Communicated on 6 October 2015
FIFTH SECTION
Application no. 20066/14
Vitaliy Volodymyrovych LEVCHENKO and Andriy Petrovych MELNYCHENKO
against Ukraine
lodged on 24 February 2014
STATEMENT OF FACTS
The applicants, Mr Vitaliy Volodymyrovych Levchenko (“the first applicant”) and Mr Andriy Petrovych Melnychenko (“the second applicant”), are Ukrainian nationals, who were born in 1984 and 1986 respectively and live in Ladyzhyn. They are represented before the Court by Ms N.V. Gurkovska, a lawyer practising in Vinnytsya.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
The applicants worked as builders at a construction site in Ladyzhyn.
1. The incident of 20 November 2012
In the evening on 20 November 2012 the applicants arrived on the construction site demanding their salary which was due on that day. They could not find their foremen and decided to wait for them, refusing to leave the site. The guard called the police and complained about the applicants’ conduct. Three police officers arrived and arrested the applicants, considering that they had committed an administrative offence provided for in Article 173 of the Code of Administrative Offences (minor disorderly conduct).
According to the applicants, the police officers beat them up on the construction site and at the police station. For that purpose the police officers used a rubber truncheon and handcuffs. They continued beating when the applicants had been lying handcuffed on the floor in the police station.
The applicants were released from the police station on the same day when their parents arrived.
2. Investigation of the incident and related issues
On 20 November 2012, following his release from the police station, the first applicant was examined and treated by an ambulance doctor. The doctor noted that the first applicant was drunk and had injuries on the body.
On 21 November 2012 the first applicant was examined and treated by a traumatic surgeon at the local hospital.
On the same day the investigator of the Ladyzhyn Police Department opened criminal investigation into the facts of the applicants’ unlawful resistance to the police officers during their arrest on 20 November 2012.
On 22 November the second applicant lodged a complaint against police officers with the Ladyzhyn Town Prosecutor’s Office.
On 23 November 2012 the forensic medical expert found that the first applicant sustained the following injuries which had been inflicted by blunt solid objects: closed fractures of the left forearm, the second finger of the right hand and the fourth finger of the left hand; bruises on the upper and lower limbs. The expert stated that the injuries could have been inflicted on 20 November 2012.
On 28 November 2012 a criminal investigation into the police officers’ alleged misconduct was opened.
On 30 November 2012 the forensic medical expert found that the second applicant had bruises on the right eye, the lower limbs, left ear and left side of the chest. The injuries had been inflicted by blunt solid objects and could have been sustained on 20 November 2012.
On the same day the first applicant lodged a complaint against the police officers with the Ladyzhyn Town Prosecutor’s Office.
On 5 December 2012 the Ladyzhyn Town Prosecutor’s Office closed the criminal investigation against the police officers for lack of corpus delicti. It found that the applicants behaved aggressively and that the police had to use force against them in order to terminate their unlawful conduct.
On 6 December 2012 the Vinnytsya Regional Prosecutor’s Office quashed the decision of 5 December 2012 as unfounded considering that it had been necessary to additionally examine the circumstances in which the applicants had sustained their injuries. The case was referred to Trostyanets District Prosectutor’s Office for further investigation.
On 17 December 2012 the Ladyzhyn Town Court (“the Town Court”) found the second applicant guilty of minor disorderly conduct which took place on 20 November 2012 and punished him with forty hours of community work.
On 18 December 2012 the Town Court found the first applicant guilty of disorderly conduct which took place on 20 November 2012 and punished him with a fine.
On 1 February 2013 the Vinnytsya Regional Court of Appeal (“the Court of Appeal”) quashed the Town Court’s decision of 17 December 2012 (imposing administrative liability on the second applicant) as unsubstantiated and remitted the case to the police authorities for further proceedings.
On 5 February 2013 the Court of Appeal upheld the Town Court’s decision of 18 December 2012 considering that the first applicant had been lawfully convicted of minor disorderly conduct.
On 11 and 12 February 2013 the forensic medical expert issued additional reports to address the investigator’s questions as regards the manner in which the applicants could have sustained the injuries. The reports suggested that the injuries could have been sustained either in the way described by the applicants or in the way described by the police officers.
On 20 February 2013 the investigator of the Trostyanets District Prosectutor’s Office closed the investigation against the police officers for lack of corpus delicti. According to the investigator’s decision, the police officers had arrived at the construction site in order to terminate the unlawful conduct of the applicants; in the course of arrest operation, the police officers and the applicants had been injured; this was proved by the medical documents. In particular, the first police officer sustained abrasions on the right arm and forearm, the second – abrasion on the neck, and the third – a bruise on the finger of the right hand. As to the applicants, the available material (medical and witness evidence) suggested that they had sustained injuries when they had aggressively resisted the police officers. The investigator further noted that the applicants were drunk on that day and this fact had been proved by the results of the alcohol test conducted at the police station and by witness statements. He also mentioned that the first applicant had two earlier records of conviction for administrative offences and the second applicant had ten such records. Moreover, the second applicant had three criminal records.
On 25 April 2013 the Vinnytsya Regional Prosecutor’s Office quashed the decision of 20 February 2013 as unsubstantiated and ordered further investigation. It noted that the investigator had not properly examined the circumstances in which the applicants sustained their injuries and had not sufficiently analysed the justification for the use of a rubber truncheon and the handcuffs by police officers.
On 2 October 2013 the investigator of the Trostyanets District Prosectutor’s Office closed the investigation against police officers for the same reasons as stated in his previous decision. He once again concluded that the applicants had sustained injuries as a result of their unlawful resistance to the police officers; the latter had been required to use special means of restraint in order to terminate the applicants’ unlawful conduct.
On 10 December 2013 the Trostyanets District Court quashed the decision of 2 October 2013 finding that the circumstances of the incident between the applicants and the police officers had not been investigated thoroughly and that the basic principles of criminal proceedings had not been observed.
The investigation was resumed.
B. Relevant domestic law
The relevant domestic law can be found in the judgment in the case of Zalevskiy v. Ukraine (no. 3466/09, §§ 42 and 43, 16 October 2014).
COMPLAINTS
The applicants complain under Articles 3 and 13 of the Convention that they were ill-treated by police and that there was no effective investigation in this respect.
QUESTIONS TO THE PARTIES
1. Have the applicants been subjected to ill-treatment, in breach of Article 3 of the Convention?
2. Having regard to the procedural protection from ill-treatment, was the investigation of the applicants’ allegations of ill-treatment in breach of Article 3 of the Convention?
The Government are invited to provide copies of the documents concerning the domestic proceedings in respect of the applicants’ allegations of ill-treatment, including the decisions by which the authorities closed the investigations and the decisions of the supervising authorities reviewing those decisions.
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