CASE OF SOKOLOVSKYY AND OTHERS v. UKRAINE

FIFTH SECTION

CASE OF SOKOLOVSKYY AND OTHERS v. UKRAINE

(Applications nos. 44047/09 and 4 others)

JUDGMENT
 

STRASBOURG

3 September 2020

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

In the case of Sokolovskyy and Others v. Ukraine,

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

Gabriele Kucsko-Stadlmayer, President,
Lado Chanturia,
Anja Seibert-Fohr, judges,
and Anne-Marie Dougin, Acting Deputy Section Registrar,

Having regard to:

the applications (nos. 44047/09, 57142/11, 2087/12, 9462/12 and 53941/12) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by the Ukrainian nationals whose details are set out in the appended tables (“the applicants”), on various dates;

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

the parties’ observations;

Having deliberated in private on 30 June 2020,

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

INTRODUCTION

1.  The present case concerns alleged ill-treatment of the applicants by police and the allegedly ineffective investigation of their respective complaints. In addition, it also concerns other complaints under the Court’s well-established case-law (Article 3 (conditions of detention) and Article 5 § 1 (lawfulness of detention).

THE FACTS

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

3.  The Government were represented by their Agent, Mr I. Lishchyna.

THE LAWJOINDER OF THE APPLICATIONS

4.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.ALLEGED POLICE ILL-TREATMENT AND LACK OF EFFECTIVE INVESTIGATION

5.  The applicants complained that they had been ill-treated by the police and that their respective complaints had not been properly investigated. They referred to Articles 3 and 13 of the Convention.

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

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”AdmissibilityApplications by Mr A. Sokolovskyy, Mr R. Kokov and Mr O. Koval (no. 44047/09), by Mr S. Peknich (no. 2087/12), by Mr L. Lymanets (no. 9462/12) and by Mr M. Rotar (no. 53941/12)

7.  The Government filed no objections concerning the admissibility of the applicants’ aforementioned complaints.Application no. 57142/11 by Mr A.  Lipovchenko

8.  The Government submitted that the present complaints should be considered as lodged outside the six-month time-limit, to be calculated from the date of the last decision by the prosecutor’s office not to institute criminal proceedings into the applicant’s ill-treatment allegations, that is to say from 13 November 2008. They further submitted that, in any event, the present complaint was manifestly ill-founded.

9.  The applicant disagreed.

10.  The Court notes, firstly, that as regards the Government’s objection concerning the six-month period, the present application was lodged on 1 September 2011, within six months of the date on which the applicant’s criminal trial was over (14 April 2011). It further observes that similar objections have already been dismissed in other cases against Ukraine (see, for example, Kaverzin v. Ukraine, no. 23893/03, §§ 90-99, 15 May 2012; Buglov v. Ukraine, no. 28825/02, § 63, 10 July 2014; and Zyakun v. Ukraine, no. 34006/06, § 35, 25 February 2016). The Court sees no reason to depart from those findings in the present case and therefore considers that this complaint cannot be rejected for non-compliance with the six-month time-limit.

11.  In so far as the Government submitted that the applicant’s complaints were manifestly ill-founded, having regard to all the material in the case file, in particular, the medical documents confirming the applicant’s injuries, the Court does not consider them to be entirely without basis. It further notes that they raise issues of fact and law under the Convention, the determination of which requires an examination on the merits. The Court therefore, dismisses the Government’s objection in that connection.The Court’s overall conclusion concerning all applications

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

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

14.  The Government filed no observations in respect of the merits of application no. 57142/11 lodged by Mr A. Lipovchenko. As regards the remaining applications, they contested the applicants’ view alleging that there had been no violations of Article 3.

15.  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 applicable, alleged emotional trauma, as well as identifying and punishing those responsible, should the ill-treatment allegations prove to be true.

16.  At the same time, 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 a reasonable doubt that the applicants’ injuries had been caused as 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, Timofejevi v. Latvia, no. 45393/04, § 81, 11 December 2012 with further references, and Barysheva v. Ukraine, no. 9505/12, § 55, 14 March 2017).

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 (cited above, §§ 173-80) it found that the reluctance of the authorities to ensure a prompt and thorough investigation of ill-treatment complaints lodged against police authorities constituted a systemic problem within the meaning of Article 46 of the Convention. In view of the circumstances of the present applications and its earlier case-law, the Court considers that they constitute another example of such a failure to ensure prompt and thorough investigation.

19.  These findings are sufficient for the Court to conclude that there has been a breach of Article 3 of the Convention in respect of the applicants’ purported ill-treatment.OTHER COMPLAINTS UNDER WELL-ESTABLISHED CASE-LAWApplication no. 2087/12 by Mr S. Peknich

20.  Mr S. Peknich also complained, under Article 5 § 1 of the Convention, that from about 2.40 p.m. on 15 January 2011 until 5.30 p.m. on 17 January 2011 he had been arbitrarily deprived of his liberty.

21.  The Government contested this view alleging that the applicant had remained at liberty until he had been officially arrested at 5.30 p.m. on 17 January 2011.

22.  Reviewing the facts of the present case in the light of the general principles established in its case-law (see, among other authorities, Creangă v. Romania [GC], no. 29226/03, §§ 84 and 88-92, 23 February 2012), the Court considers that the applicant’s version of events is more credible, concordant and logical than that of the domestic authorities and the Government, the latter having failed to provide detailed and convincing account disproving the applicant’s allegations (see appended table 3-C below). The Court therefore concludes that during the period complained of the applicant was retained in unacknowledged and unrecorded detention by police as a suspect in a case concerning drug dealing (compare Belousov v. Ukraine, no. 4494/07, §§ 83-84, 7 November 2013; Zyakun v. Ukraine, no. 34006/06, § 48, 25 February 2016; and Beley v. Ukraine [Committee], no. 34199/09, §§ 47-59, 20 June 2019).

23.  The Court reiterates that, as established in its extensive case-law, unacknowledged detention of an individual is a complete negation of the fundamentally important guarantees contained in Article 5 of the Convention, and discloses a most grave violation of that provision (see, among other authorities, Smolik v. Ukraine, no. 11778/05, §§ 45-48, 19 January 2012; Grinenko v. Ukraine, no. 33627/06, §§ 74-78, 15 November 2012; and Belousov, cited above, § 85).

24.  Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of the present complaint.

25.  This complaint is therefore admissible and discloses a breach of Article 5 § 1 of the Convention.Application no. 53941/12 by Mr M. Rotar

26.  Mr M. Rotar also complained, under Article 3 of the Convention, that the conditions of his detention in Kharkiv SIZO no. 27 had been inhuman and degrading (see appended table 5-C).

27.  The Court refers to the principles established in its case‑law regarding inadequate conditions of detention (see, for instance, Muršić v. Croatia [GC], no. 7334/13, §§ 96‑101, ECHR 2016). It reiterates in particular that a serious lack of space in a prison cell weighs heavily as a factor to be taken into account for the purpose of establishing whether the detention conditions described are “degrading” from the point of view of Article 3 and may disclose a violation, both alone or taken together with other shortcomings (see Muršić, cited above, §§ 122‑41, and Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, §§ 149‑59, 10 January 2012).

28.  In the leading case of Melnik v. Ukraine (no. 72286/01, §§ 110-12, 28 March 2006; for more recent case-law, see Beketov v. Ukraine [Committee], no. 44436/09, §§ 125-30, 19 February 2019), the Court has already found a violation in respect of issues similar to those in the present case.

29.  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 the present complaint. Having regard to its case-law on the subject, the Court considers that in the instant case the applicant’s conditions of detention were inadequate.

30.  This complaint is therefore admissible and discloses a breach of Article 3 of the Convention.APPLICATION OF ARTICLE 41 OF THE CONVENTION

31.  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.”

32.  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.

33.  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 in respect of the complaints concerning police ill-treatment raised by 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. 2087/12;Holds that there has been a violation of Article 3 of the Convention in respect of the complaint concerning the conditions of detention raised in application no. 53941/12;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 3 September 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

sAnne-Marie DouginGabriele Kucsko-Stadlmayer
Acting Deputy RegistrarPresident

APPENDIX

1.  Application no. 44047/09

by Mr Andrey Grigoryevich Sokolovskyy, Mr Ruslan Aslanovich Kokov and Mr Oleg Ilyich Koval

Ukrainian nationals born in 1979, 1981 and 1977 respectively and residing in Chernivtsi

Represented by Ms G.V. Nazarova, a lawyer practicing in Chernivtsi

Lodged on 11 August 2009

A.  Complaint under Article 3: substantive limb

Alleged ill-treatment

Key issues

1.  Date/places:

11/04/08 - in the Chernivtsi region organised crime police office (“UBOZ”) and in the Shevchenkivskiy district police in Chernivtsi

2.  Applicants’ description of alleged ill-treatment:

Police officers demanded the applicants to testify that their friend X. had assaulted Y. and Z. They threatened otherwise to torture and prosecute applicants and their relatives. Officers also repeatedly kicked, punched, slapped and hit applicants with books

3.  Medical and other evidence:

(i)  Mr Sokolovskyy:

(a)  14/04/2008 - report no. 896 (Chernivtsi forensic medical expert bureau): bruising on head, right shoulder and left thigh; injuries qualified as “minor”; possibly sustained on 11/04/08

(b)  13/05/08 - certificate of inpatient treatment from 18/04/08 until 13/05/08 (Chernivtsi regional psychiatric hospital)

(ii)  Mr Kokov:

14/04/2008 - certificate authorising five-day sick leave from 14/04/08 until 18/04/08 (Chernivtsi no. 2 municipal polyclinic) on account of “closed cerebral-cranial trauma – cerebral contusion”;

(iii)  Mr Koval:

no documents; according to applicant, he sustained no visible physical injuries, but suffered emotional trauma

4.  Other relevant facts:

(i)  30/03/08 - X, applicant’s friend, fired two shots from Flobert (small cartridge for target shooting) injuring Y and Z

(ii)  08/04/08 - criminal proceedings instituted against X on charges of hooliganism

(iii)  11/04/08 – applicants questioned by police as “witnesses” (without lawyer) submitted statements incriminating X

(iv)  14/04/08 - applicants retracted above statements as given under duress

(v)  04/08/15 - Shevchenkivskyy District Court in Chernivtsi discontinued criminal proceedings against X as time-barred, having decided that he had injured Y and Z when exceeding reasonable limits of self-defence

(i)  Ill-treatment complaint by Mr Koval can be considered arguable (compare Zamferesko v. Ukraine, no. 30075/06, §§ 47-53, 15 November 2012, and Ushakov and Ushakova v. Ukraine, no. 10705/12, § 80, 18 June 2015, with further references)

(ii)  First medical examinations conducted and ill-treatment complaints lodged three days after release; no conclusive evidence as to timing / method of infliction of injuries (for relevant examples, see Kozinets v. Ukraine, no. 75520/01, §§ 56-58, 6 December 2007 and Kulyk v. Ukraine, no. 30760/06, §§ 82‑83, 23 June 2016)

B.  Complaint under Article 3: procedural limb

Domestic investigation

Key issues

1.  Complaint lodged:

14/04/08, with Chernivtsi regional prosecutor’s office

2.  Response by authorities:

(i)  24/04/08, 21/01/10, 10/03/10, 28/06/10, and 09/09/11 – decisions not to institute criminal proceedings: no appearance of police ill-treatment (Chernivtsi regional prosecutor’s office); decisions were quashed by courts on appeal (shortcomings in investigation)

(ii)  not clear what actions, if any, were taken after decision of 09/09/11 was annulled by court (21/09/12, Shevchenkivskiy District Court in Chernivtsi): according to Government, documents relevant to investigation have been destroyed as “old”

3.  Findings:

Not possible to establish beyond reasonable doubt origin of injuries sustained by Mr Sokolovskyy and Mr Kokov. Possibly sustained on 30/03/08, during fight with Y and Z; or after release from police on 11/04/08 and before requesting medical assistance (14/04/08). Mr Koval had no physical injuries: no ill-treatment case to answer

4.  Evidence collected:

(i)  14/04/08 - Mr Sokolovskyy was assessed by forensic expert

(ii)  various dates - statements taken from applicants, police officers, and medical professionals

(i)  No full-scale investigation, only repeated 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)  Repeated remittals for reinvestigation in view of shortcomings recognised by domestic authorities (for relevant examples, see Belousov v. Ukraine, no. 4494/07, § 56, 28 November 2013 and Adnaralov v. Ukraine, no. 10493/12, § 50, 27 November 2014)

(iii)  No appearance of thorough effort to collect objective evidence, notably, no comprehensive forensic examination of Mr Kokov and Mr Koval; no assessment of Mr Koval’s alleged psychological trauma (for relevant examples, see Ushakov and Ushakova,,cited above, § 93; and Zherdev v. Ukraine no. 34015/07, § 97, 27 April 2017)

C.  Just satisfaction

Parties’ submissions

Court’s award

Applicants:

Pecuniary damage:  1,700 euros (“EUR”) to each applicant in compensation for medical expenses

Supporting documents: not provided

Non-pecuniary damage: EUR 1,700 per applicant

Costs and expenses: EUR 4,688 (jointly), equivalent of following amounts in hryvnia in prices of 2009-11:

-  UAH 53,526 in legal fees incurred in domestic and Convention proceedings and

-  UAH 1,048 in correspondence expenses

Supporting documents: payment receipts for amounts claimed; 2009-11 euro/hryvnia conversion tables

Government:

Pecuniary damage: no proof of any medical expenses provided

Non-pecuniary damage: no causal link between violation claimed and damage alleged

Costs and expenses: excessive amount in legal fees; not all postal receipts concern Court correspondence

Pecuniary damage:

Claim unsubstantiated

no award

Non-pecuniary damage:

EUR 1,700

to each applicant, as claimed

Costs and expenses:

EUR 4,688 as claimed, to all applicants jointly

Plus any tax chargeable to applicants

2.  Application no. 57142/11

by Mr Aleksandr Nikolayevich Lipovchenko

Ukrainian national born in 1979 and residing in Dnestrovsk, Moldova

Lodged on 1 September 2011

A.  Complaint under Article 3: substantive limb

Alleged ill-treatment

Key issues

1.  Dates/places:

(i)  21/05/08 - during arrest for drug possession

(ii)  21-23/05/08 - Kyivskyy district police station in Odessa

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

(i)  25/05/08 (applicant’s explanation to Kyivskyy district police in Odessa): excessive force used during arrest (arm twisting); no ill-treatment in police station; release from police on 23/05/08 at about 3 p.m. and first doctor visit at about 7 p.m.

(ii)  14/10/09 (applicant’s statement in Kyivskyy District Court in Odessa): ill-treatment took place in police station: officers had been seeking to obtain false self-incriminating statements relating to drug offence

(iii)  25/05/11 and 27/10/15 (applicant’s statements to Court): ill-treatment both: during arrest and in police station; slaps on face; slamming arm against table; threats to break arm; detention for two days without food; release from police station on 23/05/08 at about 9.30 p.m. immediately followed by medical consultation

3.  Medical and other evidence:

(i)  23/05/08 - certificate no. 3115 (no. 1 municipal polyclinic in Odessa, traumatology department): applicant arrived at about 9:40 p.m.; diagnosis: left forearm sprain and traumatic neuritis of radial nerve

(ii)  26/06/08 - report no. 1928 (Odessa regional forensic medical expert bureau): “injury of left radial nerve surface branch [Повреждение поверхностной ветви левого лучевого нерва] ... which could have resulted from compression of soft tissues of left forearm, possibly, shortly before [patient’s] arrival in polyclinic”; injury classified as “minor”

4.  Other relevant facts:

(i)  22/05/08 - criminal proceedings instituted against applicant (drug possession); according to him, drugs had been planted by police after he had been arrested

(ii)  25/06/10 - Kyivskyy District Court in Odessa convicted applicant of drug possession (sentence: fine); judgment final on 14/04/11 (appeals dismissed)

Applicant’s account is contradictory as to circumstances, in which his trauma was inflicted and as to whether he turned for medical assistance immediately upon release (for relevant example, see Kirpichenko v. Ukraine, no. 38833/03, § 73, 2 April 2015)

B.  Complaint under Article 3: procedural limb

Domestic investigation

Key issues

1.  Complaint lodged:

23/05/08, notice of injury transferred from no. 1 Polyclinic to Kyivskyy district police

2.  Response by authorities:

(i)  22/06/08, 07/11/08, 13/11/08 - decisions not to institute criminal proceedings: no appearance of ill-treatment (Kyivskyy district prosecutor’s office in Odessa); first two decisions quashed on appeal (shortcomings in investigation)

(ii)  14/10/09 - Kyivskyy District Court in Odessa informed prosecutor’s office that applicant complained of ill-treatment and demanded to conduct inquiry

(iii)  27/10/09 - prosecutor’s office’s response: complaints already investigated; unsubstantiated

(iv)  25/06/10, 31/08/10, 14/04/11 – complaints dismissed as unsubstantiated by courts examining applicant’s criminal case

3.  Findings:

origin of injury is not clear; possibly sustained after release from police custody

4.  Evidence collected:

(i)  29/05/08 - applicant examined by forensic expert

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

(i)  No full-scale investigation, only repeated 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)  Repeated remittals for reinvestigation in view of shortcomings recognised by domestic authorities (for relevant examples, see Belousov v. Ukraine, no. 4494/07, § 56, 28 November 2013; and Adnaralov v. Ukraine, no. 10493/12, § 50, 27 November 2014)

(iii)  Hasty conclusions and no appearance of thorough effort to collect objective evidence (for relevant examples, see Ushakov and Ushakova v. Ukraine, no. 10705/12, § 93, 18 June 2015; and Barysheva v. Ukraine, no. 9505/12, § 60, 14 March 2017)

C.  Just satisfaction

Parties’ submissions

Court’s award

Applicant:

Non-pecuniary damage: to be determined by Court according to its practice

Government:

Non-pecuniary damage: no damage has been sustained

Non-pecuniary damage:

EUR 7,500

Plus any tax chargeable to applicant

3.  Application no. 2087/12

by Mr Sergey Vasilyevich Peknich

Ukrainian national born in 1975 and residing in Khmelnytskyy

Represented by Mr N.N. Pashinskiy and Ms V.A. Zarubitskaya, lawyers practicing in Kyiv

Lodged on 21 December 2011

A.  Complaint under Article 3: substantive limb

Alleged ill-treatment

Key issues

1.  Dates/places:

(i)  15/01/11 - at about 2.40 p.m. during arrest (Zalizniaka street, Khmelnytskyy) and in forest on way from Khmelnytskyy to Sumy;

(ii)  16-17/01/11 - in Sumy regional organised crime police department (“UBOZ”)

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

(i)  14/02/11 and 24/02/11 - (applicant’s complaints to prosecutor’s office): excessive force during arrest: thrown in mud, blindfolder; drugs planted; taken to Sumy (some 660 km away) in police car; held in unrecorded detention in UBOZ premises (two days) – handcuffed, deprived of food, attempt of rape by truncheon and subjected to psychological pressure until agreed to confess (drug dealing)

(ii)  18/11/11 - (application form) and 22/10/15 (observations): no mention of attempted rape; was beaten in UBOZ (otherwise, same as above)

(iii)  various dates in April 2013 - (questionings by officials of prosecutor’s office) in addition to above, in UBOZ, repeatedly pulled by officer S. by handcuffed hands, while other officers hit on head with thick book; mostly slept while travelling to Sumy

(iv)  11/12/15 - (during examination by forensic expert): while driving to Sumy, repeatedly stopped in forests, beat applicant and pulled him by handcuffed hands; in UBOZ, raised in air by handcuffed hands attached to rope, repeatedly punched and electrocuted

3.  Medical and other evidence:

(i)  17/01/11 - excerpt from medical journal (Sumy police temporary detention unit (“ITT”)): on arrival to unit (at 9.30 p.m. 17/01/11) applicant examined by paramedic - no complaints, no visible injuries

(ii)  20/01/11 - excerpt from medical record no. 346 (Sumy pre-trial detention centre (“SIZO”)): on arrival (20/01/11) complaints of pain in shoulder and elbow joints, visibly swollen; otherwise, no visible injuries

(iii)  28/12/15 - report no. 1297 (Khmelnytskyy regional forensic medical expert bureau): (a) several small areas of “changed skin” on leg - possibly (but not necessarily ) healed burns from application of electric current; (b)  area of deformed right rib arch structure – possibly (but not necessarily) result of healed rib fracture; and (c)  brachial plexopathy of right shoulder joint with manifest dysfunction of right hand (paresis and anaesthesia); applicant’s submissions as to origin and timing of those anomalies not improbable, however, no possibility to determine these matters more accurately

4.  Other relevant facts and documents:

(i)  28/10/11 - warrant for search of applicant’s residence on suspicion of drug possession issued within framework of criminal investigation concerning nation-wide drug-dealing network (Zarichnyy District Court in Sumy)

(ii)  15/01/11 - (a)  “personal inspection” report (investigator M. of Sumy police): applicant stopped in Zalizniaka Street (Khmelnytskyy) at about 2.40 p.m. and inspected until 3.20 p.m.; small bag of white powder seized; (b)  search report (same investigator): search of applicant’s flat performed (4 p.m. - 5.30 p.m.) in applicant’s presence

(iii)  17/01/11 - (a)  unspecified time: “statement of surrender” by applicant to Chief of Sumy UBOZ – confession (involvement in drug-dealing network); (b)  at 5.30 p.m., arrest report: applicant arrested in Sumy UBOZ office after having submitted statement of surrender; (c)  decision to institute criminal proceedings against applicant and several others; and (d)  at 6.10 p.m. report on applicant’s personal inspection at UBOZ premises: applicant had no documents or other possessions with him

(iv)  20/11/11 - applicant remanded in custody (Zarichnyy District Court in Sumy)

(v)  16/06/15 - applicant convicted (drug dealing) following his guilty plea, sentenced to term served and released from Sumy SIZO (Kovpakivskyy District Court in Sumy)

(vi)  22/09/15 - case remitted for retrial, as applicant alleged that he had pleaded guilty only because he had been in despair on account of lengthy detention (Sumy Regional Court of Appeal)

Available material does not allow to establish conclusively that applicant sustained injuries when he was under control of police: his own accounts of relevant circumstances are contradictory and medical evidence is not conclusive (for relevant examples, see Aleksandr Smirnov v. Ukraine, no. 38683/06, § 54, 15 July 2010; and Yevgeniy Petrenko v. Ukraine, no. 55749/08, §§ 78-81, 29 January 2015)

B.  Complaint under Article 3: procedural limb

Domestic investigation

Key issues

1.  Complaint lodged:

(i)  18/01/11, with investigator M. in charge of criminal case against applicant (by applicant’s father)

(ii)  09/02/11, with Prosecutor General (by applicant’s father)

2.  Response by authorities:

(i)  23/03/11, 27/05/11, 21/10/11, 24/02/12, 28/05/12, 16/08/12 - decisions not to institute criminal proceedings: no appearance of ill-treatment (Sumy regional prosecutor’s office); quashed on appeal (shortcomings in investigation)

(ii)  17/12/12 - decision to institute criminal proceedings (Sumy city prosecutor’s office)

(iii)  04/02/14, 28/07/14, 14/05/15, decisions to close criminal proceedings (no appearance of ill-treatment); quashed on appeal (shortcomings in investigation)

3.  Present status:

Ill-treatment case is under re-investigation (decision of 15/06/15, Zarichnyy District Court in Sumy): (a)  not all previous instructions given by court had been implemented; (b)  applicant had not been properly advised of various procedural steps or afforded sufficient opportunity to take part in them as injured party

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

(ii)  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)

(iii)  Delays in taking important procedural steps such as ordering forensic assessment of applicant’s injuries and limited participation of applicant in investigation as recognised by domestic court (for relevant examples, see Danilov v. Ukraine, no. 2585/06, § 70, 13 March 2014; and Barysheva v. Ukraine, no. 9505/12, § 61, 14 March 2017)

C.  Other complaints under well-established case-law

Article 5 § 1: alleged unrecorded deprivation of liberty

1.  Dates of alleged deprivation of liberty /arresting authority

15/01/11 (about 2.40 p.m.) – 17/01/11 (5.30 p.m.), Sumy UBOZ

2.  Grounds and documents regularising alleged deprivation of liberty during above period:

No documents. Fact of deprivation of liberty was denied by official authorities. According to statements by investigator M. and officers of Sumy UBOZ, applicant, having been invited by M. for questioning on 15/01/11 after search of his flat, had come on his own to Sumy UBOZ building on 17/01/11 to voluntarily confess to drug dealing

3.  Domestic complaints by applicant:

Same as in respect of ill-treatment complaint (see Section B above)

4.  Present status of investigation:

Investigation is pending, following decision of 15/06/15 by Zarichnyy District Court in Sumy, in which it instructed prosecutor’s office, in particular, to enquire: (a)  where could applicant have been from 15/01/11 until 17/01/11; (b)  why he had reported for questioning to Sumy UBOZ building rather than to Sumy police station, where investigator M., who had allegedly invited him for questioning, had his office; and (c)  why applicant, who had allegedly travelled to Sumy on his own, had been found to have no documents or other possessions when inspected at 6.10 p.m. on 17/01/11 in connection with documenting his arrest

5.  Other relevant facts and documents:

(i)  see Section A (4) above;

(ii)  06/07/11 – letter no. 7015 from chief of Zarichanskyy district police in Khmelnytskyy to applicant’s lawyer acknowledging that on 16/01/11 applicant’s father had complained to the department that his son had been missing since 15/01/11. It also indicated that applicant’s father had been informed in response that Sumy UBOZ had notified Zarichanskyy police that on 15/01/11 applicant had been found by them in possession of drugs and taken to Sumy for questioning

(iii)  6-10/02/12 – witness statements given to Khmelnytskyy prosecutor’s office by lay witnesses present during flat search and neighbours (they saw applicant handcuffed and escorted by police on 15/01/11); and by applicant’s family members (he was missing from 15/01 until 17/01/11)

(iv)  In judgment of 16/06/15 by Kovpakivskyy District Court in Sumy (subsequently quashed on appeal) term of applicant’s custodial sentence was calculated starting from “day of his arrest”, indicated as 15/01/11

D.  Just satisfaction

Parties’ submissions

Court’s award

Applicant:

Non-pecuniary damage: EUR 20,000

Costs and expenses: EUR 9,997 in legal fees, correspondence, travel and other expenses incurred in domestic and Convention proceedings

Supporting documents: contracts for legal representation; postage receipts, train tickets between Khmelnitskyy and Sumy for applicant’s father; invoice for legal services from Mr Pashinskyy representing applicant in Convention proceedings indicating that twenty-six hours were spent on applicant’s case (filing application and observations); receipts of payment to S., lawyer representing applicant in domestic criminal proceedings

Government:

Non-pecuniary damage: claim exorbitant and unsubstantiated

Costs and expenses: exorbitant and unsubstantiated claim except travel and postage expenses (substantiated by documents); legal fees incurred by applicant in connection with representation in domestic criminal proceedings are not relevant to subject matter of present case

Non-pecuniary damage:

EUR 10,000

Costs and expenses:

EUR 3,500

under all heads

Plus any tax chargeable to applicant

4.  Application no. 9462/12

by Mr Leonid Sergiyovych Lymanets

Ukrainian national born in 1989 and residing in Vysoka Pich

Represented by Mr Y.L. Huzovskiy, a lawyer practicing in Zhytomyr

Lodged on 23 January 2012

A.  Complaint under Article 3: substantive limb

Alleged ill-treatment

Key issues

1.  Date/places:

16/05/09, in forest near Buky village and in Zhytomyrskyy district police station

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

Police officers drove by applicant’s house and invited him to step in their car for “conversation”. Once he did, they drove off, stopped car in forest, took applicant out and demanded that he confess to various counts of theft, including theft of municipal computer equipment on 29/03/09. At that time, officers repeatedly hit him with truncheons. Subsequently, they put applicant back in car and arrived at police station. In office no. 25, applicant was placed on floor face down. Two officers twisted his arms behind his back, while third officer sat on his buttocks and twisted his legs. Subsequently he was placed on chair and kicked into chest with his own knee

3.  Medical and other evidence:

(i)  18/05/09 - report no. 1191 (Zhytomyr regional forensic medical expert bureau): applicant (then detained) had no injuries and no complaints

(ii)  21/05/09 - certificate (Zhytomyr regional clinical hospital): contusion of soft cerebral and chest tissue

4.  Other relevant facts:

(i)  16/05/09 - applicant brought to police station and detained on charges of disorderly conduct in public while being drunk

(ii)  Once in police station, applicant signed document acknowledging that he had been drunk and had engaged in disorderly conduct as charged. Based on case file, he gave no other self-incriminating statements

(iii)  18/05/09 - police brought applicant to Zhytomyrskyy District Court, which sentenced him to three days’ administrative detention for disorderly conduct as charged

(iv)  19/05/09 - (according to Government) or in the morning of 20/05/09 (according to applicant) applicant was released from police station after having served that sentence

(v)  25/01/10 - applicant arrested on charges that on 14/01/10 he had robbed Ms Sh. and remanded in custody

(vi)  unspecified date - applicant additionally charged of having stolen municipal computer equipment on 29/03/09

(vii)  24/11/10 - Zhytomyrskyy District Court convicted applicant of both charges; applicant’s further appeals were dismissed at two instances and on 22/07/11 his conviction became final

Available material does not allow to establish conclusively that applicant sustained injuries when he was under control of police: notably, expert assessment conducted immediately after alleged ill-treatment recorded no injuries/complaints; first examination attesting injuries performed at least twenty-four hours after release; there is no appearance that applicant confessed to any count of theft while in police custody (for relevant examples, see Kozinets v. Ukraine, no. 75520/01, §§ 56-58, 6 December 2007; and Kulyk v. Ukraine, no. 30760/06, §§ 82‑83, 23 June 2016)

B.  Complaint under Article 3: procedural limb

Domestic investigation

Key issues

1.  Complaint lodged:

18/05/09, with Zhytomyrskyy district prosecutor’s office (by applicant’s mother)

2.  Response by authorities:

(i)  30/06/09, 21/09/09, 04/07/11, 03/04/12, 27/08/12 - decisions not to institute criminal proceedings: no appearance of ill-treatment (Zhytomyrskyy district prosecutor’s office) - quashed by courts: shortcomings in investigation

(ii)  25/12/13 - criminal proceedings instituted (Zhytomyrskyy district prosecutor’s office)

(iii)  30/07/14 - proceedings closed: no appearance of ill-treatment

3.  Findings:

origin of injuries not clear; ill-treatment allegations ill-founded based on statements by police officers and medical report of 18/05/09 documenting no injuries in police custody

4.  Evidence collected:

(i)  18/05/08 - applicant examined by forensic expert

(ii)  various dates - statements taken from applicant, his parents, friends, police officers and forensic expert

(i)  Delay in instituting criminal proceedings leading to loss of evidence (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)

(ii)  Repeated remittals for reinvestigation in view of shortcomings recognised by domestic authorities (for relevant examples, see Belousov v. Ukraine, no. 4494/07, § 56, 28 November 2013; and Adnaralov v. Ukraine, no. 10493/12, § 50, 27 November 2014)

(iii)  No appearance of thorough effort to collect objective evidence and resolve inconsistencies, notably, no forensic assessment of applicant’s injuries ordered after they had been diagnosed in hospital; no confrontations between applicant and medical expert who had recorded no injuries (for relevant examples, see Ushakov and Ushakova v. Ukraine, no. 10705/12, § 93, 18 June 2015; and Barysheva v. Ukraine, no. 9505/12, § 60, 14 March 2017)

C.  Just satisfaction

Parties’ submissions

Court’s award

Applicant:

Non-pecuniary damage: EUR 10,000

Costs and expenses: EUR 150 (correspondence, photocopying, translation, telephone calls to lawyer)

Supporting documents: payment receipts for amounts claimed in hryvnias (UAH)

Government:

Non-pecuniary damage: exorbitant claim

Costs and expenses: at Court’s discretion

Non-pecuniary damage:

EUR 7,500

Costs and expenses:

EUR 150

Plus any tax chargeable to applicant

5.  Application no. 53941/12

by Mr Mircha Stepanovich Rotar

Ukrainian national born in 1983 and residing in Kharkiv

Represented by Mr A.A. Kristenko, a lawyer practicing in Kharkiv

Lodged on 30 July 2012

A.  Complaint under Article 3: substantive limb

Alleged ill-treatment

Key issues

1.  Dates/places:

(i)  09/09/11, in the street, a group of individuals suspecting applicant of robbing a bus passenger of mobile telephone chased him down and handed him over to police (according to applicant, these individuals were police officers in plain clothes staging appearance of robbery and performing undercover operation)

(ii)  09-12/09/11, in Chervonozavodskyy district police station in Kharkiv

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

(i)  When applicant was descending from bus, two undercover police agents pretending to be civilians suddenly punched him in his face; when he attempted to escape, these individuals, joined by several others, chased him down, knocked him to ground, restrained, punched and kicked him

(ii)  At police station, officers punched and kicked applicant, knocked him on floor, sat on his body twisting his arms, threatened to rape him, squeezed his genitals and electrocuted him

3.  Medical and other evidence:

09/09/11, 10/09/11 and 11/09/11 – reports by ambulance teams of Meshchaninov municipal hospital: cerebral concussion, haematoma in temple area, bruising in nasal area, contusion of cervical portion of spine, abrasions on hip and hand

4.  Other relevant facts:

(i)  09/09/11 - criminal proceedings instituted against applicant (robbery of bus passenger); applicant arrested and remanded in custody

(ii)  during police questioning, applicant made no self-incriminating statements

(iii)  03/04/13 - Chervonozavodskyy District Court in Kharkiv convicted applicant as charged; appeals dismissed at two instances, on 17/10/13 judgment became final

Documented injuries could have been sustained during altercation with civilians (for relevant examples, see Kobets v. Ukraine, no. 16437/04, §§ 46-50, 14 February 2008; and Kirpichenko v. Ukraine, no. 38833/03, § 73, 2 April 2015)

B.  Complaint under Article 3: procedural limb

Domestic investigation

Key issues

1.  Complaint lodged:

10/09/11, with Governor of police temporary detention facility (ITT)

2.  Response by authorities:

(i)  30/07/12 - decision not to institute criminal proceedings: no appearance of ill-treatment (Chervonozavodskyy district prosecutor’s office in Kharkiv) - quashed by court: shortcomings in investigation

(ii)  29/12/12 - criminal proceedings instituted (Chervonozavodskyy district prosecutor’s office in Kharkiv)

(iii)  31/01/13 - criminal proceedings closed; subsequently re-opened again

(iv)  18/06/13 - criminal proceedings closed (decision upheld by courts at two instances)

3.  Findings:

injuries sustained before applicant was handed over to police; possibly inflicted by unidentified civilians who had chased him after he had committed robbery

4.  Evidence collected:

various dates - statements taken from applicant, police officers and medical professionals

(i)  Delay in instituting criminal proceedings leading to loss of evidence (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)

(ii)  No appearance of thorough effort to collect objective evidence, notably, no forensic assessment of applicant’s injuries; no attempts to identify and question civilians implicated in injuring him and to reconstruct relevant events (for relevant examples, see Danilov v. Ukraine, no. 2585/06, § 70, 13 March 2014; and Drozd v. Ukraine, no. 12174/03, §§ 69-70, 30 July 2009)

C.  Other complaints under well-established case-law

Article 3: conditions of detention

Facility: Pre-trial detention centre (SIZO) no. 27 in Kharkiv

Period of detention: 19/09/11 – 30/09/13

Specific grievances: overcrowding (below 2 square metres per inmate), infestation of cell with insects, lack of fresh air, inadequate hygienic facilities, sleeping in turns in view of lack of beds; dirty stained mattresses and lack of bed linen, lack of toiletries, lack and poor quality of food, mould, dampness, foul odour, lack of daylight, lack of facilities for doing laundry and grossly insanitary environment

D.  Just satisfaction

Parties’ submissions

Court’s award

Applicant:

Non-pecuniary damage: EUR 40,000

Costs and expenses: UAH 173,635 in legal fees to be paid directly to account of applicant’s lawyer, Mr A. Kristenko (from date of filing application)

Supporting documents:

(i)  contract for legal representation dating 25/10/12

(ii)  invoice for legal services, indicating that Mr A.Krisetenko spent 71.75 hours on case (preparation of application form and observations and handling correspondence)

Other relevant information:

applicant granted legal aid (EUR 850)

Government: exorbitant claims

Non-pecuniary damage:

EUR 10,000

Costs and expenses:

EUR 2,000

To be transferred to applicant’s lawyer (Mr A.Kristenko), as requested

Plus any tax chargeable to applicant

 

Full & Egal Universal Law Academy