, the applicant had an altercation with his neighbour M. and two friends of the latter, A. and T. During the altercation, the applicant was struck twice in the face, resulting in the loss of his right eye. M. sustained minor bodily injuries caused by the applicant hitting him with a pitchfork and moderate knee injuries due to his fall. On the same day, the police initiated a criminal investigation into the alleged serious bodily harm inflicted on the applicant, based on a complaint lodged by the applicant’s wife.
On 22/06/2012 the applicant was granted victim status and was questioned by the police. According to his account of events, on that evening, he observed M. climbing the mesh fence surrounding the applicant’s property from a public passageway that separates their land plots. The applicant used a pitchfork to chase M. away. However, M. was joined by A. and T., who also attempted to climb the fence. One of the men struck the applicant in his left eye, and a subsequent blow, allegedly from a stone, targeted his right eye. Bleeding, the applicant fell and then left the scene. As the events happed at dusk, he could not identify who exactly had struck him.
On 22/06/2012 M. provided a witness statement to the police, claiming that the applicant had attacked him over the fence until M.’s fall, at which point he had grabbed and pulled the fence for protection. When A. and T. had arrived, M. had released the fence, causing it to hit the pitchfork. However, he did not see whether the fence had hit the applicant.
Subsequently, the police also questioned A. and T., whose statements concurred with M.’s version of events. All three men denied hitting or throwing anything at the applicant.
On 26/06/2012 the applicant’s injuries were categorized as severe bodily harm.
On 04/07/2012 the police questioned the applicant’s wife, who testified to seeing the applicant washing blood from his face. He mentioned that during the conflict with M., someone had thrown something that had hit his eye.
While some other individuals were questioned, none of them witnessed the incident.
The applicant, M., A., and T. were questioned individually several times afterwards, but their testimony generally did not change.
On 10/08/2012 the police carried out a reconstruction of the event with the applicant’s participation, mainly reiterating his version. It remains unclear whether others involved in the incident participated in the reconstruction.
On 17/01/2020 and 19/01/2020 the police conducted simultaneous interrogations of the applicant, M., A., and T. The applicant claimed that T. had struck the first blow to his face, and one of the men waved a hand, allegedly throwing something. T. denied this, and the other two men refused to testify.
Several forensic examinations determined that blood drops on the fence belonged to M., and blood on the grass belonged to the applicant; the blood samples on the pitchfork were insufficient to establish their origin.
The applicant frequently lodged complaints with the prosecutor’s office regarding the ineffective and protracted investigation. Consequently, on 23/05/2013, 13/11/2013, 06/01/2015, 24/02/2016, 16/03/2018, 26/02/2020, 23/12/2020 and 01/02/2021 instructions were issued to the police, although their content remains undisclosed. On 10/04/2013, 13/12/2017, 20/09/2018, 25/03/2019 and 16/04/2019, the police were reproached for excessive bureaucracy, delaying the investigation, and non-compliance with procedural requirements. On 16/04/2019 and 21/12/2019 the prosecutor’s office initiated an internal review to hold those responsible accountable, but the results remain unknown.
On 06/09/2023, following the prosecutor’s application, the Poltava Local Court of Poltava Region terminated the criminal proceedings for the expiration of the time-limit for investigation and the inability to identify the perpetrator. Throughout the investigation, no one has been served with a notice of suspicion.
Failure to take the necessary steps to investigate the case thoroughly (Skorokhodov v. Ukraine,
no. 56697/09, §§ 34-35,
14 November 2013);
overall protracted character of the investigation and court proceedings (Muta v. Ukraine, no. 37246/06,
§ 65, 31 July 2012);
shortcomings recognised by the national authorities themselves (Muta v. Ukraine, no. 37246/06,
§ 65, 31 July 2012).
3,000
[1] Plus any tax that may be chargeable to the applicants.
[2] Plus any tax that may be chargeable to the applicants.