Last Updated on March 2, 2023 by LawEuro
The applicants complained, in particular, under Article 3 of the Convention, that they had been subjected to ill-treatment by law-enforcement authorities and that their related complaints had not been effectively investigated.
FIFTH SECTION
CASE OF KHRUS AND OTHERS v. UKRAINE
(Applications nos. 38328/14 and 4 others – see appended table)
JUDGMENT
STRASBOURG
2 March 2023
This judgment is final but it may be subject to editorial revision.
In the case of Khrus and others v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Stéphanie Mourou-Vikström, President,
Lado Chanturia,
Mykola Gnatovskyy, judges,
and Martina Keller, Deputy Section Registrar,
Having regard to:
the applications against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by the applicants listed in the appended table (“the applicants”) on the various dates indicated therein;
the decision to give notice of the complaints summarised in paragraphs 1 and 2 below to the Ukrainian Government (“the Government”), represented most recently by their Agent, Ms M. Sokorenko, and to declare the remainder of applications nos. 38328/14 and 28546/16 inadmissible;
the parties’ observations;
Having deliberated in private on 2 February 2023,
Delivers the following judgment, which was adopted on that date:
SUBJECT MATTER OF THE CASE
1. The applicants complained, in particular, under Article 3 of the Convention, that they had been subjected to ill-treatment by law-enforcement authorities and that their related complaints had not been effectively investigated. Some applicants also relied on Article 3 and/or Articles 6 and 13 of the Convention in respect of the same complaints.
2. Mr O.V. Khrus (application no. 38328/14) additionally relied on Article 5 § 1 of the Convention, complaining that he had been arrested at about 6.25 p.m. on 2 September 2011, whereas an arrest report had only been drawn up at 2 a.m. on 3 September 2011. In addition, he complained under Article 6 of the Convention that the length of the criminal proceedings initiated against him had been excessive and that his freedom of movement had been restricted for an unreasonably lengthy period in view of an undertaking not to abscond which he had been obliged to give to the national authorities in September 2011.
3. The facts relevant to the individual applications are set out in detail in the appended tables.
THE COURT’S ASSESSMENT
I. JOINDER OF THE APPLICATIONS
4. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.
II. ALLEGED ILL-TREATMENT AND LACK OF AN EFFECTIVE INVESTIGATION
5. The applicants complained, under various Convention provisions, that they had been ill-treated by the police and that their respective complaints had not been properly investigated. 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 only.
6. The Government contended that the complaints raised by Mr O.V. Khrus (application no. 38328/14) were manifestly ill-founded. They further argued that Mr M.M. Gryshchuk (application no. 28546/16) had raised his complaints outside the six-month time-limit, calculated from 26 December 2014, the day when his appeal against the last decision to discontinue criminal proceedings concerning his allegations of ill-treatment had been rejected by the Khmelnytskyi District Court (see appended table 2 for details). The Government also submitted that Mr R.S. Zatolokin (application no. 31750/16) had not exhausted domestic remedies, as he had not appealed against the decision of 21 December 2016 to discontinue criminal proceedings in respect of his allegations of ill-treatment. Lastly, they contended that the complaints by Mr O.P. Striletskyy (application no. 16810/17) and Mr O.V. Popuriy (application no. 38328/17) were premature, as the relevant domestic investigations were still ongoing.
7. Reviewing those objections in the light of the available documents and the principles developed in its case-law (see, in particular, Kaverzin v. Ukraine, no. 23893/03, §§ 91-99 and 172-80, 15 May 2012, and Belousov v. Ukraine, no. 4494/07, §§ 48-49 and 56-58, 7 November 2013), the Court considers that they should be dismissed. In particular, it finds that Mr M.M. Gryshchuk, who lodged his application on 12 May 2016, that is, within six months of having been notified of the final decision in respect of his criminal case (13 November 2015), cannot be faulted for awaiting the completion of his trial before raising his complaints before the Court. The Court further finds that the remaining applicants provided the domestic authorities with appropriate opportunities to deal with their allegations, thus discharging their obligation to exhaust domestic remedies. The Court further considers that the complaints raised by all of the applicants are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, and are not inadmissible on any other grounds. They must therefore be declared admissible.
8. Reviewing the facts of the present case in the light of the general principles established in its case-law (see Bouyid v. Belgium [GC], no. 23380/09, §§ 81-90 and 114-23, ECHR 2015), the Court considers that the applicants raised credible allegations of ill-treatment at the domestic level. Those claims triggered an obligation on the part of the national authorities to carry out effective and thorough investigations with a view to establishing the origin of the applicants’ injuries as well as identifying and punishing those responsible, should the allegations of ill-treatment have proven to be true.
9. From the documents before the Court, it appears that the domestic investigations did not reflect a serious effort to determine the relevant facts (see the appended tables for details).
10. The Court notes that in Kaverzin (cited above, §§ 173-80) it found that the reluctance of the authorities to ensure a prompt and thorough investigation into complaints of ill-treatment 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 previous case-law, the Court considers that each of the present applications constitutes another example of a failure to ensure a prompt and thorough investigation.
11. The Court further finds that the applicants’ accounts as to the circumstances of their alleged ill-treatment are detailed and coherent. Even though 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 ill-treatment by law-enforcement officers. 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; see 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.
12. 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.
13. The Court therefore concludes that the present complaints disclose a breach of Article 3 of the Convention in respect of the applicants’ purported ill-treatment under both its procedural and substantive limbs.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION UNDER WELL-ESTABLISHED CASE-LAW
14. Mr O.V. Khrus (application no. 38328/14) lodged further complaints which also raised issues under Article 5 § 1 and Article 6 § 1 of the Convention, given the relevant well-established case‑law of the Court (see appended table 1 for details).
15. Having examined all the material before it, the Court concludes that these complaints are admissible and disclose the following violations:
(a) a violation of Article 5 § 1 of the Convention as regards the applicant’s complaint concerning the delay in regularising his detention on 2 September 2011, in the light of the Court’s findings in Smolik v. Ukraine (no. 11778/05, §§ 45-48, 19 January 2012), Grinenko v. Ukraine (no. 33627/06, §§ 74-78, 15 November 2012) and Belousov (cited above, § 85); and
(b) a violation of Article 6 § 1 of the Convention on account of the length of the criminal proceedings against him, in the light of the Court’s findings in Pélissier and Sassi v. France ([GC], no. 25444/94, § 67, ECHR 1999‑II), Frydlender v. France ([GC], no. 30979/96, § 43, ECHR 2000‑VII) and Merit v. Ukraine (no. 66561/01, 30 March 2004).
IV. OTHER COMPLAINTS
16. As regards the remaining complaint raised by Mr O.V. Khrus under Article 2 of Protocol No. 4, having regard to the applicant’s failure to rebut, with appropriate documents, the Government’s explanation that the disputed undertaking not to abscond had been lifted in 2016, and also to its extensive case-law on the subject (see Ivanov v. Ukraine, no. 15007/02, 7 December 2006; Nikiforenko v. Ukraine, no. 14613/03, 18 February 2010; and, as a recent example, Kopytets and Shtopko v. Ukraine [Committee], nos. 9706/19 and 9709/19, 17 October 2019) and the fact that the applicant’s complaint concerning the length of the criminal proceedings, which is linked to the present complaint, has already been examined under Article 6 § 1 above, the Court considers that there is no need to address the present complaint as raised by Mr O.V. Khrus (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014).
APPLICATION OF ARTICLE 41 OF THE CONVENTION
17. The applicants lodged just satisfaction claims under Article 41 of the Convention (see the appended tables for details).
18. 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.
19. 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 alleged ill-treatment by law‑enforcement officers and ineffective investigations in that regard, raised by all the applicants, as well as the complaints concerning unlawful detention and length of the criminal proceedings raised by Mr O.V. Khrus in application no. 38238/14, admissible;
3. Holds that there has been a violation of Article 3 of the Convention under both its substantive and procedural limbs in respect of the complaints concerning ill-treatment raised in all the applications;
4. Holds that there is no need to examine the admissibility and merits of the complaint under Article 2 of Protocol No. 4 of the Convention raised by Mr O.V. Khrus in application no. 38328/14;
5. Holds that there has been a violation of Article 5 § 1 of the Convention in respect of the complaint raised by Mr O.V. Khrus in application no. 38328/14;
6. Holds that there has been a violation of Article 6 § 1 of the Convention in respect of the complaint raised by Mr O.V. Khrus in application no. 38328/14;
7. 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;
8. Dismisses the remainder of the applicants’ claims for just satisfaction.
Done in English, and notified in writing on 2 March 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Martina Keller Stéphanie Mourou-Vikström
Deputy Registrar President
__________
APPENDIX
| 1. Application no. 38328/14 by Mr Oleksandr Viktorovych Khrus Ukrainian national born in 1983 and residing in Zhytomyr Represented by Mr T.I. Kotsur, a lawyer practising in Zhytomyr Lodged on 13 May 2014 |
|
| Facts and documents relevant to alleged ill-treatment | Key issues |
| (i) Applicant’s account
At about 6.25 p.m. on 2 September 2011 the applicant was arrested by agents of the Security Service of Ukraine (“SBU”) at the entry to his residence in Zhytomyr. Once the applicant, immobilised, was lying on the floor, an SBU officer kicked him in the head. Having been brought to the SBU quarters, the applicant was kept in unrecorded detention and subjected to psychological pressure in order to force him to confess to having taken a bribe. At 2 a.m. on 3 September 2011, after the applicant had given self-incriminating statements, an arrest report was drawn up and criminal proceedings against him were launched. (ii) Medical and other evidence (a) 3-5 September 2011, report no. 3120 (Zhytomyr regional forensic expert bureau): bruise under the left eye (2.5 cm x 1.5 cm) possibly sustained on the date and in the circumstances indicated by the applicant; (b) 7-13 September 2011, inpatient treatment records (Zhytomyr no. 1 and 2 city hospitals): cerebral concussion. (iii) Domestic findings 28 March 2014 (decision to close criminal proceedings, Zhytomyr prosecutor’s office, military sphere department): no evidence that the applicant was kicked in the head or otherwise ill-treated during his arrest, which took place at about 6 p.m. on 2 September 2011; likewise no evidence that any psychological duress was suffered afterwards. No explanation as to the origin of documented injuries proposed. (iv) Other relevant information According to the arrest report (Zhytomyr regional prosecutor’s office), the applicant was arrested on 3 September 2011, at 2 a.m. On 23 September 2011 the applicant was obliged to give an undertaking not to abscond, which included an obligation not to leave his town without the authorisation of the law-enforcement authorities. According to the applicant, this undertaking still stands. According to the Government, it automatically lost its validity on 29 February 2016, when the applicant’s prison sentence (subsequently quashed by the Higher Specialised Court on 6 October 2016) was upheld on appeal. As of October 2021, after several rounds of remittals, the criminal proceedings against the applicant were still pending. |
(i) The State provided no plausible satisfactory and convincing explanation as to the origin of the applicant’s documented injuries and did not disprove that they had been caused by ill-treatment; there is no reason to doubt the credibility of the applicant’s submissions that he had been ill‑treated (for relevant examples, see Oleksiy Mykhaylovych Zakharkin v. Ukraine, no. 1727/04, §§ 61-62, 24 June 2010, and Dushka v. Ukraine, no. 29175/04, § 48, 3 February 2011).
(ii) Delay in instituting criminal proceedings: complaint lodged on 3 September 2011, Korolyovskyi district police in Zhytomyr; proceedings opened on 22 April 2013 (Zhytomyr prosecutor’s office, military sphere department) and repeated remittals for reinvestigation (at least four times) in view of the shortcomings recognised by the domestic authorities (for relevant examples, see Oleksiy Mykhaylovych Zakharkin, cited above, §§ 68‑69; Belousov v. Ukraine, no. 4494/07, § 56, 7 November 2013; and Adnaralov v. Ukraine, no. 10493/12, § 50, 27 November 2014). (iii) The applicant was not accorded “victim” status (for relevant examples, see Yatsenko v. Ukraine, no. 75345/01, § 47, 16 February 2012, and Zhyzitskyy v. Ukraine, no. 57980/11, § 50, 19 February 2015). (iv) Inquiry limited in scope and without genuine effort to elucidate the origin of the documented injuries (for relevant examples, see Grinenko v. Ukraine, no. 33627/06, § 62, 15 November 2012, and Kleutin v. Ukraine, no. 5911/05, § 68, 23 June 2016). |
| Just satisfaction | |
| Parties’ submissions | The Court’s award |
| Applicant:
Non-pecuniary damage: 13,000 euros (EUR) Government: Claims exorbitant and unsubstantiated |
Non-pecuniary damage:
EUR 13,000 as claimed, plus any tax chargeable |
| 2. Application no. 28546/16 by Mr Mykhaylo Mykhaylovych Gryshchuk Ukrainian national born in 1979 and residing in Yarmolyntsi Represented by Mr A.S. Kychenok, a lawyer practising in Kyiv Lodged on 12 May 2016 |
|
| Facts and documents relevant to alleged ill-treatment | Key issues |
| (i) Applicant’s account
On 27 September 2013, first in a car and then in the Pivdenno-Zakhidnyi district police station in Khmelnytskyi, police officers repeatedly punched, kicked and hit the applicant (detained on 26 September 2013) with truncheons, forcing him to confess that he had hijacked the car. (ii) Medical and other evidence (a) 27 September 2013, record no. 280 (Khmelnytskyi police detention centre (“ITT”)): no complaints or visible injuries on arrival (10.50 p.m.); (b) 28 September 2013, record no. 48051 (Khmelnytskyi ambulance): spinal cord contusion; (c) 25 October 2013, report no. 1300 (Khmelnytskyi regional forensic expert bureau): bruises on left shoulder and right arm that could have been inflicted two to four days prior to the examination on 28 September 2013; (d) 12 August 2014, report no. 980 (same entity): ambulance record lacks credibility, as no further objective evidence of a spinal injury has been provided. (iii) Domestic findings Injuries could have pre-dated the applicant’s placement in custody. No explanation of their origin has been advanced (final decision to discontinue proceedings: 4 December 2014, applicant’s appeals dismissed on 26 December 2014 and 16 January 2015 by the Khmelnytskyi District Court and Khmelnyskyi Regional Court of Appeal respectively). (iv) Other relevant information On 29 October 2015 the Higher Specialised Court dismissed the applicant’s appeal against his conviction for hijacking a car, having also rejected his ill-treatment allegations as ill-founded. The decision was notified to the applicant, who was detained, no earlier than on 13 November 2015 (entry correspondence stamp of the detention facility). |
(i) The State provided no plausible satisfactory and convincing explanation as to the origin of the applicant’s documented injuries and did not disprove that they had been caused by ill-treatment; there is no reason to doubt the credibility of the applicant’s submissions that he had been ill‑treated (for relevant examples, see Oleksiy Mykhaylovych Zakharkin v. Ukraine, no. 1727/04, §§ 61-62, 24 June 2010, and Dushka v. Ukraine, no. 29175/04, § 48, 3 February 2011).
(ii) Delay in instituting criminal proceedings: complaint lodged: 28 September 2013, Khmelnytskyi District Court; formal proceedings opened: 4 December 2013, Khmelnytskyi regional prosecutor’s office (for relevant examples, see Oleksiy Mykhaylovych Zakharkin, cited above, §§ 68‑69, and Savitskyy v. Ukraine, no. 38773/05, § 105, 26 July 2012). (iii) Hasty conclusion that the injuries could have pre-dated the encounter with the police; no attempt to determine the origin of the documented injuries or provide an explanation for the discrepancies between various medical documents: the conclusions of the forensic expert reports, the ITT files, and the records made by the ambulance team, who had not been interviewed (for relevant examples, see Gordiyenko v. Ukraine, no. 27620/09, §§ 94-96, 16 October 2014, and Sadkov v. Ukraine, no. 21987/05, § 96, 6 July 2017). |
| Just satisfaction | |
| Parties’ submissions | The Court’s award |
| Applicant:
Non-pecuniary damage: 100,000 euros (EUR) Government: No comments within the allocated time-limit |
Non-pecuniary damage:
EUR 15,000 plus any tax chargeable |
| 3. Application no. 31750/16 by Mr Roman Sergiyovych Zatolokin Ukrainian national born in 1976 and residing in Khoroshego Represented by Ms A.Y. Nikiforova, a lawyer practising in Kharkiv Lodged on 26 May 2016 |
|
| Facts and documents relevant to alleged ill-treatment | Key issues |
| (i) Applicant’s account
On 27 January 2015, in the Shevchenkivskyi District Police station in Kharkiv, several police officers punched the applicant on the head and stomach, threatened him and pressed him against them, forcing him to confess to having hijacked a car. (ii) Medical and other evidence: (a) 29 January-3 February 2015, inpatient hospital record (Meshchaninov hospital): head injury; cerebral concussion, soft cranial tissue and abdominal wall contusion; (b) 12 March 2015, depositions by A.B. and V.D., the applicant’s acquaintances, who were also questioned by the police on the same floor, indicating that they had heard him cry and that he was feeling unwell immediately after their joint release (on 27 January 2015); (c) 24 April-22 May 2015, report no. 1581 (Kharkiv regional forensic bureau): injuries diagnosed in the hospital were sustained no later than on 29 January 2015, possibly in the circumstances indicated by the applicant; (d) 6 June 2016, report no. 326-KE/2016 (same entity): applicant’s hospitalisation records do not include some of the tests and examinations necessary to confirm accuracy of his initial diagnosis and determine gravity of his injuries. (iii) Domestic findings 21 December 2016, last decision to close criminal proceedings initiated on 12 February 2015 (Kharkiv regional prosecutor’s office): No evidence that the applicant was ill-treated by the police. Origin of the injuries not established. |
(i) The State provided no plausible satisfactory and convincing explanation as to the origin of the applicant’s documented injuries and did not disprove that they had been caused by ill-treatment; there is no reason to doubt the credibility of the applicant’s submissions, corroborated also by witness statements that he had been ill‑treated (for relevant examples, see Oleksiy Mykhaylovych Zakharkin v. Ukraine, no. 1727/04, §§ 61-62, 24 June 2010, and Dushka v. Ukraine, no. 29175/04, § 48, 3 February 2011).
(ii) Repeated remittals for reinvestigation in view of the shortcomings recognised by the domestic courts (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). (iii) No appearance of a thorough effort to collect objective evidence, in particular: no face-to-face confrontations between the applicant and the officers implicated by him in the ill-treatment; no other steps to reconcile discrepancies between their accounts and verify the probability of the applicant’s submissions; no attempt to establish the origin of the documented injuries (for relevant examples, see Danilov v. Ukraine, no. 2585/06, § 70, 13 March 2014, and A.N. v. Ukraine, no. 13837/09, §§ 67-70, 29 January 2015). |
| Just satisfaction | |
| Parties’ submissions | The Court’s award |
| Applicant:
Non-pecuniary damage: 100,000 euros (EUR) Government: Claims exorbitant |
Non-pecuniary damage:
EUR 15,000 plus any tax chargeable |
| 4. Application no. 16810/17 by Mr Oleksandr Pavlovych Striletskyy Ukrainian national born in 1966 and residing in Nikopol Represented by Ms G.V. Ovdiyenko, a lawyer practising in Kharkiv Lodged on 21 February 2017 |
|
| Facts and documents relevant to alleged ill-treatment | Key issues |
| (i) Applicant’s account
Between 28 October and 9 December 2008, on numerous occasions the applicant (arrested on 24 October 2008) was tortured and ill-treated in various police departments in the Zaporizhzhia and Kherson Regions by several police officers, forcing him to confess to having committed multiple murders as a member of a criminal association. In particular, the applicant was punched, kicked, strangled with a cord, subjected to “Palestinian hanging”; his fingers were twisted and pinched. He was also repeatedly threatened that his niece would also be tortured. (ii) Medical and other evidence: (a) 4-5 November 2008, x-ray (Zaporizhzhia hospital): fresh fractures of 7th and 8th ribs; (b) 2-18 September 2015, report no. 135/k (Zaporizhzhia regional forensic bureau): the fractures were inflicted no more than ten days before the x-ray scan; (b) 12-13 September 2016, report no. 3659 (same entity): injuries of intermediate gravity (fractures of 7th and 8th ribs) possibly sustained in the circumstances and during the period indicated by the applicant. (iii) Domestic findings (preliminarily, investigation pending, last update 14 January 2019): no evidence has been collected indicating that the applicant suffered police ill-treatment. No information concerning origin of the fractured ribs.
|
(i) The State provided no satisfactory and convincing explanation as to the origin of the applicant’s injuries, which, according to the available medical documents, were sustained in custody, and did not disprove that they had been sustained at the hands of the law-enforcement authorities (for relevant examples, see Oleksiy Mykhaylovych Zakharkin v. Ukraine, no. 1727/04, §§ 61-62, 24 June 2010, and Dushka v. Ukraine, no. 29175/04, § 48, 3 February 2011).
(ii) Delay in opening a full‑scale investigation (complaint lodged on 25 November 2008, Zaporizhzhia prosecutor’s office; investigation launched on 25 May 2016), preceded by repeated rounds of 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, and Chernega and Others v. Ukraine, no. 74768/10, § 167, 18 June 2019). (iii) Overall length of investigation and repeated remittals for reinvestigation in view of the shortcomings recognised by the domestic courts (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 a thorough effort to collect objective evidence, in particular: no face-to-face confrontations between the applicant and the officers implicated by him in the ill-treatment; no other steps to reconcile discrepancies between their accounts and verify the probability of the applicant’s submissions; no attempt to establish the origin of the documented injuries (for relevant examples, see Danilov v. Ukraine, no. 2585/06, § 70, 13 March 2014, and A.N. v. Ukraine, no. 13837/09, §§ 67-70, 29 January 2015). |
| Just satisfaction | |
| Parties’ submissions | The Court’s award |
| Applicant:
Non-pecuniary damage: 50,000 euros (EUR) Government: Claims exorbitant |
Non-pecuniary damage:
EUR 15,000 plus any tax chargeable |
| 5. Application no. 38238/17 by Mr Oleksandr Volodymyrovych Popuriy Ukrainian national born in 1980 and residing in Kramatorsk Represented by Ms A.Y. Nikiforova, a lawyer practising in Kharkiv Lodged on 22 May 2017 |
|
| Facts and documents relevant to alleged ill-treatment | Key issues |
| (i) Applicant’s account
During the night of 20 to 21 January 2016, first in his office (Kramatorsk State migration service) and subsequently in the Kramatorsk State Security Service premises, law-enforcement officers repeatedly punched and kicked the applicant, hit him with a heavy book and threatened him, forcing him to incriminate V.S., his superior, in office-related offences. (ii) Medical and other evidence (a) 25 January-1 February 2016, hospital record no. 776 (Kramatorsk hospital): inpatient treatment for head injury, cerebral concussion, acute neurosensory hearing loss; (b) 27 January-12 April 2016, report no. 36 (Kramatorsk forensic expert bureau): minor injuries (injuries diagnosed in the hospital as well as abrasions on the head and a hip); infliction by a fall not possible (iii) Domestic findings (preliminarily, investigation pending, last update: 25 January 2021): no sufficient evidence to prosecute any officer for having applied force and inflicting injuries on the applicant has been collected. |
(i) The State provided no satisfactory and convincing explanation as to the origin of the applicant’s injuries and did not disprove that they had been sustained at the hands of the law-enforcement authorities; there is no reason to doubt the credibility of the applicant’s allegations of ill-treatment (for relevant examples, see Oleksiy Mykhaylovych Zakharkin v. Ukraine, no. 1727/04, §§ 61-62, 24 June 2010, and Dushka v. Ukraine, no. 29175/04, § 48, 3 February 2011).
(ii) Overall length of investigation and repeated remittals for reinvestigation (at least nine) in view of the shortcomings recognised by the domestic courts (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); (iii) No appearance of a thorough effort to collect objective evidence, in particular: no face-to-face confrontations between the applicant and the officers implicated by him in the ill-treatment; no other steps to reconcile discrepancies between their accounts and verify the probability of the applicant’s submissions; no attempt to establish the origin of the documented injuries (for relevant examples, Danilov v. Ukraine, no. 2585/06, § 70, 13 March 2014, and A.N. v. Ukraine, no. 13837/09, §§ 67-70, 29 January 2015). |
| Just satisfaction | |
| Parties’ submissions | The Court’s award |
| Applicant:
Non-pecuniary damage: 50,000 euros (EUR) Government: Claims exorbitant |
Non-pecuniary damage:
EUR 15,000 plus any tax chargeable |
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