CASE OF STOROZHUK AND KONONOV v. UKRAINE

FIFTH SECTION

CASE OF STOROZHUK AND KONONOV v. UKRAINE

(Applications nos. 13577/16 and 48768/16)

JUDGMENT
 

STRASBOURG

8 February 2024

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

In the case of Storozhuk and Kononov v. Ukraine,

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

 Lado Chanturia, President,
 Stéphanie Mourou-Vikström,
 Mykola Gnatovskyy, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

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

the decision to give notice of the complaints set out in paragraphs 1-3 below to the Ukrainian Government (“the Government”), represented, most recently, by their Agent Ms M. Sokorenko, and to declare the remainder of application no. 48768/16 inadmissible;

the parties’ observations;

Having deliberated in private on 18 January 2024,

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

SUBJECT MATTER OF THE CASE

1.  The applicants referred, in particular, to Article 3 of the Convention and alleged that they had been ill-treated by police officers and that the investigation into their complaints had been ineffective.

2.  Mr A.M. Storozhuk (application no. 13577/16) additionally complained, in particular, under Article 5 § 1 of the Convention, that on 21 September 2010 he had been arbitrarily restrained, handcuffed, detained in a police car and taken to a substance abuse centre without any grounds and without proper records being made.

3.  Mr K.S. Kononov (application no. 48768/16) additionally complained under Article 5 § 3 of the Convention that the duration of his detention during the investigation and trial of his criminal case had been excessive and under Article 6 § 1 of the Convention that the length of the criminal proceedings against him had been excessive.

4.  The facts of each of the individual applications are set out in detail in the appended tables.

THE COURT’S ASSESSMENT

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

6.  The applicants complained, under various Convention provisions, that they had been ill-treated by the police and that their 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 these complaints fall to be examined under Article 3 of the Convention.

7.  The Government contended that the complaint by Mr A.M. Storozhuk (application no. 13577/16) was premature, as the relevant domestic proceedings were still ongoing. They further argued that Mr K.S. Kononov (application no. 48768/16) had not exhausted domestic remedies, as he had not pursued an appeal against a decision of 6 July 2016 to discontinue the criminal proceedings in respect of his allegations of ill-treatment. Finally, the Government argued that the complaints raised by both applicants were manifestly ill-founded in any event.

8.  Reviewing the Government’s objections in the light of the available documents and the principles developed in its case-law (see, in particular, Kaverzin v. Ukraine, no. 23893/03, §§ 91-99 and 172-80, 15 May 2012, and Belousov v. Ukraine, no. 4494/07, §§ 48-49 and 56-58, 7 November 2013), the Court considers that they should be dismissed. It finds that the applicants have raised arguable allegations of ill-treatment and provided the domestic authorities with appropriate opportunities to deal with them, thus discharging their obligation to exhaust domestic remedies. The Court further considers that the complaints raised by both applicants are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and are not inadmissible on any other grounds. They must therefore be declared admissible.

9.  Reviewing the facts of the present case in the light of the general principles established in its case-law (see Bouyid v. Belgium [GC], no. 23380/09, §§ 81-90 and 114-23, ECHR 2015), the Court considers that the applicants raised credible allegations of ill-treatment at the domestic level. Those claims triggered an obligation on the national authorities to carry out effective and thorough investigations with a view to establishing the origin of the applicants’ alleged and documented injuries and identifying and punishing those responsible should the allegations of ill-treatment prove to be true.

10.  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 details).

11.  The Court notes that in Kaverzin (cited above, §§ 173-80) it found that the reluctance of the authorities to ensure a prompt and thorough investigation into complaints of ill-treatment 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 previous case-law, the Court considers that they constitute another example of a failure to ensure a prompt and thorough investigation.

12.  The Court further finds that the applicants’ accounts as to the circumstances of their alleged ill-treatment are detailed and coherent. Even though 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 ill-treatment by law-enforcement officers. 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; see 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.

13.  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.

14.  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.

15.  The applicants also raised other complaints (see paragraphs 2 and 3 above).

16.  Having examined these complaints in the light of the material before it and in the light of its well-established case-law, the Court concludes that those complaints are neither manifestly ill-founded nor inadmissible on any other grounds and that the Government’s objection concerning the alleged prematurity of the complaint under Article 5 § 1 submitted by Mr A.M. Storozhuk in application no. 13577/16 must be dismissed (see Belousov, cited above, § 73).

17.  The Court further concludes that these complaints must be declared admissible and that they disclose the following violations:

(a)  a violation of Article 5 § 1 of the Convention on account of the unlawfulness of the unrecorded detention of Mr A.M. Storozhuk (application no. 13577/16), in the light of the Court’s findings in Grinenko v. Ukraine (no. 33627/06, §§ 74-78, 15 November 2012) and Belousov (cited above, § 85);

(b)  a violation of Article 5 § 3 of the Convention on account of the length of the pre-trial detention of Mr K.S. Kononov (application no. 48768/16), in the light of the Court’s findings in Kharchenko v. Ukraine (no. 40107/02, §§ 79-81, judgment of 10 February 2011) and Ignatov v. Ukraine (no. 40583/15, §§ 40-42, judgment of 15 December 2016); and

(c)  a violation of Article 6 § 1 of the Convention on account of the length of the criminal proceedings against Mr K.S. Kononov, in the light of the Court’s findings in Pélissier and Sassi v. France ([GC], no. 25444/94, § 67, ECHR 1999‑II); Frydlender v. France ([GC], no. 30979/96, § 43, ECHR 2000‑VII); and Merit v. Ukraine (no. 66561/01, 30 March 2004).

APPLICATION OF ARTICLE 41 OF THE CONVENTION

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

19.  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 claims for just satisfaction.

20.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(a)  that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended tables, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

Done in English, and notified in writing on 8 February 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Martina Keller Lado Chanturia
 Deputy Registrar President

APPENDIX

1.  Application no. 13577/16

by Mr Artur Moyseyovych Storozhuk

a Ukrainian national born in 1974 and residing in Khmelnytskyy

Represented by Mr V.V. Afadeyev, a lawyer practising in Khmelnytskyy

Lodged on 24 February 2016

Relevant facts and documents

Article 3: key issues

(i)  Applicant’s account:

At nearly midnight on 21 September 2010 the applicant began arguing with S.V., a senior police officer from the Tsentralnyy district police division in Khmelnytskyy, accusing him of obstructing an inspection of his car, which had been damaged by fire. In response to the applicant’s accusations, S.V. ordered his subordinates to restrain him. Two officers twisted the applicant’s arms behind his back and held them upwards. In that position, S.V. inflicted several truncheon blows on the applicant and ordered him to be locked in the detainees’ compartment of the police vehicle while the inspection of the applicant’s car and the site of the fire was finalised. Ignoring the applicant’s complaints of severe pain in his right arm and shoulder and his requests for immediate medical assistance, the officers detained the applicant in the vehicle for about half an hour and subsequently (at about 1 a.m. on 22 September 2010) took him to the substance abuse centre, where he was subjected to an intoxication test. In response to the applicant’s further complaints about pain and following the advice of the centre’s employees, the officers then took him to the Khmelnytskyy municipal hospital, where at about 1.40 a.m. on the same day he was hospitalised on account of a fracture of the right humerus. No documents setting out the grounds for the applicant’s handcuffing, detention in the police car or taking him to the drug treatment centre were created.

(ii)  Medical and other evidence:

(a)  22-29 September 2010, in-patient hospital treatment records (from the Khmelnytskyy municipal hospital): closed fracture of the right humerus with dislocation of broken bone fragments;

(b)  Several expert assessments indicating, in particular, that the applicant’s injuries were of medium seriousness.

(iii)  Domestic findings (preliminary; appeal proceedings pending):

On 14 November 2022 Khmelnytskyy city District Court convicted S.V. of having abused his authority by resorting to the unjustified application of force and unlawfully ordering the detention of the applicant (Articles 365 and 371 of the Criminal Code). The court released S.V. from punishment, applying the statute of limitation, and rejected the applicant’s claim for damages against S.V. and the Ministry of Interior, having found that the claim should be brought directly against the State. Both parties appealed. The available information indicates that the appeal proceedings are still pending.

(i)  Based on the file, and regard being had to the findings of the first-instance court (albeit, per available information, the court’s findings are not yet final), there is no reason to question the credibility of the applicant’s account of how he suffered his injuries. In any event, it has not been shown by the State that the applicant’s injuries resulted from a legitimate application of force or that no ill-treatment took place (for relevant examples, see Rehbock v. Slovenia, no. 29462/95, § 76, ECHR 2000‑XII; Danilov v. Ukraine, no. 2585/06, §§ 65-67, 13 March 2014; and Sylenok and Tekhnoservis-Plus v. Ukraine, no. 20988/02, §§ 69-70, 9 December 2010).

(ii)  Delay in opening a full‑scale investigation (complaint lodged on 28/09/10, Khmelnytskyy prosecutor’s office; investigation launched on 29/01/11, Tsentralnyy district police office in Khmelnytskyy; for relevant examples, see, mutatis mutandis, Davydov and Others v. Ukraine, nos. 17674/02 and 39081/02, §§ 310‑12, 1 July 2010, and Chernega and Others v. Ukraine, no. 74768/10, § 167, 18 June 2019).

(iii)  Lack of independence of the initial inquiry (case was only transferred from the police to the prosecutor’s office in 2012; 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).

(iv)  Repeated remittals for reinvestigation in view of the shortcomings recognised by the domestic courts (for relevant examples, see Belousov v. Ukraine, no. 4494/07, § 56, 7 November 2013, and Adnaralov v. Ukraine, no. 10493/12, § 50, 27 November 2014).

(v)  Overall length of the proceedings (over twelve years) which are still ongoing (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).

Just satisfaction

Parties’ submissions

The Court’s award

Applicant :

Non-pecuniary damage : 17,000 euros (EUR)

Costs and expenses: EUR 2,250 in legal fees (Convention proceedings: filing the application, preparation of post-communication submissions and additional information at the request of the Court; payment outstanding) to be paid directly to the applicant’s lawyer, Mr V.V. Afadeyev (time-sheet provided: 45 hours at 50 euros (“EUR”) per hour)

Government:

Claims exorbitant and unsubstantiated

Non-pecuniary damage:

EUR 15,000

Costs and expenses:

EUR 2,250

To be paid to Mr V.V. Afadeyev, as requested

plus any tax chargeable to the applicant on the above amounts

2.  Application no. 48768/16

by Mr Kostyantyn Sergiyovych Kononov

Ukrainian national born in 1983 and residing in Dnipro

Lodged on 13 August 2016

Relevant facts and documents

Article 3: key issues

(i)  Applicant’s account of alleged ill-treatment:

On 27 February 2012 officers of the Krasnogvardiyskyy district police in Dnipro stopped the applicant in the street and compelled him to enter their car. Having first taken him to a deserted place and then to the police office, they repeatedly punched and kicked the applicant; hit him with a stick on the hands and with a water bottle on the head; suffocated him using a gas mask filled with cigarette smoke; and threatened to cause troubles to his family members unless he confessed to having robbed and raped several victims. Being afraid of further ill-treatment, the applicant agreed to give false self-incriminating statements and lied to the forensic expert and the detention facility authorities that no ill-treatment had taken place. Subsequently, the applicant drew attention of the court trying his case to the video-recording of his questioning of 1 March 2012, where allegedly one could see a hematoma on his forehead and a bruise under his left eye; however, these injuries were not recorded in the medical documents.

(ii)  Medical and other evidence:

28 February 2012 report no. 662e (Dnipropetrovsk forensic expert bureau): minor injuries (abrasions (both wrists, left thumb) sustained within one to two days of the examination; the abrasions on the applicant’s wrists could possibly have been sustained by friction against handcuffs; the abrasion on the thumb could possibly have been sustained as a result of a fall from a height equivalent to that of the applicant.

(iii)  Domestic findings:

The injuries documented in the expert report of 28 February 2012 were likely sustained in a fall on the stairs (as explained by the applicant to the expert) and by friction of the wrists against handcuffs (last decision to close criminal proceedings: 6 July 2016, Dnipropetrovsk Regional Prosecutor’s Office).

(iv)  Other relevant information

(a)  Duration of pre-trial detention: 27 February 2012 – 10 July 2014 (conviction at first instance); 7 July 2016 - (conviction quashed on appeal) - 10 January 2018 (fresh conviction at first instance);

(b)  Duration of criminal proceedings against the applicant: 27 February 2012 – 18 September 2019, three levels of jurisdiction.

(i)  The State provided no plausible satisfactory and convincing explanation as to the origin of the applicant’s documented injuries and did not disprove his account of alleged ill-treatment (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)  Delay in opening a full‑scale investigation (complaint lodged on 28 May 2012, Krasnogvardiyskyy district prosecutor’s office in Dnipro; investigation launched on 5 December 2012; for relevant examples, see, mutatis mutandis, Davydov and Others v. Ukraine, nos. 17674/02 and 39081/02, §§ 310-12, 1 July 2010; and Chernega and Others v. Ukraine, no. 74768/10, § 167, 18 June 2019).

(iii)  Repeated remittals for reinvestigation in view of the shortcomings found by the supervising prosecutorial 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 the documented injuries could have been sustained by falling on the stairs, without establishing the relevant timing and circumstances and omission to address the applicant’s allegations of threats and the abuse of a gas mask and the undocumented injuries allegedly visible on the video-recording (for relevant examples, see Gordiyenko v. Ukraine, no. 27620/09, §§ 95‑96, 16 October 2014; and Kleutin v. Ukraine, no. 5911/05, § 68, 23 June 2016).

Just satisfaction

Parties’ submissions

The Court’s award

Applicant:

Non-pecuniary damage: EUR 15,000

Costs and expenses: 15,000 hryvnias (“UAH”) in legal fees incurred in domestic criminal proceedings (no supporting documents provided)

Government:

Claims exorbitant and unsubstantiated

Non-pecuniary damage:

EUR 15,000

plus any tax that may be chargeable