CASE OF MAKARENKO AND OTHERS v. UKRAINE (European Court of Human Rights) Applications nos. 53747/09 and 4 others – see appended table

The applicants alleged, in particular, under Article 3 of the Convention, that they had been ill-treated by the police and that the investigation into their respective complaints was ineffective. In addition, one applicant (Mr S. Oliynyk, application no. 41415/13) raised complaints under Article 5 §§ 1 and 3 of the Convention.


FIFTH SECTION
CASE OF MAKARENKO AND OTHERS v. UKRAINE
(Applications nos. 53747/09 and 4 others – see appended table)
JUDGMENT
STRASBOURG
16 September 2021

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

In the case of Makarenko 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. 53747/09, 41415/13, 45940/13, 46982/13 and 50463/13) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by five Ukrainian nationals, whose details are set out in the appended tables (“the applicants”), on the various dates indicated in those tables;

the decision to give notice to the Ukrainian Government (“the Government”) of the complaints concerning police ill-treatment and the lack of an effective investigation into the allegations in that regard (all applications) and allegedly unlawful and unreasonable deprivation of liberty (application no. 41415/13) and to declare inadmissible the remainder of applications nos. 53747/09, 45940/13, and 50463/13;

the parties’ observations;

Having deliberated in private on 26 August 2021,

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

INTRODUCTION

1. The applicants alleged, in particular, under Article 3 of the Convention, that they had been ill-treated by the police and that the investigation into their respective complaints was ineffective. In addition, one applicant (Mr S. Oliynyk, application no. 41415/13) raised complaints under Article 5 §§ 1 and 3 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. SCOPE OF THE CASE

5. Mr S. Oliynyk (application no. 41415/13) raised additional complaints after his application was communicated to the Government. He complained, under Article 6 § 1 of the Convention, that the length of the criminal proceedings against him had been unreasonable and the way in which the grounds for discontinuing them had been formulated had cast doubt on his innocence.

6. In the Court’s view, these are new complaints that were not included in the original complaints on which the parties have been invited to submit observations. The Court will therefore not take them up in the context of the present case (see, mutatis mutandis, Piryanik v. Ukraine, no. 75788/01, § 20, 19 April 2005 and, as a more recent example, Krivolapov v. Ukraine, no. 5406/07, § 64, 2 October 2018).

III. ALLEGED POLICE ILL-TREATMENT AND LACK OF AN EFFECTIVE INVESTIGATION

7. The applicants complained, under various Convention provisions, that they had been ill-treated by the police and that there had not been an effective investigation into their ill-treatment allegations.

8. 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 in issue fall to be examined under Article 3 of the Convention. Article 3 reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

A. Admissibility

9. The Court finds that the present complaints are neither manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention nor inadmissible on any other grounds. They must therefore be declared admissible.

B. Merits

10. Reviewing the facts of the present case in the light of the general principles established in its case-law (see, as a recent authority, 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 the 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 as well as identifying and punishing those responsible, should the ill-treatment allegations prove to be true.

11. Regard being had to the evidential gaps and contradictions in the domestic case files and in the factual submissions by the parties (see appended tables for details), the Court finds it impossible to establish beyond a reasonable doubt that the applicants had sustained injuries under the control of the police, as alleged. The Court considers that the difficulty in determining the substance of the applicants’ allegations of ill-treatment stems from the authorities’ failure to investigate their complaints effectively (see, in particular, Popa v. Moldova, no. 29772/05, §§ 39 and 45, 21 September 2010; Grimailovs v. Latvia, no. 6087/03, §§ 109 and 119, 25 June 2013; and Barysheva v. Ukraine, no. 9505/12, § 55, 14 March 2017).

12. From the documents before the Court, it appears that the domestic investigations did not reflect a serious effort to determine the relevant facts.

13. The Court notes that in the case of Kaverzin (no. 23893/03, §§ 173‑80, judgment of 15 May 2012) it found that the reluctance of the authorities to ensure a prompt and thorough investigation of 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 prompt and thorough investigation.

14. The Court therefore concludes that the present complaints disclose a breach of Article 3 of the Convention.

IV. OTHER alleged violations of the convention IN APPLIcation no. 41415/13 (Mr S. Oliynyk)

15. Mr S. Oliynyk also complained that on 11 April 2013 he had been arbitrarily deprived of his liberty from about 6 a.m. until 7.20 p.m. (see appended tables 2-A (6) and 2‑B for details). He also complained that his subsequent detention on remand was not based on relevant and sufficient reasons, in particular, because there had been no reasonable suspicion that he had committed the incriminated offence. He invoked Article 5 § 1 of the Convention to both of his aforementioned complaints and Article 5 § 3 of the Convention to the complaint concerning the detention on remand.

16. Having examined all the material before it, the Court concludes that in the light of its findings in a number of other cases (see, in particular, Smolik v. Ukraine, no. 11778/05, §§ 45-48, 19 January 2012; Creangă v. Romania [GC], no. 29226/03, §§ 84 and 88-93, 23 February 2012; Grinenko v. Ukraine, no. 33627/06, §§ 74-78, 15 November 2012; and Belousov v. Ukraine, no. 4494/07, § 85, 7 November 2013) the complaint concerning arbitrary detention on 11 April 2013 is admissible and discloses a violation of Article 5 § 1 of the Convention.

17. It further considers that it is not necessary to make an assessment of the admissibility and merits of the remainder of the complaints raised by Mr S. Oliynyk under Article 5 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

18. 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.”

19. Regard being had to the documents in its possession and to its case-law, the Court considers it reasonable to award the applicants the sums indicated in the appended tables. It dismisses the remainder of the applicants’ claims for just satisfaction.

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

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Decides to join the applications;

2. Declares the complaints concerning the alleged police ill-treatment and ineffective investigation in that regard raised in all applications and the complaint concerning deprivation of liberty on 11 April 2013 raised in application no. 41415/13 admissible;

3. Holds that there has been a violation of Article 3 of the Convention on account of the failure of the domestic authorities to conduct an effective investigation concerning complaints of police ill-treatment raised by all applicants;

4. Holds that there has been a violation of Article 5 § 1 of the Convention in respect of the complaint concerning deprivation of liberty on 11 April 2013 raised in application no. 41415/13;

5. Holds that it is not necessary to examine the admissibility and merits of other complaints raised under Article 5 of the Convention in application no. 41415/13;

6. 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;

7. Dismisses the remainder of the applicants’ claims for just satisfaction.

Done in English, and notified in writing on 16 September 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. 53747/09

by Mr Oleksandr Anatoliyovych Makarenko

Ukrainian national born in 1988 and residing in Dnipro

Represented by Ms O.M. Ashchenko[1] and Mr V.E. Pogasyan, lawyers practising in Kharkiv and Dnipro

Lodged on 26 September 2009

A. Complaint under Article 3 concerning police ill-treatment
Applicant’s account of alleged ill-treatment
On 23 March 2008 the applicant was taken to the Kirovskyy district police station in Dnipropetrovsk and questioned by police officers concerning his alleged participation in the robbery and assault of K. In order to force him to confess, the officers repeatedly punched and threatened the applicant.
Relevant facts and documents Key issues
1. Medical and other evidence:

(i) 25/03/08 – certificate (Dnipropetrovsk municipal hospital no. 11): closed cerebral injury; cerebral concussion; contusion of the abdominal organs and chest; bruising to face and head;

(ii) 09/06/08 – report no. 2400 (Dnipropetrovsk forensic medical expert bureau): injuries recorded on 25/03/08 cumulatively qualifying as minor, could have been sustained on 23/03/08 as described by applicant, who explained that “unidentified persons” had punched him on the head, limbs and torso.

2. Ill-treatment complaint lodged:

Unspecified date prior to 19/09/08, with Kirovskyy district prosecutor’s office in Dnipropetrovsk.

3. Response by authorities:

(i) 19/09/08, 01/03/10, 30/08/10 and 09/09/10 – decisions not to institute criminal proceedings: no appearance of police ill-treatment (Kirovskyy district prosecutor’s office);

(ii) 25/06/12 and 16/07/12 – appeals rejected (Kirovskyy District Court in Dnipropetrovsk and Dnipropetrovsk Regional Court of Appeal respectively).

4. Key actions:

Statements taken from police officers involved in applicant’s questioning on 23/03/08: they denied any ill-treatment.

5. Key findings:

No arguable police ill-treatment case; no findings concerning possible origin of documented injuries.

6. Other relevant facts:

(i) 23/03/08 – after having been questioned by police, applicant released under undertaking not to abscond;

(ii) 04/03/09 – applicant and three others convicted of having assaulted and robbed K. (Kirovskyy District Court in Dnipropetrovsk);

(iii) 07/08/09 and 11/03/10 – appeals by all defendants dismissed and their allegations of police ill‑treatment dismissed as unsubstantiated (Dnipropetrovsk Regional Court of Appeal and Supreme Court).

(i) First medical examinations conducted two days after applicant’s release; no conclusive evidence indicating that injuries were sustained under police control (for relevant examples, see Kulyk v. Ukraine, no. 30760/06, §§ 82-83, 23 June 2016, and Barysheva v. Ukraine, no. 9505/12, §§ 55‑56, 14 March 2017);

(ii) No full-scale investigation, only repeated 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 serious effort to collect objective evidence or establish origin of documented injuries: inquiry limited to questioning of police officers implicated in ill-treatment (for relevant examples, see Lopatin and Medvedskiy v. Ukraine, nos. 2278/03 and 6222/03, § 67, 20 May 2010; Danilov v. Ukraine, no. 2585/06, § 70, 13 March 2014; and Kirpichenko v. Ukraine, no. 38833/03, § 85, 2 April 2015).

B. Just satisfaction
Parties’ submissions Court’s award
Applicant:

Non-pecuniary damage: 30,000 euros (EUR).

Government:

Claim exorbitant and unsubstantiated.

Non-pecuniary damage:

EUR 7,500

plus any tax chargeable to applicant.

2. Application no. 41415/13

by Mr Stanislav Fedorovych Oliynyk

Ukrainian national born in 1982 and residing in Lyubymivka

Represented by Mr S.M. Doroshenko, a lawyer practising in Dnipro

Lodged on 14 June 2013

A. Complaint under Article 3 concerning police ill-treatment
Applicant’s account of alleged ill-treatment
At about 6 a.m. on 11 April 2013, a group of police officers from the Dnipropetrovskyy district police arrived at the applicant’s home and took him in for questioning in connection with the investigation into the violent death suffered by V.Ch. From about 8 a.m. until 9 a.m., while two police officers held him, two others beat the applicant on his head, back and torso in an attempt to pressure him into confessing to having inflicted fatal injuries on V.Ch. Subsequently, investigator V.F. gave the applicant a glass of water to drink, which apparently contained some dissolved psychotropic substance: it made the applicant feel disoriented and broke his moral resistance. He therefore confessed to the crime he had not committed.
Relevant facts and documents Key issues
1. Medical and other evidence:

(i) 11/04/13 – video-recording of “investigative experiment”: according to applicant, it shows him with bruise on his neck and being in convalescent disorientated state;

(ii) 11/04/13 – fluorography certificate (Mechnikova Dnipropetrovsk regional hospital): no pathology;

(iii) 02/02/16 – certificate (Dnipropetrovsk SIZO, medical unit): no injuries detected upon applicant’s arrival; no health-related complaints received during period of detention (15/04/13 to 04/09/13);

(iv) 30/09/13 – certificate (Dnipropetrovsk municipal district hospital): inpatient treatment (24/09/13 to 30/09/13) for acute glomerulonephritis.

2. Ill-treatment complaints lodged:

(i) 17/04/13 – with Dnipropetrovsk Regional Court of Appeal (in appeal against decision remanding applicant in custody);

(ii) 30/04/13 – with Dnipropetrovsk regional prosecutor’s office (by applicant’s father).

 

3. Response by authorities:

(i) 02/05/13 – criminal proceedings initiated (Dnipropetrovsk regional prosecutor’s office);

(ii) 21/06/13 – criminal proceedings closed: no appearance of ill-treatment;

(iii) 28/08/13 – investigation reopened (Dnipropetrovskyy District Court): shortcomings in investigation;

(iv) 11/10/13 – criminal proceedings closed (essentially same reasons as on 21/06/13).

4. Key actions:

(i) Statements alleging ill-treatment obtained from applicant and his parents;

(ii) Statements denying presence of injuries and applicant’s allegations of being in convalescent disorientated state on 11/04/13 obtained from police officers, D.C. (applicant’s first lawyer) and lay witnesses present during “investigative experiment”.

5. Key findings:

No ill-treatment took place.

6. Other relevant facts and documents:

(i) 11/04/13, about 6 a.m. – applicant taken into police station for questioning concerning violent death of V.Ch.;

(ii) 11/04/13, unspecified time, afternoon – applicant (questioned without lawyer) confessed to having beaten up V.Ch.;

(iii) 11/04/13, about 4 p.m. – applicant engaged D.C. as lawyer;

(iv) 11/04/13, about 7 p.m. – applicant took part in “investigative experiment” demonstrating how he had hit V.Ch. in presence of D.C., forensic expert and lay witnesses;

(v) 11/04/13, 7.20 p.m. – applicant’s arrest formalised in police report (Dnipropetrovskyy district police);

(vi) 12/04/13 – applicant remanded in custody (Dnipropetrovskyy District Court);

(vii) 16/04/13 – applicant engaged Mr S. Doroshenko as lawyer;

(viii) 17/04/13 – applicant appealed against decision to remand him in custody, alleging that he had been ill-treated in order to pressure him into giving false self-incriminating statements and retracting those statements;

(ix) 01/09/16 – decision to drop charges (Dnipropetrovskyy regional prosecutor’s office) on following grounds: applicant’s confession had been retracted and no evidence corroborating account of events reflected in that confession had been collected;

(x) 08/11/16 – decision to discontinue criminal proceedings against applicant (Dnipropetrovskyy District Court);

(xi) 28/12/16 – decision of 08/11/16 upheld (Dnipropetrovsk Regional Court of Appeal).

(i) Crucial elements remain unclear: no conclusive evidence indicating presence/ timing/cause of injuries (compare A.V. v. Ukraine, no. 65032/09, §§ 49-50, 29 January 2015; Yevgeniy Petrenko v. Ukraine, no. 55749/08, §§ 80-81, 29 January 2015; and Lunev v. Ukraine, no. 4725/13, § 102, 22 October 2015);

(ii) No appearance of thorough effort to collect objective evidence and resolve inconsistencies in witness testimonies; in particular, no forensic assessment of applicant’s state of health/possible connection between his subsequent kidney disease and alleged ill-treatment; no face-to-face confrontations between applicant and witnesses contesting his allegations (compare Yevgeniy Petrenko v. Ukraine, no. 55749/08, § 68, 29 January 2015 and Ushakov and Ushakova v. Ukraine, no. 10705/12, § 93, 18 June 2015);

(iii) Second decision to close criminal proceedings almost identical to first, quashed by court with reference to shortcomings in inquiry (compare Dzhulay v. Ukraine, no. 24439/06, § 55 and 59, 3 April 2014).

B. Other complaints
Article 5 § 1: unrecorded detention

1. Period of deprivation of liberty complained about/arresting authority

11/04/13, about 6 a.m., to 11/04/13, 7.20 p.m., Dnipropetrovskyy district police station.

2. Grounds and documents regularising alleged deprivation of liberty during above period:

No documents.

3. Domestic complaints by applicant:

Same as in respect of ill-treatment (see section A above).

4. Other relevant facts and documents:

Decision to discontinue criminal proceedings concerning applicant’s ill-treatment allegations of 21/06/13: according to police officers V.I., V.P. and O.P., on 10/04/13 they were instructed to bring applicant in for questioning as suspect in case concerning V. Ch.’s violent death and did so at about 6.30 a.m. on 11/04/13.

Article 5 §§ 1 and 3: detention on remand

Period of deprivation of liberty complained about/arresting authority

12/04/13 (decision to remand in custody) – 04/09/13 (decision to replace detention by electronic surveillance and obligation not to leave habitual residence at night time) – Dnipropetrovskyy District Court.

C. Just satisfaction
Parties’ submissions Court’s award
Applicant:

Non-pecuniary damage: EUR 7,000.

Costs and expenses: EUR 7,000 in legal fees (domestic criminal proceedings against applicant; domestic proceedings concerning alleged ill-treatment; and Convention proceedings).

Supporting documents: contracts for legal representation by Mr S. Doroshenko; timesheets: 468 hours at 300 hryvnias (UAH) per hour.

Government:

Non-pecuniary damage: claim exorbitant and unsubstantiated.

Costs and expenses: unsubstantiated ‑ it is not possible to discern what percentage of work by Mr S. Doroshenko concerned subject matter of present case; legal fees incurred in connection with representation in domestic criminal proceedings against applicant are irrelevant.

Non-pecuniary damage:

EUR 7,000, as claimed by applicant.

 

Costs and expenses:

EUR 3,500

plus any tax chargeable to applicant.

 

3. Application no. 45940/13

by Mr Dmitriy Valeryevich Baloyan

Ukrainian national born in 1978 and residing in Oleshivka

Represented by Mr O.V. Levytskyy, a lawyer practising in Kyiv

Lodged on 11 July 2013

A. Complaint under Article 3 concerning police ill-treatment
Applicant’s account of alleged ill-treatment
On 12 February 2012, during the applicant’s questioning in the Kozelets district police station, police officer I.B. coerced him into confessing to a murder. He insisted that the applicant had intentionally murdered S.K. out of jealousy rather than hitting him with an axe to protect the applicant’s girlfriend from being sexually harassed by S.K. Police officer I.B. repeatedly punched the handcuffed applicant on various parts of his body and banged him against the walls and furniture.
Relevant facts and documents Key issues
1. Medical and other evidence:

17/02/12 – certificate (Chernigiv SIZO, medical unit): “old abrasion on right eyebrow (2-3 cm) and purple bruise in right elbow area (5 cm)”.

2. Complaint lodged:

25/06/12 – with Kozelets District Court (during applicant’s trial).

3. Response by authorities:

(i) 04/07/12 – decision not to institute criminal proceedings (Kozelets district prosecutor’s office);

(ii) 23/01/14 and 13/02/14 – Kozelets District Court and Chernigiv Regional Court of Appeal respectively declined to hear applicant’s appeals;

(iii) 11/11/14 – in response to applicant’s further complaints, criminal proceedings instituted (Chernigiv regional prosecutor’s office);

(iv) 19/12/14 – criminal proceedings closed (Chernigiv regional prosecutor’s office): previous comprehensive inquiry had already established that there had been no ill-treatment case to answer;

(v) 16/02/15 and 13/03/15 – applicant’s appeals rejected as unfounded (Novozavodskiy District Court in Chernigiv and Chernigiv Regional Court of Appeal).

 

4. Key actions:

Statements taken from police officer I.B. and investigator M.M.

5. Key findings:

No arguable ill-treatment case; origin of documented injuries not explored.

6. Other relevant facts and documents:

(i) 11/02/12, about 11 p.m. – applicant taken for questioning by police in connection with S.K.’s death from cerebral injury;

(ii) 12/02/12 – applicant submitted that he had hit S.K. with an axe in retaliation for sexual advances on his girlfriend;

(iii) same date – applicant arrested and placed in custody;

(iv) 25/06/12 – applicant retracted confession; he alleged that police officer I.B. had forced him to state that he had hit S.K. in retaliation; in fact, he had been defending his girlfriend from aggressive sexual advances by S.K.;

(v) 16/08/12 – applicant convicted of having murdered S.K. (Kozelets District Court);

(vi) 10/01/13 and 05/02/15 – applicant’s appeals rejected (Chernigiv Regional Court of Appeal and Higher Specialised Court in Civil and Criminal Matters).

(i) Available material does not allow to establish conclusively that applicant sustained injuries when he was under control of police (for relevant example, see Kozinets v. Ukraine, no. 75520/01, §§ 56‑57, 6 December 2007, and Aleksandr Smirnov v. Ukraine, no. 38683/06, § 54, 15 July 2010);

(ii) Delay in instituting criminal proceedings leading to loss of evidence (for relevant examples, see Oleksiy Mykhaylovych Zakharkin v. Ukraine, no. 1727/04, §§ 68‑69, 24 June 2010, and Savitskyy v. Ukraine, no. 38773/05, § 105, 26 July 2012);

(iii) No appearance of thorough effort to collect objective evidence, in particular, no forensic assessment of applicant’s injuries with a view to establishing their possible timing and manner of infliction; no questioning of applicant or medical staff who recorded injuries; no face-to-face confrontations between applicant and police officer implicated in ill-treatment (for relevant examples, see Danilov v. Ukraine, no. 2585/06, § 70, 13 March 2014 and Kapustyak v. Ukraine, no. 26230/11, § 80, 3 March 2016).

B. Just satisfaction
Parties’ submissions Court’s award
Applicant:

Non-pecuniary damage: EUR 11,000.

Costs and expenses: EUR 1,600 in legal fees (Convention proceedings only) to be transferred directly to Mr O.V. Levytskyy, applicant’s lawyer.

Supporting documents: legal representation contract dated 24/05/19; timesheet: sixteen hours of lawyer’s work at EUR 100 per hour, fees have not been payed yet.

Government:

Non-pecuniary damage: claim exorbitant.

Costs and expenses: fees not actually incurred; applicant has not advanced any payment.

Non-pecuniary damage:

EUR 7,500

Costs and expenses:

EUR 1,600

plus any tax chargeable to applicant

(compare Belousov v. Ukraine, no. 4494/07, §§ 115‑16, 7 November 2013).

 

4. Application no. 46982/13

by Mr Viktor Oleksiyovych Udaltsov

Ukrainian national born in 1955 and residing in Khmelnytskyy

Represented by Ms O.I. Turkas, a lawyer practising in Lviv

Lodged on 11 July 2013

A. Complaint under Article 3 concerning police ill-treatment
Applicant’s account of alleged ill-treatment
At about 9 p.m. on 15 March 2011, while the applicant, in the company of two acquaintances, was dining out at the T. bar, an argument broke out between some other customers; at that moment L.S., one of the applicant’s two companions, noticed that some UAH 800 was missing from her purse and called the police. The police arrived at about 9.30 p.m., when the customers who had been arguing and the third member of the applicant’s party had already left the bar. The officers then shoved L.S. and the applicant into their car and took them into the Pivdenno-Zakhidnyy district police station in Khmelnytskyy. L.S. was taken to a separate room for questioning and the applicant heard her scream. When he asked what was going on, several police officers threw him to the floor, kicked and punched him all over, sprayed tear gas in his eyes and crushed his left hand in the door, fracturing his fingers. Subsequently the applicant and L.S. were given an opportunity to telephone their relatives. At about midnight, the applicant and L.S. were released by the police into the care of their relatives (the applicant’s daughter and L.S.’s husband).
Relevant facts and documents Key issues
1. Medical and other evidence:

(i) 16/03/11 at 1.15 a.m. – certificate (Khmelnytskyy city hospital, trauma centre): fractures of two fingers of left hand; complaints concerning eye pain and deterioration of vision;

(ii) 18/03/11 to 21/03/11 – excerpts from medical record (Khmelnytskyy city hospital): chemical eye burns; chest contusion; cerebral concussion;

(iii) 21/03/11 – report no. 379 (Khmelnytskyy regional forensic medical bureau): fractures of two fingers of left hand; bruising (forehead, right eye, right hand, right shin); abrasion (right knee); redness of both eyes; injuries inflicted within twenty-four hours of examination on 16/03/11;

(iv) 21/03/11 to 04/04/11 – inpatient treatment certificate (Grechany local hospital): cerebral concussion; chemical eye burns.

2. Complaint lodged:

16/03/11 – with Khmelnytskyy city prosecutor’s office.

 

3. Response by authorities:

(i) 18/03/11 – report (internal investigation by police): no ill‑treatment took place;

(ii) 25/03/11 – decision not to institute criminal proceedings (investigator with Khmelnytskyy city prosecutor’s office);

(iii) 01/04/11 – decision quashed (more senior prosecutor): superficial inquiry;

(iv) 16/05/11 – further decision not to institute criminal proceedings; according to Government, copy of this decision was sent to applicant by post on same day;

(v) 12/03/13 – applicant enquired Khmelnytskyy city prosecutor about progress in investigating his complaint and noted that he had not received any news since 18 March 2011;

(vi) 20/03/13 – applicant notified of decision of 16/05/11 and informed that respective decision was not amenable to appeal following entry into force of new Code of Criminal Procedure (2012).

4. Key actions:

(i) statements taken from applicant, his daughter, L.S., her husband, police officers, owner of T. bar, and forensic expert;

(ii) forensic expert assessment of applicant’s injuries.

5. Key findings:

Accounts of events provided by applicant, his daughter, L.S., and her husband lack coherence; injuries could have been sustained after applicant had left police station.

6. Other relevant facts and documents:

(i) 16/03/11 – visitor’s log entry (Pivdenno-Zakhidnyy district police station in Khmelnytskyy): at 12.10 a.m. applicant and L.S. left police station escorted by applicant’s daughter and L.S.’s husband;

(ii) 16/03/11 – reports by duty officers V.S. and N.R. to their superiors stating as follows: at about 9.20 p.m. on 15/03/11, L.S. had called police to T. bar alleging theft of money; upon arrival of officers, applicant and L.S., who were heavily intoxicated, had been taken to police station, but had been unable to communicate coherently their reasons for calling police. No force had been used on them and both of them had been released without charge upon arrival of their relatives.

(i) Available material does not allow to establish conclusively that applicant sustained injuries when he was under control of police (for relevant examples, see Kozinets v. Ukraine, no. 75520/01, §§ 56‑57, 6 December 2007; Kulyk v. Ukraine, no. 30760/06, §§ 82-83, 23 June 2016 and Barysheva v. Ukraine, no. 9505/12, § 55, 14 March 2017);

(ii) No full-scale investigation of arguable ill-treatment complaints (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 thorough effort to collect objective evidence, in particular, no face-to-face confrontations or other steps to reconcile discrepancies between accounts of various participants in events (for relevant examples, see Danilov v. Ukraine, no. 2585/06, § 70, 13 March 2014, and Drozd v. Ukraine, no. 12174/03, §§ 69-70, 30 July 2009);

(iv) Having focused on exculpating police officers, investigation did not attempt to determine exact timing and origin of applicant’s documented injuries (for relevant examples, see Yaroshovets and Others v. Ukraine, nos. 74820/10 and 4 others, § 80, 3 December 2015, and Barysheva v. Ukraine, no. 9505/12, § 60, 14 March 2017);

(v) Delay in apprising applicant of procedural developments (for relevant examples, see Danilov v. Ukraine, no. 2585/06, § 70, 13 March 2014 and Barysheva v. Ukraine, no. 9505/12, § 61, 14 March 2017).

B. Just satisfaction
Parties’ submissions Court’s award
Applicant:

Non-pecuniary damage: EUR 10,000.

Costs and expenses: EUR 392 in legal fees (Convention proceedings).

Supporting documents: contract for legal representation dated 01/05/13; timesheet: fifteen hours (8 hours at UAH 459 per hour in 2013; 2 hours at UAH 580 per hour in 2016; and 5 hours at UAH 1,280 per hour in 2017) – equivalent to EUR 392, according to applicant.

Government

Non-pecuniary damage: claim exorbitant and unsubstantiated.

Costs and expenses: at Court’s discretion.

Non-pecuniary damage:

EUR 7,500

 

Costs and expenses:

EUR 392

 

plus any tax chargeable to applicant.

 

5. Application no. 50463/13

by Mr Oleg Sergeyevich Gidulyan

Ukrainian national born in 1969 and residing in Pershotravensk

Represented by Mr V.V. Buts, a lawyer practising in Pershotravensk

Lodged on 29 July 2013

A. Complaint under Article 3 concerning alleged police ill-treatment
Applicant’s account of alleged ill-treatment
At about 7 p.m. on 12 March 2006, police officers V.S. and D.R. violently assaulted V.Y., an acquaintance of the applicant’s, whom they had seen urinating in the yard of a block of flats. When the applicant verbally protested against their conduct, they shoved him in their car and took him to Pershotravensk police station. Once inside, the two officers repeatedly kicked, punched and hit the applicant with truncheons in retaliation for his attempts to protect his acquaintance from their violence.
Relevant facts and documents Key issues
1. Medical and other evidence:

(i) 15-17/03/06 – outpatient record (unspecified polyclinic): haematoma to left eye, vertigo, vomiting, headaches, chest pain, rib fractures, contusion of eyelids, contusion of left cheekbone, post-traumatic pneumonia;

(ii) 12/04/06 – excerpt from inpatient medical record (Pavlograd tuberculosis dispensary): infiltrating tuberculosis since 2005; several consecutive sessions of inpatient treatment, including ongoing session which had begun on 21/03/06; upon arrival on that date, haematoma around left eye, healing fractures of 6th and 7th rib (right side);

(iii) 19/04/07 – report no. 221 (Pavlograd forensic medical expert bureau): injuries of intermediate seriousness (bruising to eyelids, cheekbone contusion, chest contusion, fractures of three ribs complicated by post-traumatic pneumonia) possibly sustained on 12/03/06 by blunt force trauma.

2. Complaint lodged:

14/03/06 – with Pershotravensk prosecutor’s office.

3. Response by authorities:

(i) 22/05/06 – decision not to institute criminal proceedings (Pershotravensk prosecutor’s office);

(ii) 20/10/11 – applicant informed of decision;

(iii) 10/11/11 – applicant’s appeal allowed (Pershotravensk court);

(iv) 10/06/12 – decision not to institute criminal proceedings against police officers and to inquire into infliction of injuries by unknown persons (Pershotravensk prosecutor’s office);

(v) 24/07/12 – criminal proceedings instituted and entrusted to Pershotravensk police;

(vi) 31/10/12 – proceedings suspended (Pershotravensk police): means for identifying perpetrators exhausted;

(vii) 20/09/13 – proceedings reopened; applicant added as victim;

(viii) 28/11/16 – proceedings closed as time-barred.

4. Key actions:

(i) forensic assessment of applicant’s injuries;

(ii) statements taken from officers V.S. and D.R. and his acquaintance V.Y. in 2006 and 2012.

5. Key findings:

Injuries were inflicted on 11/03/06 by unidentified perpetrators.

6. Other relevant facts and documents:

(i) 12/03/06, about 7.20 p.m. – applicant arrested for disorderly conduct and insubordination to police (officers V.S. and D.R., Pershotravensk police);

(ii) 13/03/06 – applicant convicted as charged and sentenced to one day’s detention (Pershotravensk court);

(iii) 06/06/12 – V.Y. (applicant’s acquaintance and witness to arrest) submitted to Pershotravensk prosecutor’s office that on 12/03/06 he and applicant had drunk three or four bottles of vodka together; applicant had assaulted police officers V.S. and D.R. after they had reprimanded V.Y. for urinating in public and had fallen down attempting to resist their reasonable efforts to contain him and effect his arrest for disorderly conduct; applicant’s facial haematomas pre-dated arrival of police, according to applicant’s account to V.Y., he had sustained them on 11/03/06 during fight with unspecified drinking companions;

(iv) 26/10/12 – Officers V.S. and D.R. gave similar accounts and attested to having seen haematomas on applicant’s face upon their arrival.

(i) Available material does not allow to establish conclusively that applicant sustained injuries when he was under control of police (for relevant examples, see Kozinets v. Ukraine, no. 75520/01, §§ 56‑57, 6 December 2007; Kulyk v. Ukraine, no. 30760/06, §§ 82‑83, 23 June 2016 and Barysheva v. Ukraine, no. 9505/12, § 55, 14 March 2017);

(ii) Significant delay in instituting criminal proceedings (for relevant examples, see Oleksiy Mykhaylovych Zakharkin v. Ukraine, no. 1727/04, §§ 68‑69, 24 June 2010 and Savitskyy v. Ukraine, no. 38773/05, § 105, 26 July 2012);

(iii) No appearance of thorough effort to collect objective evidence, notably, no confrontations or other steps to reconcile discrepancies between accounts by applicant and V.Y. (for relevant examples, see Danilov v. Ukraine, no. 2585/06, § 70, 13 March 2014, and Drozd v. Ukraine, no. 12174/03, §§ 69‑70, 30 July 2009);

(iv) Hasty conclusion that all reported injuries pre-dated arrival at police station and no attempt to assess probability of applicant’s allegation that he had been injured after arrest, on police premises (for a relevant example, see Gordiyenko v. Ukraine, no. 27620/09, §§ 95‑96, 16 October 2014);

(v) significant delay in apprising applicant of major procedural developments (for relevant examples, see Danilov v. Ukraine, no. 2585/06, § 70, 13 March 2014 and Barysheva v. Ukraine, no. 9505/12, § 61, 14 March 2017).

B. Just satisfaction
Parties’ submissions Court’s award
Applicant:

Just satisfaction award to be determined by Court according to its practice.

Government:

Applicant failed to formulate specific claim: no call to comment.

Non-pecuniary damage:

EUR 7,500

plus any tax chargeable to applicant

[1] Ms Ashchenko seized to represent the applicant on 23 August 2018

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