FIFTH SECTION
\nCASE OF SARGSYAN AND OTHERS v. UKRAINE
\n(Applications nos. 54012\/07 and 2 others)<\/p>\n
JUDGMENT
\nSTRASBOURG
\n9 January 2020<\/p>\n
This judgment is final but it may be subject to editorial revision.<\/p>\n
In the case of Sargsyanand others v. Ukraine,<\/strong><\/p>\n The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Having deliberated in private on 3 December 2019,<\/p>\n Delivers the following judgment, which was adopted on that date:<\/p>\n PROCEDURE<\/strong><\/p>\n 1. The case originated in three applications against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d).<\/p>\n 2. The applicants\u2019 details are set out in the appended tables.<\/p>\n 3. Notice of the complaints raised by the applicants concerning their alleged ill-treatment and the ineffective investigation of their respective allegations was given to the Ukrainian Government together with notice of several other complaints raised by the applicants under the Court\u2019s well\u2011established case-law (see appended tables).<\/p>\n 4. The remainder of applications nos.\u00a054012\/07 and 25697\/08 was declared inadmissible pursuant to Rule\u00a054\u00a0\u00a7\u00a03 of the Rules of Court.<\/p>\n 5. The Government did not object to the examination of the applications by a Committee.<\/p>\n THE FACTS<\/strong><\/p>\n 6. The applicants complained that they had been subjected to police ill\u2011treatment and that the State authorities had failed to carry out an effective investigation into their respective allegations.<\/p>\n 7. They also raised other complaints under the provisions of the Convention subject to the Court\u2019s well-established case-law.<\/p>\n 8. Relevant details are set out in the appended tables.<\/p>\n THE LAW<\/strong><\/p>\n I. JOINDER OF THE APPLICATIONS<\/p>\n 9. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.<\/p>\n II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION<\/p>\n 10. The applicants complained that they had been ill-treated by the police and that their respective complaints had not been properly investigated. They referred to Articles\u00a03 and 13 of the Convention.<\/p>\n 11. The Court, which is master of the characterisation to be given in law to the facts of a case, finds that the complaints at issue fall to be examined under Article\u00a03 of the Convention only (see, among other authorities, Barysheva v. Ukraine, no.\u00a09505\/12, \u00a7\u00a045, 14\u00a0March\u00a02017). That provision reads as follows:<\/p>\n \u201cNo one shall be subjected to torture or to inhuman or degrading treatment or punishment.\u201d<\/p>\n A. Admissibility<\/strong><\/p>\n 12. The Government filed no objections to the admissibility of the applicants\u2019 complaints under Article\u00a03.<\/p>\n 13. The Court notes that these complaints are not manifestly ill-founded within the meaning of Article\u00a035\u00a0\u00a7\u00a03\u00a0(a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.<\/p>\n B. Merits<\/strong><\/p>\n 14. The applicants alleged that there had been violations of Article\u00a03 of the Convention under both its substantive and procedural limbs in each of their respective cases.<\/p>\n 15. The Government contested this view.<\/p>\n 16. Reviewing the facts of the present cases in the light of the general principles established in its case-law (see, as a recent authority,Bouyid v.\u00a0Belgium [GC], no.\u00a023380\/09, \u00a7\u00a7\u00a081-90 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\u2019 physical injuries and, where appropriate, emotional trauma, and identifying and punishing those responsible, should the applicants\u2019 allegations concerning ill-treatment prove to be true.<\/p>\n 17. 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 individual details).<\/p>\n 18. The Court notes that in the case of Kaverzin v. Ukraine (no.\u00a023893\/03, \u00a7\u00a7\u00a0173-80, 15\u00a0May 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\u00a046 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.<\/p>\n 19. The Court further finds that the applicants\u2019 accounts as to the circumstances of their alleged ill-treatment are detailed and coherent, and the results of the investigations, given their numerous shortcomings, did not disprove those allegations. In these circumstances, and given the onus on the State to provide a satisfactory and convincing explanation for injuries sustained by persons under the control of the police (see Bouyid, cited above, \u00a7\u00a083 and also, by way of example, Adnaralov v. Ukraine, no.\u00a010493\/12, \u00a7\u00a045, 27\u00a0November\u00a02014; Kulik v. Ukraine, no.\u00a010397\/10, \u00a7\u00a059, 19\u00a0March\u00a02015; and Yaroshovets and Others v. Ukraine, nos.\u00a074820\/10 and 4 others, \u00a7\u00a085, 3\u00a0December\u00a02015),the Court concludes that the State\u2019s responsibility for the applicants\u2019 ill\u2011treatment is engaged.<\/p>\n 20. At the same time, the Court observes that in the present cases there is no conclusive evidence concerning the circumstances in which the applicants were injured and in particular concerning the exact nature and degree of force used against them. Accordingly, there are no elements in the case files which would enable the Court to find \u201cbeyond reasonable doubt\u201d that the treatment the applicants suffered reached the level of \u201ctorture\u201d.<\/p>\n 21. For these reasons the Court finds it established that the applicants were subjected to ill-treatment which must be classified as inhuman and degrading.<\/p>\n 22. There has, accordingly, been a breach of Article\u00a03 of the Convention under both its procedural and substantive limbs.<\/p>\n III. OTHER COMPLAINTS UNDER WELL-ESTABLISHED CASE-LAW<\/p>\n A. Application no. 54012\/07 by Mr V. Sargsyan<\/strong><\/p>\n 23. Mr Sargsyan also complained under Article\u00a05\u00a0\u00a7\u00a01 of the Convention that his arrest and detention in\u00a0April\u00a0and July\u00a02007 had been arbitrary and that they had been effected with an ulterior motive, namely to force him to give false self-incriminating statements concerning the murder of O. He also complained under Article\u00a013 of the Convention that the investigation of his complaint concerning the arbitrariness of his detention in April\u00a02007, which had been lodged together with his ill-treatment complaint, had been ineffective.<\/p>\n 24. The Court considers that the above complaint falls to be examined under Article\u00a05\u00a0\u00a7\u00a01 only (see Lopatin and Medvedskiy v. Ukraine, nos.\u00a02278\/03 and 6222\/03, \u00a7\u00a090, 20\u00a0May\u00a02010).<\/p>\n 25. Mr\u00a0Sargsyan also complained under Article\u00a05\u00a0\u00a7\u00a05 of the Convention that he was unable to obtain an award of compensation for his unlawful arrest in July\u00a02007.<\/p>\n 26. The relevant Convention provisions read as follows:<\/p>\n \u201c1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:<\/p>\n …<\/p>\n (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;<\/p>\n …<\/p>\n 5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.\u201d<\/p>\n 1. Admissibility<\/em><\/p>\n 27. The Government filed no objections concerning admissibility of the above complaints.<\/p>\n 28. The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35\u00a0\u00a7\u00a03\u00a0(a) of the Convention. It also notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.<\/p>\n 2. Merits<\/em><\/p>\n 29. Reviewing the facts of the present case in the light of the general principles established in its case-law (see Creang\u0103 v. Romania [GC], no.\u00a029226\/03, \u00a7\u00a7\u00a084 and 88-92, 23\u00a0February\u00a02012), the Court considers that the file contains sufficient material to conclude that in April 2007 Mr\u00a0Sargsyan was placed under administrative arrest to ensure his availability for questioning as a criminal suspect in connection with O.\u2019s murder (see appended table 1(C (a)) for details). This practice has been condemned by the Court as an arbitrary deprivation of liberty in numerous cases (see, for instance, Kvashko v. Ukraine, no.\u00a040939\/05, 26\u00a0September 2013, \u00a7\u00a068, with further references, and Livada v. Ukraine [Committee], no.\u00a021262\/06, \u00a7\u00a7\u00a045\u201146, 26\u00a0June 2014).<\/p>\n 30. As regards the second occasion on which the applicant was arrested and detained (in July\u00a02007) \u2013 on suspicion of possession of drugs \u2013 the Court has not been provided with any evidence that the applicant was even questioned about O.\u2019s murder during this period of detention, much less that he gave any relevant statements, unlike in respect of the previous arrest and detention (see appended table 1(C (b)) for details). The Court is therefore not convinced that Mr\u00a0Sargsyan was in fact once again detained in connection with O.\u2019s murder. However, it appears from the available material that his arrest and detention during this period were not documented in the requisite protocol on administrative detention in accordance with the applicable domestic procedure.<\/p>\n 31. A failure of the domestic authorities to keep proper records in cases concerning deprivation of liberty has been found by the Court to be in breach of Article\u00a05\u00a0\u00a7\u00a01(c) in its extensive case-law (see, among other authorities, Smolik v. Ukraine, no.\u00a011778\/05, \u00a7\u00a7\u00a045-48, 19\u00a0January\u00a02012; and Grinenko v. Ukraine, no.\u00a033627\/06, \u00a7\u00a7\u00a074-78, 15\u00a0November\u00a02012).<\/p>\n 32. The Court finds no reason to depart from that case-law in the present case and finds that the applicant\u2019s detention was not lawful under Article\u00a05\u00a0\u00a7\u00a01(c) of the Convention.<\/p>\n 33. In light of its well-established case-law (see, as the most recent example, Sinkova v. Ukraine, no.\u00a039496\/11, \u00a7\u00a7 79-84, 27 February 2018) the Court also finds that, in contravention of Article 5\u00a0\u00a7\u00a05, Mr\u00a0Sargsyan did not have an enforceable right to compensation for his arrest and detention in July\u00a02007.<\/p>\n 34. There has accordingly been a breach of Article\u00a05\u00a0\u00a7\u00a01 of the Convention in respect of Mr\u00a0Sargsyan\u2019s arrest and detention in both April and July\u00a02007 and of Article\u00a05\u00a0\u00a7\u00a05 of the Convention in respect of his arrest and detention in July\u00a02007.<\/p>\n B. Application no.\u00a025697\/08 by Mr\u00a0I.\u00a0Gordus and application no.\u00a017361\/10 by Mr\u00a0K.\u00a0Kravets<\/strong><\/p>\n 35. Mr\u00a0Gordus and Mr Kravets submitted other complaints which also raised issues under Articles\u00a05\u00a0\u00a7\u00a03, 6\u00a0\u00a7\u00a01 and 13 the Convention, given the relevant well-established case\u2011law of the Court (see appended tables 2(C) and 3(C) for details). These complaints are not manifestly ill-founded within the meaning of Article\u00a035\u00a0\u00a7\u00a03\u00a0(a) of the Convention, nor are they inadmissible on any other ground. Accordingly, they must be declared admissible. Having examined all the material before it, the Court concludes that these complaints disclose the following violations:<\/p>\n (a) a violation of Article\u00a05\u00a0\u00a7\u00a03 (in application no.\u00a025697\/08 \u2013 Mr\u00a0Gordus) concerning the length of the applicant\u2019s pre-trial detention in the light of the Court\u2019s findings in Kharchenko v. Ukraine (no.\u00a040107\/02, 10\u00a0February 2011) and Ignatov v. Ukraine (no.\u00a040583\/15, 15\u00a0December\u00a02016); and<\/p>\n (b) a violation of Article\u00a06\u00a0\u00a7\u00a01 (in applications nos.\u00a025697\/08 and 17361\/10 \u2013 both Mr Gordus and Mr Kravets) concerning the excessive length of the criminal proceedings against the applicants and of Article\u00a013 in conjunction with Article\u00a06\u00a0\u00a7\u00a01 (in application no.\u00a017361\/10 \u2013 Mr\u00a0Kravets) concerning the lack of effective remedies for the complaint of the length of those proceedings in the light of the Court\u2019s findings in Merit v. Ukraine (no.\u00a066561\/01, 30\u00a0March\u00a02004).<\/p>\n IV. APPLICATION OF ARTICLE\u00a041 OF THE CONVENTION<\/p>\n 36. Article\u00a041 of the Convention provides:<\/p>\n \u201cIf 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.\u201d<\/p>\n 37. Regard being had to the documents in its possession and to its case\u2011law, the Court considers it reasonable to award the applicants the sums indicated in the appended tables. It dismisses the remainder of the applicants\u2019 claims for just satisfaction.<\/p>\n 38. 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.<\/p>\n FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n 1. Decides to join the applications;<\/p>\n 2. Declares the applications admissible;<\/p>\n 3. Holdsthat there has been a violation of Article 3 of the Convention under both its procedural and substantive limbs in respect of all of the applicants;<\/p>\n 4. Holdsthat there has been a violation of Article 5\u00a0\u00a7\u00a01 of the Convention in respect of the complaint raised in application no.\u00a054012\/07;<\/p>\n 5. Holdsthat there has been a violation of Article 5\u00a0\u00a7\u00a03 of the Convention in respect of the complaint raised in application no.\u00a025697\/08;<\/p>\n 6. Holdsthat there has been a violation of Article 5\u00a0\u00a7\u00a05 of the Convention in respect of the complaint raised in application no.\u00a054012\/07;<\/p>\n 7. Holdsthat there has been a violation of Article 6\u00a0\u00a7\u00a01 of the Convention in respect of the complaints raised in applications nos.\u00a025697\/08 and 17361\/10;<\/p>\n 8. Holdsthat there has been a violation of Article 13 of the Convention in conjunction with Article\u00a06\u00a0\u00a7\u00a01 of the Convention in respect of the complaint raised in application no.\u00a017361\/10;<\/p>\n 9. Holds<\/p>\n (a) that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;<\/p>\n (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;<\/p>\n 10. Dismissesthe remainder of the applicants\u2019 claims for just satisfaction.<\/p>\n Done in English, and notified in writing on 9 January 2020, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/p>\n Milan Bla\u0161ko \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Gabriele Kucsko-Stadlmayer <\/p>\n APPENDIX<\/strong><\/p>\n by Mr VartanDzhanibekovichSargsyan<\/strong><\/p>\n Ukrainian national born in 1969 and residing in Kharkiv<\/p>\n represented by Mr\u00a0G.\u00a0V.\u00a0Tokarev, a lawyer practising in Kharkiv<\/p>\n Lodged on 26\u00a0November\u00a02007<\/em><\/td>\n<\/tr>\n 24-25\/04\/07, in Chervonozavodskiy district police station in Kharkiv.<\/p>\n 2. Applicant\u2019s description of ill-treatment:<\/em><\/p>\n Forcing applicant to confess to having murdered O., several police officers repeatedly pushed his face into thick sheet of foam rubber and twisted his handcuffed hands behind his back, aiming to suffocate him and inflict severe pain. Subsequently, they made applicant to sit naked; two officers sat on applicant\u2019s legs, while a third squeezed his genitals using plastic bag. In addition, officers repeatedly hit applicant\u2019s head with thick folder; spat in his face; threatened to prosecute his relatives and applied electric current to wet rags pressed against his ears, chin and other parts of his head.<\/p>\n 3. Medical and other evidence:<\/em><\/p>\n (i) 24\/04\/07 – Report no.\u00a02586 (Kharkiv regional forensic medical expert bureau) noting absence of any injuries or complaints (applicant examined in custody);<\/p>\n (ii) 29\/04\/07 – Certificate (MeshchaninovKharkiv city clinical hospital) \u2013 obtained by applicant following release on 28\/04\/07 – noting contusions to applicant\u2019s soft cranial tissue, abrasions to ankles and painful palpation of genitals;<\/p>\n (iii) 21\/05\/07 – Report no.\u00a03148 (Kharkiv regional forensic medical expert bureau) noting absence of any injuries.<\/p>\n 4. Other relevant facts:<\/em><\/p>\n (i) Applicant is disabled with \u201cmoderately serious\u201d (2nd<\/sup> degree) disability (domestic classification);<\/p>\n (ii) 24\/04\/07, applicant was placed under administrative arrest on charges of insubordination to police officer (see more details in Section C(a) below);<\/p>\n (iii) 25\/04\/07, applicant confessed to murder of O. (according to his submissions, not contested by Government);<\/p>\n (iv) 27\/04\/07, applicant had first meeting with lawyer (Mr\u00a0Tokarev) and retracted his confession;<\/p>\n (v) 28\/04\/07, applicant was released from detention;<\/p>\n (vi) 07\/05\/07, Chervonozavodskiy district prosecutor decided not to institute criminal proceedings against applicant for O.\u2019s murder in view that there was insufficient evidence of his involvement.<\/td>\n (ii) Applicant confessed to crime in setting lacking procedural guarantees such as access to lawyer (for relevant examples, see Kovalchuk v.\u00a0Ukraine<\/em>, no.\u00a021958\/05, \u00a7\u00a060, 4\u00a0November\u00a02010 and Belousov v. Ukraine<\/em>, no.\u00a04494\/07, \u00a7\u00a063, 7\u00a0November\u00a02013).<\/td>\n<\/tr>\n 28\/04\/07, to Chervonozavodskiy district prosecutor.<\/p>\n 2. Response by authorities:<\/em><\/p>\n (i) 04\/05\/07, 08\/05\/07 and 18\/06\/07 – decisions not to institute criminal proceedings (Chervonozavodskyy district prosecutor\u2019s office in Kharkiv; decisions taken by investigator X., who was also in charge of investigating O.\u2019s murder);<\/p>\n (ii) 18\/08\/09 – Chervonozavodskiy District Court in Kharkiv dismissed appeal lodged by applicant against decision of 08\/05\/07 noting that original decision could not be located and only copy was available, therefore, appeal was devoid of object.<\/p>\n 3. Findings:<\/em><\/p>\n 18\/06\/07 (decision): applicant was arrested lawfully having committed administrative offence. No ill-treatment took place: medical assessments of 24\/04\/07 and 21\/05\/07 detected no injuries. In addition, no officers, who could have ill-treated applicant, had been identified.<\/p>\n 4. Evidence collected:<\/em><\/p>\n (i) 21\/05\/07, applicant was examined by forensic expert;<\/p>\n (ii) On various dates, statements were taken from applicant, two witnesses to his arrest and several police officers.<\/p>\n 5. Other relevant facts:<\/em><\/p>\n (i) 20\/10\/08, applicant was informed of 08\/05\/07 decision;<\/p>\n (ii) He learned about decisions of 04\/05\/07 and 18\/06\/07 only from Government\u2019s observations;<\/p>\n (iii) 24\/02\/09, Kharkiv Administrative Court of Appeal allowed applicant\u2019s complaint of inactivity of prosecutor\u2019s office having decided that it had failed to provide adequate follow-up to applicant\u2019s 28\/04\/07 complaint.<\/td>\n (ii) Investigation lacked independence (for relevant examples, see Kirpichenko v. Ukraine<\/em>, no.\u00a038833\/03, \u00a7\u00a087, 2\u00a0April\u00a02015 andZyakun v. Ukraine<\/em>, no.\u00a034006\/06, \u00a7\u00a044, 25\u00a0February\u00a02016);<\/p>\n (iii) Delays in procedural steps leading to loss of evidence, notably, forensic assessment of injuries scheduled nearly a month after complaint lodged (for relevant examples, see Drozd v. Ukraine<\/em>, no.\u00a012174\/03, \u00a7\u00a068, 30\u00a0July\u00a02009and Voykin and Others v. Ukraine<\/em>, no.\u00a047889\/08, \u00a7\u00a7\u00a0113-114, 27\u00a0March\u00a02018);<\/p>\n (iv) Delays in apprising applicant of procedural developments and impeded access to file documents (for relevant examples, see Danilov v. Ukraine<\/em>, no.\u00a02585\/06, \u00a7\u00a070, 13\u00a0March\u00a02014 andBarysheva v. Ukraine<\/em>, no.\u00a09505\/12, \u00a7\u00a061, 14\u00a0March\u00a02017);<\/p>\n (v) Decisions to dispense with formal criminal investigation were taken based on hasty conclusions about absence of injuries \u2013 notably ignoring injuries documented 29\/04\/07 (for relevant examples, see Davydov and Others v.\u00a0Ukraine<\/em>, nos.\u00a017674\/02 and 39081\/02, \u00a7\u00a0286, 1\u00a0July\u00a02010 and Gordiyenko v. Ukraine<\/em>, no.\u00a027620\/09, \u00a7\u00a7\u00a094-96, 16\u00a0October 2014).<\/td>\n<\/tr>\n 24\/04\/07 \u2013 28\/04\/07, Krasnozavodskiy district police in Kharkiv.<\/p>\n 2. Official grounds for arrest:<\/em><\/p>\n Insubordination to lawful order of police officer to produce identification documents. As appears from explanation given by two police officers, who arrested applicant, given by them in the course of subsequent investigation of applicant\u2019s relevant complaint, on above date they had waited for applicant near his home to invite him for questioning as witness in case concerning O.\u2019s murder. On seeing person who looked like applicant passing by, they requested his identification documents. This person (applicant) refused, engaged in heated argument with them and attempted to escape.<\/p>\n 3. Documents regularising arrest and detention:<\/em><\/p>\n (i) 24\/04\/06, arrest report (\u043f\u0440\u043e\u0442\u043e\u043a\u043e\u043b<\/em>) prepared by police following applicant\u2019s arrest;<\/p>\n (ii) same date, judgment of Chervonozavodskiy District Court in Kharkiv, finding applicant guilty of administrative offence of insubordination and sentencing him to administrative detention.<\/p>\n 4. Other relevant facts:<\/em><\/p>\n (i) Applicant alleged that in detention he was questioned concerning O.\u2019s murder, ill-treated and made false confession; this allegation was not contested by Government (see Section A above);<\/p>\n (ii) 28\/04\/07, applicant complained of arbitrary arrest simultaneously with complaining of ill-treatment (see details in Section B above).<\/td>\n<\/tr>\n 24\/07\/07 \u2013 27\/07\/07 (date of release as indicated by applicant; statement not contested by Government: no documents provided), Kharkiv drug police and Dzerzhinskiy district police in Kharkiv.<\/p>\n 2.<\/em> Official grounds for arrest:<\/em><\/p>\n Drug possession (bundle of newspaper containing cannabis was seized from applicant; according to him, it was planted by police).<\/p>\n 3. Documents regularising arrest and detention:<\/em><\/p>\n None.<\/p>\n 4. Other relevant documents:<\/em><\/p>\n (i) 24\/07\/07, internal notice issued by officer Y. informing his superior that applicant had been stopped in possession of bundle of newspaper which contained herbal substance and requesting that superior to follow-up on this information;<\/p>\n (ii) 23\/08\/07, letter sent by Dzerzhinskiy district prosecutor to applicant\u2019s lawyer, stating that applicant was detained on 24\/07\/07 based on \u201cprotocol (\u043f\u0440\u043e\u0442\u043e\u043a\u043e\u043b<\/em>) of administrative detention\u201d under Article\u00a0263 of the Code of Administrative Offences (this provision allowed for detention of persons suspected of drug possession for up to three days to establish relevant circumstances \u2013 notably whether substance in question was narcotic). No copy was provided of \u201cprotocol\u201d referred to.<\/p>\n 5. Other relevant facts<\/em>:<\/p>\n (i) 27\/07\/07, criminal proceedings were instituted against applicant on suspicion of illegal drug possession;<\/p>\n (ii) 13\/06\/08, new decision was taken not to prosecute applicant, as it was established that he had \u201cfound the bundle\u201d in question and had not known that it contained cannabis.<\/p>\n 6. Domestic complaints by applicant<\/em>:<\/p>\n (i) Unsuccessful criminal complaint alleging that his arrest and detention had been unlawful, not regularised and effected for ulterior motive \u2013 to question him in connection with O.\u2019s murder (21\/09\/07, prosecutor\u2019s office refused to institute proceedings and provided no follow-up to applicant\u2019s appeal);<\/p>\n (ii) Appeal lodged with prosecutor\u2019s office against 13\/06\/08 decision, stating that bundle of cannabis was planted on applicant by police: no follow-up;<\/p>\n (iii) Court action against Kharkiv drug police: 27\/07\/10 and 10\/01\/11, Leninskiy District Court in Kharkiv refused to hear case having found that it could only be examined during applicant\u2019s trial on charges of drug possession.<\/td>\n<\/tr>\n Non-pecuniary damage<\/em>: to be determined by Court.<\/p>\n Costs and expenses<\/em>: EUR\u00a010,424.24 in legal fees to be transferred directly to Mr\u00a0Tokarev, applicant\u2019s lawyer.<\/p>\n Supporting documents:<\/em><\/p>\n (i) Contract for legal representation dated 2007;<\/p>\n (ii) Certificate of acceptance of lawyer\u2019s services by applicant, indicating number of hours lawyer worked on case between 2007-2017: thirty-six hours for domestic proceedings and seventy-six hours for Convention proceedings.<\/p>\n Government:<\/em><\/strong><\/p>\n Non-pecuniary damage<\/em>: No comment as amount not specified.<\/p>\n Costs and expenses<\/em>: Claim exorbitant and poorly substantiated.<\/td>\n 15,000 euros (EUR)<\/p>\n Costs and expenses:<\/strong><\/p>\n EUR\u00a05,000<\/p>\n To be transferred to applicant\u2019s lawyer directly, as requested.<\/p>\n <\/p>\n Plus any tax chargeable to applicant on above amounts.<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n <\/p>\n by Mr Igor ViktorovichGordus<\/strong><\/p>\n Ukrainian national born in 1973 and residing in Debaltseve<\/p>\n represented by Mr\u00a0M.\u00a0A.\u00a0Tarakhkalo, a lawyer practising in Kyiv<\/p>\n Lodged on 9\u00a0May\u00a02008<\/em><\/td>\n<\/tr>\n (i) 08\/04\/06, in Debaltseve City Police station, office no.\u00a035;<\/p>\n (ii) 18\/06\/06, in Temporary Detention Unit (ITT) of Debaltseve City Police.<\/p>\n 2. Applicant\u2019s description of ill-treatment:<\/em><\/p>\n (i) 08\/04\/06, applicant was arrested on suspicion of involvement in drug dealing and questioned in absence of lawyer. To obtain from him self-incriminating statements, police officers handcuffed him to radiator for twelve hours; punched him and hit him with truncheons, inflicted about three smacks to mouth, five to six blows to kidneys; fifteen blows to arms and shoulders; after one blow, applicant fell to his knees, scratching them;<\/p>\n (ii) 18\/06\/06, while applicant was detained on remand, three police officers in plain clothes entered his cell. Seeking to retaliate for having complained about police and urge guilty plea, they hit him on arms and shoulders and threatened to place him (former policeman) in cell with ordinary detainees.<\/p>\n 3. Medical and other evidence:<\/em><\/p>\n (i) 12-13\/04\/06 – Report no.\u00a021\/109 (Debaltseve forensic medical expert bureau) \u2013 noting numerous bruises on applicant\u2019s shoulders and arms and abrasions on knees \u2013 possibly dating to 08\/04\/06, possibly self-inflicted by pinching; eroded surface on lower lip \u2013 sustained within one day of examination, possibly self-inflicted by biting; injuries cumulatively qualified as \u201cminor\u201d;<\/p>\n (ii) 20\/06\/06, Certificate (Artemivsk pre-trial detention facility (SIZO) – noting that applicant had arrived on that date from Debaltseve ITT with bruises on shoulders.<\/td>\n <\/td>\n<\/tr>\n (i) 11\/04\/06, to investigator in charge of applicant\u2019s criminal case; then 05\/06\/06, to Debaltseve city prosecutor, in respect of first episode of alleged ill-treatment;<\/p>\n (ii) 27\/06\/06, to Debaltseve city prosecutor, in respect of second episode of alleged ill-treatment<\/p>\n 2. Response by authorities:<\/em><\/p>\n (i) 09\/06\/06, 05\/12\/06, 30\/08\/08, 10\/10\/08, and 22\/07\/09 – decisions not to institute criminal proceedings, as there was no appearance of ill-treatment (first episode, Debaltseve city prosecutor\u2019s office);<\/p>\n (ii) 07\/07\/06 and 10\/11\/08 \u2013 decisions not to institute criminal proceedings, as there was no appearance of ill-treatment (second episode, Debaltseve city prosecutor\u2019s office).<\/p>\n 3. Findings:<\/em><\/p>\n 10\/11\/08 and 22\/07\/09 (decisions): In both cases, injuries were self-inflicted by applicant.<\/p>\n 4. Evidence collected:<\/em><\/p>\n (i) in respect of first episode:<\/p>\n (a) 12\/04\/06, applicant was examined by forensic expert;<\/p>\n (b) 21\/04\/06, office no.\u00a035 in Debaltseve police was inspected;<\/p>\n (c) On various dates, statements were taken from applicant, investigator K. and several police officers;<\/p>\n (ii)\u00a0in respect of second episode:<\/p>\n (a) On various dates, statements were taken from applicant and detention unit duty officers;<\/p>\n (b) 05\/11\/08, applicant was examined by forensic expert.<\/p>\n 4. Other relevant facts:<\/em><\/p>\n (i) Decision of 22\/07\/09 was communicated to applicant only on 26\/12\/11;<\/p>\n (ii) Applicant\u2019s appeal against decision of 07\/07\/06 was examined only on 06\/08\/08 by court, as numerous hearings had to be adjourned in view of failure by prosecutor\u2019s office to submit investigation file to court.<\/td>\n (ii) In both cases, delays in procedural steps leading to loss of evidence; notably, office no.\u00a035 inspected two weeks after complaint lodged, medical assessment of injuries sustained on 18\/06\/06 only ordered on 05\/11\/08 (for relevant examples, see Drozd v. Ukraine<\/em>, no.\u00a012174\/03, \u00a7\u00a068, 30\u00a0July\u00a02009and Voykin and Others v. Ukraine<\/em>, no.\u00a047889\/08, \u00a7\u00a7\u00a0113-114, 27\u00a0March\u00a02018);<\/p>\n (iii) In both cases, delays in apprising applicant of procedural developments and impeded access to documents on case file (for relevant examples, see Danilov v. Ukraine<\/em>, no.\u00a02585\/06, \u00a7\u00a070, 13\u00a0March\u00a02014 and Barysheva v.\u00a0Ukraine<\/em>, no.\u00a09505\/12, \u00a7\u00a061, 14\u00a0March\u00a02017);<\/p>\n (iv) In both cases, decisions to dispense with formal criminal investigation were taken based on hasty conclusions about self-infliction of injuries derived from superficial findings (for relevant examples, see Davydov and Others v. Ukraine<\/em>, nos.\u00a017674\/02 and 39081\/02, \u00a7\u00a0286, 1\u00a0July\u00a02010 and Gordiyenko v. Ukraine<\/em>, no.\u00a027620\/09, \u00a7\u00a7\u00a094-96, 16 October 2014).<\/td>\n<\/tr>\n Period<\/em>: 08\/04\/06 (date of arrest) – 05\/03\/07 (date of first conviction); 13\/06\/08 (first conviction quashed on appeal) \u2013 18\/08\/10 (new conviction)<\/p>\n Total length<\/em>: three years and one month<\/td>\n<\/tr>\n Period<\/em>: 19\/12\/03 (proceedings commenced) \u2013 28\/03\/04 (proceedings suspended) \u2013 25\/01\/06 (proceedings renewed) \u2013 30\/05\/13 (final conviction)<\/p>\n Total length<\/em>: seven years and seven months<\/p>\n Levels of jurisdiction<\/em>: three<\/td>\n<\/tr>\n Non-pecuniary damage<\/em>:<\/strong> EUR\u00a020,000<\/p>\n Costs and expenses:<\/em> EUR\u00a03,750 in legal fees to be transferred directly to Mr\u00a0Tarakhkalo, applicant\u2019s lawyer<\/p>\n
\nGabriele Kucsko-Stadlmayer, President,
\nYonko Grozev,
\nLado Chanturia, judges,
\nand Milan Bla\u0161ko, Deputy Section Registrar,<\/p>\n
\nDeputy Registrar \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0President<\/p>\n\n\n
\n 1. Application no.\u00a054012\/07<\/strong><\/p>\n \n A. Complaint under Article\u00a03: substantive limb<\/strong><\/td>\n<\/tr>\n \n Alleged ill-treatment<\/strong><\/td>\n Key issues<\/strong><\/td>\n<\/tr>\n \n 1. Date\/place:<\/em><\/p>\n (i) State provided no satisfactory and convincing explanation as to origin of applicant\u2019s injuries (documented 29\/04\/07) and did not disprove that they were sustained in custody and there is no reason to doubt credibility of applicant\u2019s ill-treatment account (for relevant examples, see Serikov v. Ukraine<\/em>, no.\u00a042164\/09, \u00a7\u00a7\u00a065-73, 23\u00a0July\u00a02015;and Oleksiy MykhaylovychZakharkin v.\u00a0Ukraine<\/em>, no.\u00a01727\/04, \u00a7\u00a7\u00a061-62, 24\u00a0June\u00a02010);<\/p>\n \n B. Complaint under Article\u00a03: procedural limb<\/strong><\/td>\n<\/tr>\n \n Domestic investigation<\/strong><\/td>\n Key issues<\/strong><\/td>\n<\/tr>\n \n 1. Complaint lodged:<\/em><\/p>\n (i) No full-scale investigation undertaken, only pre-investigation inquiry (for relevant examples, see mutatis mutandisDavydov and Others v. Ukraine<\/em>, nos.\u00a017674\/02 and 39081\/02, \u00a7\u00a7\u00a0310-12, 1\u00a0July\u00a02010; Lyapin v. Russia<\/em>, no.\u00a046956\/09, \u00a7\u00a7 129 and 132-36, 24July\u00a02014; and Chernega and Others v. Ukraine<\/em>, no.\u00a074768\/10, \u00a7\u00a0167, 18\u00a0June\u00a02019);<\/p>\n \n C. Other complaints under well-established case-law<\/strong><\/td>\n<\/tr>\n \n a. Regarding applicant\u2019s arrest and detention in\u00a0April\u00a02007<\/em><\/td>\n<\/tr>\n \n 1. Dates of arrest\/release\/arresting authority:<\/em><\/p>\n \n b. Regarding applicant\u2019s arrest and detention in July\u00a02007<\/em><\/td>\n<\/tr>\n \n 1. Dates of arrest\/release\/arresting authorities:<\/em><\/p>\n \n D. Just satisfaction<\/strong><\/td>\n<\/tr>\n \n Parties\u2019 submissions<\/strong><\/td>\n Court\u2019s award<\/strong><\/td>\n<\/tr>\n \n Applicant:<\/em><\/strong><\/p>\n Non-pecuniary damage:<\/strong><\/p>\n \n\n
\n 2. Application no. 25697\/08<\/strong><\/p>\n \n A. Complaint under Article\u00a03: substantive limb<\/strong><\/td>\n<\/tr>\n \n Alleged ill-treatment<\/strong><\/td>\n Key issues<\/strong><\/td>\n<\/tr>\n \n 1. Dates\/places:<\/em><\/p>\n (i) It has not been disputed that applicant\u2019s injuries were sustained in police custody. Explanation of self-infliction was reached following flawed investigation and is based on hasty conclusions (for relevant examples, see Kirpichenko v. Ukraine<\/em>, no.\u00a038833\/03, \u00a7\u00a7\u00a076-80, 2\u00a0April\u00a02015 and Kulik v.\u00a0Ukraine<\/em>, no.\u00a010397\/10, \u00a7\u00a7\u00a058-59, 19\u00a0March\u00a02015).<\/p>\n \n B. Complaint under Article\u00a03: procedural limb<\/strong><\/td>\n<\/tr>\n \n Domestic investigation<\/strong><\/td>\n Key issues<\/strong><\/td>\n<\/tr>\n \n 1. Complaint lodged<\/em>:<\/p>\n (i) In both cases, no full-scale investigation undertaken, only pre-investigation inquiry(for relevant examples, see mutatis mutandis, Davydov and Others v. Ukraine<\/em>, nos.\u00a017674\/02 and 39081\/02, \u00a7\u00a7\u00a0310-12, 1\u00a0July\u00a02010; Lyapin v. Russia<\/em>, no.\u00a046956\/09, \u00a7\u00a7\u00a0129 and 132-36, 24\u00a0July\u00a02014; and Chernega and Others v. Ukraine<\/em>, no.\u00a074768\/10, \u00a7\u00a0167, 18\u00a0June\u00a02019);<\/p>\n \n C. Other complaints under well-established case-law<\/strong><\/td>\n<\/tr>\n \n Article\u00a05\u00a0\u00a7\u00a03 \u2013 length of pre-trial detention<\/strong><\/p>\n \n Article\u00a06\u00a0\u00a7\u00a01 \u2013 length of criminal proceedings<\/strong><\/p>\n \n D. Just satisfaction<\/strong><\/td>\n<\/tr>\n \n Parties\u2019 submissions<\/strong><\/td>\n Court\u2019s award<\/strong><\/td>\n<\/tr>\n \n Applicant:<\/em><\/strong><\/p>\n