Communicated on 6 October 2015
FIFTH SECTION
Application no 15367/14
Pavlo Sergiyovych SHMORGUNOV against Ukraine
and 32 other applications
(see list appended)
STATEMENT OF FACTS
1. Application no. 15367/14 (Shmorgunov v. Ukraine) and 8 other applications (for details, see the annexed table below)
THE FACTS
The applications were lodged by eleven applicants whose personal information and other case details are set out in the annexed table below. Ten of them are Ukrainian nationals. Mr B. Yegiazaryan is an Armenian national. The applicants reside in Ukraine. They are represented before the Court by Mr M. Tarakhkalo (applications nos. 15367/14, 16280/14, 18118/14, 20546/14, 24405/14 and 33767/14), Mr P. Dykan (application no. 42271/14) and Ms Y. Zakrevska (applications nos. 54315/14 and 19954/15), lawyers practising in Kyiv.
The facts of the cases, as submitted by the applicants, may be summarised as follows.
The applicants took part in the protests in central Kyiv, which started in late November 2013 and have been commonly referred to as Euromaidan and/or Maidan. Ten of the applicants, excluding Mr S. Dymenko (application no. 33767/14), were beaten up by the special police units during the violent dispersal of the protesters in the early morning of 30 November 2013, as a result of which they suffered various injuries. After the event, the applicants, except for Mr R. Ratushnyi (in so far as application no. 19954/15 is concerned[1]) and Ms O. Kovalska (application no. 19954/15), were medically examined. Their injuries included brain concussion, wounds on the head and face, haematomas on the body and the limbs, and a fractured elbow. The applicants complained of their ill-treatment to the authorities. Different investigations were launched into the event; the domestic proceedings have not been completed so far.
After the event on 30 November 2013, the protests intensified. In the course of one of further attempts of the police to disperse the protesters in the early hours of 11 December 2013, Mr S. Dymenko (application no. 33767/14) and Mr R. Ratushnyi (in so far as application no. 54315/14 is concerned) were beaten up by them. According to the medical documents, they had a number of haematomas on the head and the face. Upon those applicants’ complaints to the prosecutors, criminal investigations were launched into the event. The applicants have not been informed of the outcome.
COMPLAINTS
The applicants complain under Article 3 of the Convention that they were subjected to torture or inhuman or degrading treatment by the police and that the authorities failed to carry out an effective investigation into the relevant events. They further complain that the dispersal of the protesters by the police was in violation of Article 11 of the Convention and that they were ill-treated for taking part in peaceful protests. Some of the applicants (application no. 19954/15) also complain about a violation of Article 10 of the Convention in that regard. Relying on Article 13 of the Convention, the applicants claim that no remedy is available for their complaints under Articles 3 and 11 and, in so far as application no. 19954/15 is concerned, under Article 10 at the domestic level.
QUESTIONS TO THE PARTIES
1. Were the applicants subjected to torture or inhuman or degrading treatment, in breach of Article 3 of the Convention, having regard to their allegations that they were ill-treated by the police?
2. Have the domestic authorities conducted an effective investigation into the above complaints, as required by Article 3 of the Convention?
3. Has there been an interference with the applicants’ right to freedom of peaceful assembly, contrary to Article 11 of the Convention?
4. Have the applicants had at their disposal an effective domestic remedy in respect of their complaints under Articles 3 and 11, as required by Article 13 of the Convention?
ANNEX
No.
Application number
Date of introduction
Applicant’s name
Date of birth
15367/14
11/02/2014
Pavlo Sergiyovych SHMORGUNOV
25/01/1996
16280/14
14/02/2014
Borys Zavenovych YEGIAZARYAN
07/08/1956
18118/14
05/02/2014
Yaroslav Sergiyovych LEPYAVKO
25/09/1990
20546/14
26/02/2014
Oleg Ivanovych GRABETS
05/03/1978
24405/14
20/03/2014
Oleg Igorovych
BALA
13/05/1982
33767/14
18/04/2014
Sergiy Sergiyovych DYMENKO
20/07/1981
42271/14
30/05/2014
Fedir Ivanovych LAPIY
01/04/1973
54315/14
10/07/2014
Roman Tarasovych RATUSHNYY
05/07/1997
19954/15
16/04/2015
Andriy Volodymyrovych RUDCHYK
Oleksandra Yevgenivna KOVALSKA
Roman Tarasovych RATUSHNYY
Andriy Olegovych
SOKOLENKO
11/01/1986
27/03/1964
05/07/1997
31/08/1982
2. Application no. 31174/14 (Cherevko v. Ukraine) and 2 other applications (for details, see the annexed table below)
THE FACTS
The applications were lodged by three Ukrainian nationals whose personal information and other case details are set out in the annexed table below. The applicants reside in Ukraine. They are represented before the Court by Mr D. Stepanov (application no. 31174/14) and Mr O. Baydyk (applications nos. 36299/14 and 36845/14), lawyers practising in Kyiv.
The facts of the cases, as submitted by the applicants, may be summarised as follows.
On different dates between early December 2013 and mid-February 2014 the applicants were arrested by the police in central Kyiv. Two of the applicants claim that they took part in the protests commonly referred to as Euromaidan and/or Maidan (applications nos. 36299/14 and 36845/14), whereas the third applicant states that he was observing and filming the protests (application no. 31174/14). In the course of their arrest, the applicants were allegedly beaten up by the police. According to the medical documents, their injuries principally included multiple haematomas on the face, the body and the limbs. Two of the applicants also suffered brain concussion (applications nos. 31174/14 and 36299/14) and one of them had fractured fingers (application no. 31174/14). It is unknown whether the applicants complained of their ill-treatment to the authorities.
Criminal proceedings were brought against them on suspicion of mass disorder (a criminal offence punishable by five to ten years’ imprisonment). District Courts warranted their continued detention. The courts based their decisions mainly on the grounds that the applicants were suspected of a serious crime and that the suspicion had evidential basis. They further held that the applicants might evade investigation and trial, obstruct the establishment of the truth in the case or continue committing crimes, without giving specific details in that regard.
One of the applicants, Mr G. Cherevko, successfully appealed against the decision concerned to the Kyiv Court of Appeal and was released upon an undertaking to appear before the investigator at first request; he was also required to seek the authorities’ permission to leave his place of residence (application no. 31174/14). Later on, the detention measure as regards two other applicants was reconsidered by the District Courts, one of them, Mr O. Zadoyanchuk, having been released on a similar undertaking (application no. 36845/14), whereas the other one, Mr D. Poltavets, was placed under house arrest (application no. 36299/14). Eventually, criminal proceedings against two of the applicants were discontinued pursuant to the Amnesty Law of 19 December 2013, as amended on 16 January 2014,[2] (application no. 31174/14) and for the reason of absence of elements of crime in the applicant’s actions (application no. 36299/14), respectively. Specific details in that regard are set out in the annexed table below.
COMPLAINTS
The applicants complain, relying expressly or in substance on Articles 3 and 5 § 1 of the Convention, of their ill-treatment by the police and unlawful detention. They further complain that the court proceedings concerning their detention were flawed. Two of the applicants rely on Article 6 § 1 of the Convention in that regard (applications nos. 36299/14 and 36845/14). Those two applicants also complain of a violation of Article 7 of the Convention stating that they were deprived of the right to freely express their political views through taking part in Euromaidan, whereas one of them (application no. 31174/14) complains, relying on Articles 7 and 11 of the Convention, that he was arrested “in the course of his participation in a peaceful assembly”, while adding that he was “observing the protests”.
QUESTIONS TO THE PARTIES
1. Were the applicants subjected to torture or inhuman or degrading treatment, in breach of Article 3 of the Convention?
2. Were the applicants deprived of their liberty in breach of Article 5 § 1 of the Convention?
3. Did the judicial review of the applicants’ detention meet the requirements of Article 5 § 3 of the Convention, in particular in so far as the scope and the nature of such review are concerned?
4. Has there been an interference with the applicants’ right to freedom of peaceful assembly, in so far as the applications nos. 36299/14 and 36845/14 are concerned? If so, has it been contrary to Article 11 of the Convention?
ANNEX
No.
Application number
Date of introduction
Applicant’s name
Date of birth
Date of arrest
District Court and date of decision warranting detention
Date of release
31174/14
01/04/2014
Gennadiy Anatoliyovych CHEREVKO
10/03/1972
01/12/2013
Shevchenkivskyy 03/12/2013
11/12/2013
36299/14
28/04/2014
Dmytro Mykhaylovych POLTAVETS
19/03/1972
23/01/2014
Golosiyivskyy
24/01/2014
14/02/2014
36845/14
28/04/2014
Oleg Leonidovych ZADOYANCHUK
13/10/1966
18/02/2014
Dniprovskyy
09/02/2014
22/02/2014
3. Application no. 42180/14 (Zagorovka v. Ukraine) lodged on 30 May 2014 and application no. 42753/14 (Kadura v. Ukraine) lodged on 3 June 2014
THE FACTS
The applications were lodged by Mr Vladyslav Mykolayovytch Zagorovka, born in 1975, and Mr Volodymyr Oleksandrovych Kadura, born in 1982, who are Ukrainian nationals and reside in Ukraine. They are represented before the Court by Mr M. Tarakhkalo, a lawyer practising in Kyiv.
The applicants took part in the protests in central Kyiv, which started in late November 2013 and have been commonly referred to as Euromaidan and/or Maidan. In this connection they were arrested by the police on 1 and 5 December 2013, respectively. The relevant facts, as submitted by the applicants, may be summarised as follows.
A. Facts pertinent to Mr V. Zagorovka’s case
In the course of his arrest on 1 December 2013 Mr V. Zagorovka was allegedly beaten up by the police. According to the medical documents, his injuries principally included brain concussion, multiple haematomas on the face, the body and the limbs, and erosion of the right eye cornea. The applicant complained of his ill-treatment to the authorities, but to no avail. While in detention, he was not given adequate and timely medical assistance in respect of his injuries. In particular, during the initial twelve hours of his detention the applicant was not given any medical assistance. Eventually, he was examined by different doctors, though he was not allowed to remain in a specialised medical institution to undergo treatment as regards his eye injury, which he claims he urgently needed.
On 4 December 2013 the Shevchenkivskyy District Court in Kyiv warranted the applicant’s continued detention pending the criminal proceedings against him on suspicion of mass disorder (a criminal offence punishable by five to ten years’ imprisonment). The court based its decision mainly on the grounds that the applicant was suspected of a serious crime and that the suspicion had evidential basis. It further held that he might evade investigation and trial, obstruct the establishment of the truth in the case or continue committing crimes, without giving specific details in that regard. The applicant lodged an appeal against that decision, but it was not examined.
On 11 December 2013 the Pecherskyy District Court in Kyiv approved a plea bargain agreement between the prosecution and the applicant, found him guilty of serious disturbance of public order (Article 293 of the Criminal Code), sentenced him to a fine and released him from detention.
On 31 January 2014 the same court released the applicant from the punishment pursuant to the Amnesty Law of 19 December 2013, as amended on 16 January 2014.[3]
On 28 February and 3 March 2014 the prosecutors lodged with the court two requests for re-examination of the case in the light of newly discovered circumstances, arguing that the applicant’s actions contained no elements of a crime. On 21 March 2014 the court annulled the decisions of 11 December 2013 and 31 January 2014 and remitted the case to the prosecutors. The applicant has not provided information about any further developments in this regard.
B. Facts pertinent to Mr V. Kadura’s case
In the course of his arrest on 5 December 2013 Mr V. Kadura was allegedly beaten up by the police. According to the medical documents, his injuries principally included contusion of the chest and the waist and haematomas on the face.
The same day the police searched his car and seized a number of his personal belongings. The car itself was also seized. The next day the police searched his house, in the course of which they also seized a number of objects and money belonging to the applicant and his family. As the courts refused to validate the further retention of the seized property, it had to be returned to the applicant. He made a number of requests to the authorities seeking the return of his property, but to no avail. His complaints in this regard to the courts were subject to several reconsiderations and did not result in the return of the property.
On 6 December 2013 the Shevchenkivskyy District Court warranted the applicant’s continued detention pending the criminal proceedings against him on suspicion of mass disorder. The court based its decision mainly on the same grounds as in the case of Mr V. Zagorovka (see above). On 17 December 2013 the Kyiv Court of Appeal upheld that decision.
Subsequently, the applicant lodged several requests for his release from criminal prosecution according to the Amnesty Law of 19 December 2013[4], which were rejected for various reasons.
On 24 January 2014 the Shevchenkivskyy District Court, relying on the Amnesty Law of 19 December 2013, as amended on 16 January 2014[5], discontinued the criminal proceedings against the applicant and released him from detention. The court also ordered the return of all objects seized in the course of the searches on 5 and 6 December 2013 to those whom they belonged. According to the applicant, some of the objects have not been returned to him despite his specific requests.
In April 2014 the applicant complained of his ill-treatment and unlawful detention to the authorities. In reply, he was informed that his complaints would not be investigated as the criminal case against him was closed.
COMPLAINTS
The applicants complain under Articles 3 of the Convention of their ill-treatment by the police and ineffective investigation in that regard. Mr V. Zagorovka also complains of the inadequate medical assistance in detention.
The applicants further complain under Article 5 §§ 1, 2, 3, 4 and 5 of the Convention that their detention was unlawful and unfounded and that they could not receive compensation for their unlawful detention. Mr V. Zagorovka also complains that he was not brought promptly before the court after his arrest and that his appeal against the court’s decision warranting his continued detention was not examined.
Relying on Article 13 of the Convention, Mr V. Zagorovka claims that no remedy is available for his complaints under Articles 3 and 5 at the domestic level.
Mr V. Kadura complains of unjustified and unlawful delay in the return of the property seized by the police in the course of the searches on 5 and 6 December 2013. He relies on Article 1 of Protocol No. 1 in that regard.
QUESTIONS TO THE PARTIES
1. Have the applicants complied with the requirement of exhaustion of domestic remedies laid down in Article 35 § 1 of the Convention in respect of all their complaints, the notice of which is being given to the Government? Have such remedies been available to them in theory and in practice, as required by Article 13 of the Convention?
2. Were the applicants subjected to torture or inhuman or degrading treatment, in breach of Article 3 of the Convention, having regard to their allegations that they were beaten up by the police?
3. Have the domestic authorities conducted an effective investigation into the above complaints, as required by Article 3 of the Convention?
4. Did Mr V. Zagorovka receive adequate medical treatment in respect of his health problems while in detention, as required by Article 3 of the Convention?
5. Were the applicants deprived of their liberty in breach of Article 5 § 1 of the Convention?
6. Did the judicial review of the applicants’ detention meet the requirements of Article 5 § 3 of the Convention, in particular in so far as the scope and the nature of such review are concerned?
7. Did Mr V. Zagorovka have at his disposal an effective procedure by which he could challenge the lawfulness of his detention, as required by Article 5 § 4 of the Convention?
8. Do the applicants have an effective and enforceable right to compensation for their detention, allegedly in contravention of Article 5 §§ 1 and 3, and also Article 5 § 4 in so far as the case concerns Mr V. Zagorovka, as required by Article 5 § 5 of the Convention?
9. Has there been a violation of Article 1 of Protocol No. 1 on account of the allegedly unlawful and unjustified delay in the return of Mr V. Kadura’s property?
4. Application no. 21424/14 (Khmelyovskyy and Others v. Ukraine) and 9 other applications (for details, see the annexed table below)
THE FACTS
The applications were lodged by fourteen Ukrainian nationals whose personal information and other case details are set out in the annexed table below. The applicants reside in Ukraine. They are represented before the Court by Mr V. Pogosyan, a lawyer practising in Dnipropetrovsk.
The facts of the cases, as submitted by the applicants, may be summarised as follows.
On 26 January 2014 a manifestation in support of the protests in central Kyiv, commonly referred to as Euromaidan and/or Maidan, was held in front of the Dnipropetrovsk Regional Administration. Some of the applicants took part in it (applications nos. 21424/14, 32024/14, 32161/14, 32778/14, 33719/14 and 51084/14), whereas other applicants state that they did not participate and that they were merely present nearby (applications nos. 21429/14, 33729/14, 42200/14 and 42204/14). The police arrested a number of persons, including the applicants, on suspicion of mass disorder (a criminal offence punishable by five to ten years’ imprisonment) and took them to a police station.
One of the applicants claims that he was beaten up by the police in the course of his arrest, but provides no details in that regard (application no. 42200/14).
On 27 January 2014 the Babushkinskyy District Court in Dnipropetrovsk issued decisions ordering the applicants’ detention for sixty days pending the criminal investigations against them. The court based its decisions mainly on the grounds that the applicants were suspected of a serious crime and that the suspicion had evidential basis. It further held that they might evade investigation and trial, obstruct the establishment of the truth in the case or continue committing crimes, without giving specific details in that regard.
Upon the applicants’ appeals, the Dnipropetrovsk Court of Appeal quashed those decisions on different dates (see the annexed table below) and ordered the applicants’ release, having placed some of them under house arrest, whereas some of the applicants were released on an undertaking to appear before the investigator at first request. Eventually, the criminal proceedings against the applicants were discontinued pursuant to the Amnesty Law of 29 January 2014[6].
COMPLAINTS
Relying on Article 5 § 1 of the Convention, the applicants complain that their detention was unlawful. According to them, there was no factual basis for a “reasonable suspicion” of them having committed any criminal offence and the domestic criminal law provision on mass disorder was vague and unclear and therefore they could not foresee that “their participation in the protest would be characterised as mass disorder”. They further complain that the court decisions ordering their detention were unreasoned and were not based on due assessment of the relevant facts.
QUESTION TO THE PARTIES
Were the applicants deprived of their liberty in breach of Article 5 § 1 of the Convention?
ANNEX
No.
Application number
Date of introduction
Applicant’s name
Date of birth
Date of release from detention
21424/14
05/03/2014
Sergiy Vitaliyovych KHMELYOVSKYY
Eduard Vyacheslavovych SHEVCHENKO
Vladyslav Eduardovych SHEVCHENKO
07/06/1974
19/01/1962
21/01/1988
03/02/2014
12/02/2014
12/02/2014
21429/14
07/03/2014
Valeriy Oleksandrovych DUBOVTSEV
Leonid Georgiyovych BABIN
Kostyantyn Kakhovych ORBELADZE
12/09/1992
07/12/1975
04/02/1991
03/02/2014
12/02/2014
31/01/2014
32024/14
16/04/2014
Yuriy Petrovych BEZOTOSNYY
05/05/1959
31/01/2014
32161/14
16/04/2014
Kostyantyn Volodymyrovych PEGARKOV
30/10/1982
31/01/2014
32778/14
16/04/2014
Oleg Mykolayovych TSYGANOV
03/02/1976
31/01/2014
33719/14
16/04/2014
Vadym Anatoliyovych SHEBANOV
01/04/1969
31/01/2014
33729/14
16/04/2014
Yevgen Vitaliyovych BALABAY
06/11/1982
31/01/2014
42200/14
16/04/2014
Valeriy Volodymyrovych LAPIN
06/05/1960
03/02/2014
42204/14
16/04/2014
Oleksandr Anatoliyovych BEREZA
10/11/1965
03/02/2014
51084/14
03/07/2014
Vitaliy Andriyovych KHLUSOV
13/04/1990
03/02/2014
5. Application no. 58925/14 (Vorontsov v. Ukraine) and 4 other applications (for details, see the annexed table below)
THE FACTS
The applications were lodged by five Ukrainian nationals whose personal information and other case details are set out in the annexed table below. The applicants reside in Ukraine. They are represented before the Court by Ms N. Okhotnikova, a lawyer practising in Kharkiv.
The facts of the cases, as submitted by the applicants, may be summarised as follows.
On 19 February 2014 a manifestation in support of the protests in central Kyiv, commonly referred to as Euromaidan and/or Maidan, was held in Kharkiv, in which the applicants, except for Mr A. Romankov (application no. 58981/14), took part. Mr A. Romankov claims that he did not participate in the protest and that he was merely present nearby. At about 5 p.m. the police used force to disperse the protesters and arrested a number of them, including the applicants. Mr A. Romankov alleges that he was beaten-up in the course of his arrest, but provides no further details in that regard.
On 20 February 2014 the Chervonozavodskyy District Court in Kharkiv found the applicants guilty of malicious disobedience to a lawful order of the police (an administrative offence under Article 185 of the Code of Administrative Offences) and sentenced them to fifteen days of administrative detention. On 22 February 2014 the same court released the applicants from serving their punishment pursuant to the Amnesty Law of 21 February 2014.[7] As they were released from administrative detention, the applicants decided not to appeal against the decisions of 20 February 2014.
COMPLAINTS
Relying on Article 5 § 1 of the Convention, the applicants complain that their detention was unlawful and that the court decisions ordering their detention were unreasoned and were not based on due assessment of the relevant facts. They further complain that their detention was arbitrary as it was a means to quell the then ongoing pro-Maidan protests and to punish the applicants for taking part in a manifestation. Relying on Article 5 § 3 of the Convention, the applicants claim that they had no opportunity to prepare arguments against their detention at the hearing on 20 February 2014 and that they could not effectively challenge the measure during that hearing.
QUESTIONS TO THE PARTIES
1. Have the applicants complied with the requirement of exhaustion of domestic remedies laid down in Article 35 § 1 of the Convention in respect of their complaint under Article 5 § 1 of the Convention, the notice of which is being given to the Government? Have such remedies been available to them in theory and in practice, as required by Article 13 of the Convention?
2. Were the applicants deprived of liberty in violation of Article 5 § 1 of the Convention, having regard, in particular, to their complaints of arbitrariness of their detention? Did the deprivation of liberty fall within any of paragraphs (a), (b), (c), (d), or (e) of this provision?
ANNEX
No.
Application number
Date of introduction
Applicant’s name
Date of birth
58925/14
19/08/2014
Maksym Valeriyovych VORONTSOV
25/02/1979
58969/14
19/08/2014
Anton Oleksandrovych SAVCHENKO
18/02/1992
58976/14
19/08/2014
Volodymyr Ivanovych STRUKOV
20/02/1959
58981/14
19/08/2014
Oleksandr Sergiyovych ROMANKOV
13/09/1995
59120/14
19/08/2014
Denys Oleksandrovych SINELNIKOV
13/09/1976
6. Application no. 36834/14 (Akhrameyev v. Ukraine) lodged on 28 April 2014 and application no. 55133/14 (Shushar v. Ukraine) lodged on 30 July 2014
THE FACTS
The applications were lodged by Mr Vitaliy Oleksandrovych Akhrameyev, born in 1955, and Mr Vitaliy Vitaliyovych Shushar, born in 1983, who are Ukrainian nationals and reside in Ukraine. Mr V. Akhrameyev represented before the Court by Mr O. Baydyk, a lawyer practising in Kyiv.
The relevant facts, as submitted by the applicants, may be summarised as follows.
A. Facts pertinent to Mr V. Akhrameyev’s case
The applicant took part in the protests in central Kyiv, which started in late November 2013 and have been commonly referred to as Euromaidan and/or Maidan. In this connection he was arrested by the police on 21 January 2014.
On 23 January 2014 the Solomyanskyy District Court in Kyiv warranted his continued detention pending the criminal proceedings against him on suspicion of mass disorder (a criminal offence punishable by five to ten years’ imprisonment). The court based its decision mainly on the grounds that the applicant was suspected of a serious crime and that the suspicion had evidential basis. It further held that he might evade investigation and trial, obstruct the establishment of the truth in the case or continue committing crimes, without giving specific details in that regard. On 11 February 2014 the Kyiv Court of Appeal upheld that decision.
On 12 February 2014 the District Court released the applicant from detention, having placed him under house arrest.
The applicant has not provided information about any further developments in his criminal case.
B. Facts pertinent to Mr V. Shushar’s case
On 23 January 2014 the applicant took part in a pro-Maidan manifestation in Cherkassy. In this connection he was arrested by the police in the early hours of the next day.
On 25 January 2014 the Smila Town Court warranted his continued detention pending the criminal proceedings against him on suspicion of mass disorder. The court based its decision mainly on the same grounds as in the case of Mr V. Akhrameyev (see above).
On 4 February 2014 the Sumy Court of Appeal quashed that decision and ordered the applicant’s release upon an undertaking to appear before the investigator at first request.
Eventually, the criminal proceedings against the applicant were discontinued for the reason of absence of elements of a crime in his actions.
COMPLAINTS
Mr V. Akhrameyev complains under Article 6 § 1 of the Convention of the unfairness of the court proceedings concerning his detention. Relying on Articles 7 and 11 of the Convention, he complains that he was deprived of the right to freely express his political views through taking part in Maidan.
Relying on Article 5 § 1 of the Convention, Mr V. Shushar complains that his detention was unlawful and that the court decision ordering his detention was unreasoned and was not based on due assessment of the relevant facts. He further complains under Article 5 § 2 of the Convention that he was not informed of the reasons for his arrest. Relying on Articles 6 § 3 and 13 of the Convention that he could not effectively defend his interests during the hearing on his detention. The applicant complains of a violation of Article 11 of the Convention, stating that he was arrested for the reason that he was taking part in a peaceful protest.
QUESTIONS TO THE PARTIES
1. Were the applicants deprived of their liberty in breach of Article 5 § 1 of the Convention?
2. Did the judicial review of the applicants’ detention meet the requirements of Article 5 § 3 of the Convention, in particular in so far as the scope and the nature of such review are concerned?
3. Has there been an interference with the applicants’ right to freedom of peaceful assembly? If so, has it been contrary to Article 11 of the Convention?
7. Application no. 39800/14 (Verbytskyi v. Ukraine) lodged on
8 April 2014
THE FACTS
The applicant, Mr Sergiy Tarasovytch Verbytskyy, is a Ukrainian national, who was born in 1958 and currently lives in Kyiv. He is represented before the Court by Ms Y. Zakrevska, a lawyer practising in Kyiv.
The facts of the case, as submitted by the applicant, may be summarised as follows.
In January 2014 the applicant’s brother, Mr Y. Verbytskyy, who lived in Lviv, came to Kyiv and took part in the protests in its central part, commonly referred to as Euromaidan and/or Maidan. In the early hours of 21 January 2014 he was injured by the police into the eye. At about 3.45 a.m. another protester, Mr I. Lutsenko, took him to a hospital. At the hospital they were abducted by several persons in plain clothes. Mr Y. Verbytskyy and Mr I. Lutsenko were placed into a vehicle and taken to a forest, where they were beaten up and ill-treated by the abductors. Subsequently, they were taken to another place, which looked like a garage, where they were questioned concerning their involvement in Maidan, in the course of which they were beaten up and ill-treated again. According to Mr I. Lutsenko, he heard Mr Y. Verbytskyy being beaten more severely after the abductors found out that he was from Lviv and because he spoke Ukrainian. Mr I. Lutsenko also heard the abductors discussing the possibility of taking him and Mr Y. Verbytskyy to a police station.
At about 6 p.m. on the same day Mr I. Lutsenko was taken to and left in a forest near to a village in the Boryspil District, about 50 kilometres away from central Kyiv, from where he managed to get help.
In the meantime, the wife of Mr Y. Verbytskyy lodged with the police a complaint about his abduction. On 21 January 2014 criminal investigation was launched into the complaint.
On 22 January 2014 the body of Mr Y. Verbytskyy was found in a forest in the Boryspil District. A preliminary medical report recorded that he had died of hypothermia. Multiple injuries were found on his body, the limbs, the head and the face.
The same day the police started criminal investigation into the murder of Mr Y. Verbytskyy. Eventually, it was merged with the investigation into his abduction. The investigation has not been completed so far.
COMPLAINTS
The applicant complains about a violation of Articles 2, 3, 5 and 11 of the Convention on account of the abduction, detention, torture and murder of Mr Y. Verbytskyy. Relying essentially on Article 13 of the Convention, the applicant complains that there are no effective remedies for those complaints at the domestic level. The applicant claims that his brother’s abductors were either the agents of the State or acted on the instructions of the authorities in order to quell the protests. The applicant also complains under Article 14 of the Convention taken in conjunction with Articles 2 and 3 that his brother was abducted, tortured and murdered because he took part in the protests, was from Lviv and spoke Ukrainian.
QUESTIONS TO THE PARTIES
1. Were the authorities responsible for the applicant’s brother’s alleged abduction, detention, torture and murder?
2. Has Mr Y. Verbytskyy’s right to life, ensured by Article 2 of the Convention, been violated in the present case?
3. Was he subjected to torture or inhuman or degrading treatment, in breach of Article 3 of the Convention?
4. Have the domestic authorities conducted an effective investigation into the above complaints, as required by Articles 2 and 3 of the Convention?
5. Was Mr Y. Verbytskyy subjected to violence based on a discriminatory motive contrary to Article 14 of the Convention, this provision being read in conjunction with Articles 2 and 3?
6. Was Mr Y. Verbytskyy deprived of his liberty within the meaning of Article 5 § 1 of the Convention? Did the deprivation of liberty fall within any of paragraphs (a), (b), (c), (d), or (e) of this provision and was in compliance with it?
7. Was there an interference with Mr Y. Verbytskyy’s right to freedom of peaceful assembly, contrary to Article 11 of the Convention, regard being had to the applicant’s complaints that his brother was abducted, detained, tortured and murdered for taking part in peaceful protests?
8. Has there been an effective domestic remedy available for the above complaints under Articles 2, 3, 5 § 1 and 11, as required by Article 13 of the Convention?
8. Application no. 43860/14 (Smaliy v. Ukraine) lodged on 13 June 2014
THE FACTS
The applicant, Mr Viktor Mykolayovych Smaliy, is a Ukrainian national, who was born in 1976 and currently lives in Kyiv. He is represented before the Court by Ms O. Preobrazhenskaya, a lawyer practising in Kyiv.
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant, who is a lawyer practising in Kyiv, was legally representing one of the organisers of the protests in Ukraine between November 2013 and February 2014, commonly referred to as Euromaidan or Maidan, in a criminal case.
On 6 December 2013 the police started criminal proceeding against him. According to them, the applicant verbally abused and attempted to hit a judge during a hearing concerning his client’s detention.
On 9 December 2013 the police arrested the applicant, having beaten him up. He complained to the authorities. He was medically examined, which revealed that he had a number of haematomas on the face, the body and the limbs; no further action was taken by the authorities in this regard.
In the course of the arrest the police searched the applicant and seized his professional documents and a mobile telephone, which contained confidential information relating to his clients’ cases. The applicant complained to the authorities, but to no avail. His telephone was not returned to him.
On 11 December 2013 the Dniprovskyy District Court in Kyiv ordered the applicant’s detention pending the criminal proceedings against him on suspicion of having attempted to assault a judge during a court hearing in his client’s case. The court based its decision mainly on the grounds that the applicant was suspected of a serious crime and that the suspicion had evidential basis. It further held that he might evade investigation and trial, obstruct the establishment of the truth in the case or continue committing crimes, having not given specific details in that regard. On 20 December 2013 the Kyiv Court of Appeal rejected the applicant’s appeal and upheld the decision of 11 December 2013.
On 21 January 2014 the District Court rejected the applicant’s request for release, having found, inter alia, that there was a danger that the applicant would intimidate witnesses as he was aware of the importance of their testimony and was inclined to aggressive and antisocial behaviour as demonstrated by the acts of which he was being suspected. On 6 February 2014 the same court extended the maximum period of the applicant’s detention, having relied principally on the same reasons as in its previous decisions.
On 23 February 2014 that court ordered the applicant’s release. The applicant has not provided a copy of that decision.
On 26 February 2014 the prosecutors discontinued the criminal investigation against the applicant for the reason of absence of elements of a crime in his actions, relying on the Resolution of the Verkhovna Rada of 24 February 2014, which provided, inter alia, for the closure of criminal cases against several persons, including the applicant, who were declared “political prisoners”.
Between 9 December 2013 and 23 February 2014 the applicant was detained in the Kyiv Temporary Detention Centre (SIZO). According to him, the conditions of his detention were humiliating and degrading. In particular, he was not provided with adequate medical assistance; he had not been given hygiene items; there were substantial delays of him being allowed to take a shower, sometimes exceeding ten days; and he was not always allowed to take the daily walk to which he was entitled. He also states that his cell was under the round-the-clock video surveillance resulting in his “complete” lack of privacy. The applicant complained about the conditions of his detention to the SIZO administration and to other authorities, but to no avail.
COMPLAINTS
The applicant complains under Article 3 of the Convention of his ill-treatment by the police and the ineffective investigation in that regard. Relying on Articles 3, 8 and 13 of the Convention, he complains about the conditions of his detention, inadequate medical assistance and the lack of effective remedies in that regard.
The applicant complains under Article 5 §§ 1 and 3 of the Convention that his detention was unlawful and that court decisions prolonging his detention were not based on any relevant grounds. Relying on Article 18 of the Convention taken in conjunction with Article 5 §§ 1 and 3, he claims that his detention and its prolongation had ulterior motives. In particular, it was used by the authorities to hinder his professional activity, in particular as regards his providing legal assistance to those who were in political opposition.
The applicant complains of a violation of Article 8 of the Convention on account of his personal search and seizure of his telephone.
Finally, the applicant complains of a violation of Articles 8 and 34 of the Convention, stating that the SIZO administration blocked his correspondence with his lawyer, the domestic authorities and the European Court of Human Rights.
QUESTIONS TO THE PARTIES
1. Was the applicant subjected to torture or inhuman or degrading treatment, in breach of Article 3 of the Convention, having regard to his allegation that he was beaten up by the police?
2. Have the domestic authorities conducted an effective investigation into the above complaint, as required by Article 3 of the Convention?
3. Has the applicant been subjected to inhuman and degrading treatment, in breach of Article 3 of the Convention, having regard to his complaints about the conditions of his detention?
4. Has the applicant received adequate medical treatment in respect of his health problems, as required by Article3 of the Convention?
5. Was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention?
6. Did the judicial review of the applicant’s detention meet the requirements of Article 5 § 3 of the Convention, in particular in so far as the scope and the nature of such review are concerned?
7. Has there been a violation of Article 8 of the Convention on account of the applicant’s complaints about the conditions of detention and the inadequate medical treatment?
8. Has there been a violation of Article 8 of the Convention on account of the applicant’s complaints of his personal search and the seizure of his telephone?
9. Was the applicant under the permanent video surveillance while detained in his SIZO cell? If so, has there been an interference with his private life within the meaning of Article 8 § 1 of the Convention? Has such interference been in accordance with the law and necessary in terms of Article 8 § 2?
10. Has the applicant had at his disposal an effective domestic remedy for his complaints under Articles 3 and 8 about the conditions of detention and the inadequate medical treatment, as required by Article 13 of the Convention?
11. Were the applicant’s arrest and detention applied for a purpose other than those envisaged under Article 5, contrary to Article 18 of the Convention?
APPENDIX
List of applications
1.15367/14Pavlo Sergiyovych SHMORGUNOV
2.16280/14Borys Zavenovych YEGIAZARYAN
3.18118/14Yaroslav Sergiyovych LEPYAVKO
4.20546/14Oleg Ivanovych GRABETS
5.24405/14Oleg Igorovych BALA
6.33767/14Sergiy Sergiyovych DYMENKO
7.42271/14Fedir Ivanovych LAPIY
8.54315/14Roman Tarasovych RATUSHNYY
9.19954/15Andriy Volodymyrovych RUDCHYK
Oleksandra Yevgenivna KOVALSKA
Roman Tarasovych RATUSHNYY
Andriy Olegovych SOKOLENKO
10.31174/14Gennadiy Anatoliyovych CHEREVKO
11.36299/14Dmytro Mykhaylovych POLTAVETS
12.36845/14Oleg Leonidovych ZADOYANCHUK
13.42180/14Vladyslav Mykolayovych ZAGOROVKA
14.42753/14Volodymyr Oleksandrovych KADURA
15.21424/14Sergiy Vitaliyovych KHMELYOVSKYY
Eduard Vyacheslavovych SHEVCHENKO
Vladyslav Eduardovych SHEVCHENKO
16.21429/14Valeriy Oleksandrovych DUBOVTSEV
Leonid Georgiyovych BABIN
Kostyantyn Kakhovych ORBELADZE
17.32024/14Yuriy Petrovych BEZOTOSNYY
18.32161/14Kostyantyn Volodymyrovych PEGARKOV
19.32778/14Oleg Mykolayovych TSYGANOV
20.33719/14Vadym Anatoliyovych SHEBANOV
21.33729/14Yevgen Vitaliyovych BALABAY
22.42200/14Valeriy Volodymyrovych LAPIN
23.42204/14Oleksandr Anatoliyovych BEREZA
24.51084/14Vitaliy Andriyovych KHLUSOV
25.58925/14Maksym Valeriyovych VORONTSOV
26.58969/14Anton Aleksandrovich SAVCHENKO
27.58976/14Vladimir Ivanovich STRUKOV
28.58981/14Oleksandr Sergiyovych ROMANKOV
29.59120/14Denys Oleksandrovych SINELNIKOV
30.36834/14Vitaliy Oleksandrovych AKHRAMEYEV
31.55133/14Vitaliy Vitaliyovych SHUSHAR
32.39800/14Sergiy Tarasovytch VERBYTSKYY
33.43860/14Viktor Mykolayovych SMALIY
[1] Mr R. Ratushnyi is one of the applicants in application no. 19954/15 which concerns complaints of the violent dispersal of protesters on 30 November 2013. He also lodged another application (no. 54315/14) concerning a different event (see details below).
[2] On 19 December 2013 the Verkhovna Rada adopted a Law principally aimed at preventing the prosecution and punishment of persons who had participated in the protests during the period between November and December 2013. On 16 January 2014 the Verkhovna Rada amended that law. It applied, in particular, to persons who were suspected or accused of committing mass disorder during the aforementioned period. The law was repealed by the Amnesty Law adopted on 21 February 2014 which entered into force on 28 February 2014.
[3] On 19 December 2013 the Verkhovna Rada adopted a Law principally aimed at preventing the prosecution and punishment of persons who had participated in the protests during the period between November and December 2013. On 16 January 2014 the Verkhovna Rada amended that law. It applied, in particular, to persons who were suspected or accused of committing mass disorder during the aforementioned period. The law was repealed by the Amnesty Law adopted on 21 February 2014 which entered into force on 28 February 2014.
[4] See above.
[5] See above.
[6] One of the amnesty laws which the Verkhovna Rada adopted principally with a view to preventing the prosecution and punishment of persons who had participated in the protests during the period between 27 December 2013 and the date of entry into force of the law (2 February 2014). It was repealed by the Amnesty Law adopted on 21 February 2014 which entered into force on 28 February 2014.
[7] The law was adopted by the Verkhovna Rada on 21 February 2014 and entered into force on 28 February 2014. It principally envisaged an amnesty for crimes committed between 21 November 2013 and the moment of its entry into force in connection with the mass protests which had started on 21 November 2013. This law also envisaged release from responsibility for related administrative offences. It is currently in force.
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