FIFTH SECTION
CASE OF POLISHCHUK AND OTHERS v. UKRAINE
(Applications nos. 6648/14 and 3 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 Polishchuk 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. 6648/14, 20066/14, 71563/14, and 50379/15) 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) and to declare inadmissible the remainder of the applications nos. 20066/14 and 50379/15;
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 was ineffective.
THE FACTS
2. The applicants’ details and the relevant facts are set out in the appended tables.
3. The Government were represented by their Agent, Mr I. Lishchyna.
4. Mr I. Kitsenko (application no. 50379/15) died in 2018, while the case was pending before the Court. His mother, Mrs Liliya Vasylivna Kitsenko, informed the Court of her wish to pursue the application.
THE LAWPRELIMINARY OBSERVATION CONCERNING APPLICATION NO. 50379/15
5. The Government alleged that Mr I. Kitsenko’s complaints of ill‑treatment and an ineffective investigation concerned non-transferable rights. The applicant’s mother, Mrs L. Kitsenko, therefore had no standing to pursue the application in his stead.
6. The Court finds that, while the applicant’s mother has not been directly affected by the violations of the Convention complained of by the applicant, following his death she has standing to pursue the present proceedings on his behalf (see Kirpichenko v. Ukraine, no. 38833/03, § 55, 2 April 2015, with further references). However, reference will still be made to Mr I. Kitsenko as the applicant throughout the ensuing text.JOINDER OF THE APPLICATIONS
7. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.ALLEGED POLICE ILL-TREATMENT AND LACK OF AN EFFECTIVE INVESTIGATION
8. The applicants complained, under various Convention provisions, that they had been ill-treated by the police and that their respective complaints had not been properly investigated. 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. It reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”Admissibility
9. 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
10. 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’ injuries, as well as identifying and punishing those responsible, should the ill-treatment allegations prove to be true.
11. From the documents before the Court, it appears that the domestic investigations did not reflect a serious effort to determine the relevant facts (see appended tables for details).
12. 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 for the purposes of Article 46 of the Convention. In view of the circumstances of the present applications and its earlier case-law, the Court considers that the present applications constitute another such example of a failure to ensure a prompt and thorough investigation.
13. The Court further finds that the applicants’ accounts as to the circumstances of their alleged ill-treatment are detailed and coherent. While some of the allegations are not corroborated by medical or other objective evidence, the results of the investigations, given their numerous shortcomings, did not disprove the applicants’ allegations that they had been victims of police ill-treatment. In these circumstances, and given the onus on the State to provide a plausible explanation for injuries sustained by persons under the control of the police (see Bouyid, cited above, § 83, and also, by way of example, Adnaralov v. Ukraine, no. 10493/12, § 45, 27 November 2014; Kulik v. Ukraine, no. 10397/10, § 59, 19 March 2015; and Yaroshovets and Others v. Ukraine, nos. 74820/10 and 4 others, § 85, 3 December 2015), the Court concludes that the State’s responsibility for the applicants’ ill-treatment is engaged.
14. The above findings are sufficient for the Court to establish that the applicants were subjected to ill-treatment which must be classified as inhuman and degrading.
15. The Court therefore concludes that the present complaints disclose a breach of Article 3 of the Convention in respect of the applicants’ purported ill-treatment under both its procedural and substantive limbs.APPLICATION OF ARTICLE 41 OF THE CONVENTION
16. 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.”
17. 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.
18. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,Holds that the mother of Mr I. Kitsenko, Mrs L. Kitsenko, has standing to continue the present proceedings in his stead; Decides to join the applications;Declares the applications admissible;Holds that there has been a violation of Article 3 of the Convention under both its substantive and procedural limbs in respect of the complaints concerning police ill-treatment;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. 6648/14
by Mr Vadym Oleksandrovych Polishchuk
Ukrainian national born in 1975 and residing in the United Kingdom
Represented by Ms N.V. Gurkovska, a lawyer practising in Vinnytsya
Lodged on 30 December 2013
A. Complaint under Article 3 concerning police ill-treatment
Applicant’s account of alleged ill-treatment
At about 5 p.m. on 2 June 2007 the applicant came to Kozyatyn police for questioning as a possible witness in a case concerning violent death of V.T., his business associate. The police officers did not allow O.B., the applicant’s lawyer, to accompany him and pressurised the applicant to confess to having murdered V.T. In particular, the applicant was handcuffed, deprived of sleep and food; punched, kicked, shackled to a metal grid; electrocuted on genitals, suffocated (plastic bag was put on the applicant’s head), and threatened that his relatives would be imprisoned.
Relevant facts and documents
Key issues
1. Medical and other evidence:
(i) 08-14/06/07 – report no. 343 (Expert O.Sh., Vinnytsya regional forensic medical expert bureau): abrasion (right thigh; according to applicant, dog bite of 31/05/07); four bruises (loin, chest, left thigh; according to applicant, he bumped against bunk bed in detention facility); applicant’s explanations concerning causes of injuries are plausible;
(ii) Unspecified date before 12/04/12: testimony of expert O.Sh. in court during applicant’s trial: aforementioned injuries could have also resulted from ill-treatment; that possibility had not been explored as no questions in that regard had been posed by investigator instructing O.Sh. to carry out assessment.
2. Complaints lodged:
(i) 05/06/07, with Chief of Vinnytsya police, Kozyatyn inter-district and Vinnytsya regional prosecutor’s office (by applicant’s lawyer O.B.): police officers arbitrarily detain applicant, prevent O.B. from accompanying him and possibly subject him to duress;
(ii) 22/06/07, with Kozyatyn inter-district prosecutor’s office (by applicant’s mother);
(iii) 28/09/07, with investigator working on V.T.’s murder case (by applicant): self-incriminating statements retracted as given under duress.
3. Response by authorities:
(i) 16/06/07 - decision not to institute criminal proceedings (Kozyatyn inter-district prosecutor’s office, in response to lawyer’s complaint): applicant questioned by investigator O.Br. denied having been ill-treated: no call to investigate;
(ii) 28/08/10 – fresh decision not to institute criminal proceedings (Kozyatyn inter-district prosecutor’s office, in response to applicant’s mother’s complaint): claim not arguable;
(iii) 12/04/12 – separate ruling addressed to Prosecutor General and Minister of Interior (Pogrebyshche District Court): during applicant’s trial, it became apparent that applicant had been detained from 02/06/07 until 08/06/07 on false pretext and ill-treated: action requested (ruling quashed on 01/08/12, Vinnytsya Regional Court of Appeal);
(iv) 13/09/12 – decision of 28/08/10 quashed (more senior prosecutor): shortcomings in inquiry - no statements taken from applicant and police officers;
(v) 04/01/13 – criminal proceedings instituted (Kozyatyn inter-district prosecutor’s office);
(vi) 15/04/13 – criminal proceedings closed;
(vii) 01/08/13 and 13/08/13 – applicant’s lawyer’s appeals rejected (Kozyatyn District Court and Vinnytsya Regional Court of Appeal).
4. Key actions:
(i) Statements taken from applicant, his mother and some police officers;
(ii) Forensic assessment of injuries ordered by investigator O.Br., who was also in charge of investigating V.T.’s murder.
5. Key findings:
No evidence of ill-treatment; injuries could have been caused by dog bite and bumping against bunk bed, as indicated by applicant to forensic expert on 08/06/07.
6. Other relevant facts and documents:
(i) 31/05/07 – criminal proceedings instituted to investigate V.T.’s violent death;
(ii) 02/06/07 – applicant arrived in Kozyatyn police station for questioning in connection with investigating V.T.’s apparent murder;
(iii) 03/06/07, 11.15 p.m. – applicant’s detention formalised by arrest report (Kozyatyn police): suspected act of hooliganism in 2005;
(iv) 04/06/07 – applicant made written statement confessing to having murdered V.T.;
(v) 08/06/07 – applicant’s detention formalised by arrest report (Kozyatyn police): charges of V.T.’s murder;
(vi) 13/06/07 – decision to discontinue applicant’s detention in connection with hooliganism charges (Kozyatyn police): insufficient evidence that applicant had committed that offence;
(vii) 12/04/12 – applicant acquitted of murder charges and released from custody (Pogrebyshche District Court): numerous gaps and inconsistencies in evidence;
(viii) unspecified date, applicant left Ukraine and moved into the U.K.;
(ix) 01/08/12 - judgment of 12/04/12 quashed on appeal by prosecutor; case remitted for retrial (Vinnytsya Regional Court of Appeal);
(x) 23/12/14 – request for applicant’s extradition from U.K. rejected by London Magistrates’ Court.
(i) It has not been disputed that at least some injuries were sustained in police custody; explanation of self-infliction was reached following flawed investigation and is based on hasty conclusions (for relevant examples, see Kulik v. Ukraine, no. 10397/10, §§ 58-59, 19 March 2015; and Kirpichenko v. Ukraine, no. 38833/03, §§ 76-80, 2 April 2015);
(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);
(iii) Significant delay in instituting criminal proceedings (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);
(iv) No appearance of thorough effort to collect objective evidence: key witnesses (e.g., lawyer O.B., applicant’s cellmates, not questioned; limited scope of forensic assessment; no confrontations or other measures aimed at reconciling conflicting accounts; no response to allegations of unlawful detention; hasty conclusion that injuries could be self-inflicted (for relevant examples, see Drozd v. Ukraine, no. 12174/03, §§ 69-70, 30 July 2009; Gordiyenko v. Ukraine, no. 27620/09, §§ 94-96, 16 October 2014; and Kapustyak v. Ukraine, no. 26230/11, § 80, 3 March 2016);
(v) Initial inquiry lacked independence (for relevant examples, see Kirpichenko, cited above, § 87, and Zyakun v. Ukraine, no. 34006/06, § 44, 25 February 2016).
B. Just satisfaction
Parties’ submissions
Court’s award
Applicant:
Non-pecuniary damage: 10,000 euros (EUR).
Costs and expenses: EUR 824 in legal fees (domestic and Convention proceedings).
Supporting documents: legal representation contract dated 27/11/12; timesheet (103 hours at 200 hryvnias (UAH) per hour, equivalent to EUR 824 according to applicant).
Government:
Claims exorbitant and unsubstantiated.
Non-pecuniary damage:
EUR 10,000, as claimed
Costs and expenses:
EUR 824
plus any tax chargeable to applicant.
2. Application no. 20066/14
by Messrs Vitaliy Volodymyrovych Levchenko and Andriy Petrovych Melnychenko
Ukrainian nationals born in 1984 and 1986 and residing in Ladyzhyn
Represented by Ms N.V. Gurkovska, a lawyer practising in Vinnytsya
Lodged on 24 February 2014
A. Complaint under Article 3 concerning police ill-treatment
Applicants’ account of alleged ill-treatment
At about 6 p.m. on 20 November 2012 the applicants arrived at a construction site, where they had previously been employed, demanding payment arrears, which, according to them, had been overdue for a long time. Having been told by a foreman that the management had already left, they refused to leave the site. The security personnel called the police and complained that the applicants behaved aggressively towards them. Three police officers – L.T., A.K. and O.K. - arrived and arrested the applicants, considering that they had committed petty hooliganism. According to the applicants, the officers first handcuffed and then repeatedly kicked, punched, and hit them with rubber truncheons both: at the construction site and in the police station. The applicants were released from the police station on the same day when their parents arrived.
Relevant facts and documents
Key issues
1. Medical and other evidence:
(i) First applicant:
(a) 23/11/12 – report no. 355 (Ladyzhyn forensic medical expert bureau): moderately grave injuries (fractures (left arm, right index finger, left ring finger); multiple hematomas (face, limbs)) – possibly sustained on 20/11/12 ;
(b) 12/02/13 – report no. 23 (same bureau): first applicant was hit by hard blunt objects (e.g., legs, truncheons, furniture or fittings) at least eight to nine times;
(c) 25/09/13 – report no. 107 (Vinnytsya regional forensic medical expert bureau): first applicant was hit by hard blunt objects at least seven to eight times.
(ii) Second applicant:
(a) 30/11/12 – report no. 356 (Ladyzhyn forensic medical expert bureau): minor injuries (subconjunctival right-eye haemorrhage, hematomas (legs), chest and left ear contusions) – possibly sustained on 20/11/12;
(b) 11/02/13 – report no. 22 (same bureau): second applicant was hit by hard blunt objects (e.g., booted legs, arms, truncheons) at least three to four times;
(c) 25/09/13 – report no. 108 (Vinnytsya regional forensic medical expert bureau): second applicant was hit by hard blunt objects at least six to seven times.
2. Complaint lodged:
22/11/12, with Ladyzhyn prosecutor.
3. Response by authorities:
(i) 28/11/12 - criminal proceedings instituted (Ladyzhyn prosecutor’s office);
(ii) 05/12/12, 20/02/13, 02/10/13, 02/02/15, 15/06/15, 30/10/15 - decisions to close proceedings (officers, assaulted by applicants, sustained minor injuries; they applied legitimate force to counter aggressive conduct and effect arrest) – decisions quashed on appeal (more senior prosecutors/judicial authorities): shortcomings in inquiry and breaches of applicants’ procedural rights.
4. Key findings/present status:
As of June 2016, proceedings were pending (last re-opening: 11/05/16).
(i) Having regard to nature, gravity and dispersed location of injuries, it has not been shown that degree of force used by police officers was justified by applicants’ own conduct or that their injuries were wholly caused other than by ill‑treatment (for relevant examples, see Danilov v. Ukraine, no. 2585/06, § 67, 13 March 2014; and Chmil v. Ukraine, no. 20806/10, §§ 78-79, 29 October 2015);
(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, 28 November 2013; and Adnaralov v. Ukraine, no. 10493/12, § 50, 27 November 2014).
B. Just satisfaction
Parties’ submissions
Court’s award
Applicants:
Non-pecuniary damage: EUR 10,000 to first and EUR 5,000 to second applicant.
Costs and expenses: EUR 1,106 in legal fees (domestic and Convention proceedings).
Supporting documents: legal representation contract with Ms N.V. Gurkovska dated 17/12/12; timesheet (126 hours at UAH 250 per hour, equivalent of EUR 1,106, according to applicants).
Government:
Claims exorbitant.
Non-pecuniary damage:
EUR 3,900 to each applicant
Costs and expenses:
EUR 1,106
plus any tax chargeable to applicants.
3. Application no. 71563/14
by Mr Oleksandr Mykolayovych Klymenko
Ukrainian national born in 1961, detained in Poltava at the moment of filing present application
Represented by Ms O.M. Ashchenko, a lawyer practising in Kharkiv
Lodged on 31 October 2014
A. Complaint under Article 3 concerning police ill-treatment
Applicant’s account of alleged ill-treatment
Arrested on 30 December 2008, the applicant was detained and ill-treated by officers of the Poltava police on numerous dates and occasions. The officers forced him to confess to having participated, together with Y.L., his friend, in numerous crimes. In particular, the officers resorted to psychological pressure, punched, kicked and verbally assaulted the applicant, deprived him of food and sleep, and held him several days shackled to a metal grid. In addition to that, on 5 January 2009 police officer V.T. accompanied by two others repeatedly subjected the applicant to electric shocks through electrodes attached to his ears. In despair, on that date the applicant attempted to commit a suicide by swallowing a metal object.
Relevant facts and documents
Key issues
1. Medical and other evidence:
(i) 31/12/08 – journal entry (Poltava temporary detention facility (“ITT”): wound on left eyebrow;
(ii) 05/01/09 – medical record (Poltava municipal hospital): endoscopic removal of metallic object (resembling teaspoon handle) from oesophagus;
(iii) 09/02/09 – medical record (Poltava pre-trial detention facility “SIZO”): yellow-green hematomas on left shoulder (5x5 cm) and right thigh (2x3 cm); according to applicant’s explanation, they were inflicted by police officers on 29/01/09;
(iv) 13/02/09 – report no. 292 (Poltava regional forensic medical expert bureau): no fresh injuries and no complaints during examination on 12/02/09.
2. Complaint lodged:
(i) 09/02/09 – with Poltava SIZO medical staff;
(ii) 29/10/09 - with Leninskyy District Court in Poltava, during applicant’s trial, by applicant and his co-defendant Y.L., also alleging that he had been ill-treated.
3. Response by authorities:
(i) 29/10/09 – Leninskyy District Court in Poltava requested Leninskyy district 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 quashed on appeal (more senior prosecutors/judicial authorities): shortcomings in inquiry;
(iii) 10/02/14 – criminal proceedings instituted (Poltava regional prosecutor’s office);
(iv) 31/03/14, 31/09/14 – criminal proceedings closed: no appearance of police ill-treatment; decisions quashed on appeal by Y.L. (judicial authorities): shortcomings in investigation;
(v) 23/07/15: criminal proceedings closed.
4. Key actions:
Statements taken from applicant, his co-defendant Y.L. and several police officers; applicant’s medical records reviewed.
5. Key findings:
No arguable police ill-treatment case; no explanation concerning origin of documented injuries.
6. Other relevant facts:
(i) 30/12/08 – applicant and his friend Y.L. arrested while attempting to sell weapon and subsequently remanded in custody;
(ii) 04/03/16 – applicant and Y.L. convicted of having committed a series of offences and sentenced to time served in pre-trial detention (Poltavskyy District Court).
(i) State provided no plausible satisfactory and convincing explanation as to origin of applicant’s documented injuries and did not disprove that they had been caused by ill-treatment; there is no reason to doubt credibility of applicant’s submissions that he had been ill‑treated (for relevant examples, see Oleksiy Mykhaylovych Zakharkin v. Ukraine, no. 1727/04, §§ 61-62, 24 June 2010; and Dushka v. Ukraine, no. 29175/04, § 48, 3 February 2011);
(ii) For four years there was no full‑scale investigation, only repeated rounds of pre-investigation inquiry (for relevant examples, see, mutatis mutandis, Davydov and Others v. Ukraine, nos. 17674/02 and 39081/02, §§ 310-12, 1 July 2010; Lyapin v. Russia, no. 46956/09, §§ 129 and 132-36, 24 July 2014; and Chernega and Others v. Ukraine, no. 74768/10, § 167, 18 June 2019);
(iii) Overall length of investigation and repeated remittals for reinvestigation in view of shortcomings recognised by domestic authorities (for relevant examples, see Belousov v. Ukraine, no. 4494/07, § 56, 7 November 2013; and Adnaralov v. Ukraine, no. 10493/12, § 50, 27 November 2014);
(iv) No appearance of thorough effort to collect objective evidence, notably, no face-to-face confrontations between applicant and police officers; no other steps to reconcile discrepancies between their accounts and verify probability of applicant’s submissions; no attempt to establish origin of injuries documented in detention and reconcile relevant records with conclusions of forensic assessment (for relevant examples, see Drozd v. Ukraine, no. 12174/03, §§ 69‑70, 30 July 2009; Danilov v. Ukraine, no. 2585/06, § 70, 13 March 2014; and A.N. v. Ukraine, no. 13837/09, §§ 67-70, 29 January 2015).
B. Just satisfaction
Parties’ submissions
Court’s award
Applicant:
Non-pecuniary damage: EUR 30,000.
Costs and expenses: EUR 720 in legal fees (Convention proceedings).
Supporting documents: contract for legal representation dated 05/10/14 and timesheet of 05/10/14 (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: at Court’s discretion.
Non-pecuniary damage:
EUR 15,000
plus any tax chargeable to applicant.
4. Application no. 50379/15
by Mr Igor Genadiyevych Kitsenko
Ukrainian national born in 1973 and deceased in 2018
Represented by Ms O.Y. Sapozhnikova, a lawyer practising in Kyiv
Lodged on 25 September 2015
A. Complaint under Article 3 concerning police ill-treatment
Applicant’s account of alleged ill-treatment
On 4 March 2010 three officers of the “Berkut” special police unit arrested and brutally handcuffed the applicant in a street on the pretext that he had robbed two passers-by; as the applicant verbally protested, they punched and kicked him on the way to the police station. On the same date, in the police station, the applicant, who was an insulin-dependent diabetes sufferer, was not provided with a timely insulin injection, in spite of his repeated requests; his near-comatose state was used to force him sign some statements and procedural documents. Ambulance was called only after the applicant started fainting.
Relevant facts and documents
Key issues
1. Medical and other evidence:
(i) 04/03/10 – ambulance record: insulin injection;
(ii) 11/03/10 – report no. 1307 (Kyiv forensic medical expert bureau): bilateral periorbital hematomas (1,5x2 cm; 3x3,5 cm) caused by impact of blunt object(s); possibly sustained on 04/03/10; self-infliction not impossible;
(iii) 24/03/10 – hospital record no. 6065 (Kyiv ambulance hospital): in-patient treatment (05-08/03/10); diabetic and pancreatic emergency; periorbital hematomas; facial abrasions.
2. Complaint lodged:
05/03/10, with Y.G., Dniprovskyy district police investigator (during questioning as suspect).
3. Response by authorities:
(i) 25/05/10 – ill-treatment complaint remitted to Dniprovskyy district prosecutor’s office in Kyiv for conducting inquiry (police investigator Y.G.);
(ii) 04/06/10, 27/08/10, 09/11/10, 19/01/12, 01/06/12, 10/08/12, 18/09/12 and 13/11/12 - decisions not to institute criminal proceedings (Dniprovskyy district prosecutor’s office): no appearance of ill-treatment; decisions quashed on appeal (more senior prosecutors/judicial authorities): shortcomings in inquiry;
(iii) 22/01/14 – criminal proceedings instituted (Kyiv city prosecutor’s office);
(iv) 09/04/14 and 13/05/15- criminal proceedings closed (Kyiv city prosecutor’s office); decisions quashed on appeal (Pecherskyy District Court, Kyiv): shortcomings in investigation;
(v) 13/04/18 – fresh decision to close criminal proceedings (Kyiv city prosecutor’s office).
4. Key actions:
(i) Statements taken from police officers, applicant, his mother, some witnesses;
(ii) Forensic assessment of injuries.
5. Key findings:
No ill-treatment took place; applicant’s hematomas could be self-inflicted.
6. Other relevant facts and documents:
(i) 04/03/10 – administrative arrest report (Dniprovskyy district police): breach of public peace;
(ii) 22 March 2012 – applicant convicted of having committed robbery (Dniprovskyy District Court, Kyiv).
(i) State provided no plausible satisfactory and convincing explanation as to origin of applicant’s injuries and did not disprove that they had been inflicted by police officers after applicant’s arrest, as alleged by him (for relevant examples, see Oleksiy Mykhaylovych Zakharkin v. Ukraine, no. 1727/04, §§ 61-62, 24 June 2010; and Dushka v. Ukraine, no. 29175/04, § 48, 3 February 2011);
(ii) For nearly four years there was no full-scale investigation, only repeated rounds of pre-investigation inquiry (for relevant examples, see, mutatis mutandis, Davydov and Others v. Ukraine, nos. 17674/02 and 39081/02, §§ 310-12, 1 July 2010; Lyapin v. Russia, no. 46956/09, §§ 129 and 132-36, 24 July 2014; and Chernega and Others v. Ukraine, no. 74768/10, § 167, 18 June 2019);
(iii) Overall length of investigation and repeated remittals for reinvestigation in view of shortcomings recognised by domestic authorities (for relevant examples, see Belousov v. Ukraine, no. 4494/07, § 56, 7 November 2013, and Adnaralov v. Ukraine, no. 10493/12, § 50, 27 November 2014);
(iv) Hasty conclusion that hematomas were self-inflicted; no attempt to establish whether timely insulin injection was denied as alleged by applicant (compare to Denis Vasilyev v. Russia, no. 32704/04, § 123, 17 December 2009; Yaroshovets and Others v. Ukraine, nos. 74820/10 and 4 others, § 80, 3 December 2015; and Barysheva v. Ukraine, no. 9505/12, § 60, 14 March 2017).
B. Just satisfaction
Parties’ submissions
Court’s award
Applicant:
Non-pecuniary damage: EUR 100,000 to applicant’s mother.
Costs and expenses: EUR 3,000 in legal fees (domestic and Convention proceedings) to be transferred directly to Ms. O.Y. Sapozhnikova.
Supporting documents: legal representation contract and timesheet (136 hours at UAH 700 per hour, equivalent to EUR 3,000, according to applicant).
Government:
Claims exorbitant and unsubstantiated.
Non-pecuniary damage:
EUR 15,000 to applicant’s estate.
Costs and expenses:
EUR 3,000 to be transferred to Ms O.Y. Sapozhnikova directly, as requested.
plus any tax chargeable to applicant’s estate.
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