Last Updated on June 17, 2021 by LawEuro
The applicants alleged that they had been ill-treated by the police and that the investigation into their respective complaints had been ineffective. In addition, one applicant (application no. 57854/13) also raised other complaints under Article 5 §§ 1, 3, 4 and 5 and Article 6 § 1 of the Convention.
FIFTH SECTION
CASE OF BOYKO AND OTHERS v. UKRAINE
(Applications nos. 24753/13 and 3 others – see appended table)
JUDGMENT
STRASBOURG
17 June 2021
This judgment is final but it may be subject to editorial revision.
In the case of Boyko and Others v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Stéphanie Mourou-Vikström, President,
Ganna Yudkivska,
Lado Chanturia, judges,
and Martina Keller, Deputy Section Registrar,
Having regard to:
the applications (nos. 24753/13, 28610/13, 57854/13 and 65553/13) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by four Ukrainian nationals, Mr Valeriy Valeriyovych Boyko, Ms Natalya Olegivna Panchenko, Mr Mykhaylo Mykolayovych Klyuy and Mr Dmitriy Aleksandrovich Goncharenko (“the applicants”), on the various dates indicated in the appended table;
the decision to give notice to the Ukrainian Government (“the Government”) of the complaints concerning alleged police ill-treatment and ineffective investigation of the relevant allegations in all applications and complaints concerning allegedly unlawful, arbitrary and lengthy deprivation of liberty, impossibility to challenge detention and obtain compensation for unlawful detention as well as length of the criminal proceedings in respect of application no. 57854/13 and to declare inadmissible the remainder of the applications;
the parties’ observations;
Having deliberated in private on 27 May 2021,
Delivers the following judgment, which was adopted on that date:
1. The applicants alleged that they had been ill-treated by the police and that the investigation into their respective complaints had been ineffective. In addition, one applicant (application no. 57854/13) also raised other complaints under Article 5 §§ 1, 3, 4 and 5 and Article 6 § 1 of the Convention.
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 LAW
I. JOINDER 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.
II. 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 various Convention provisions. 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 the complaints at issue fall to be examined under Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
A. Admissibility
6. The Government noted that Mr V. Boyko, who had lodged application no. 24753/13, had not complied with procedural formalities in lodging his appeal on points of law against the decision of the Zakarpatskyy Regional Court of Appeal taken on 14 June 2012. They further submitted that Mr M. Klyuy, who had lodged application no. 57854/13, had not appealed against the prosecutor’s office’s decision of 12 May 2016 to close criminal proceedings concerning his ill-treatment allegations, and that the investigation into the ill-treatment complaints in respect of Mr D. Goncharenko, who had lodged application no. 65553/13, was still ongoing. Those three applicants had therefore not exhausted the domestic remedies available to them in respect of the complaints which they had lodged.
7. In addition to that, the Government also submitted that ill-treatment allegations by Mr M. Klyuy had been manifestly ill-founded.
8. No objections concerning the admissibility of the complaints raised in the remaining application (no. 28610/13 lodged by Ms N. Panchenko) were submitted.
9. Messrs V. Boyko, M. Klyuy and D. Goncharenko contested the Government’s view.
10. Viewing the available documents and the parties’ submissions in the light of the principles developed in the Court’s case law (see, in particular, Kaverzin v. Ukraine, no. 23893/03, §§ 91-98 and 172-80, 15 May 2012 and Belousov v. Ukraine, no. 4494/07, §§ 48-49 and 56-58, 7 November 2013) the Court finds that the aforementioned applicants provided the domestic authorities with appropriate opportunities to deal with their allegations and that the Government’s objections concerning non-exhaustion of domestic remedies should be dismissed.
11. The Court further considers that the complaints raised by all of the 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.
B. Merits
12. The applicants alleged that they had been the victims of police ill‑treatment, and that their complaints had not been investigated properly.
13. The Government provided no observations in respect of application no. 28610/13 (lodged by Ms N. Panchenko). They alleged that no violation of Article 3 of the Convention had taken place in respect of the other three applicants.
14. Reviewing the facts of the present case in the light of the general principles established in its case-law (as a recent authority, see 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 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’ alleged injuries and identifying and punishing those responsible, should the ill-treatment allegations prove to be true.
15. From the documents before the Court, it appears that the domestic investigations did not reflect a serious effort to determine the relevant facts (see appended tables for details).
16. The Court notes that in the case of Kaverzin v. Ukraine (cited above, §§ 173-80) it found that the reluctance of the authorities to ensure a prompt and thorough investigation into 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 a prompt and thorough investigation.
17. The Court further finds that the applicants’ accounts as to the circumstances of their alleged ill-treatment are detailed and coherent. While 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 the victims of police ill-treatment. 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, and also, by way of example, Adnaralov v. Ukraine, no. 10493/12, § 45, 27 November 2014; Kulik v. Ukraine, no. 10397/10, § 59, 19 March 2015; and Yaroshovets and Others v. Ukraine, nos. 74820/10 and 4 others, § 85, 3 December 2015), the Court concludes that the State’s responsibility for the applicants’ ill-treatment is engaged.
18. 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.
19. The Court therefore concludes that there has been a breach of Article 3 of the Convention in respect of the applicants’ ill-treatment, under both its procedural and substantive limbs.
III. Other complaints under well-established case‑law RAISED BY Mr M. Klyuy (application no. 57854/13)
A. Complaints under Article 5 § 1 concerning unrecorded detention on 29 December 2007; under Article 5 §§ 3 and 5 of the Convention
20. Mr M. Klyuy additionally complained under Article 5 § 1 of the Convention that his unrecorded detention from about 1 p.m. until 7.45 p.m. on 29 December 2007 had been arbitrary, and that his subsequent detention pending investigation and trial, which had lasted until his release on bail on 15 May 2014, had not been justified. He also complained under Article 5 § 5 of the Convention that he was unable to obtain an award of compensation for the breaches of his rights under Article 5 of the Convention.
21. The relevant Convention provisions read as follows:
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
…
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
…
3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be … entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
…
5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”
22. The Government raised no objections concerning the admissibility of these complaints. They contended that there had been no violation of either Article 5 § 1 or Article 5 § 5 of the Convention. No comments were provided concerning the complaint raised under Article 5 § 3.
23. Having examined Mr M. Klyuy’s complaints in the light of the principles developed in the Court’s case-law (see, among other authorities, Creangă v. Romania [GC], no. 29226/03, §§ 84 and 88-93, 23 February 2012), the Court notes, firstly, that the file contains sufficient material for it to conclude that from about 1 p.m. on 29 December 2007 the applicant was detained in police custody and that this detention constituted a deprivation of liberty. No records were drawn up in relation to this detention until 7.45 p.m. on the same date (see appended table 3.B (2) below).
24. The Court reiterates that, as established in its extensive case-law, the unacknowledged detention of an individual is a complete negation of the fundamentally important guarantees contained in Article 5 of the Convention, and discloses a serious 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 Beley v. Ukraine [Committee], no. 34199/09, §§ 46 and 59-61, 20 June 2019). The Court finds no reason to depart from the above-mentioned case-law in the present case.
25. The Court further notes that Mr M. Klyuy was detained, within the meaning of Article 5 § 1 (c) of the Convention: from 29 December 2007 until 17 November 2010; from 2 February 2011 until 13 February 2012; and from 24 May 2012 until 15 May 2014 (see table 3-B (2-iv).
26. Reviewing the facts of the present case in the light of the general principles developed in the Court’s case-law (see, among other authorities, Buzadji v. the Republic of Moldova ([GC], no. 23755/07, §§ 84-91 and 102, 5 July 2016), the Court observes that the seriousness of the charges against Mr M. Klyuy and the risk of him absconding or interfering with the investigation were mentioned in the initial order for his detention (see table 3-B (2-iii) below). Subsequently, his detention was extended on numerous occasions, with reference to either the same reasons or no reasons at all. It does not appear that the courts, at the relevant stages of the proceedings, made a thorough assessment of individual facts pertinent to the question of whether such a preventive measure was necessary in the circumstances. Moreover, with the passage of time, Mr M. Klyuy’s continued detention required further justification, but the courts did not provide any further reasoning.
27. The Court has often found a violation of Article 5 § 3 of the Convention in cases against Ukraine on the basis that even in respect of lengthy periods of detention, the domestic courts have referred to the same set of grounds (if there were any) throughout the period of an applicant’s detention (see, for example, Kharchenko v. Ukraine, no. 40107/02, §§ 80‑81 and 99, 10 February 2011, and Ignatov v. Ukraine, no. 40583/15, §§ 41-42, 15 December 2016).
28. Having regard to the above, the Court considers that by failing to address specific facts and by relying essentially and routinely on the seriousness of the charges, the authorities extended Mr M. Klyuy’s detention on grounds that cannot be regarded as “sufficient” and “relevant” to justify his continuing detention.
29. In the light of its well-established case-law (see, as a recent example, Sinkova v. Ukraine, no. 39496/11, §§ 79-84, 27 February 2018), the Court also finds that, in contravention of Article 5 § 5, Mr M. Klyuy did not have an enforceable right to compensation for his arrest on 29 December 2007 and subsequent detention until 15 May 2014.
30. In the light of the above, the Court finds that Mr M. Klyuy’s complaints under Article 5 § 1 concerning unrecorded detention as well as his complaints under Article 5 §§ 3 and 5 of the Convention are admissible and disclose breaches of these provisions.
B. Complaint under Article 6 § 1 of the Convention concerning length of proceedings
31. Mr M. Klyuy also complained, under Article 6 § 1 of the Convention, that the length of the criminal proceedings against him had been unreasonable (see facts in table 3-C below). He relied on Article 6 § 1 of the Convention, which, in so far as relevant, reads as follows:
“In the determination of … any criminal charge against him, everyone is entitled to a … hearing within a reasonable time by [a] … tribunal …”
32. The Government made no comments concerning this complaint.
33. The Court reiterates that the reasonableness of the length of the proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities, and what was at stake for the applicant in the dispute (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999‑II, and Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000‑VII).
34. In the leading case of Merit v. Ukraine (no. 66561/01, 30 March 2004), the Court found a violation in respect of issues similar to those in the present case.
35. 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 as to the admissibility and merits of the present complaint concerning the length of the proceedings, which exceeded nine years over two levels of jurisdiction. Having regard to its case-law on the subject, the Court considers that in the instant case, the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.
36. This complaint is therefore admissible and discloses a breach of Article 6 § 1 of the Convention.
IV. OTHER COMPLAINTS RAISED by Mr M. Klyuy (APPLICATION NO. 57854/13)
37. Mr M. Klyuy additionally complained that after the formalisation of his arrest on 29 December 2007 and until his release on bail on 15 May 2014 he had been detained unlawfully, and that it had been impossible for him to properly challenge his detention in court. He invoked Article 5 §§ 1 and 4 of the Convention in respect of those complaints.
38. The Court notes that the above-mentioned period consisted of a number of shorter periods during which Mr M. Klyuy’s detention was authorised by various documents.
39. In the light of its findings in paragraph 30 above, the Court considers that it has addressed the main legal questions raised in Mr Klyuy’s application with respect to his right to liberty, and that there is no need to make a separate assessment of the admissibility and merits of the present complaints under Article 5 §§ 1 and 4 of the Convention (see, for example, Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014, and Borzykh and Others v. Ukraine [Committee], no. 5353/14 and others, §§ 48-49, 25 June 2020).
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
40. 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.”
41. 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.
42. 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.
43. 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,
1. Decides to join the applications;
2. Declares the complaints raised under Article 3 of the Convention in all applications and the complaints raised in application no. 57854/13 under Article 5 § 1 concerning unrecorded detention, under Article 5 §§ 3 and 5 and under Article 6 § 1 admissible;
3. Holds that there has been a violation of Article 3 of the Convention under both its substantive and procedural limbs in respect of the complaints raised in all the applications;
4. Holds that there has been a violation of Article 5 § 1 of the Convention in respect of the complaint concerning unrecorded detention raised in application no. 57854/13;
5. Holds that there has been a violation of Article 5 § 3 of the Convention in respect of the complaint raised in application no. 57854/13;
6. Holds that there has been a violation of Article 5 § 5 of the Convention in respect of the complaint raised in application no. 57854/13;
7. Holds that there has been a violation of Article 6 § 1 of the Convention in respect of the complaint raised in application no. 57854/13 on account of the length of the criminal proceedings;
8. Holds that it is not necessary to examine the admissibility and merits of other complaints raised under Article 5 §§ 1 and 4 of the Convention in application no. 57854/13;
9. 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;
10. Dismisses the remainder of the applicants’ claims for just satisfaction.
Done in English, and notified in writing on 17 June 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Martina Keller Stéphanie Mourou-Vikström
Deputy Registrar President
____________
APPENDIX
| 1. Application no. 24753/13 by Mr Valeriy Valeriyovych Boyko Ukrainian national born in 1976 and residing in Uzhgorod Represented by Ms T.I. Gavrylets, a lawyer practising in Mukachevo Lodged on 15 March 2013 |
|
| A. Complaint under Article 3 concerning police ill-treatment | |
| Applicant’s account of alleged ill-treatment | |
| On 9 June 2011, at about 8 a.m., the applicant was arrested by five officers from the Security Service of Ukraine (“the SSU”) near his home in Kyiv. The officers handcuffed and blindfolded him, and shoved him into a minivan and escorted him to Uzhgorod, some 800 kilometres away. During the entire trip the applicant remained handcuffed and blindfolded and was not provided with any food; the officers repeatedly mocked and scolded him, ignoring his complaints that he was hungry or thirsty or needed to go to the bathroom. On a number of occasions the officers stopped to eat and have a beer, leaving the handcuffed and blindfolded applicant inside the locked minivan with closed windows, in unbearable heat. At about 8 p.m., in response to the applicant’s verbal protests against his ill-treatment and his threat to lodge complaints, the officers stopped the minivan in a forest and threw him to the ground while he was still handcuffed, repeatedly punching and kicking him. Subsequently, he was handcuffed to a tree and several rubber bullets were shot into his leg and thigh, while he was given a warning to keep calm. At about 9 p.m. the applicant was taken to the Uzhgorod SSU office and questioned until 11.30 p.m., in spite of the fact that he had bleeding wounds and was physically exhausted. | |
| Relevant facts and documents | Key issues |
| 1. Medical and other evidence: (i) 09/06/11 to 10/06/11, certificate of inpatient treatment (Zakarpatskyy Regional A. Novak Hospital): multiple isolated bullets in right leg; (ii) 10/06/11, certificate (Zakarpatska penal facility no. 9, medical unit): bullet wounds in right leg upon arrival 2. Complaint lodged: 24/06/11, with Zakarpatskyy regional prosecutor’s office 3. Response by authorities: (i) 06/10/11: decision not to institute criminal proceedings (Zakarpatskyy regional prosecutor’s office); (ii) 09/12/11: applicant’s appeal allowed (Uzhgorod Court): superficial inquiry; (iii) 03/02/12: decision not to institute criminal proceedings (Zakarpatskyy regional prosecutor’s office), same reasoning as before; (iv) 27/04/12 and 14/06/12: applicant’s appeals rejected (Uzhgorod Court and Zakarpatskyy Regional Court of Appeal); (v) 25/09/12, 22/11/12 and 14/01/13: Higher Specialised Court declined to consider applicant’s further appeals on procedural grounds 4. Findings: (i) Bullet wounds resulted from application of legitimate force by Officer O.I. while he was preventing applicant’s attempt to flee during a stop on the way to Uzhgorod; (ii) Other complaints: no findings 5. Key actions: (i) Statements taken from police officers implicated in ill-treatment; (ii) Medical documentation reviewed 6. Other relevant facts and documents: (i) 11/04/08: Arrest warrant issued (Uzhgorod Court): applicant suspected of organising illegal border crossings; (ii) 11/07/11: report (of Officer S.T. (SSU officer) to chief of Zakarpatskyy SSU investigative department): applicant arrested in Kyiv at about 7.40 a.m. on 09/06/11 and attempted to flee at about 8.15 p.m. during stop on road. Non-lethal weapon had to be used to prevent him fleeing; (iii) 24/09/14: letter from applicant informing Court that he had been released and could be reached at his home address |
(i) It has not been shown that force used against applicant was lawful and absolutely necessary, or that his injuries were wholly caused otherwise than by police ill-treatment (for relevant examples, see Rehbock v. Slovenia, no. 29462/95, § 76, ECHR 2000‑XII, and Sylenok and Tekhnoservis-Plus v. Ukraine, no. 20988/02, §§ 69‑70, 9 December 2010); (ii) No full-scale investigation, only pre-investigation inquiry (for relevant examples, see, mutatis mutandis, Davydov and Others v. Ukraine, nos. 17674/02 and 39081/02, §§ 310-12, 1 July 2010; Lyapin v. Russia, no. 46956/09, §§ 129 and 132‑36, 24 July 2014; and Chernega and Others v. Ukraine, no. 74768/10, § 167, 18 June 2019); (iii) No appearance of sufficient effort to collect objective evidence. Notably, neither applicant nor his cellmates were questioned, nor were medical professionals; no forensic examination of applicant’s injuries was ordered; probability of his version of events was not scrutinised; conclusions as to facts were drawn based on officers’ accounts taken at face value (for relevant examples, see Lopatin and Medvedskiy v. Ukraine, nos. 2278/03 and 6222/03, § 67‑69, 20 May 2010, and Kapustyak v. Ukraine, no. 26230/11, § 80, 3 March 2016) |
| B. Just satisfaction | |
| Parties’ submissions | Court’s award |
| Applicant: Non-pecuniary damage: 25,000 euros (EUR) Costs and expenses: EUR 138 in legal fees (observations in Convention proceedings) Supporting documents: legal representation contract dated 09/03/16 Other relevant information: applicant was granted legal aid Government: Non-pecuniary damage: claim exorbitant and unsubstantiated Costs and expenses: no documents certifying payment for services actually provided or scope of those services |
Non-pecuniary damage: EUR 20,000 plus any tax chargeable to applicant Costs and expenses: no evidence that applicant paid (or is due to pay) an amount not covered by legal aid |
| 2. Application no. 28610/13 by Ms Natalya Olegivna Panchenko Ukrainian national born in 1986 and residing in Druzhkivka Represented by Mr O.L. Levytskyy, a lawyer practising in Kyiv Lodged on 19 April 2013 |
|
| A. Complaint under Article 3 concerning police ill-treatment | |
| Applicant’s account of alleged ill-treatment | |
| At about 3 p.m. on 12 December 2008 five officers of the Kyiv anti-narcotics police unit arrested the applicant in her friends’ flat in Druzhkivka and locked her in one of the rooms there, forcing her to reveal the whereabouts of 300,000 United States dollars (USD) purportedly taken by her from an acquaintance involved in drug trafficking. They slapped her in the face, put a gun to her head, and threatened to kill her. The applicant cried that she knew nothing about the money, so two hours later the officers escorted her to their car and took her to Kyiv, some 700 kilometres away. The applicant was locked up for consecutive periods in various temporary police detention facilities until Sunday 14 December 2008, without being given food or drink. On 14 December 2008, at about 11 a.m., the applicant was taken to an empty office in an unidentified police station, where three of the police officers involved in her arrest reiterated their demand that she reveal the whereabouts of the USD 300,000. The applicant denied any knowledge of the matter, so the officers repeatedly punched and kicked her, cut off her air supply by using a gas mask, and placed a gun to her head, threatening to kill her and her parents, put her in prison for drug trafficking, or hang her up by her clitoris. About four hours later, having failed to obtain the information they were looking for, the officers escorted the applicant to another police detention facility. At about 4 p.m. on 15 December 2008 I.G., a police officer, questioned the applicant in the absence of a lawyer and dictated to her a statement of confession admitting to illegal drug use, which she signed. | |
| Relevant facts and documents | Key issues |
| 1. Medical and other evidence: 29/12/08, report no. 8430 (Kyiv city forensic medical bureau): bruise on left shoulder (1 x 1.5 cm); bruise on left arm (4 x 3.5 cm); bruises on both shins (2.5 x 5 cm and 2 x 3 cm) cumulatively classified as “minor” injuries; could have been sustained between 12/12/08 and 14/12/08, as indicated by applicant 2. Complaints lodged: (i) 19/12/08, with Kyiv city prosecutor (by applicant’s mother); (ii) 24/12/08, with Kyiv city prosecutor (by Mr O.V. Levytskyy, applicant’s lawyer) 3. Response by authorities: (i) 10/02/09, 12/06/09, 02/10/09, 22/12/09, 12/05/10, 07/02/12 and 06/11/12: decisions not to institute criminal proceedings (Shevchenkivskyy district prosecutor’s office in Kyiv): no appearance of police ill-treatment; (ii) 29/04/09, 29/07/09, 04/11/09, 08/02/10 and 21/10/11: applicant’s appeals allowed (Shevchenkivskyy District Court): superficial inquiry; (iii) 19/01/16: criminal proceedings instituted 4. Key actions: (i) Statements taken from applicant and police officers; (ii) Forensic medical assessment ordered, other medical documentation and applicant’s criminal file reviewed; 5. Key findings: Origin of injuries not established; as of 25/02/16 – investigation pending 6. Other relevant facts and documents: (i) 12/12/08: applicant placed under administrative arrest on charges of drug-related offences (Kyiv police); (ii) 15/12/08: following receipt of applicant’s confessional statement, criminal proceedings on charges of illegal drug use instituted against her (Shevchenkivskyy district police in Kyiv) (iii) 18/12/08: applicant remanded in custody for ten days (Shevchenkivskyy District Court in Kyiv); (iv) 24/12/08: applicant engaged Mr O.V. Levytskyi as lawyer; (v) 25/12/08: applicant was released after giving an undertaking not to abscond. Same date, she retracted her confessional statement as given under duress; (vi) 21/08/12: criminal proceedings against applicant closed in view of absence of corpus delicti |
(i) State provided no satisfactory and convincing explanation as to origin of applicant’s injuries sustained in custody; there is no reason to doubt credibility of applicant’s ill-treatment account (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) Applicant confessed to crime while under administrative arrest and in setting lacking procedural guarantees such as access to legal assistance (for relevant examples, see Dushka v. Ukraine, cited above, § 52; and Belousov v. Ukraine, no. 4494/07, § 63, 7 November 2013); (iii) First seven years: no full-scale investigation, only pre-investigation inquiry (for relevant examples, see, mutatis mutandis, Davydov and Others v. Ukraine, nos. 17674/02 and 39081/02, §§ 310-12, 1 July 2010; Lyapin v. Russia, no. 46956/09, §§ 129 and 132-36, 24 July 2014; and Chernega and Others v. Ukraine, no. 74768/10, § 167, 18 June 2019); (iv) Delays in taking procedural steps leading to loss of evidence; notably, forensic assessment ordered ten days after complaint lodged (for relevant examples, see Danilov v. Ukraine, no. 2585/06, § 70, 13 March 2014, and Voykin and Others v. Ukraine, no. 47889/08, §§ 113-114, 27 March 2018); (v) Overall length of investigation (over seven years by February 2016) and repeated remittals for reinvestigation in view of shortcomings recognised by domestic authorities (for relevant examples, see Belousov, cited above, § 56, and Adnaralov v. Ukraine, no. 10493/12, § 50, 27 November 2014) |
| B. Just satisfaction | |
| Parties’ submissions | Court’s award |
| Applicant: Non-pecuniary damage: EUR 20,000 Costs and expenses: EUR 4,800 in legal fees (domestic and Convention proceedings) to be transferred directly to Mr O. V. Levytskyi, applicant’s lawyer Supporting documents: (i) Legal representation contract dated 24/12/08 (ii) Time sheet co-signed by applicant: eighty hours at EUR 60 per hour, detailed description of services Government: No comments |
Non-pecuniary damage: EUR 15,000 Legal fees: EUR 3,500 to be transferred to applicant’s lawyer directly, as requested plus any tax chargeable to applicant |
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