CASE OF SARGSYAN AND OTHERS v. UKRAINE

FIFTH SECTION

CASE OF SARGSYAN AND OTHERS v. UKRAINE

(Applications nos. 54012/07 and 2 others)

JUDGMENT
 

STRASBOURG

9 January 2020

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

In the case of Sargsyan and others v. Ukraine,

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

Gabriele Kucsko-Stadlmayer, President,
Yonko Grozev,
Lado Chanturia, judges,
and Milan Blaško, Deputy Section Registrar,

Having deliberated in private on 3 December 2019,

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

PROCEDURE

1.  The case originated in three applications against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”).

2.  The applicants’ details are set out in the appended tables.

3.  Notice of the complaints raised by the applicants concerning their alleged ill-treatment and the ineffective investigation of their respective allegations was given to the Ukrainian Government together with notice of several other complaints raised by the applicants under the Court’s well‑established case-law (see appended tables).

4.  The remainder of applications nos. 54012/07 and 25697/08 was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

5.  The Government did not object to the examination of the applications by a Committee.

THE FACTS

6.  The applicants complained that they had been subjected to police ill‑treatment and that the State authorities had failed to carry out an effective investigation into their respective allegations.

7.  They also raised other complaints under the provisions of the Convention subject to the Court’s well-established case-law.

8.  Relevant details are set out in the appended tables.

THE LAWJOINDER OF THE APPLICATIONS

9.  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

10.  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.

11.  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.”Admissibility

12.  The Government filed no objections to the admissibility of the applicants’ complaints under Article 3.

13.  The Court notes that these 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

14.  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.

15.  The Government contested this view.

16.  Reviewing the facts of the present cases 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’ physical injuries and, where appropriate, emotional trauma, and identifying and punishing those responsible, should the applicants’ allegations concerning ill-treatment prove to be true.

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

18.  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. In view of the circumstances of the present applications and its earlier case-law, the Court considers that they constitute another example of such a failure to ensure prompt and thorough investigation.

19.  The Court further finds that the applicants’ accounts as to the circumstances of their alleged ill-treatment are detailed and coherent, and the results of the investigations, given their numerous shortcomings, did not disprove those allegations. In these circumstances, and given the onus on the State to provide a satisfactory and convincing 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.

20.  At the same time, the Court observes that in the present cases there is no conclusive evidence concerning the circumstances in which the applicants were injured and in particular concerning the exact nature and degree of force used against them. Accordingly, there are no elements in the case files which would enable the Court to find “beyond reasonable doubt” that the treatment the applicants suffered reached the level of “torture”.

21.  For these reasons the Court finds it established that the applicants were subjected to ill-treatment which must be classified as inhuman and degrading.

22.  There has, accordingly, been a breach of Article 3 of the Convention under both its procedural and substantive limbs.OTHER COMPLAINTS UNDER WELL-ESTABLISHED CASE-LAWApplication no. 54012/07 by Mr V. Sargsyan

23.  Mr Sargsyan also complained under Article 5 § 1 of the Convention that his arrest and detention in April and July 2007 had been arbitrary and that they had been effected with an ulterior motive, namely to force him to give false self-incriminating statements concerning the murder of O. He also complained under Article 13 of the Convention that the investigation of his complaint concerning the arbitrariness of his detention in April 2007, which had been lodged together with his ill-treatment complaint, had been ineffective.

24.  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).

25.  Mr Sargsyan also complained under Article 5 § 5 of the Convention that he was unable to obtain an award of compensation for his unlawful arrest in July 2007.

26.  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:

...

(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.”Admissibility

27.  The Government filed no objections concerning admissibility of the above complaints.

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

29. Reviewing the facts of the present case in the light of the general principles established in its case-law (see Creangă v. Romania [GC], no. 29226/03, §§ 84 and 88-92, 23 February 2012), the Court considers that the file contains sufficient material to conclude that in April 2007 Mr Sargsyan was placed under administrative arrest to ensure his availability for questioning as a criminal suspect in connection with O.’s murder (see appended table 1(C (a)) for details). This practice has been condemned by the Court as an arbitrary deprivation of liberty in numerous cases (see, for instance, Kvashko v. Ukraine, no. 40939/05, 26 September 2013, § 68, with further references, and Livada v. Ukraine [Committee], no. 21262/06, §§ 45‑46, 26 June 2014).

30.  As regards the second occasion on which the applicant was arrested and detained (in July 2007) – on suspicion of possession of drugs – the Court has not been provided with any evidence that the applicant was even questioned about O.’s murder during this period of detention, much less that he gave any relevant statements, unlike in respect of the previous arrest and detention (see appended table 1(C (b)) for details). The Court is therefore not convinced that Mr Sargsyan was in fact once again detained in connection with O.’s murder. However, it appears from the available material that his arrest and detention during this period were not documented in the requisite protocol on administrative detention in accordance with the applicable domestic procedure.

31.  A failure of the domestic authorities to keep proper records in cases concerning deprivation of liberty has been found by the Court to be in breach of Article 5 § 1(c) in its extensive case-law (see, among other authorities, Smolik v. Ukraine, no. 11778/05, §§ 45-48, 19 January 2012; and Grinenko v. Ukraine, no. 33627/06, §§ 74-78, 15 November 2012).

32.  The Court finds no reason to depart from that case-law in the present case and finds that the applicant’s detention was not lawful under Article 5 § 1(c) of the Convention.

33.  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 Sargsyan did not have an enforceable right to compensation for his arrest and detention in July 2007.

34.  There has accordingly been a breach of Article 5 § 1 of the Convention in respect of Mr Sargsyan’s arrest and detention in both April and July 2007 and of Article 5 § 5 of the Convention in respect of his arrest and detention in July 2007.Application no. 25697/08 by Mr I. Gordus and application no. 17361/10 by Mr K. Kravets

35.  Mr Gordus and Mr Kravets submitted other complaints which also raised issues under Articles 5 § 3, 6 § 1 and 13 the Convention, given the relevant well-established case‑law of the Court (see appended tables 2(C) and 3(C) for details). These complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor are they inadmissible on any other ground. Accordingly, they must be declared admissible. Having examined all the material before it, the Court concludes that these complaints disclose the following violations:

(a)  a violation of Article 5 § 3 (in application no. 25697/08 – Mr Gordus) concerning the length of the applicant’s pre-trial detention in the light of the Court’s findings in Kharchenko v. Ukraine (no. 40107/02, 10 February 2011) and Ignatov v. Ukraine (no. 40583/15, 15 December 2016); and

(b)  a violation of Article 6 § 1 (in applications nos. 25697/08 and 17361/10 – both Mr Gordus and Mr Kravets) concerning the excessive length of the criminal proceedings against the applicants and of Article 13 in conjunction with Article 6 § 1 (in application no. 17361/10 – Mr Kravets) concerning the lack of effective remedies for the complaint of the length of those proceedings in the light of the Court’s findings in Merit v. Ukraine (no. 66561/01, 30 March 2004).APPLICATION OF ARTICLE 41 OF THE CONVENTION

36.  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.”

37.  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.

38.  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 procedural and substantive limbs in respect of all of the applicants;Holds that there has been a violation of Article 5 § 1 of the Convention in respect of the complaint raised in application no. 54012/07;Holds that there has been a violation of Article 5 § 3 of the Convention in respect of the complaint raised in application no. 25697/08;Holds that there has been a violation of Article 5 § 5 of the Convention in respect of the complaint raised in application no. 54012/07;Holds that there has been a violation of Article 6 § 1 of the Convention in respect of the complaints raised in applications nos. 25697/08 and 17361/10;Holds that there has been a violation of Article 13 of the Convention in conjunction with Article 6 § 1 of the Convention in respect of the complaint raised in application no. 17361/10;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;Dismisses the remainder of the applicants’ claims for just satisfaction.

Done in English, and notified in writing on 9 January 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Milan Blaško Gabriele Kucsko-Stadlmayer
Deputy RegistrarPresident

APPENDIX

1.  Application no. 54012/07

by Mr Vartan Dzhanibekovich Sargsyan

Ukrainian national born in 1969 and residing in Kharkiv

represented by Mr G. V. Tokarev, a lawyer practising in Kharkiv

Lodged on 26 November 2007

A.  Complaint under Article 3: substantive limb

Alleged ill-treatment

Key issues

1.  Date/place:

24-25/04/07, in Chervonozavodskiy district police station in Kharkiv.

2.  Applicant’s description of ill-treatment:

Forcing applicant to confess to having murdered O., several police officers repeatedly pushed his face into thick sheet of foam rubber and twisted his handcuffed hands behind his back, aiming to suffocate him and inflict severe pain. Subsequently, they made applicant to sit naked; two officers sat on applicant’s legs, while a third squeezed his genitals using plastic bag. In addition, officers repeatedly hit applicant’s head with thick folder; spat in his face; threatened to prosecute his relatives and applied electric current to wet rags pressed against his ears, chin and other parts of his head.

3.  Medical and other evidence:

(i)  24/04/07 - Report no. 2586 (Kharkiv regional forensic medical expert bureau) noting absence of any injuries or complaints (applicant examined in custody);

(ii)  29/04/07 - Certificate (Meshchaninov Kharkiv city clinical hospital) – obtained by applicant following release on 28/04/07 - noting contusions to applicant’s soft cranial tissue, abrasions to ankles and painful palpation of genitals;

(iii)  21/05/07 - Report no. 3148 (Kharkiv regional forensic medical expert bureau) noting absence of any injuries.

4.  Other relevant facts:

(i)  Applicant is disabled with “moderately serious” (2nd degree) disability (domestic classification);

(ii)  24/04/07, applicant was placed under administrative arrest on charges of insubordination to police officer (see more details in Section C(a) below);

(iii)  25/04/07, applicant confessed to murder of O. (according to his submissions, not contested by Government);

(iv)  27/04/07, applicant had first meeting with lawyer (Mr Tokarev) and retracted his confession;

(v)  28/04/07, applicant was released from detention;

(vi)  07/05/07, Chervonozavodskiy district prosecutor decided not to institute criminal proceedings against applicant for O.’s murder in view that there was insufficient evidence of his involvement.

(i)  State provided no satisfactory and convincing explanation as to origin of applicant’s injuries (documented 29/04/07) 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:

28/04/07, to Chervonozavodskiy district prosecutor.

2.  Response by authorities:

(i)  04/05/07, 08/05/07 and 18/06/07 - decisions not to institute criminal proceedings (Chervonozavodskyy district prosecutor’s office in Kharkiv; decisions taken by investigator X., who was also in charge of investigating O.’s murder);

(ii)  18/08/09 - Chervonozavodskiy District Court in Kharkiv dismissed appeal lodged by applicant against decision of 08/05/07 noting that original decision could not be located and only copy was available, therefore, appeal was devoid of object.

3.  Findings:

18/06/07 (decision): applicant was arrested lawfully having committed administrative offence. No ill-treatment took place: medical assessments of 24/04/07 and 21/05/07 detected no injuries. In addition, no officers, who could have ill-treated applicant, had been identified.

4.  Evidence collected:

(i)  21/05/07, applicant was examined by forensic expert;

(ii)  On various dates, statements were taken from applicant, two witnesses to his arrest and several police officers.

5.  Other relevant facts:

(i)  20/10/08, applicant was informed of 08/05/07 decision;

(ii)  He learned about decisions of 04/05/07 and 18/06/07 only from Government’s observations;

(iii)  24/02/09, Kharkiv Administrative Court of Appeal allowed applicant’s complaint of inactivity of prosecutor’s office having decided that it had failed to provide adequate follow-up to applicant’s 28/04/07 complaint.

(i)  No full-scale investigation undertaken, only pre-investigation inquiry (for relevant examples, see mutatis mutandis Davydov and Others v. Ukraine, nos. 17674/02 and 39081/02, §§ 310-12, 1 July 2010; Lyapin v. Russia, no. 46956/09, §§ 129 and 132-36, 24 July 2014; and Chernega and Others v. Ukraine, no. 74768/10, § 167, 18 June 2019);

(ii)  Investigation lacked independence (for relevant examples, see Kirpichenko v. Ukraine, no. 38833/03, § 87, 2 April 2015 and Zyakun v. Ukraine, no. 34006/06, § 44, 25 February 2016);

(iii)  Delays in procedural steps leading to loss of evidence, notably, forensic assessment of injuries scheduled nearly a month after complaint lodged (for relevant examples, see Drozd v.  Ukraine, no. 12174/03, § 68, 30 July 2009 and Voykin and Others v. Ukraine, no. 47889/08, §§ 113-114, 27 March 2018);

(iv)  Delays in apprising applicant of procedural developments and impeded access to file 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);

(v)  Decisions to dispense with formal criminal investigation were taken based on hasty conclusions about absence of injuries – notably ignoring injuries documented 29/04/07 (for relevant examples, see Davydov and Others v. Ukraine, nos. 17674/02 and 39081/02, § 286, 1 July 2010 and Gordiyenko v. Ukraine, no. 27620/09, §§ 94-96, 16 October 2014).

C.  Other complaints under well-established case-law

a.  Regarding applicant’s arrest and detention in April 2007

1.  Dates of arrest/release/arresting authority:

24/04/07 – 28/04/07, Krasnozavodskiy district police in Kharkiv.

2.  Official grounds for arrest:

Insubordination to lawful order of police officer to produce identification documents. As appears from explanation given by two police officers, who arrested applicant, given by them in the course of subsequent investigation of applicant’s relevant complaint, on above date they had waited for applicant near his home to invite him for questioning as witness in case concerning O.’s murder. On seeing person who looked like applicant passing by, they requested his identification documents. This person (applicant) refused, engaged in heated argument with them and attempted to escape.

3.  Documents regularising arrest and detention:

(i)  24/04/06, arrest report (протокол) prepared by police following applicant’s arrest;

(ii)  same date, judgment of Chervonozavodskiy District Court in Kharkiv, finding applicant guilty of administrative offence of insubordination and sentencing him to administrative detention.

4.  Other relevant facts:

(i)  Applicant alleged that in detention he was questioned concerning O.’s murder, ill-treated and made false confession; this allegation was not contested by Government (see Section A above);

(ii)  28/04/07, applicant complained of arbitrary arrest simultaneously with complaining of ill-treatment (see details in Section B above).

b.  Regarding applicant’s arrest and detention in July 2007

1.  Dates of arrest/release/arresting authorities:

24/07/07 – 27/07/07 (date of release as indicated by applicant; statement not contested by Government: no documents provided), Kharkiv drug police and Dzerzhinskiy district police in Kharkiv.

2.  Official grounds for arrest:

Drug possession (bundle of newspaper containing cannabis was seized from applicant; according to him, it was planted by police).

3.  Documents regularising arrest and detention:

None.

4.  Other relevant documents:

(i)  24/07/07, internal notice issued by officer Y. informing his superior that applicant had been stopped in possession of bundle of newspaper which contained herbal substance and requesting that superior to follow-up on this information;

(ii)  23/08/07, letter sent by Dzerzhinskiy district prosecutor to applicant’s lawyer, stating that applicant was detained on 24/07/07 based on “protocol (протокол) of administrative detention” under Article 263 of the Code of Administrative Offences (this provision allowed for detention of persons suspected of drug possession for up to three days to establish relevant circumstances – notably whether substance in question was narcotic). No copy was provided of “protocol” referred to.

5.  Other relevant facts:

(i)  27/07/07, criminal proceedings were instituted against applicant on suspicion of illegal drug possession;

(ii)  13/06/08, new decision was taken not to prosecute applicant, as it was established that he had “found the bundle” in question and had not known that it contained cannabis.

6.  Domestic complaints by applicant:

(i)  Unsuccessful criminal complaint alleging that his arrest and detention had been unlawful, not regularised and effected for ulterior motive – to question him in connection with O.’s murder (21/09/07, prosecutor’s office refused to institute proceedings and provided no follow-up to applicant’s appeal);

(ii)  Appeal lodged with prosecutor’s office against 13/06/08 decision, stating that bundle of cannabis was planted on applicant by police: no follow-up;

(iii)  Court action against Kharkiv drug police: 27/07/10 and 10/01/11, Leninskiy District Court in Kharkiv refused to hear case having found that it could only be examined during applicant’s trial on charges of drug possession.

D.  Just satisfaction

Parties’ submissions

Court’s award

Applicant:

Non-pecuniary damage: to be determined by Court.

Costs and expenses: EUR 10,424.24 in legal fees to be transferred directly to Mr Tokarev, applicant’s lawyer.

Supporting documents:

(i)  Contract for legal representation dated 2007;

(ii)  Certificate of acceptance of lawyer’s services by applicant, indicating number of hours lawyer worked on case between 2007-2017: thirty-six hours for domestic proceedings and seventy-six hours for Convention proceedings.

Government:

Non-pecuniary damage: No comment as amount not specified.

Costs and expenses: Claim exorbitant and poorly substantiated.

Non-pecuniary damage:

15,000 euros (EUR)

Costs and expenses:

EUR 5,000

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

Plus any tax chargeable to applicant on above amounts.

2.  Application no. 25697/08

by Mr Igor Viktorovich Gordus

Ukrainian national born in 1973 and residing in Debaltseve

represented by Mr M. A. Tarakhkalo, a lawyer practising in Kyiv

Lodged on 9 May 2008

A.  Complaint under Article 3: substantive limb

Alleged ill-treatment

Key issues

1.  Dates/places:

(i)  08/04/06, in Debaltseve City Police station, office no. 35;

(ii)  18/06/06, in Temporary Detention Unit (ITT) of Debaltseve City Police.

2.  Applicant’s description of ill-treatment:

(i)  08/04/06, applicant was arrested on suspicion of involvement in drug dealing and questioned in absence of lawyer. To obtain from him self-incriminating statements, police officers handcuffed him to radiator for twelve hours; punched him and hit him with truncheons, inflicted about three smacks to mouth, five to six blows to kidneys; fifteen blows to arms and shoulders; after one blow, applicant fell to his knees, scratching them;

(ii)  18/06/06, while applicant was detained on remand, three police officers in plain clothes entered his cell. Seeking to retaliate for having complained about police and urge guilty plea, they hit him on arms and shoulders and threatened to place him (former policeman) in cell with ordinary detainees.

3.  Medical and other evidence:

(i)  12-13/04/06 - Report no. 21/109 (Debaltseve forensic medical expert bureau) – noting numerous bruises on applicant’s shoulders and arms and abrasions on knees – possibly dating to 08/04/06, possibly self-inflicted by pinching; eroded surface on lower lip – sustained within one day of examination, possibly self-inflicted by biting; injuries cumulatively qualified as “minor”;

(ii)  20/06/06, Certificate (Artemivsk pre-trial detention facility (SIZO) - noting that applicant had arrived on that date from Debaltseve ITT with bruises on shoulders.

(i)  It has not been disputed that applicant’s 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 Kirpichenko v.  Ukraine, no. 38833/03, §§ 76-80, 2 April 2015 and Kulik v. Ukraine, no. 10397/10, §§ 58-59, 19 March 2015).

B.  Complaint under Article 3: procedural limb

Domestic investigation

Key issues

1.  Complaint lodged:

(i)  11/04/06, to investigator in charge of applicant’s criminal case; then 05/06/06, to Debaltseve city prosecutor, in respect of first episode of alleged ill-treatment;

(ii)  27/06/06, to Debaltseve city prosecutor, in respect of second episode of alleged ill-treatment

2.  Response by authorities:

(i)  09/06/06, 05/12/06, 30/08/08, 10/10/08, and 22/07/09 - decisions not to institute criminal proceedings, as there was no appearance of ill-treatment (first episode, Debaltseve city prosecutor’s office);

(ii) 07/07/06 and 10/11/08 – decisions not to institute criminal proceedings, as there was no appearance of ill-treatment (second episode, Debaltseve city prosecutor’s office).

3.  Findings:

10/11/08 and 22/07/09 (decisions): In both cases, injuries were self-inflicted by applicant.

4.  Evidence collected:

(i)  in respect of first episode:

(a)  12/04/06, applicant was examined by forensic expert;

(b)  21/04/06, office no. 35 in Debaltseve police was inspected;

(c)  On various dates, statements were taken from applicant, investigator K. and several police officers;

(ii) in respect of second episode:

(a)  On various dates, statements were taken from applicant and detention unit duty officers;

(b)  05/11/08, applicant was examined by forensic expert.

4.  Other relevant facts:

(i)  Decision of 22/07/09 was communicated to applicant only on 26/12/11;

(ii)  Applicant’s appeal against decision of 07/07/06 was examined only on 06/08/08 by court, as numerous hearings had to be adjourned in view of failure by prosecutor’s office to submit investigation file to court.

(i)  In both cases, no full-scale investigation undertaken, only pre-investigation inquiry(for relevant examples, see mutatis mutandis, Davydov and Others v. Ukraine, nos. 17674/02 and 39081/02, §§ 310-12, 1 July 2010; Lyapin v. Russia, no. 46956/09, §§ 129 and 132-36, 24 July 2014; and Chernega and Others v. Ukraine, no. 74768/10, § 167, 18 June 2019);

(ii)  In both cases, delays in procedural steps leading to loss of evidence; notably, office no. 35 inspected two weeks after complaint lodged, medical assessment of injuries sustained on 18/06/06 only ordered on 05/11/08 (for relevant examples, see Drozd v. Ukraine, no. 12174/03, § 68, 30 July 2009 and Voykin and Others v. Ukraine, no. 47889/08, §§ 113-114, 27 March 2018);

(iii)  In both cases, delays in apprising applicant of procedural developments and impeded access to documents on case file (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);

(iv)  In both cases, decisions to dispense with formal criminal investigation were taken based on hasty conclusions about self-infliction of injuries derived from superficial findings (for relevant examples, see Davydov and Others v. Ukraine, nos. 17674/02 and 39081/02, § 286, 1 July 2010 and Gordiyenko v. Ukraine, no. 27620/09, §§ 94-96, 16 October 2014).

C.  Other complaints under well-established case-law

Article 5 § 3 – length of pre-trial detention

Period: 08/04/06 (date of arrest) - 05/03/07 (date of first conviction); 13/06/08 (first conviction quashed on appeal) – 18/08/10 (new conviction)

Total length: three years and one month

Article 6 § 1 – length of criminal proceedings

Period: 19/12/03 (proceedings commenced) – 28/03/04 (proceedings suspended) – 25/01/06 (proceedings renewed) – 30/05/13 (final conviction)

Total length: seven years and seven months

Levels of jurisdiction: three

D.  Just satisfaction

Parties’ submissions

Court’s award

Applicant:

Non-pecuniary damage: EUR 20,000

Costs and expenses: EUR 3,750 in legal fees to be transferred directly to Mr Tarakhkalo, applicant’s lawyer

Supporting documents:

(i)  Legal representation contract dated 2018;

(ii)  Certificate of acceptance of lawyer’s services by applicant, indicating that lawyer spent thirty-five hours on preparation of submissions before Court;

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

Government:

Claims exorbitant and poorly substantiated

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 on above amounts

3.  Application no. 17361/10

by Mr Konstantin Vladimirovich Kravets

Ukrainian national born in 1984 and residing in Kamenske (Dniprodzerzhinsk)

represented by Mr M.A. Tarakhkalo, a lawyer practising in Kyiv

Lodged on 7 October 2010

A.  Complaint under Article 3: substantive limb

Alleged ill-treatment

Key issues

1.  Dates/places:

28/01 - 01/02/08, in Dniprovskiy district police station in Dniprodzerzhinsk by police officers and in cell in Dniprodzerzhinsk police temporary detention facility (“ITT”) by inmate A.

2.  Applicant’s description of ill-treatment:

(i)  28/01/08, applicant was approached by several police officers demanding him to follow them to police station for questioning. Upon arrival, applicant was detained inside station until 30/01/08 without any procedural status and demanded to confess to having inflicted fatal injuries on X. His requests to notify relatives about detention and for access to lawyer were rejected. During this period, officers V., Sh., B. tied applicant to chair in office no. 202, punched him in chest and head, suffocated him by making him smoke in gas mask, threatened and swore at him, pushed him around, offered him no food and had him sleep on chairs. Officer P. swore at and threatened applicant, forced him to memorise dictated confession and sign blank sheets of paper, took away boots and trousers (“for inspection”) and had applicant participate in various investigative activities in his underpants only;

(ii)  30/01/08, after applicant succumbed to pressure and provided self-incriminating statement, official arrest report was drawn up and he was placed in ITT. There, A., applicant’s cellmate, engaged in fight with him, during which he kicked and punched applicant’s chest and stomach.

3.  Medical and other evidence:

(i)  01/02/08 - Report no. 117 (Dniprodzerzhinsk city forensic medical expert bureau), noting four bruises between fourth and fifth rib, from 1.5 to 3 cm in diameter, sustained three to six days prior to assessment; one bruise 6 by 8 cm on left shoulder; two bruises of 4.8 and 5 cm on left arm, dating to about two days before assessment;

(ii)  28/02/08 - Certificate (Dniprodzerzhinsk municipal hospital no. 9) confirming bruises; noting that applicant had in-patient treatment from 04/02/08 to 28/02/08 for neurasthenia and hypertension

4.  Other relevant facts:

(i)  01/02/08, applicant was released on undertaking not to abscond; subsequently he retracted his confession as given under pressure;

(ii)  19/10/11, criminal proceedings against applicant were terminated in view of lack of evidence of guilt in relation to inflicting injuries on X.

(i)  It is not disputed that injuries were sustained in police custody; explanation that all of them were inflicted by inmate A. was based on hasty conclusions reached as result of flawed investigation (for relevant examples, see Kirpichenko v. Ukraine, no. 38833/03, §§ 76-80, 2 April 2015 and Kulik v. Ukraine, no. 10397/10, §§ 58-59, 19 March 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).

B.  Complaint under Article 3: procedural limb

Domestic investigation

Key issues

1.  Complaint lodged:

30/01/08, to Dniprodzerzhinsk prosecutor’s office.

2.  Response by authorities:

(i)  07/03/08, 12/05/09, 16/11/09, 20/12/09, 20/01/10, and 20/02/10 – decisions not to institute criminal proceedings, as there was no appearance of police ill-treatment (Dniprodzerzhinsk prosecutor’s office);

(ii)  19/04/10 - criminal proceedings initiated; subsequently closed and re-opened on several occasions;

(iii)  29/02/16 - final decision – proceedings closed.

3.  Findings:

29/02/16 (decision): injuries had been inflicted by applicant’s cellmate A. (deceased by that time) during conflict between them.

4.  Evidence collected:

(i)  01/02/08, applicant was examined by forensic expert;

(ii)  19/11/11, statement was taken from G., applicant’s cellmate, who submitted that he had witnessed how applicant and cellmate A. had engaged in fight;

(iii)  On various dates, statements were taken from applicant, officers implicated in ill-treatment and ITT duty officers.

5.  Other relevant facts:

(i)  applicant’s cellmate A. was not questioned, because he died on unspecified date;

(ii)  Numerous procedural decisions were notified to applicant with delays;

(iii)  Applicant was mostly questioned as witness; he was granted victim status in criminal proceedings for limited period of time.

(i)  First two years: no full-scale investigation, only pre-investigation inquiry (for relevant examples, see, mutatis mutandis, Davydov and Others v. Ukraine, nos. 17674/02 and 39081/02, §§ 310-12, 1 July 2010; Lyapin v. Russia, no. 46956/09, §§ 129 and 132-36, 24 July 2014; and Chernega and Others v. Ukraine, no. 74768/10, § 167, 18 June 2019);

(ii)  Delays in instituting criminal proceedings and taking procedural steps leading to loss of evidence; notably, inmate A. was never questioned before his death (for relevant examples, see Drozd v. Ukraine, no. 12174/03, § 68, 30 July 2009 and Voykin and Others v. Ukraine, no. 47889/08, §§ 113-114, 27 March 2018);

(iii)  Overall length of investigation (eight years) and repeated remittals for re-investigation 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);

(iv)  Delays in apprising applicant of procedural developments (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);

(v)  Decisions to dispense with criminal investigation ignored important elements; notably, no response to allegation of unrecorded detention between 28 and 30/01/08; no explanation concerning origin of bruises recorded in expert assessment as predating 30/01/08, date when applicant was placed in ITT (for relevant case-law examples, see Davydov and Others v. Ukraine, nos. 17674/02 and 39081/02, § 286, 1 July 2010 and Gordiyenko v. Ukraine, no. 27620/09, §§ 94-96, 16 October 2014);

(vi)  Applicant was not accorded “victim” status for large part of investigation (for relevant examples, see Yatsenko v. Ukraine, no. 75345/01, § 47, 16 February 2012 and Zhyzitskyy v. Ukraine, no. 57980/11, § 50, 19 February 2015).

C.  Other complaints under well-established case-law

Article 6 § 1 and Article 13 -  length of criminal proceedings and lack of effective remedies

Period: 28/01/08 – 19/10/11 (pre-trial investigation only)

Total length: three years and nine months

D.  Just satisfaction

Parties’ submissions

Court’s award

Applicant:

Non-pecuniary damage: EUR 50,000

Costs and expenses: EUR 10,650 in legal fees to be transferred directly to applicant’s lawyer, Mr Tarakhkalo.

Supporting documents:

(i)  Legal representation contract dated 2010;

(ii)  Certificate of acceptance of lawyer’s services by applicant indicating that lawyer spent seventy-one hours on preparation of application and other submissions to Court

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

Government:

Claims exorbitant and poorly substantiated.

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 on above amounts

 

Full & Egal Universal Law Academy