Last Updated on June 24, 2021 by LawEuro
The applicants, who were serving their sentences of life imprisonment, complained under Article 3 of the Convention that they had been subjected to unjustified violence during a fire evacuation from one prison to another in March 2012 and that there had been no effective domestic investigation into that matter.
FIFTH SECTION
CASE OF STARENKYY AND OTHERS v. UKRAINE
(Application no. 71848/13)
JUDGMENT
STRASBOURG
24 June 2021
This judgment is final but it may be subject to editorial revision.
In the case of Starenkyy and Others v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Mārtiņš Mits, President,
Jovan Ilievski,
Ivana Jelić, judges,
and Martina Keller, Deputy Section Registrar,
Having regard to:
the application (no. 71848/13) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by sixteen Ukrainian nationals listed in the Annex (“the applicants”), on 24 October 2013;
the decision to give notice to the Ukrainian Government (“the Government”) of the complaints under Article 3 of the Convention and to declare inadmissible the remainder of the application;
the parties’ observations;
Having deliberated in private on 3 June 2021,
Delivers the following judgment, which was adopted on that date:
1. The applicants, who were serving their sentences of life imprisonment, complained under Article 3 of the Convention that they had been subjected to unjustified violence during a fire evacuation from one prison to another in March 2012 and that there had been no effective domestic investigation into that matter.
THE FACTS
2. The applicants’ names and birth years are set out in the Appendix.
3. Mr Vasyl Yovdiy died on 24 April 2019. On 1 May 2020 his brother, Mr Yuriy Yovdiy, expressed the wish to pursue the application.
4. Mr Kulyk lives in Vyshneve[1]. The remaining fourteen applicants continue serving their sentences of life imprisonment: Mr Kuznyetsov, Mr Lavrenyuk and Mr Petryshak in Ivano-Frankivsk Prison no. 12, Mr Tokach in Chortkiv Prison no. 26 and the other ten applicants in Novgorod-Siverskyy Prison no. 31.
5. The applicants were represented by Ms Olena Sapozhnikova, a lawyer practising in Kyiv.
6. The Government were represented by their Agent, Mr Ivan Lishchyna.
7. The facts of the case, as submitted by the parties, may be summarised as follows.
I. Fire evacuation in Sokal Prison
8. At the material time the applicants were serving their sentences in Sokal Prison no. 47 (“Sokal Prison”) in the Lviv region.
9. On 27 March 2012, at about 2 p.m., a fire broke out under the roof of the maximum-security sector accommodating sixty-eight life prisoners, including the applicants. All the inmates were evacuated to safe areas within the prison territory (see paragraphs 12-14 below).
10. The Lviv Regional Department of the State Prison Service organised and coordinated further evacuation of the life prisoners to the Lviv Pre-Trial Detention Centre (“the Lviv SIZO”).
11. The application contained a general summary of events regarding all the applicants. In reply to the Government’s observations, each applicant provided a detailed account of his personal experience[2].
A. Initial evacuation within the prison area
12. The facts pertaining to this initial stage of the evacuation were not disputed by the parties.
13. Shortly after the first signs of the fire appeared, the prison staff opened all the cells of the maximum-security sector and directed the inmates to go outside, leaving behind all their belongings. Prisoners obeyed orders with no handcuffing or other restraint measures being applied.
14. Some inmates[3] were taken to the outdoor exercising yards while the others[4] were taken to the disciplinary detention centre situated in a separate building about 200 metres away[5]. They waited for further evacuation to about 8 p.m. or later[6], being exposed to low temperatures without having any warm clothes, not being provided with food and water, not having access to toilet and having no information about the progress in the fire extinguishing.
B. Subsequent evacuation to the Lviv SIZO
1. The Government’s account
15. According to the Government, the life prisoners’ evacuation to the Lviv SIZO was carried out in an orderly manner, with handcuffing being the only coercive measure applied.
16. The Government further submitted that the applicants’ medical examination upon their arrival at the Lviv SIZO had reported the absence of any injuries. No copies of medical examination reports were, however, provided to the Court (see also paragraph 56 below).
2. The applicants’ account
17. On 27 March 2012, starting from 8 p.m., the applicants were taken one by one to some administration premises, where a high-ranking military officer was present, in addition to the prison staff. He questioned them on their personal files, allegedly in an aggressive manner and occasionally accompanying his questions by physical violence. Once that brief questioning was over, two officers wearing black uniforms handcuffed the applicants, in an extremely tight manner, and dragged them out. Having their arms raised behind the back and their heads lowered almost to the ground level, the applicants did not see where they were going and could not help hitting the ground and walls with their heads. After having been led outside, they had to walk to the prison vans waiting fifty to seventy metres away, by passing between two lines of officers (referred to as “a live corridor”), each of whom had a rubber truncheon, a stick or an electric cable piece in his hands. Without any reason or warning, the officers punched, kicked and hit the applicants all the way.
18. All the applicants sustained numerous hematomas and bruises. Some of them also sustained additional injuries:
– one or several head injuries (Mr Deynega, Mr Kondrashyn, Mr Baylo, Mr Drugov, Mr Petryshak and Mr Ovsiyenko);
– a tooth knocked out (Mr Ovsiyenko);
– a suspected nose fracture (Mr Kuznyetsov);
– a dislocated shoulder (Mr Starenkyy and Mr Kuznyetsov);
– a back injury (Mr Agabalayev); and
– a knee injury (Mr Farziyev).
19. Mr Kuznyetsov additionally submitted that the two officers, who were holding him, were themselves surprised by the violence of those standing in the “live corridor” and sustained a few accidental blows.
20. The applicants also alleged various long-term negative consequences of their alleged beating for their health.
21. The applicants remained handcuffed for several hours after their arrival at the Lviv SIZO. Overall, they had been handcuffed in an extremely tight manner from about 7 p.m. on 27 March 2012 until about 5 a.m. on 28 March 2012. As a result, the hands of many had turned violet and had become numb.
22. After several hours of waiting in the Lviv SIZO, the applicants were called one by one and were made to strip naked in the presence of many officials including women. The medical staff refused to document any injuries and provided the applicants with only basic or no medical assistance.
23. Given that the fire in Sokal Prison was mentioned in the national television news reports, the applicants’ relatives immediately made enquiries and requested meetings with the applicants. However, for about three weeks the applicants were prohibited from having any contact with their families and lawyers.
24. In late April 2012 most applicants were transferred to Novgorod‑Siverskyy Prison no. 31.
II. Domestic investigation
A. General information on complaints raised at the domestic level
25. Mr Agabalayev, Mr Deynega, Mr Drugov, Mr Kondrashyn, Mr Lavrenyuk and Mr Yovdiy did not raise any complaints of ill-treatment at the domestic level.
26. Mr Grechukh, Mr Tokach and Mr Khavrutskyy allegedly sent complaints to various domestic authorities from the Lviv SIZO but gave up in the absence of any response.
27. The remaining applicants submitted that they had lodged complaints before the prosecution authorities: Mr Ovsiyenko – on 28 March 2012, Mr Starenkyy – on 29 March 2012, Mr Kuznyetsov – on 30 March 2012, Mr Kulyk – shortly after 19 April 2012, Mr Baylo – on 23 April 2012, Mr Petryshak – on 30 May 2012, and Mr Farziyev – on 11 June 2012. There is no documentary evidence in the case file in support of those statements.
28. According to the Government, the earliest complaint at the domestic level in respect of the applicants’ alleged ill-treatment was from Mr Baylo to the Prosecutor General’s Office on 15 June 2012.
29. According to the available documents, the earliest complaint was lodged by Mr Kulyk on an unspecified date prior to 15 June 2012. The case file before the Court contains a copy of a letter from the Prosecutor General’s Office of 15 June 2012, by which it forwarded to the Lviv Regional Prosecutor’s Office (“the Lviv Prosecutor’s Office”) a complaint of Mr Kulyk’s lawyer on her client’s alleged treatment during the fire evacuation in Sokal Prison. No further information is available regarding any investigation into that complaint.
30. The documented earliest complaints thereafter were lodged on: 15 June 2012 by Mr Baylo, 17 June 2012 by Mr Starenkyy, 19 June 2012 by Mr Kuznyetsov, 30 July 2012 by Mr Farziyev, 1 September 2012 by Mr Ovsiyenko and 25 March 2013 by Mr Petryshak.
31. The applicants provided the same account of the events in those complaints as in their application before the Court (see paragraphs 17-23 above). Furthermore, the applicants, notably Mr Starenkyy, Mr Baylo and Mr Kuznyetsov, consistently alleged (starting from June 2012 at the latest ‑ see paragraph 30 above) that they and many other prisoners had sustained various injuries during the fire evacuation on 27 June 2012 and that those injuries had never been recorded.
32. The applicants submitted in their complaints that they were not in a position to identify the alleged perpetrators and counted on the domestic prosecution authorities to do that.
B. Investigation in respect of the Sokal Prison staff
1. By the Sokal Prosecutor’s Office
33. During the period from August 2012 to December 2013, the Sokal Town Prosecutor’s Office (“the Sokal Prosecutor’s Office”) refused to institute criminal proceedings or discontinued the investigation[7] in respect of the staff of Sokal Prison eleven times (four times following complaints by Mr Starenkyy[8], three times following complaints by Mr Baylo[9], twice following complaints by Mr Kuznyetsov[10], once following a complaint by Mr Farziyev[11] and once following a complaint by Mr Ovsiyenko[12]). Nine of those rulings were eventually quashed as premature and not based on a comprehensive investigation.
34. The Sokal Prosecutor’s Office consistently relied on testimonies of numerous staff members of Sokal Prison, who denied having applied or having witnessed application of force against prisoners. It was observed that responsibilities during the evacuation had been divided as follows: the prison staff had been in charge of guarding the inmates within the prison area, officers of Military Unit no. 3002 had taken them from the prison premises to the vehicles and had ensured their convoy to the Lviv SIZO, whereas members of the Lviv regional consolidated rapid response unit (зведений загін групи швидкого реагування Львівської області) had formed “a live corridor” for prisoners’ passage from the prison premises to the vehicles. The prosecutor noted that the administration of Sokal Prison had stated that it had no information as to the composition of the above‑mentioned rapid response unit.
35. Furthermore, the Sokal Prosecutor’s Office relied on testimonies of the staff members of the Lviv SIZO, who submitted that no injuries or complaints had been reported during the applicants’ medical examination upon their arrival at the SIZO. The absence of any records of incidents, injuries, complaints or requests for medical assistance in the prison and the SIZO logbooks was also noted.
36. In September 2012, and possibly later, the investigator questioned Mr Baylo, Mr Starenkyy, Mr Kuznyetsov, Mr Drugov and Mr Deynega[13], who maintained that they had been ill-treated on 27 March 2012. Their allegations were, however, dismissed as not based on solid evidence and refuted by other witness statements.
37. Among the witness evidence, in addition to testimonies made by the prison and the SIZO staff, as well as the above-mentioned applicants’ statements, the Sokal Prosecutor’s Office noted, in its ruling of 22 March 2013 discontinuing the investigation in respect of Mr Baylo’s complaint, that life prisoners Mr Yar., Mr M. and Mr Ch., who had also been evacuated on 27 March 2012, as well as Mr Starenkyy, Mr Kuznyetsov and Mr Ovsiyenko, had been questioned and that they had confirmed the ill‑treatment allegation. It was observed, however, that those witnesses had stated that they would not be able to recognise the officials concerned.
38. Forensic medical expert examinations were carried out in respect of Mr Baylo (on 21-25 February 2013) and Mr Kuznyetsov and Mr Petryshak (both on 21-22 May 2013), with a view to establishing whether they had any injuries and, if so, whether those injuries might have been sustained on 27 March 2012. According to the expert reports, the examinations were based on the applicants’ visual inspection and the study of their medical files. According to Mr Kuznyetsov, the expert did not examine him in person. The findings of the forensic medical expert reports were as follows:
– Mr Baylo had a scar on the left temple, which might have been inflicted by a blunt object on 27 March 2012; at the same time, his medical file did not contain any records of injuries and therefore provided no grounds for concluding that Mr Baylo could have sustained the injury in question during his evacuation on 27 March 2012 as alleged by him;
– Mr Kuznyetsov and Mr Petryshak did not have any injuries and their medical files did not provide grounds to consider that they might have sustained any injuries on 27 March 2012. It was noted in the report in respect of Mr Kuznyetsov that there was a record of 13 April 2012 in his medical file stating that he was fit for a transfer to a different detention facility.
39. On 21 February 2013 the investigator of the Sokal Prosecutor’s Office attached as material evidence Mr Baylo’s clothes allegedly worn by him during the evacuation and having numerous “brown stains appearing to be blood”. There is no information on any investigative measures in respect of that material evidence.
40. The Sokal Prosecutor’s Office refused to attribute the procedural status of an injured party to Mr Baylo on 13 February 2013 and to Mr Kuznyetsov on 7 March 2013[14]. Mr Baylo unsuccessfully tried to contest that refusal.
41. On 2 March 2013 the prosecutor rejected Mr Baylo’s requests for a confrontation with the Lviv SIZO medical staff, as well as for access to the forensic medical expert report and the witnesses’ questioning reports, on the grounds that the latter had no procedural status of an injured party.
2. By the Lviv Prosecutor’s Office
42. On 7 February 2014 the Lviv Prosecutor’s Office ordered a forensic medical expert examination of Mr Starenkyy and his medical file with a view to establishing whether he might have sustained any injuries on 27 March 2012. For unknown reasons, that examination was not carried out.
43. On 28 February 2014 the Lviv Prosecutor’s Office discontinued the investigation into Mr Starenkyy’s complaint in so far as it concerned the Sokal Prison staff. The investigator considered that the allegations of Mr Starenkyy had been refuted by testimonies of numerous staff members of Sokal Prison and the Lviv SIZO. Furthermore, it appeared from Mr Starenkyy’s medical file that he had not applied for medical assistance on 27 and 28 March 2012. The investigator referred in that connection to the information provided by the Lviv SIZO, according to which Mr Starenkyy had been examined upon his arrival at the SIZO, with no injuries or complaints having been reported. Lastly, the investigator noted that a number of other prisoners, notably Mr K., Mr Yar., Mr M., Mr Le. and Mr Ch., who had been evacuated on 27 March 2012, had been questioned and had denied having sustained or having witnessed any ill-treatment.
C. Investigation in respect of officials of the Lviv Regional Department of the State Prison Service
1. By the Lviv Prosecutor’s Office
44. On 27 December 2012 the Lviv Prosecutor’s Office made an entry in the Unified register of pre-trial investigations marking the beginning of an investigation into Mr Baylo’s complaint of ill-treatment during his evacuation in March 2012 in so far as it concerned “officials of the State Prison Service in the Lviv region”.
45. On 25 December 2013 that investigation was discontinued. The investigator noted that Mr Baylo’s allegations had not been corroborated by evidence. It was observed that prisoners Mr K., Mr Yar., Mr M., Mr Le. and Mr Ch., who had also been evacuated, had stated that they had neither sustained nor witnessed any ill-treatment. Although Mr Ovsiyenko, Mr Starenkyy and Mr Kuznyetsov had stated, when questioned as witnesses, that they had seen that Mr Baylo had a head injury, they had not witnessed how he had sustained it. The prison and the SIZO staff had been questioned many times and had denied the application of force to prisoners. The forensic medical expert, who had examined Mr Baylo, had specified in the course of her additional questioning that the scar was the only injury discovered during Mr Baylo’s examination in February 2013 and that it could have indeed been sustained in March 2012. However, having regard to a considerable lapse of time between the alleged incident and the expert examination, it was impossible to establish the date of that injury with precision. Furthermore, it could not be ruled out that Mr Baylo might have inflicted that injury on himself. The investigator also relied on an information note from the medical unit of the Lviv SIZO, according to which Mr Baylo had undergone a medical examination upon his arrival there on 27 March 2012 and had been found in satisfactory heath. As it followed from his medical file, he had neither raised any complaints nor asked for medical assistance during his detention in the Lviv SIZO.
46. On 6 March and 3 April 2015, respectively, the Lviv Galytskyy District Court (“the Galytskyy Court”) and the Lviv Regional Court of Appeal upheld that ruling.
47. On 30 January 2020 Mr Baylo applied to the newly created Department “for procedural management of criminal proceedings regarding torture and other serious breaches of human rights by law-enforcement authorities” (Департамент процесуального керівництва у кримінальних провадженнях про катування та інші серйозні порушення прав громадян з боку правоохоронних органів) in the Prosecutor General’s Office for reopening the investigation.
48. On 28 February 2020 the Prosecutor General’s Office informed Mr Baylo that the ruling of 25 December 2013 had been quashed as based on an incomplete and inadequate investigation and that the investigation had been resumed.
2. By the Lychakivskyy Prosecutor’s Office
49. On 25 January 2013 the Lviv Lychakivskyy District Prosecutor’s Office started an investigation into Mr Kuznyetsov’s complaint in so far as it concerned his alleged ill-treatment by “officials of the Lviv Regional Department of the State Prison Service”. On 31 January 2013 it discontinued the investigation having found no indication of a criminal offence. On 15 March 2013 the Lychakivskyy District Court upheld that ruling.
50. The case file before the Court does not contain copies of the aforementioned documents.
D. Investigation in respect of officers of Military Unit no. 3002
51. On 9 August and 18 September 2012 the Lviv Garrison Military Prosecutor’s Office and the Lviv Prosecutor’s Office in charge of the supervision of lawfulness in military institutions (Львівська прокуратура з нагляду за додержанням законів у воєнній сфері), respectively, refused to institute criminal proceedings against the Military Unit no. 3002 officers, following complaints by Mr Starenkyy, Mr Baylo, Mr Kuznyetsov, Mr Kulyk (the ruling of 9 August 2012) and Mr Farziyev (the ruling of 18 September 2012), due to the absence of any evidence that a criminal offence had been committed[15]. It was established that forty-eight officers of Military Unit no. 3002 had been involved in the evacuation and that handcuffing had been the only restraint measure applied to all prisoners. The investigators relied on statements of senior officers concerned who denied any ill-treatment of prisoners. Furthermore, a medical specialist of the Lviv SIZO had been questioned and had submitted that the medical examination of all the sixty-eight life prisoners upon their arrival at the SIZO had established the absence of any injuries. According to the Lviv SIZO records, none of prisoners had raised any complaints of ill-treatment. The investigators noted that several life prisoners, notably Mr G., Mr Or., Mr Yash., Mr Ol. and Mr Ovsiyenko, had been questioned and had stated that they had neither sustained nor witnessed any ill-treatment.
E. Additional information submitted by the Government
1. As regards further complaints at the domestic level
52. On 27 August 2012 Mr Starenkyy and Mr Baylo complained to the Galytskyy Court about the unlawful inactivity of the Lviv Prosecutor’s Office and the Lviv Garrison Military Prosecutor’s Office. On 2 October 2012 the Galytskyy Court rejected those complaints as unfounded. Mr Starenkyy and Mr Baylo did not lodge appeals.
53. The case file before the Court does not contain copies of the above‑mentioned documents.
2. As regards destruction of some investigation materials
54. On 18 January and 7 May 2019 the Lviv Prosecutor’s Office destroyed, on the expiry of the statutory minimum storage period, the supervision files (наглядові провадження)[16] in respect of complaints from the following applicants:
– Mr Farziyev (from 23 August to 19 September 2012);
– Mr Grechukh (from 25 September to 1 October 2012);
– Mr Baylo (from 3 July to 3 September 2012);
– Mr Petryshak (from 12 April to 16 May 2013);
– Mr Drugov (no dates indicated); and
– Mr Kondrashyn (no dates indicated)[17].
III. Medical and witness evidence
A. The applicants’ medical files
55. The Government did not submit to the Court copies of the applicants’ medical files, apart from several pages from Mr Baylo’s medical file containing no records for 2012 dating earlier than October 2012.
56. Nor did they submit copies of the reports on the applicants’ medical examination upon their arrival at the Lviv SIZO, which had been requested by the Court when the notice of the case was given to the Government.
57. The applicants’ lawyer provided to the Court copies of extracts from the applicants’ medical files as sent to her by the prison authorities at her request in 2020. None of them contained any records in respect of the applicants’ medical examination upon their arrival at the Lviv SIZO in March 2012. The only exceptions to that were the records on Mr Kulyk’s and Mr Tokach’s examination by a generalist on 28 and 30 March 2012, respectively, with a conclusion that they were in good health. Mr Kulyk and Mr Tokach denied that those examinations had taken place.
B. Witness evidence
58. The Government noted that the domestic investigation authorities had obtained testimonies of several life prisoners, who had been evacuated from Sokal Prison together with the applicants and who had refuted the allegations of ill-treatment.
59. The applicants’ lawyer submitted to the Court a copy of written statements made in January 2020 by Mr Ovsiyenko, as well as Mr M., Mr K. and Mr Ch. (see paragraphs 37, 43 and 51 above for the references to these witnesses by the prosecution authorities in the course of the domestic investigation), in which they noted that they had never given any testimonies to the investigation authorities. They also confirmed that life prisoners, including themselves, had been ill-treated during the evacuation.
60. Furthermore, according to the applicants’ lawyer, she had a telephone conversation with Mr Or. (see paragraph 51 above), who also denied having testified before the investigation authorities. Being illiterate, he was not able to confirm that in writing.
61. The applicant’s lawyer also obtained a written statement by Mr G. (see paragraph 51 above), in which he submitted that the authorities had forced him to testify that there had been no beating in exchange for a promise not to transfer him to a different prison, which they had kept.
62. In addition, written statements from life prisoners Mr Lu. and Mr T. were provided confirming the applicants’ version of the events.
RELEVANT LEGAL FRAMEWORK
63. The relevant provisions of the Code of Criminal Procedure (“the CCP”) of 1960 (repealed with effect from 19 November 2012) can be found in Kaverzin v. Ukraine (no. 23893/03, § 45, 15 May 2012).
64. The relevant provisions of the CCP of 2012 (in force since 19 November 2012) can be found in Nagorskiy v. Ukraine ((dec.), no. 37794/14, § 38, 4 February 2016).
THE LAW
I. locus standi of mr vasyl yovdiy’s brother
65. The Court notes that Mr Vasyl Yovdiy died after having lodged his application under Article 34 of the Convention (see paragraph 3 above).
66. In their observations of 19 November 2019, the Government submitted that the application should be struck out of the list in so far as it concerned the deceased applicant, given that no heirs had presented themselves to pursue the case on his behalf.
67. Subsequently, after Mr Vasyl Yovdiy’s brother expressed the wish to pursue the application on 1 May 2020 (see paragraph 3 above), the Government did not contest his locus standi.
68. It is therefore not disputed that Mr Vasyl Yovdiy’s brother is entitled to pursue the application on his behalf and the Court sees no reason to hold otherwise (see Karabet and Others v. Ukraine, nos. 38906/07 and 52025/07, § 230, 17 January 2013, with further references). However, reference will still be made to Mr Yovdiy (implying the initial applicant, Mr Vasyl Yovdiy) throughout the ensuing text.
II. SCOPE OF THE CASE
69. In her observations of 15 June 2020 made on behalf of the applicants in reply to those of the Government, the applicant’s lawyer lodged a number of new complaints. Relying on Article 34 of the Convention, she complained that the administration of the Lviv SIZO had prevented the applicants from sending out any complaints. The lawyer also raised the following complaints, with the reference to Article 38 of the Convention: that, as soon as she had started representing the applicants in October 2013, they had been intimidated by prison officials; that prison guards had ill‑treated Mr Kondrashyn in 2016; that there had been regular searches by a special police unit in Novgorod-Siverskyy Prison starting from 2012; that the suicide of Mr Yovdiy in April 2019 raised suspicions; that Mr Starenkyy and Mr Agabalayev had been arbitrarily placed in solitary confinement for fourteen days in February 2020. Furthermore, the applicants’ lawyer made the following allegations, without referring to any Convention provisions: lack of adequate medical care for various health concerns (Mr Starenkyy, Mr Baylo, Mr Deynega, Mr Drugov, Mr Grechukh and Mr Tokach); poor material conditions of detention in Novgorod-Siverskyy Prison (Mr Starenkyy and Mr Baylo); poor conditions of transportation from the Lviv SIZO to Novgorod-Siverskyy Prison (Mr Deynega); inadequate amount of the disability pension (Mr Drugov and Mr Tokach). Lastly, she complained about the alleged ill-treatment by prison staff: of Mr Petryshak on an unspecified date in the Lviv SIZO and on 1 August 2012 in Novgorod-Siverskyy Prison; and of Mr Starenkyy in February 2020 in Novgorod-Siverskyy Prison.
70. The Court has held that the scope of a case “referred to” it in the exercise of the right of individual application is determined by the applicant’s complaint or “claim”. Allegations made after the communication of the case to the respondent Government can only be examined by the Court if they constitute an elaboration of the applicant’s original complaint (see, among many other authorities, Zikatanova and Others v. Bulgaria, no. 45806/11, § 109, 12 December 2019, and the references cited therein).
71. In the Court’s view, the new complaints submitted after the communication do not concern factual developments with respect to a continuing situation and are not an elaboration of the applicants’ original complaints, on which the parties have commented. The Court does not therefore find it appropriate to examine these matters in the present context. The applicants had the opportunity to lodge new applications in respect of any other complaints relating to the subsequent events in accordance with the requirements set out in Rule 47 of the Rules of Court (see Aliyev v. Azerbaijan, nos. 68762/14 and 71200/14, § 97, 20 September 2018).
III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
72. Relying on Articles 3 and 13 of the Convention, the applicants complained that they had been ill-treated during the fire evacuation from Sokal Prison on 27 March 2012 and that there had been no effective domestic investigation into that matter. Their complaints fall to be examined under Article 3 of the Convention only, which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
A. Admissibility
73. The Government submitted that the applicants could not be regarded as having exhausted the domestic remedies available to them under domestic law as required by Article 35 § 1 of the Convention. The Government observed, in particular, that some of the applicants had not raised any complaints at the domestic level at all, whereas others had not challenged all the relevant decisions to higher-level authorities where such a possibility had existed.
74. The applicants argued that all of them had suffered the same ill‑treatment and that, from the procedural point of view, the legal effect of the complaints raised at the domestic level by a few of them was the same as could potentially be the effect of complaints from each of the sixteen applicants. In other words, they maintained that it was pointless to raise the same complaint sixteen times at the domestic level. The applicants therefore considered that their situation had been similar to that examined by the Court in the case of Karabet and Others (cited above, §§ 238-50).
75. The Court considers that the issue of exhaustion of domestic remedies is closely linked to the substance of the applicants’ complaint concerning the alleged lack of an effective investigation and must therefore be joined to the merits of that complaint.
76. The Court further notes that this complaint is neither manifestly ill‑founded within the meaning of Article 35 §§ 3 (a) of the Convention nor inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
1. Alleged ineffectiveness of the domestic investigation
(a) The parties’ submissions
77. The applicants submitted that the domestic authorities had made no meaningful efforts to establish the truth regarding their ill-treatment or to punish those responsible.
78. In the applicants’ opinion, the investigation was superficial and formalistic and its conclusions were mainly based on testimonies of the prison staff and other officials involved in the evacuation.
79. The Government contested those arguments and submitted that all possible investigative steps had been taken in response to the applicants’ complaints. They pointed out that the authorities’ efforts had not been limited to pre-investigation enquiries but had included a fully-fledged investigation and that its findings had been upheld by courts on several occasions. The Government also observed that the applicants and numerous other prisoners, who had been evacuated together with the applicants, had been questioned in the course of the investigation.
80. While the Government conceded that there had been a considerable delay in the conduct of forensic medical examinations, they argued that that delay was attributable to the applicants, who had not lodged any complaints immediately after their alleged ill-treatment.
(b) The Court’s assessment
(i) General principles
81. The obligation to carry out an effective investigation into allegations of treatment infringing Article 3 suffered at the hands of State agents is well established in the Court’s case-law (see, for example, El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, §§ 182-85, ECHR 2012, and Bouyid v. Belgium [GC], no. 23380/09, §§ 114-23, ECHR 2015).
82. As explained in the Court’s case-law, that obligation means instituting and conducting an investigation capable of leading to the establishment of the facts and of identifying and – if appropriate ‑ punishing those responsible. The Court has also stressed that, in accordance with their procedural obligation, the authorities must act of their own motion once the matter has come to their attention. In particular, they cannot leave it to the initiative of the victim to take responsibility for the conduct of any investigatory procedures. The Court has also held that the procedural obligation is a requirement of means and not of results. The fact that an investigation ends without concrete, or with only limited, results is not indicative of any failings as such. Nevertheless, the authorities must take whatever reasonable steps they can to collect evidence and elucidate the circumstances of the case (see S.M. v. Croatia [GC], no. 60561/14, §§ 313‑16, 25 June 2020, with numerous further case-law references).
(ii) Application of the above principles to the present case
83. Turning to the present case, the Court notes that, as confirmed by the documentary evidence in the case file, the allegation of prisoners’ ill‑treatment during the fire evacuation was brought to the attention of prosecution authorities by Mr Kulyk before 15 June 2012 (see paragraph 29 above). Having regard to the seriousness of the issues raised, the Court considers that that single complaint was sufficient to trigger the procedural obligation of the State to elucidate the circumstances of the evacuation of all the sixty-eight life prisoners and to investigate whether any of them might have been a victim of unjustified violence. Regardless of possible obstacles in the investigation or its eventual outcome, a prompt response by the authorities would have been essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts (see Bouyid, cited above, § 121).
84. There is nothing to indicate the authorities’ efforts to manifest such a prompt response in the present case. Thus, it appears that no follow-up whatsoever was given to Mr Kulyk’s complaint after the Prosecutor General’s Office had forwarded it for investigation to the Lviv Prosecutor’s Office. As regards the subsequent complaints raised by Mr Baylo, Mr Starenkyy and Mr Kuznyetsov before the domestic authorities in June 2012 (see paragraph 30 above), the Court notes that, in spite of the applicants’ consistent allegation that they had sustained injuries which remained unrecorded (see paragraph 31 above), the prosecution authorities preferred, for a long period of time, to hold the absence of any records of injuries against the applicants instead of verifying the accuracy of their allegations and taking necessary steps for securing medical and other evidence (see, in particular, paragraphs 35, 38, 39, 43 and 45 above).
85. The earliest forensic medical expert examination, of Mr Baylo, took place only on 21-25 February 2013, that is almost a year after the events complained of. Even though the expert reported an injury (a scar) which could have been inflicted on Mr Baylo at the time and under the circumstances as alleged by him, it was impossible to reach a more precise conclusion given the time elapsed (see paragraphs 38 and 45 above). Owing to an even longer delay with the forensic medical examination of Mr Kuznyetsov and Mr Petryshak, which took place on 21-22 May 2013, the absence of any injuries reported by the expert (regardless of whether she had examined Mr Kusnyetsov in person, which the latter denied – see paragraph 38 above), was of little probative value. As regards a forensic expert examination of Mr Starenkyy, which was ordered later yet, on 7 February 2014, it was apparently never carried out (see paragraph 42 above).
86. The Court cannot accept the Government’s argument that the delays with the forensic medical expert examinations were attributable to the applicants (see paragraph 80 above). According to the Government themselves, Mr Baylo complained of his alleged ill-treatment for the first time on 15 June 2012 (see paragraph 28 above). Nothing therefore prevented the authorities from carrying out his forensic medical examination already in June 2012. Instead, they waited for another six months before conducting such a crucial investigative measure.
87. The Court notes that, until the entry into force of the new Code of Criminal Procedure (“the CCP”) on 19 November 2012, the applicants’ complaints had been handled in the form of a pre-investigation enquiry under the CCP of 1960 (see paragraphs 33, 51, 63 and 64 above). The Court has already held that that procedure was foul of the Article 3 standards, given that the enquiring officer could only take a limited number of steps and the victim had no formal status and could not effectively participate in the procedure (see, for example, Savitskyy v. Ukraine, no. 38773/05, § 105, 26 July 2012). That criticism also holds true for the manner, in which the domestic authorities handled the applicants’ complaints in the present case prior to 19 November 2012.
88. As regards the investigation thereafter, the Court cannot but observe that, in spite of the clearly improved legislative frameworks enabling, or even requiring, a fully-fledged investigation into every allegation of a criminal offence, the investigation into the applicants’ complaints of ill‑treatment showed little sign of improvement. The following deficiencies can be noted as most telling: repeated discontinuation of the investigation without the applicants’ forensic medical examination (see paragraphs 33, 38, 42, 43, 45 and 51 above); the failure to carry out any investigative measures in respect of the material evidence adduced on 21 February 2013 (Mr Baylo’s clothes, which he had supposedly been wearing during the evacuation in March 2012 and which contained stains of what appeared to be blood – see paragraph 39 above); refusal of Mr Baylo’s pertinent procedural requests on the grounds that he had no formal status of an injured party and refusal of his, as well as Mr Kuznyetsov’s, requests for such a procedural status (see paragraphs 40 and 41 above).
89. The Court also takes note of the following serious omission undermining the effectiveness of the domestic investigation. All the applicants alleged that they had been beaten up during their passage through the “live corridor” (see paragraph 17 above). Although it was established that that “corridor” had been formed by members of the Lviv regional consolidated rapid response unit (see paragraph 34 above), no attempts were made to establish the composition of that unit let alone identify the officers concerned.
90. Furthermore, the investigation relied on the statements of several other life prisoners as refuting the applicants’ allegations, without clarifying the obvious contradictions in those statements or establishing whether they had been made without constraint (see paragraphs 37, 43 and 59-61 above).
91. Lastly, the Court observes that the proceedings were discontinued and resumed many times because the investigation had been found to be incomplete and inadequate (see paragraph 33 above). Most recently, on 30 January 2020, the Prosecutor General’s Office quashed on those grounds the ruling of 25 December 2013 discontinuing the investigation (see paragraph 48 above). Obviously, this new round of investigation can hardly be expected to yield fruit given the considerable lapse of time. The Court reiterates in this connection that repeated remittals of a case for further investigation may disclose a serious deficiency in the domestic prosecution system (see, for example, Aleksandr Smirnov v. Ukraine, no. 38683/06, § 61, 15 July 2010, and Ochelkov v. Russia, no. 17828/05, § 122, 11 April 2013).
92. In the light of all the foregoing, the Court concludes that there was no effective investigation into the alleged ill-treatment of the applicants during their evacuation from Sokal Prison to the Lviv SIZO on 27 March 2012. Having regard to the State authorities’ obligation to act of their own motion once the matter came to their attention (see paragraphs 82 and 83 above), this concerns even those applicants who did not raise any complaints at the domestic level (see paragraphs 25 and 26 above).
93. The Court therefore dismisses the Government’s objection as to the exhaustion of domestic remedies previously joined to the merits (see paragraph 75 above) and finds that there has been a violation of Article 3 of the Convention under its procedural limb.
2. Alleged ill-treatment of the applicants
(a) The parties’ submissions
(i) The applicants
94. Maintaining their account of the events (see paragraphs 17-23 above), the applicants submitted that they had suffered treatment amounting to torture.
95. They observed that, by the time of their evacuation to the Lviv SIZO, they had been exhausted physically and mentally as a result of, firstly, the fear of being caught in fire and, secondly, waiting for several hours without warm clothes, food, water or access to toilet.
96. The applicants further emphasised that, during the initial evacuation within the prison area, they had fully complied with all the directions of the prison staff, without any restraint measures being required. Accordingly, the violence, which had subsequently been applied to them, had been entirely unjustified. Moreover, the applicants went on to state that they had not received the slightest warning of what was about to happen to them during their passage through the “live corridor”.
97. The applicants also submitted that their sufferings had been exacerbated by the extremely tight handcuffing lasting for many hours.
98. Lastly, they referred to the alleged refusal of the Lviv SIZO medical staff to record their injuries and grievances as a further factor aggravating their anxiety and feeling of helplessness.
(ii) The Government
99. The Government observed that in total sixty-eight life prisoners had been evacuated from Sokal Prison on 27 March 2012 and that only sixteen of them, the applicants, had alleged having been ill-treated. This indicated, in the Government’s opinion, that their allegation of mass beating could hardly be regarded as plausible.
100. Furthermore, the Government noted that the applicants’ medical examination upon their arrival at the Lviv SIZO had not established any injuries and that no complaints had been reported. They emphasised that officials carrying out that examination had not been involved in the alleged ill-treatment and had therefore had no interest in concealing evidence.
101. The Government also observed that three forensic medical expert examinations had been carried out and that only one of them, in respect of Mr Baylo, had established an injury which could have potentially been inflicted in March 2012.
102. In sum, the Government argued that the applicants’ allegations were not supported by evidence.
(b) The Court’s assessment
(i) General case-law principles
103. As the Court has stated on many occasions, Article 3 enshrines one of the fundamental values of democratic society. Even in the most difficult of circumstances, such as the fight against terrorism or crime, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the victim’s behaviour (see, among other authorities, Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000‑IV, and Saadi v. Italy [GC], no. 37201/06, § 127, ECHR 2008).
104. The Court has also consistently stressed that the suffering and humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment. Measures depriving a person of his liberty may often involve such an element. In accordance with Article 3 of the Convention, the State must ensure that a person is detained under conditions which are compatible with respect for his human dignity and that the manner and method of the execution of the measure do not subject him to distress or hardship exceeding the unavoidable level of suffering inherent in detention (see Kudła v. Poland [GC], no. 30210/96, §§ 92-94, ECHR 2000‑XI).
105. Allegations of ill-treatment must be supported by appropriate evidence. The Court reiterates that, in assessing evidence, it has adopted the standard of proof “beyond reasonable doubt”. However, it has never been its purpose to borrow the approach of the national legal systems that use that standard. Its role is not to rule on criminal guilt or civil liability but on Contracting States’ responsibility under the Convention. The specificity of its task under Article 19 of the Convention – to ensure the observance by the Contracting States of their engagement to secure the fundamental rights enshrined in the Convention – conditions its approach to the issues of evidence and proof. In the proceedings before the Court, there are no procedural barriers to the admissibility of evidence or pre-determined formulae for its assessment. It adopts the conclusions that are, in its view, supported by the free evaluation of all evidence, including such inferences as may flow from the facts and the parties’ submissions. According to its established case-law, proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Moreover, the level of persuasion necessary for reaching a particular conclusion and, in this connection, the distribution of the burden of proof, are intrinsically linked to the specificity of the facts, the nature of the allegation made and the Convention right at stake. The Court is also attentive to the seriousness that attaches to a ruling that a Contracting State has violated fundamental rights (see Creangă v. Romania [GC], no. 29226/03, § 88, 23 February 2012).
106. The Court has held that where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries occurring during such detention. The burden of proof is then on the Government to provide a satisfactory and convincing explanation by producing evidence establishing facts which cast doubt on the account of events given by the victim. In the absence of such explanation, the Court can draw inferences which may be unfavourable for the Government. That is justified by the fact that persons in custody are in a vulnerable position and the authorities are under a duty to protect them (see Bouyid, cited above, §§ 82-83, with further case-law references).
107. The Court has consistently held in its case-law that it is mindful of the difficulties States may encounter in maintaining order and discipline in penal institutions (see Gömi and Others v. Turkey, no. 35962/97, § 77, 21 December 2006, and Gablishvili and Others v. Georgia, no. 7088/11, § 62, 21 February 2019). The Court has accepted that the use of force may be necessary on occasion to ensure prison security, to maintain order or prevent crime. Nevertheless, such force may be used only if indispensable and must not be excessive (see Vladimir Romanov v. Russia, no. 41461/02, § 63, 24 July 2008, and Karabet and Others, cited above, § 325). Any recourse to physical force which has not been made strictly necessary by the detainee’s own conduct diminishes human dignity and is, in principle, an infringement of the right set forth in Article 3 (see, among other authorities, Bouyid, cited above, § 88, and the case-law references therein).
(ii) Application of the above principles to the present case
108. Turning to the present case, the Court notes that the applicants provided a very detailed, specific and consistent description of their alleged ordeal during the fire evacuation from Sokal Prison on 27 March 2012. They specified the chain of events and indicated all the details regarding their passage through the “live corridor” (see paragraphs 17-23 above). Having regard to the fact that all the applicants were in the same group evacuated from Sokal Prison, the Court finds no need for a separate analysis of each applicant’s account.
109. It is true that there is no medical evidence in the case file before the Court in support of the applicants’ allegations. However, this fact alone is not sufficient to undermine their credibility. The Court has held in its case-law that although medical evidence plays a decisive role in establishing the facts for the purpose of Convention proceedings, the absence of such evidence cannot immediately lead to the conclusion that the allegations of ill-treatment are false or cannot be proven. Were it otherwise, the authorities would be able to avoid responsibility for ill-treatment by not conducting medical examinations and not recording the use of physical force or special means of restraint (see Karabet and Others, cited above, § 315).
110. The Court takes note of several circumstances in the present case suggesting that no reports were drawn up in respect the applicants’ medical examination upon their arrival at the Lviv SIZO. Thus, no such reports were mentioned in the course of the domestic investigation: instead, the reference was constantly made to the absence of any records in respect of injuries or complaints (see, in particular, paragraphs 35 and 43 above). Furthermore, the Court notes that, when a forensic medical expert was analysing the medical file of Mr Kuznyetsov in May 2013 with a view to establishing whether he might have sustained any injuries on 27 March 2012, the only record of relevance in his medical file was considered that of 13 April 2012 (see paragraph 38 above). Had a report on his medical examination of 27 or 28 March 2012 existed, the expert would have undoubtedly referred to it. Lastly, the Court observes that the Government did not provide copies of any such reports in spite of the Court’s request to that effect (see paragraph 56 above).
111. In the light of the foregoing, the Court cannot hold the absence of those medical reports against the applicants. To the contrary, it is rather inclined to interpret that in their favour as casting doubts on the circumstances of their fire evacuation. This is even more so, given the Government’s failure to provide the Court with copies of the applicants’ medical files altogether and the absence of any explanation for that (see paragraph 55 above).
112. In so far as the witness evidence is concerned, the Court has doubts regarding the credibility of the prisoners’ testimonies made during the domestic investigation, as eventually they either denied having testified or claimed having been pressurised by the authorities (see paragraphs 58-60 above). At the same time, some prisoners confirmed the applicants’ version of the events (see paragraph 62 above).
113. Having regard to the vulnerability of the evacuated life prisoners, who remained under the full control of the authorities, and noting the above-mentioned allegation of pressure on witnesses, the Court cannot accept the Government’s argument that the absence of ill-treatment complaints from all the sixty-eight evacuated prisoners indicated that the applicants’ allegation of mass beating during the fire evacuation was implausible (see paragraph 99 above).
114. The Court also notes the applicants’ submission, which the Government did not refute, that they were prohibited from having any contact with their families and lawyers for about three weeks after the fire evacuation (see paragraph 23 above). That restriction appears inexplicable, especially given the understandable anxiety of the evacuated prisoners’ relatives after they had found out about the fire in Sokal Prison from the news.
115. Having regard to the specificity of the facts in the present case, the nature of the allegations made and the Convention right at stake (see paragraph 105 above for the relevant case-law principles), the Court considers all the above elements (on the one hand, the detailed and consistent description of the events by the applicants, their inability to collect any evidence being isolated from the outside word and having no medical reports to rely on, and, on the other hand, the Government’s failure to provide the Court with any reasons, let alone evidence, to cast doubts on the credibility of the applicants’ allegations) sufficient for accepting the applicants’ version of the events.
116. The Court will therefore proceed on the assumption that the applicants were indeed subjected to the treatment alleged, namely that they sustained numerous hits with truncheons, sticks and electric cables, as well as punches and kicks, during their passage through the “live corridor” of fifty to seventy metres long (see paragraphs 17-18 above).
117. The Court takes note of the undisputed fact that no transgressions on the part of the applicants or other prisoners were reported prior to or during their passage through the “live corridor”: they had left their cells in an orderly manner and had complied with all the orders of the prison administration, without manifesting any intention of violence or attempting an escape (see paragraphs 12-13 above). Accordingly, there was no justification for any brutality against them.
118. The Court further notes that the applicants had to wait for their evacuation from the prison for at least six hours in particularly stressful conditions (see, in particular, paragraph 14 above). It therefore accepts their argument that they were exhausted physically and mentally (see paragraph 95 above).
119. Likewise, the Court agrees with the applicants that their suffering must have been further exacerbated by the shock owing to the unexpectedness of the violence against them (see paragraph 96 above).
120. The Court therefore concludes that the applicants were victims of inhuman and degrading treatment proscribed by Article 3 of the Convention.
121. It follows that there has been a violation of Article 3 of the Convention under its substantive limb.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
122. 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.”
A. Damage
123. The applicants claimed the following amounts in respect of non‑pecuniary damage: Mr Baylo – 100,000 euros (EUR), Mr Tokach ‑ EUR 77,000, and the remaining applicants – EUR 60,000 each.
124. The Government contested those claims as unsubstantiated and exorbitant.
125. The Court considers that the applicants suffered non-pecuniary damage which cannot be compensated for by the mere finding of a violation of their Convention rights. Having regard to the circumstances of the case and ruling on an equitable basis as required by Article 41, the Court awards each applicant EUR 12,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.
B. Costs and expenses
126. The applicants’ lawyer claimed, on behalf of Mr Starenkyy, Mr Baylo, Mr Kondrashyn and Mr Ovsiyenko, EUR 14,065 for costs and expenses incurred in the proceedings before the Court. In substantiation, she submitted four legal assistance contracts signed by her and the above‑mentioned applicants in September 2014, by which she was authorised to represent them in the proceedings before the Court at a rate of 1,000 Ukrainian hryvnias (UAH) (equal to about EUR 37.5 at the time) per hour. The contracts stipulated that payment would be made after completion of the proceedings and within the limits of the sum awarded by the Court in costs and expenses. Ms Sapozhnikova also submitted four timesheets signed by her and the applicants concerned in December 2019 in respect of the work performed by her under the aforementioned contracts. As indicated therein, she worked on the case for 376 hours in total (124 hours under the contract with Mr Starenkyy and 84 hours under each of the other three contracts).
127. The Government invited the Court to reject that claim, as the applicants had not actually incurred the above expenses. They further submitted that the claim was excessive given that the complaints of all the four applicants concerned the same events and raised the same legal issues.
128. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and to its case-law, the Court considers that the claim is excessive and awards it – to Mr Starenkyy, Mr Baylo, Mr Kondrashyn and Mr Ovsiyenko jointly – in the amount of EUR 3,500, to be paid directly into the bank account of the applicants’ representative Ms Sapozhnikova (see, mutatis mutandis, Khlaifia and Others v. Italy [GC], no. 16483/12, § 288, 15 December 2016).
C. Default interest
129. 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. Holds that Mr Vasyl Yovdiy’s brother has locus standi in the proceedings;
2. Decides to join to the merits the Government’s objection of non‑exhaustion of domestic remedies and rejects it;
3. Declares the complaints under Article 3 of the Convention admissible;
4. Holds that there has been a violation of Article 3 of the Convention under its procedural limb;
5. Holds that there has been a violation of Article 3 of the Convention under its substantive limb;
6. Holds
(a) that the respondent State is to pay the following amounts to be converted into the national currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 12,000 (twelve thousand euros), plus any tax that may be chargeable, to each of the applicants in respect of non-pecuniary damage;
(ii) EUR 3,500 (three thousand five hundred euros) to Mr Starenkyy, Mr Baylo, Mr Kondrashyn and Mr Ovsiyenko jointly, plus any tax that may be chargeable to them, in respect of costs and expenses, to be paid into the bank account of their representative Ms Sapozhnikova;
(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;
7. Dismisses the remainder of the applicants’ claim for just satisfaction.
Done in English, and notified in writing on 24 June 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Martina Keller Mārtiņš Mits
Deputy Registrar President
____________
Appendix
List of applicants
| No. | Applicant’s name | Birth year |
| 1 | Demyan Ivanovych STARENKYY | 1968 |
| 2 | Yelchin Burkhan Ogly AGABALAYEV | 1974 |
| 3 | Oleg Grygorovych BAYLO | 1975 |
| 4 | Yan Dmytrovych DEYNEGA | 1973 |
| 5 | Volodymyr Oleksandrovych DRUGOV | 1964 |
| 6 | Rustam Zakirovich FARZIYEV | 1984 |
| 7 | Mykhaylo Vasylyovych GRECHUKH | 1982 |
| 8 | Dmytro Oleksandrovych KHAVRUTSKYY | 1981 |
| 9 | Sergiy Sergiyovych KONDRASHYN | 1982 |
| 10 | Sergiy Anatoliyovych KULYK | 1968 |
| 11 | Mykhaylo Sergiyovych KUZNYETSOV | 1976 |
| 12 | Viktor Pavlovych LAVRENYUK | 1977 |
| 13 | Andrey Sergeyevich OVSIYENKO | 1979 |
| 14 | Igor Volodymyrovych PETRYSHAK | 1983 |
| 15 | Myroslav Petrovych TOKACH | 1980 |
| 16 | Vasyl Vasylyovych YOVDIY | 1983 |
[1] Mr Kulyk was released from prison on 3 April 2018, after the reopening of his criminal case following the Court’s judgment in his earlier application (see Kulik v. Ukraine [Committee], no. 34515/04, 2 February 2017). His surname in the cited application was transliterated from Russian as the language used by the applicant at the time, whereas in the present case it is transliterated from Ukrainian being the language of the application.
[2] This does not concern the legal successor of Mr Yovdiy, who was not able to provide any additional details (see paragraph 3 above).
[3] Including Mr Agabalayev, Mr Deynega, Mr Drugov, Mr Farziyev, Mr Grechukh, Mr Kondrashyn and Mr Ovsiyenko.
[4] Including Mr Starenkyy, Mr Baylo, Mr Kuznyetsov, Mr Khavrutskyy, Mr Kulyk, Mr Lavrenyuk, Mr Petryshak and Mr Tokach.
[5] No details are available in respect of Mr Yovdiy.
[6] Mr Farziyev until 9 p.m., Mr Khavrutskyy until about 10 p.m. and Mr Lavrenyuk until about midnight.
[7] Under the Code of Criminal Procedure of 1960, which was in force until 19 November 2012, prosecution authorities responded to a complaint of a criminal offence either by a refusal to institute criminal proceedings or by instituting such proceedings. Their decision was taken following “pre-investigation enquiries”. A fully‑fledged criminal investigation was conducted only after the institution of criminal proceedings. The new Code of Criminal Procedure of 2012, which entered into force on 19 November 2012, abolished the stage of pre-investigation enquiries and provided for mandatory initiation of a pre-trial investigation into an allegation of a criminal offence. The beginning of such investigation was marked by an entry in the Unified register of pre-trial investigations. Subsequently, the investigation could be discontinued.
[8] On 10 August and 3 October 2012 (refusal of investigation) and on 16 January and 29 April 2013 (discontinuation of investigation).
[9] On 10 August 2012 (refusal of investigation) and on 3 January and 22 March 2013 (discontinuation of investigation).
[10] On 28 January and 23 May 2013 (discontinuation of investigation); the latter ruling also concerned Mr Petryshak.
[11] On 10 September 2012 (refusal of investigation).
[12] On 8 October 2012 (refusal of investigation).
[13] While Mr Drugov and Mr Deynega did not lodge separate complaints to the prosecution authorities, they were referred to as witnesses by Mr Starenkyy and Mr Baylo.
[14] There is no information in respect of other applicants.
[15] There are no further details in the case file as regards those complaints.
[16] The applicable regulations on documentation management required the prosecution authorities to open “a supervision file” for record-keeping of all the exchanges following complaints or applications received.
[17] It appears that the complaints by Mr Grechukh, Mr Drugov and Mr Kondrashyn did not concern the issues of relevance for the present application (see paragraphs 25 and 26 above).
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