Last Updated on September 22, 2021 by LawEuro
The applicants alleged, in particular, under Article 3 of the Convention that they had been ill-treated by the police. Two applicants (applications nos. 1100/14 and 71568/14) additionally alleged that the investigation into their respective complaints was ineffective and raised further complaints under Article 5 §§ 1, 3 and 5, Article 6 § 1, Article 8 and Article 13 of the Convention and Article 1 of Protocol No. 1.
FIFTH SECTION
CASE OF ALIZADA AND OTHERS v. UKRAINE
(Applications nos. 1100/14 and 2 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 Alizada 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. 1100/14, 24695/14, and 71568/14) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by one Azerbaijani national and two 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 alleged police ill-treatment (all applications); lack of an effective domestic investigation into the allegations in that regard (applications nos. 1100/14 and 71568/14); allegedly unlawful and arbitrary interference with the applicant’s right to respect for home and private life, lengthy non-enforcement of a judgment and lack of effective domestic remedies (application no. 1100/14); allegedly unlawful deprivation of liberty, belated appearance before a judge and lack of a possibility to claim compensation for breaches of right to liberty (application no. 71568/14) and to declare inadmissible the remainder of the applications nos. 24695/14 and 71568/14;
the absence of an indication from the Azerbaijani Government of the wish to exercise their right to intervene in the present case in so far as it concerns application no. 1100/14;
the decision to grant legal aid in application no. 24695/14;
the parties’ observations;
Having deliberated in private on 26 August 2021,
Delivers the following judgment, which was adopted on that date:
1. The applicants alleged, in particular, under Article 3 of the Convention that they had been ill-treated by the police. Two applicants (applications nos. 1100/14 and 71568/14) additionally alleged that the investigation into their respective complaints was ineffective and raised further complaints under Article 5 §§ 1, 3 and 5, Article 6 § 1, Article 8 and Article 13 of the Convention and Article 1 of Protocol No. 1.
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. In his response to the Government’s observations filed on 16 July 2016, Mr S. Vronskyy (application no. 24695/14) additionally complained, under Article 3 of the Convention, that the investigation of his police ill-treatment allegations was ineffective.
6. In the Court’s view, this is a new complaint to be distinguished from the complaint about police ill-treatment as such, which was raised in the original application, and on which the parties have been invited to submit observations. The Court will therefore not take this matter 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 (all applications) AND LACK OF AN EFFECTIVE INVESTIGATION (applications nos. 1100/14 and 71568/14)
7. The applicants complained that they had been ill-treated by the police. Mr A. Alizada and Mr G. Kononov (applications nos. 1100/14 and 71568/14) also complained that their respective complaints had not been properly investigated. The applicants invoked various Convention provisions in respect of the above complaints.
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. It 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
1. General considerations
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’ injuries, as well as identifying and punishing those responsible, should the ill-treatment allegations prove to be true.
11. From the documents before the Court, it appears that the domestic investigations did not reflect a serious effort to determine the relevant facts (see appended tables for details).
2. Alleged police ill-treatment (all applications)
12. The Court further finds that the applicants’ accounts as to the circumstances of their alleged ill-treatment are detailed and coherent. While some of the allegations are not corroborated by medical or other objective evidence, the results of the investigations, given their numerous shortcomings did not disprove the applicants’ allegations that they had been victims of police ill-treatment. In these circumstances, and given the onus on the State to provide a plausible explanation for injuries sustained by persons under the control of the police (see Bouyid, cited above, § 83, and also, by way of example, Adnaralov v. Ukraine, no. 10493/12, § 45, 27 November 2014; Kulik v. Ukraine, no. 10397/10, § 59, 19 March 2015; and Yaroshovets and Others v. Ukraine, nos. 74820/10 and 4 others, § 85, 3 December 2015), the Court concludes that the State’s responsibility for the applicants’ ill-treatment is engaged.
13. The above findings are sufficient for the Court to establish that the applicants were subjected to ill-treatment which must be classified as inhuman and degrading.
14. There has therefore been a breach of Article 3 of the Convention under its substantive limb.
3. Allegedly ineffective investigation (applications nos. 1100/14 and 71568/14)
15. Examining further complaints raised by Messrs A. Alizada and G. Kononov (applications nos. 1100/14 and 71568/14) concerning allegedly ineffective investigation of their ill-treatment complaints, the Court notes that in the case of Kaverzin (cited above, §§ 173-80) 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 for the purposes of Article 46 of the Convention. In view of the circumstances of the present applications and its earlier case-law, the Court considers that the present applications constitute another such example of a failure to ensure a prompt and thorough investigation.
16. There has therefore been a breach of Article 3 of the Convention under its procedural limb.
IV. Other complaints under well-established case‑law
A. Mr A. Alizada (application no. 1100/14)
17. Mr A. Alizada also complained of the non-enforcement of the final court judgment in his favour (see details in table 1 section B below). He referred to Articles 6 and 13 of the Convention and Article 1 of Protocol No. 1.
18. The Court finds that this part of the application is a follow-up to the Burmych and Others judgment and shall be dealt with in accordance with the procedure envisaged therein (see Burmych and Others v. Ukraine (striking out) [GC], nos. 46852/13 et al, § 221, 12 October 2017), that is to say struck out and transmitted to the Committee of Ministers of the Council of Europe in order for it to be dealt with in the framework of the general measures of execution of the pilot judgment in the case of Yuriy Nikolayevich Ivanov v. Ukraine (no. 40450/04, 15 October 2009; see, similarly, Dmytrenko and Bezdorozhniy v. Ukraine [Committee], nos. 59552/11 and 7096/12, § 22, 2 July 2020).
B. Mr G. Kononov (application no. 71568/14)
19. Mr G. Kononov also complained under Article 5 § 1 of the Convention that between 19 and 21 November 2010 he had been arbitrarily held in unrecorded detention by the officers of the Nikopol police (see appended table 3, section B, for details).
20. 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; Grinenko v. Ukraine, no. 33627/06, §§ 74-78, 15 November 2012; and Belousov v. Ukraine, no. 4494/07, § 85, 7 November 2013) this complaint is admissible and discloses a violation of Article 5 § 1 of the Convention.
V. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
21. Mr A. Alizada (application no. 1100/14) additionally complained that the same conduct of the police officers on 22 July 2010 in his respect, which had amounted to inhuman and degrading treatment, had also constituted a breach of his rights under Article 8 of the Convention. He also complained that the available domestic remedies for this complaint had been ineffective within the meaning of Article 13 of the Convention.
22. Mr G. Kononov (application no. 71568/14) additionally complained that he had not been brought promptly before a judge after his arrest on 19 November 2010, which had been followed by unrecorded detention until 21 November 2010, and that there had been no possibility for him to claim compensation for his unrecorded detention and belated appearance before a judge. He invoked Article 5 §§ 3 and 5 in respect of these complaints.
23. The Court considers that it has already addressed the main legal questions raised in the present applications, and that there is no need to make a separate assessment of the admissibility and merits of the complaints mentioned in paragraphs 21 and 22 above (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).
VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION
24. 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.”
25. 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.
26. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Decides to join the applications;
2. Declares the complaints raised under the substantive limb of Article 3 of the Convention in all applications, the complaints raised under the procedural limb of Article 3 in applications nos. 1100/14 and 71568/14, and the complaint raised under Article 5 § 1 in application no. 71568/14 admissible;
3. Holds that there has been a violation of Article 3 of the Convention under its substantive limb in respect of the complaints raised in all of the applications;
4. Holds that there has been a violation of Article 3 of the Convention under its procedural limb in respect of the complaints raised in applications nos. 1100/14 and 71568/14;
5. Decides to strike the part of application no. 1100/14 concerning the non‑enforcement of the judgment of 13 May 2011 out of the Court’s list of cases pursuant to Article 37 § 1 (c) of the Convention and transmit it to the Committee of Ministers of the Council of Europe in order for it to be dealt with in the framework of the general measures of execution of the above-mentioned Ivanov pilot judgment;
6. Holds that there has been a violation of Article 5 § 1 of the Convention in respect of the complaint concerning unrecorded detention raised in application no. 71568/14;
7. Holds that it is not necessary to examine the admissibility and merits of other complaints raised under Articles 8 and 13 of the Convention in application no. 1100/14 and under Article 5 §§ 3 and 5 of the Convention in application no. 71568/14;
8. 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;
9. 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. 1100/14
by Mr Ayaddin Izzat Ogly Alizada Azeri national born in 1962 and residing in Kryvyy Rig (Ukraine) Represented by Mr S.G. Yakymenko, a lawyer practising in Kryvyy Rig Lodged on 24 December 2013 |
|
| A. Complaint under Article 3 concerning police ill-treatment | |
| Applicant’s account of alleged ill-treatment | |
| On 22 July 2010, at about 7 a.m., eight persons, including at least six police officers of the Kryvyy-Rig police, arrived in three private cars at the applicant’s and his wife’s home address and demanded them to provide identification and residence registration documents of all household members. When the applicant enquired about the grounds for that demand, the officers provided evasive answers and one of them jumped over the fence and unlocked the porch, letting his companions into the applicant’s yard. When the applicant entered the house promising to look for the documents, the officers attempted to follow him, but his wife and adult son blocked their way, considering their conduct unlawful. In response, one of the officers twisted the applicant’s son’s arm, and the applicant attempted to drag him away, seeing his son in pain. Then several officers charged at the applicant, kicked, punched, handcuffed and attempted to shove him into a private car, which belonged to one of the officers, in the presence of his neighbours and passers-by. The applicant protested and attempted to liberate himself, considering that conduct unlawful. Subsequently, a police car was called and the applicant was taken to the police station, where he was charged with insubordination to the police. In the police station, the applicant was also repeatedly kicked and punched. | |
| Relevant facts and documents | Key issues |
| 1. Medical and other evidence:
(i) 22/07/10 – certificate (traumatologist, No. 3 Kryvyy-Rig city hospital): abrasions on left knee and elbow, haematoma (left shoulder); (ii) 04/08/10 – report no. 1850 (Kryvyy-Rig forensic medical expert bureau): minor injuries possibly sustained on 22/07/10 – six abrasions (arms and legs) and one bruise (shoulder). 2. Complaint lodged: 02/08/10, with Kryvyy-Rig city prosecutor (by applicant’s spouse). 3. Response by authorities: (i) 01/09/10 and 14/02/11 – decisions not to institute criminal proceedings (Kryvyy-Rig city prosecutor’s office): no appearance of ill‑treatment; decisions quashed on appeal to court: shortcomings in inquiry; (ii) 01/06/12 – fresh decision not to institute criminal proceedings notified to applicant on 31/01/13; (iii) 26/03/13 – decision of 01/06/12 quashed on appeal (Tsentralno-Miskyy District Court in Kryvyy Rig): shortcomings in inquiry; (iv) 16/04/13 – criminal proceedings instituted (Kryvyy-Rig prosecutor’s office); (v) 10/06/13 – criminal proceedings closed: no corpus delicti in actions of police officers; (vi) 09/10/13 and 21/10/13 – applicant’s appeals rejected (Tsentralno-Miskyy District Court in Kryvyy Rig and Dnipropetrovsk Regional Court of Appeal). 4. Key actions: (i) Statements taken from applicant, his son and wife, police officers, neighbours, and hospital doctor; (ii) Forensic assessment of injuries. 5. Key findings: Six police officers lawfully sought to collect applicant’s and his family’s documents, as on 20/07/10 immigration authorities had informed them that applicant’s wife had submitted false information to obtain Ukrainian citizenship; accounts of resulting conflict between applicant’s family and police officers were irreconcilable: each of six police officers who took part in events denied having entered either yard or house and insisted that applicant had assaulted them. 6. Other relevant facts and documents: (i) 22/07/10 – applicant sentenced to five-day arrest for insubordination to police officers (Tsentralno-Miskyy District Court in Kryvyy Rig); (ii) same date, applicant ordered to leave Ukraine by 28/07/10 (Tsentralno-Miskyy district police inspector); (iii) 27/07/10 – applicant released after having served his sentence; (iv) 28/07/10 – decision on deporting applicant from Ukraine (Chief of Tsentralno-Miskyy district police); (v) 25/10/10 – applicant’s conviction annulled (Dnipropetrovsk Regional Court of Appeal): it has not been proved that applicant had either assaulted police officers or had committed insubordination to their lawful demands; (vi) 13/05/11 – police orders of 22 and 28/07/10 quashed on appeal as unlawful; applicant awarded moral damages (Dnipropetrovsk Circuit Administrative Court); (vii) 22/11/11 – applicant awarded moral damages for having been unlawfully convicted and sentenced to five-day arrest on 22/07/10 (Dnipropetrovsk Regional Court of Appeal). |
(i) It was established by domestic courts that applicant’s arrest was not lawful; it has not been demonstrated that force used against him was necessary or that any of his injuries predated his arrest (for relevant examples, see Fyodorov and Fyodorova v. Ukraine, no. 39229/03, §§ 65-67, 7 July 2011; Koval and Others v. Ukraine, no. 22429/05, §§ 66‑70, 15 November 2012; and Voykin and Others v. Ukraine, no. 47889/08, § 103, 27 March 2018);
(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) Repeated remittals for reinvestigation in view of shortcomings recognised by domestic authorities (for relevant examples, see Belousov v. Ukraine, no. 4494/07, § 56, 7 November 2013; and Adnaralov v. Ukraine, no. 10493/12, § 50, 27 November 2014); (iv) No appearance of thorough effort to collect objective evidence: no confrontations or other measures aimed at reconciling conflicting incident accounts, establishing sequence of events leading to injuries; or scrutinising quality and necessity of police operation as such (for relevant examples, see Drozd v. Ukraine, no. 12174/03, §§ 69‑70, 30 July 2009; and Kapustyak v. Ukraine, no. 26230/11, § 80, 3 March 2016); (v) Delay in apprising applicant of important 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. Other complaints under well-established caselaw | |
| Articles 6 and 13; Article 1 of Protocol No. 1: non-enforcement of a final judgment
Judgment: 13/05/11, Dnipropetrovsk Circuit Administrative Court Award: 2,149.25 hryvnias (UAH): moral damages on account of unlawful orders to leave Ukraine/deportation and litigation costs and expenses Debtor: State Treasury Payment date: 24/12/13 |
|
| C. Just satisfaction | |
| Parties’ submissions | Court’s award |
| Applicant:
Non-pecuniary damage: 25,000 euros (EUR) Costs and expenses: EUR 12,042 in legal fees (domestic and Convention proceedings) Supporting documents: legal representation contract with Mr S.G. Yakymenko dated 28/07/10; timesheets (107.5 hours at EUR 110 per hour, including advance at EUR 10 per hour and remaining amounts outstanding) Government: Claims exorbitant and unsubstantiated |
Non-pecuniary damage:
EUR 15,000 Costs and expenses: EUR 3,500 plus any tax chargeable to applicant |
| 2. Application no. 24695/14
by Mr Sergiy Anatoliyovych Vronskyy Ukrainian national born in 1975 and residing in Vyshneve Represented by Mr M.O. Tarakhkalo and V.P. Lebid, lawyers practising in Kyiv Lodged on 5 June 2014 |
|
| A. Complaint under Article 3 concerning police ill-treatment | |
| Applicant’s account of alleged ill-treatment | |
| At about 11.30 a.m. on 21 December 2010, when the applicant, accompanied by two acquaintances, arrived in the house of V.T., his former business associate, to collect some payments, they were suddenly attacked by a large group of armed officers of the “Sokil” special organised crime police unit. After having immobilised and handcuffed the applicant, the officers repeatedly punched and kicked him on the face and all over his body, stepped on him and demanded him to confess that he had been extorting money from V.T.’s family. Physical and psychological ill-treatment, in particular, repeated beatings and threats, continued for several subsequent days in the police station. According to the applicant, neither himself, nor either one of his two associates resisted arrest. | |
| Relevant facts and documents | Key issues |
| 1. Medical and other evidence:
(i) 23/12/10 – ambulance call record no. 66226 (Kmelnytskyy municipal ambulance): thorax contusion, possible rib fracture/blunt abdomen injury/ pneumothorax; (ii) 06/01/11 – report no. 2509 (Khmelnytskyy regional forensic medical expert bureau, assessment carried out on 30/12/10 at request by investigator, Khmelnytskyy organised crime police): minor injuries (abrasions (face, arm, wrists) and multiple hematomas (face, arms, legs, chest, abdomen, shoulders) sustained between seven and fifteen days prior to examination; (iii) 12/07/12 – certificate (Shalimov national surgical medicine institute): consolidated rib fractures; possibly sustained on date mentioned by applicant; (iv) 23/07/12 – report no. 4/c-2012 (Kyiv regional forensic medical expert bureau, assessment requested by applicant): injuries indicated in expert report of 06/01/11 could be sustained on 21/12/10, as indicated by applicant; documented rib fractures could have also been sustained on that date; additional documents necessary for verification of that probability. 2. Complaint lodged: (i) 27/12/10, with Khmelnytskyy police and regional prosecutor (by applicant’s lawyer). 3. Response by authorities: (i) 14/03/11 and 30/05/11 – decisions not to institute criminal proceedings (Khmelnytskyy regional prosecutor’s office); decisions quashed on appeal by more senior prosecutors: shortcomings in inquiry; (ii) 26/12/11 – fresh decision not to institute criminal proceedings (Khmelnytskyy regional prosecutor’s office) – notified to applicant by post on 19/08/12 – applicant made several unsuccessful attempts to challenge it before more senior prosecutors; (iii) 11/04/14 – letter (Khmelnytskyy regional prosecutor’s office): investigation would be re-opened if elements of abuse of authority by police officers would be established by courts within framework of applicant’s trial (ongoing at material time). 4. Key actions: (i) Statements taken from applicant, his co-defendants, relatives, V.T., his spouse, lay witnesses of arrest, and police officers; (ii) Forensic assessment of applicant’s injuries. 5. Key findings: Having been warned that perpetrators could be armed and prone to violence, officers of “Sokil” special organised crime police unit legitimately resorted to “martial-art techniques” and “special means” during arrest operation; no indication that applicant could have been subjected to any ill‑treatment once arrested. 6. Other relevant facts and documents: (i) 20/12/10 – complaint by V.T. to Khmelnytskyy regional police: applicant and two others, armed with firearm, repeatedly extorted money from his family through threats and physical violence; they warned him that they would pass by his house again on 21/12/10; (ii) 21/12/10, at 6 a.m. – group consisting of nine officers of “Sokil” special organised crime police unit deployed to V.T.’s house in order to prepare for arrest operation; (iii) Same day – decision taken to initiate criminal proceedings against applicant and two others; that decision indicated that they had been arrested at about 11.30 a.m., after having arrived masked and armed (pistol and knife) in V.T.’s home and having demanded him to pay some alleged debt; (iv) 30/12/10 – applicant remanded in custody pending investigation of charges against him (Khmelnytskyy court); (v) 01/06/12 – applicant released on bail. |
Domestic findings are couched in vague terms and do not contain conclusive explanations concerning exact nature and degree of force used during arrest; regard being had to nature and dispersed location of injuries and account of arrest operation (i.e., number of officers deployed, possibility of advance preparation, and lacking objective evidence that applicant and his associates resisted arrest) it has not been shown that force was “proportionate”, or that injuries were wholly caused other than by police ill-treatment after arrest as alleged by applicant (for relevant examples, see Sylenok and Tekhnoservis-Plus v. Ukraine, no.20988/02, §§ 69-70, 9 December 2010; Vasiliy Ivashchenko v. Ukraine, no. 760/03, §§ 78-82, 26 July 2012; and Danilov v. Ukraine, no. 2585/06, §§ 64-67, 13 March 2014). |
| B. Just satisfaction | |
| Parties’ submissions | Court’s award |
| Applicant:
Non-pecuniary damage: EUR 50,000 Costs and expenses: EUR 3,600 in legal fees (Convention proceedings, post-communication stage) to be paid directly to account of Mr M.O. Tarakhkalo Supporting documents: legal representation contract dated 16/05/16; timesheet (24 hours at EUR 150 per hour) Additional information: applicant was granted EUR 850 in legal aid Government: Claims exorbitant |
Non-pecuniary damage:
EUR 12,000 Costs and expenses: EUR 150 To be transferred directly to account of Mr M.O. Tarakhkalo, as requested plus any tax chargeable to applicant |
| 3. Application no. 71568/14
by Mr Gennadiy Borisovich Kononov Ukrainian national born in 1971 and residing in Nikopol Represented by Mr S.M. Moysak, a lawyer practising in Nikopol Lodged on 28 October 2014 |
|
| A. Complaint under Article 3 concerning police ill-treatment | |
| Applicant’s account of alleged ill-treatment | |
| Sometimes between 4 p.m. and 5 p.m. on 19 November 2010 O.V. and S.P., officers of the Nikopol police, arrested the applicant when he was trying to approach A.P., an eleven-year-old girl, in whose presence he had masturbated two days before. The applicant did not resist arrest. Until 21 November 2010 the applicant was held in unrecorded detention and ill-treated by O.V., S.P., and one other officer, who were forcing him to give false self-incriminating statements concerning various crimes. In particular, they undressed the applicant, handcuffed him to a chair, punched and kicked him. They also put a gas mask on his head and repeatedly interrupted air flow or filled the mask with cigarette smoke. The officers also threatened to cut off the applicant’s genitals or rape him with a truncheon. Having succumbed to pressure, on 21 November 2010 the applicant wrote “statements of surrender” incriminating himself in two robberies, which he had not committed. | |
| Relevant facts and documents | Key issues |
| 1. Medical and other evidence:
(i) 27/11/10 – report no. 665 (Nikopol forensic medical expert bureau): hematomas (face, right arm and leg); abrasions (face, both arms, right leg); (ii) 14/09/15 – report no. 530 (unspecified forensic medical expert bureau, copy of report not provided): injuries documented in report no. 665 could have been sustained by falling from bicycle or falling from standing height. 2. Complaints lodged: (i) 01/02/11, with Nikopol prosecutor’s office (by applicant’s parents); (ii) 26/04/11, with Nikopol Court (by applicant, during trial). 3. Response by authorities: (i) 25/01/11 – decision (pre-dating ill-treatment complaint) not to prosecute Y.P., A.P.’s father (investigator, Nikopol police): insofar as applicant was diagnosed with minor injuries, they were apparently inflicted by Y.P., attempting to protect A.P. from his sexual advances; according to Y.P.’s testimony, A.P. had told her parents that on 17/11/10 stranger had forced her to look at him masturbating; in view of that, on 19/11/10 Y.P. discretely followed A.P. on her way from school; A.P. started screaming when applicant approached her on bicycle and grabbed her by her shoulder; then Y.P. charged at him and knocked him off bicycle; however, applicant got back on bicycle and ran away; there was no call for prosecuting Y.P., as injuries were minor and applicant had filed no complaint; (ii) 10/02/11 and 09/08/11 – decisions not to institute criminal proceedings into alleged police ill-treatment (Nikopol prosecutor’s office): no appearance of ill-treatment; (iii) 12/01/13 – criminal proceedings instituted (Nikopol prosecutor’s office); (iv) 22/01/13, 08/10/13 – criminal proceedings closed (no appearance of ill‑treatment); decisions quashed on appeal: shortcomings in inquiry; decision of 08/10/13 notified to applicant on 22/08/14; (v) 30/09/15 – fresh decision to close criminal proceedings (Dnipropetrovsk regional prosecutor’s office); applicant learned about this decision from Government’s observations). 4. Key actions: (i) Statements taken from applicant, his parents, some police officers, and Y.P.; (ii) Forensic assessment of injuries. 5. Key findings: Applicant could not have been ill-treated by police officers between 19/11/10 and 21/11/10, as, according to formal documents and officers’ submissions, he was arrested only on 21/11/10; his injuries could have possibly been caused by unspecified civilian persons, who applied force, which was not excessive, in order to seize applicant and hand him over to police. 6. Other relevant facts and documents: (i) 20/11/10, 9 a.m. – report on seizure and inspection of applicant’s bicycle (Nikopol police); same date, unspecified time: institution of criminal proceedings concerning molestation of A.P.; (ii) 21/11/10, unspecified time – “statements of surrender”: applicant pleaded guilty to having committed two robberies and waived right to legal assistance; same date, 3 p.m. – police report: applicant arrested on suspicion of having committed two robberies; (iii) 23/11/10 – applicant charged with two counts of robbery and two counts of child molestation; (iv) 24/11/10 – applicant brought before judge (Nikopol court) and remanded in custody pending investigation of charges against him; (v) 06 and 19/09/12 – testimonies by Y.P. and A.P. in court (during applicant’s trial): applicant was arrested on same date, on which Y.P. followed A.P. on her way from school and noticed that applicant, holding his bicycle, tried to grab her hand; as soon as Y.P. charged at him, they were approached by plain-clothed persons indicating that they were police officers; they immobilised applicant and took him to police station; applicant was caught by surprise and did not resist, so no physical force was used; Y.P. did not hit applicant; he also came to police station on that day and filed complaint against applicant; (vi) 25/09/12 – applicant convicted (Nikopol Court) and sentenced to imprisonment: two counts of robbery and two counts of child molestation; (vii) 05/03/13 – Dnipropetrovsk Regional Court of Appeal concluded that term of applicant’s prison sentence had to be calculated from 19/11/10: sufficient evidence on file that applicant detained since that date; (viii) 15/04/14 – case remitted for fresh appellate review (Higher Specialised Court in Civil and Criminal Matters): allegations of ill-treatment, forced waiver of right to legal assistance, and forced false confessions had been poorly scrutinised; question of admissibility of evidence should be re-addressed; (ix) 08/07/14 – case remitted for re-trial (Dnipropetrovsk Regional Court of Appeal); (x) 11/08/14 – Nikopol prosecutor’s office dropped robbery charges against applicant: insufficient corroborating evidence; (xi) 12/08/14 – applicant pleaded guilty and convicted of two counts of child molestation; sentenced to imprisonment, term to be calculated from 19/11/12, date of de-facto deprivation of liberty. |
(i) Given nature and dispersed location of injuries, Government’s failure to provide detailed and accurate account concerning date and circumstances of arrest and given that applicant confessed to having committed crimes in setting lacking basic procedural guarantees such as access to lawyer, it has not been shown that injuries were wholly caused other than by police ill-treatment (for relevant examples, see Belousov v. Ukraine, no. 4494/07, §§ 62-63, 7 November 2013; Danilov v. Ukraine, no. 2585/06, §§ 64-67, 13 March 2014; and Serikov v. Ukraine, no. 42164/09, §§ 65-73, 23 July 2015);
(ii) No appearance of thorough effort to collect objective evidence and resolve inconsistencies in Y.P.’s testimonies and other evidence; in particular, no face-to-face confrontations (for relevant examples, see Grigoryan and Sergeyeva v. Ukraine, no. 63409/11, § 65, 28 March 2017; and Voykin and Others v. Ukraine, no. 47889/08, § 116, 27 March 2018); (iii) Delays 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); (iv) Hasty conclusion that reported injuries could not be inflicted by police officers, which is based essentially on their testimonies taken at face value and contradicting other objective evidence (for relevant examples, see Gordiyenko v. Ukraine, no. 27620/09, §§ 95‑96, 16 October 2014; and Voykin and Others, cited above, §§ 115-16). |
| B. Other complaints under well-established case-law | |
| Article 5 of the Convention
1. Period of deprivation of liberty complained about/arresting authority: 19/11/10 (4-5 p.m.) – 21/11/10 (3 p.m.) / Nikopol police 2. Grounds and documents regularising alleged deprivation of liberty during that period: No documents; police authorities denied fact of detention 3. Domestic complaints: Same as in respect of ill-treatment (see Section A above) 4. Other relevant facts and documents: see Section A (5, 6) above |
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| C. Just satisfaction | |
| Parties’ submissions | Court’s award |
| Applicant:
Non-pecuniary damage: EUR 48,000 Costs and expenses: EUR 1,570 in legal fees (domestic proceedings in part and Convention proceedings) and EUR 15 in postal expenses to be paid directly to Mr S.M. Moysak Supporting documents: legal representation contract dated 11/08/14; list of services provided with indication of per-service fees; receipts for postal services Government: claims exorbitant and poorly substantiated except postal expenses |
Non-pecuniary damage:
EUR 15,000 Costs and expenses: EUR 1,585 to be transferred to Mr S.M. Moysak directly, as requested plus any tax chargeable to applicant |
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