\nCASE OF DEBELYYAND OTHERS v. UKRAINE<\/strong>
\n(Applications nos. 7174\/11 and 2 others-see appended list)<\/em>
\nJUDGMENT
\nSTRASBOURG
\n27 May 2021<\/p>\n
This judgment is final but it may be subject to editorial revision.<\/p>\n
In the case of Debelyy and Others v. Ukraine,<\/strong><\/p>\n The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:<\/p>\n St\u00e9phanie Mourou-Vikstr\u00f6m, President, Having regard to:<\/p>\n the applications (nos.\u00a07174\/11, 49391\/12 and 4173\/13) against Ukraine lodged with the Court under Article\u00a034 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by three Ukrainian nationals, Mr\u00a0Andrey Nikolayevich Debelyy, Mr\u00a0Roman AnatoliyevichKorolev and Mr\u00a0Oleksandr AnatoliyovychRafalskyy (\u201cthe applicants\u201d), on the various dates indicated in the appended tables;<\/p>\n the decision to give notice to the Ukrainian Government (\u201cthe Government\u201d) of the complaints concerning alleged police ill-treatment and the lack of an effective domestic investigation into the allegations in that regard (all applications); conditions of detention and lack of domestic remedies in respect of the complaints in that regard, as well as length of pre\u2011trial detention (application no.\u00a07174\/11); and allegedly unlawful deprivation of liberty (application no. 49391\/12) and to declare inadmissible the remainder of the applications;<\/p>\n the parties\u2019 observations;<\/p>\n Having deliberated in private on 22 April 2021,<\/p>\n Delivers the following judgment, which was adopted on that date:<\/p>\n 1. The applicants allege under Article 3 of the Convention that they were ill-treated by the police and that the investigation into their respective complaints was ineffective. In addition, some applicants also raise other complaints under the Court\u2019s well-established case-law (Article\u00a03, Article\u00a05\u00a0\u00a7\u00a7\u00a01 and 3 and Article\u00a013 of the Convention).<\/p>\n THE FACTS<\/strong><\/p>\n 2. The applicants\u2019 details and the relevant facts are set out in the appended tables.<\/p>\n 3. The Government were represented by their Agent, Mr\u00a0I.\u00a0Lishchyna.<\/p>\n 4. Mr\u00a0O.\u00a0Rafalskyy (application no.\u00a04173\/13) died in October 2016, while the case was pending before the Court. His mother, Mrs\u00a0Tamara\u00a0MykhaylivnaRafalska, informed the Court of her wish to pursue the application.<\/p>\n THE LAW<\/strong><\/p>\n I. PRELIMINARY OBSERVATION CONCERNING APPLICATION NO.\u00a04173\/13<\/p>\n 5. The Government alleged that Mr\u00a0O.\u00a0Rafalskyy\u2019s complaints of ill\u2011treatment and an ineffective investigation concerned non-transferable rights. The applicant\u2019s mother, Mrs\u00a0T.\u00a0Rafalska, therefore had no standing to pursue the application in his stead.<\/p>\n 6. The Court finds that, while the applicant\u2019s mother has not been directly affected by the violations of the Convention complained of by the applicant, following his death she has standing to pursue the present proceedings on his behalf (see Kirpichenko v. Ukraine, no.\u00a038833\/03, \u00a7\u00a055, 2\u00a0April\u00a02015, with further references). However, reference will still be made to Mr\u00a0O. Rafalskyy as the applicant throughout the ensuing text.<\/p>\n II. JOINDER OF THE APPLICATIONS<\/p>\n 7. 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 III. ALLEGED POLICE ILL-TREATMENT AND LACK OF AN EFFECTIVE INVESTIGATION<\/p>\n 8. 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 Article\u00a03 of the Convention, which 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 1. Application no.\u00a07174\/11 lodged by Mr\u00a0A.\u00a0Debelyy<\/em><\/p>\n 9. The Government noted that the investigation of ill-treatment complaints raised by Mr\u00a0A.\u00a0Debelyy (application no.\u00a07174\/11), was still ongoing. He had therefore not exhausted domestic remedies in respect of his complaints.<\/p>\n 10. Viewing the available documents and the parties\u2019 submissions in the light of the principles developed in the Court\u2019s case law (see, in particular, Savin v. Ukraine, no.\u00a034725\/08, \u00a7\u00a057, 16\u00a0February\u00a02012; Kaverzin v.\u00a0Ukraine, no.\u00a023893\/03, \u00a7\u00a7\u00a091-98 and 172-80, 15\u00a0May\u00a02012; and Belousov v. Ukraine, no.\u00a04494\/07, \u00a7\u00a7\u00a048-49 and 56-58, 7\u00a0November\u00a02013) the Court finds that Mr\u00a0A.\u00a0Debelyy provided the domestic authorities with appropriate opportunities to deal with his ill-treatment allegations and that the Government\u2019s objections concerning non-exhaustion of domestic remedies should be dismissed.<\/p>\n 2. Application no.\u00a049391\/12 lodged by Mr\u00a0R.\u00a0Korolev<\/em><\/p>\n 11. The Government filed no objections in respect of the complaints lodged by the aforementioned applicant under Article 3 of the Convention.<\/p>\n 3. Application no.\u00a04173\/13 lodged by Mr\u00a0O.\u00a0Rafalskyy<\/em><\/p>\n 12. The Government submitted that Mr\u00a0O.\u00a0Rafalskyy (application no.\u00a04173\/13) had failed to inform the Court that in 2008 he had submitted the same complaint for consideration to the United Nations Working Group on Arbitrary Detention (\u201cWGAD\u201d), which had delivered an opinion in his case on 4\u00a0September\u00a02009 (see appended table 3, section A(5-iv, 5-v) for details). His application to the Court was therefore inadmissible as being substantially the same as a matter submitted to another procedure of international investigation or settlement within the meaning of Article\u00a035\u00a0\u00a7\u00a02 (b) of the Convention. In addition, the application constituted an abuse of the right of individual application under Article\u00a035\u00a0\u00a7\u00a03\u00a0(a) of the Convention, as the applicant had deliberately concealed this information from the Court, thus attempting to mislead it.<\/p>\n 13. The applicant disagreed. He submitted, in particular, that the proceedings before the WGAD concerned his allegedly arbitrary detention, while the proceedings before the Court concerned his alleged ill-treatment.<\/p>\n 14. Reviewing the matter in the light of the principles developed in its case-law (see, in particular, Folger\u00f8 and Others v. Norway (dec.), no.\u00a015472\/02, 14\u00a0February\u00a02006; compare to Peraldi v. France (dec.),no.\u00a02096\/05, 7\u00a0April\u00a02009, and Gross v. Switzerland [GC], no.\u00a067810\/10, \u00a7\u00a028, ECHR\u00a02014, with further references) the Court finds that notwithstanding the common facts giving rise to the application lodged before it and the communication submitted to the WGAD, Mr\u00a0O.\u00a0Rafalskyy\u2019s ill-treatment complaint and allegations of an ineffective investigation in that regard, lodged under Article\u00a03 of the Convention, cannot be considered substantially the same as the complaint raised before the WGAD concerning his allegedly arbitrary detention. The present application can therefore not be declared inadmissible under Article\u00a035\u00a0\u00a7\u00a02\u00a0(b) of the Convention.<\/p>\n 15. Neither can the applicant\u2019s omission to inform the Court about the WGAD proceedings therefore be considered misleading or otherwise to amount to an abuse of the right of individual application within the meaning of Article\u00a035\u00a0\u00a7\u00a03\u00a0(a) of the Convention.<\/p>\n 16. The Court therefore dismisses the Government\u2019s objections.<\/p>\n 4. Overall conclusion as to admissibility<\/em><\/p>\n 17. The Court further considers that the aforementioned complaints lodged by the applicants are not otherwise manifestly ill-founded within the meaning of Article 35 \u00a7 3 (a) of the Convention, and are not inadmissible on any other grounds. They must therefore be declared admissible.<\/p>\n B. Merits<\/strong><\/p>\n 18. The applicants alleged that they had been victims of police ill\u2011treatment and that their complaints had not been investigated properly.<\/p>\n 19. The Government submitted no observations on the merits in respect of application no.\u00a04173\/13 (lodged by Mr\u00a0O.\u00a0Rafalskyy). They alleged that no violation of Article 3 of the Convention had taken place in respect of the other two applicants, reiterating, at the same time, that the complaint under substantive limb of Article\u00a03 raised by Mr\u00a0A.Debelyy (application no.\u00a07174\/11) was premature.<\/p>\n 20. 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.\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 alleged injuries, as well as identifying and punishing those responsible, should the ill-treatment allegations prove to be true.<\/p>\n 21. 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).<\/p>\n 22. The Court notes that in the case of Kaverzin v. Ukraine (cited above, \u00a7\u00a7\u00a0173-80) 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\u00a046 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.<\/p>\n 23. The Court further finds that the applicants\u2019 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\u2019 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, \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-treatment is engaged.<\/p>\n 24. 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.<\/p>\n 25. The Court therefore concludes that there has been a breach of Article\u00a03 of the Convention in respect of the applicants\u2019 alleged ill-treatment under both its procedural and substantive limbs.<\/p>\n IV. Other complaints under well-established case\u2011law<\/strong><\/p>\n 26. Mr\u00a0A.\u00a0Debelyy (application no.\u00a07174\/11) and Mr\u00a0R.\u00a0Korolev (application no.\u00a049391\/12) submitted other complaints which also raised issues under Article\u00a03, Article\u00a05\u00a0\u00a7\u00a7\u00a01 and\u00a03 and Article\u00a013 of the Convention, given the relevant well-established case\u2011law of the Court (see appended table 1, sections B and C, and table 2, section B, for details).<\/p>\n 27. 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.<\/p>\n 28. Having examined all the material before it, the Court concludes that these complaints disclose the following violations:<\/p>\n (a) violations of Articles\u00a03 and 13 (application no.\u00a07174\/11) concerning the conditions of detention in the Kharkiv pre-trial detention centre (SIZO) and lack of domestic remedies for the relevant complaint, in the light of the Court\u2019s findings in Mur\u0161i\u0107 v.\u00a0Croatia ([GC], no.\u00a07334\/13, \u00a7\u00a7\u00a0122-41, ECHR\u00a02016); Melnik v. Ukraine (no.\u00a072286\/01, \u00a7\u00a7\u00a0110-12, judgment of 28\u00a0March\u00a02006); and, as a recent example, Beketov v. Ukraine [Committee], no.\u00a044436\/09, \u00a7\u00a7\u00a0125-30, judgment of 19 February 2019);<\/p>\n (b) a violation of Article\u00a05\u00a0\u00a7\u00a01 (application no.\u00a049391\/12) concerning unrecorded detention on 7\u00a0April\u00a02010, in the light of the Court\u2019s findings in Smolik v. Ukraine (no.\u00a011778\/05, \u00a7\u00a7\u00a045-48, judgment of 19 January 2012); Grinenko v. Ukraine (no.\u00a033627\/06, \u00a7\u00a7\u00a074-78, judgment of 15\u00a0November\u00a02012); and Belousov (cited above, \u00a7\u00a085); and<\/p>\n (c) a violation of Article\u00a05\u00a0\u00a7\u00a03 (application no.\u00a07174\/11) concerning the length of pre-trial detention, in the light of the Court\u2019s findings in Kharchenko v. Ukraine (no.\u00a040107\/02, \u00a7\u00a7\u00a079-81, judgment of 10\u00a0February\u00a02011); and Ignatov v. Ukraine (no.\u00a040583\/15, \u00a7\u00a7\u00a040-42, judgment of 15\u00a0December 2016).<\/p>\n V. APPLICATION OF ARTICLE\u00a041 OF THE CONVENTION<\/p>\n 29. 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 30. 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\u2019 claims for just satisfaction.<\/p>\n 31. 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. Holds that the mother of Mr\u00a0O.\u00a0Rafalskyy, Mrs T.\u00a0Rafalska, has standing to continue the present proceedings in his stead;<\/p>\n 2. Decides to join the applications;<\/p>\n 3. Declaresthe applications admissible;<\/p>\n 4. Holdsthat there has been a violation of Article 3 of the Convention under both its substantive and procedural limbs in respect of the complaints concerning police ill-treatment raised in all applications;<\/p>\n 5. Holds that there has been a violation of Article\u00a03 of the Convention in respect of the complaint concerning the conditions of detention raised in application no.\u00a07174\/11;<\/p>\n 6. Holds that there has been a violation of Article\u00a05\u00a0\u00a7\u00a01 of the Convention in respect of the complaint concerning unrecorded detention raised in application no.\u00a049391\/12;<\/p>\n 7. Holds that there has been a violation of Article\u00a05\u00a0\u00a7\u00a03 of the Convention in respect of the complaint concerning the length of pre-trial detention raised in application no.\u00a07174\/11;<\/p>\n 8. Holds that there has been a violation of Article 13 of the Convention in conjunction with Article\u00a03 of the Convention in respect of the complaint raised in application no.\u00a07174\/11;<\/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 tables, 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. Dismisses the remainder of the applicants\u2019 claims for just satisfaction.<\/p>\n Done in English, and notified in writing on 27 May 2021, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/p>\n Martina Keller\u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 St\u00e9phanie Mourou-Vikstr\u00f6m ___________<\/p>\n APPENDIX<\/strong><\/p>\n by Mr\u00a0Andrey Nikolayevich Debelyy<\/strong><\/p>\n Ukrainian national born in 1975 and residing in Kharkiv<\/p>\n Represented by Mr\u00a0A.A.\u00a0Kristenko, a lawyer practising in Kharkiv and Kyiv<\/p>\n Lodged on 21\u00a0December\u00a02010<\/em><\/td>\n<\/tr>\n (i) 02\/06\/10, medical journal entry (ITT): 7.25\u00a0p.m. ambulance call (hypertensive crisis, swollen arms, complaint of body numbness, suspected arm fracture, facial contusions);<\/p>\n (ii) 03\/06\/10, certificate no.\u00a01673 (Kharkiv municipal hospital no.\u00a018): contusions of wrist joints;<\/p>\n (iii) 14\/07\/10, report no.\u00a03331-a\u044f\/10 (Kharkiv regional forensic medical bureau): minor injuries (scars from contused injuries on wrists and left knee joint, from impact of blunt objects one to three months beforehand)<\/p>\n 2. Complaint lodged:<\/em><\/p>\n (i) Unspecified date before 13\/07\/10, with Moskovskyy district prosecutor\u2019s office in Kharkiv;<\/p>\n (ii) Further unspecified date after opening of criminal trial against applicant, with judicial authorities<\/p>\n 3. Response by authorities:<\/em><\/p>\n (i) 13\/07\/10, forensic assessment of applicant\u2019s injuries ordered (Moskovskyy district prosecutor\u2019s office);<\/p>\n (ii) 29\/07\/10, decision not to institute criminal proceedings (Moskovskyy district prosecutor\u2019s office): no appearance of ill-treatment;<\/p>\n (iii) 20\/12\/13, decision to instruct Kharkiv regional prosecutor\u2019s office to carry out investigation (Kharkiv Regional Court of Appeal);<\/p>\n (iv) 30\/01\/14, criminal proceedings instituted (Kharkiv regional prosecutor\u2019s office);<\/p>\n (v) 26\/02\/14, 28\/05\/14, criminal proceedings closed: no evidence of ill\u2011treatment;<\/p>\n (vi) 16\/04\/14, 17\/07\/14, decisions to close criminal proceedings quashed (Chervonozavodskyy District Court in Kharkiv): superficial inquiry<\/p>\n 4. Present status:<\/em><\/p>\n Proceedings pending; no conclusion concerning origin of documented injuries<\/p>\n 5. Key actions:<\/em><\/p>\n (i) Statements taken from applicant and police officers;<\/p>\n (ii) Forensic assessment of injuries<\/p>\n 6. Other relevant facts and documents:<\/em><\/p>\n (i) 02\/06\/10: applicant arrested on suspicion of having robbed vending kiosk in February 2010;<\/p>\n (ii) 04\/06\/10: applicant remanded in custody (Moskovskyy District Court);<\/p>\n (iii) 03\/04\/13: applicant convicted of having robbed vending kiosk and sentenced to nine years\u2019 imprisonment (Moskovskyy District Court);<\/p>\n (iv) 04-07\/02\/14: P.O., O.T. and G.P., questioned in connection with applicant\u2019s ill-treatment complaints, reported that they had arrested him \u201cin the morning\u201d on 02\/06\/10, \u201cin the course of operational activity\u201d and had taken him for questioning to police station; they denied having applied physical force to applicant or having seen any injuries on his body upon his arrest;<\/p>\n (v) 15\/05\/14: applicant\u2019s request to be accorded victim status in criminal proceedings concerning his ill-treatment complaints rejected (Kharkiv regional prosecutor\u2019s office): insufficient evidence that he had suffered any prejudice or damage;<\/p>\n (vi) 11\/07\/14: applicant\u2019s criminal case remitted for retrial; applicant released from detention (Kharkiv Regional Court of Appeal);<\/p>\n (vii) 25\/12\/14: applicant convicted of having robbed a vending kiosk in February 2010 and sentenced to time served in pre-trial detention (Moskovskyy District Court)<\/td>\n (ii) Significant delay in instituting criminal proceedings (for relevant examples, see Oleksiy MykhaylovychZakharkin<\/em>, cited above, \u00a7\u00a7\u00a068-69,andSavitskyy v. Ukraine<\/em>, no.\u00a038773\/05, \u00a7\u00a0105, 26\u00a0July\u00a02012);<\/p>\n (iii) Overall length of investigation and repeated remittals for reinvestigation in view of shortcomings recognised by domestic authorities (for relevant examples, see Belousov v. Ukraine<\/em>, no.\u00a04494\/07, \u00a7\u00a056, 7\u00a0November\u00a02013, and Adnaralov v. Ukraine<\/em>, no.\u00a010493\/12, \u00a7\u00a050, 27\u00a0November\u00a02014);<\/p>\n (iv) Applicant was not accorded victim status (for relevant examples, see Yatsenko v.\u00a0Ukraine<\/em>, no.\u00a075345\/01, \u00a7\u00a047, 16\u00a0February 2012, and Zhyzitskyy v. Ukraine<\/em>, no.\u00a057980\/11, \u00a7\u00a050, 19\u00a0February 2015);<\/p>\n (v) No appearance of sufficient effort to collect objective evidence; it appears that no steps were taken beyond questioning of police officers and ordering forensic assessment after traces of alleged ill-treatment had started fading away; no attempts to organise confrontations or take other steps to verify applicant\u2019s account (for relevant examples, see Drozd v. Ukraine<\/em>, no.\u00a012174\/03, \u00a7\u00a7\u00a069-70, 30\u00a0July\u00a02009, and Kapustyak v.\u00a0Ukraine<\/em>, no.\u00a026230\/11, \u00a7\u00a080, 3\u00a0March\u00a02016)<\/td>\n<\/tr>\n Period of detention<\/em>: 05\/06\/10 \u2013 11\/07\/14<\/p>\n Specific grievances<\/em>: overcrowding, lack of ventilation, grossly inadequate hygiene facilities and insanitary environment, lack of and poor quality of food, mould, dampness, foul odour, lack of daylight<\/td>\n<\/tr>\n Total length<\/em>: two years and ten months<\/td>\n<\/tr>\n Non-pecuniarydamage<\/em>: 100,000 euros (EUR)<\/p>\n <\/p>\n Costs and expenses<\/em>: legal fees amounting to 10% of non-pecuniary damage award (observations in Convention proceedings) to be transferred directly to account of Mr\u00a0A.A.\u00a0Kristenko, applicant\u2019s representative<\/p>\n Supporting documents<\/em>: Legal representation contract dated May 2019<\/p>\n Government:<\/em><\/strong><\/p>\n Claims exorbitant and poorly substantiated<\/td>\n EUR\u00a015,000<\/p>\n <\/p>\n Costs and expenses:<\/em><\/strong><\/p>\n EUR\u00a01,000<\/p>\n To be transferred to applicant\u2019s lawyer directly, as requested<\/p>\n Plus any tax chargeable to applicant on above amounts<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n <\/p>\n by Mr\u00a0Roman AnatoliyevichKorolev<\/strong><\/p>\n Ukrainian national born in 1979 and residing in Melitopol<\/p>\n Represented by Mr\u00a0Y.V.\u00a0Nepomnyashchiy, a lawyer practising in Melitopol<\/p>\n Lodged on 20\u00a0July\u00a02012<\/em><\/td>\n<\/tr>\n (i) 07-17\/04\/12, medical record no.\u00a03425 (Melitopol city hospital no.\u00a01, traumatology department): admission at 5.40\u00a0p.m. on 07\/04\/12; inpatient treatment until 17\/04\/12 (cerebral concussion, contusions of soft cerebral tissue and limbs);<\/p>\n (ii) 24\/05\/12, report no.\u00a0249 (Zaporizhzhya regional forensic medical bureau): minor injuries (cerebral concussion; abrasions; haemorrhage in left eyeball; traumatic oedema of soft cerebral tissue; bruises on head, shoulders, abdomen, chest, hips, knee joints and shins; wrist abrasions) from impact of blunt objects on or around 07\/04\/12<\/p>\n 2. Complaint lodged:<\/em><\/p>\n 07\/04\/12, with Melitopol police<\/p>\n 3. Response by authorities:<\/em><\/p>\n (i) 20\/04\/12, 25\/06\/12, 01\/10\/12: decisions not to institute criminal proceedings (investigator Y.D. of Melitopol inter-district prosecutor\u2019s office); these decisions were quashed and case was remitted for fresh investigation by supervising prosecutorial authorities: shortcomings in inquiry;<\/p>\n (ii) 15\/11\/12: fresh decision not to institute criminal proceedings (Melitopol inter-district prosecutor\u2019s office, investigator P.K.);<\/p>\n (iii) 27\/02\/13 and 14\/03\/13: applicant\u2019s appeals against decision of 15\/11\/12 dismissed (Melitopol Town Court and Zaporizhzhya Regional Court of Appeal respectively)<\/p>\n 4. Key actions:<\/em><\/p>\n (i) Forensic medical assessment of injuries;<\/p>\n (ii) Police officers, several eyewitnesses, medical doctor and attesting witnesses to search questioned<\/p>\n 5. Key findings<\/em>:<\/p>\n Officers A.B. and A.D. applied legitimate force and used handcuffs to break applicant\u2019s resistance and to stop his disorderly conduct and flight attempt<\/p>\n 6. Other relevant facts and documents:<\/em><\/p>\n (i) 07\/04\/12: Y.B. (farmers\u2019 market controller) notified police officer A.B. that he had given UAH\u00a0500 as bribe to applicant;<\/p>\n (ii) 18-20\/04\/12: testimonies given to investigator Y.D. (officers A.B. and A.D., cobbler and attesting witnesses to search): applicant sprayed pepper gas and attempted to flee, when approached by officers A.B. and A.D. Those officers then managed to catch and handcuff him; no force was used by any civilian;<\/p>\n (iii) 28\/04\/12: administrative offence proceedings instituted against applicant (charge of acceptance of bribe): Melitopol inter-district prosecutor\u2019s office, investigator Y.D.;<\/p>\n (iv) 06\/06\/12: applicant convicted: sentence to pay fine (Melitopol Town Court);<\/p>\n (v) 03\/07\/12: conviction upheld (Zaporizhzhya Regional Court of Appeal)<\/td>\n (ii) No full-scale investigation, only repeated pre-investigation inquiry (for relevant examples, see, mutatis mutandis<\/em>,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 129 and 132-36, 24\u00a0July\u00a02014; and Chernega and Others v.\u00a0Ukraine<\/em>, no.\u00a074768\/10, \u00a7\u00a0167, 18\u00a0June\u00a02019);<\/p>\n (iii) Insufficient effort to collect objective evidence. Conclusions as to facts reached predominantly based on unverified testimonies by persons implicated in ill\u2011treatment; no attempts to organise confrontations or take other steps to for verifying them (for relevant examples, see Lopatin and Medvedskiy v.\u00a0Ukraine<\/em>, nos.\u00a02278\/03 and 6222\/03, \u00a7\u00a067, 20\u00a0May\u00a02010, and Kapustyak v. Ukraine<\/em>, no.\u00a026230\/11, \u00a7\u00a080, 3\u00a0March 2016);<\/p>\n (iv) No attempt made to assess proportionality of force used to restrain applicant during arrest, or probability of his allegation that he had been knocked down and assaulted (for relevant examples, see Kaverzin v. Ukraine<\/em>, no. 23893\/03, \u00a7\u00a7\u00a0110\u201115, 15 May 2012, and Sadkov v.\u00a0Ukraine<\/em>, no.\u00a021987\/05, \u00a7\u00a096, 6 July 2017);<\/p>\n (v) Initial inquiry lacked independence (for relevant examples, see Kirpichenko v.\u00a0Ukraine<\/em>, no.\u00a038833\/03, \u00a7\u00a087, 2\u00a0April\u00a02015 andZyakun v. Ukraine<\/em>, no.\u00a034006\/06, \u00a7\u00a044, 25\u00a0February\u00a02016)<\/td>\n<\/tr>\n 07\/04\/12, about 10.30\u00a0a.m. – 07\/04\/12, about 5.40\u00a0p.m., Melitopol internal security police<\/p>\n 2. Grounds and documents regularising alleged deprivation of liberty during above period:<\/em><\/p>\n No documents<\/p>\n 3. Domestic complaints by applicant<\/em>:<\/p>\n Same as in respect of ill-treatment (see Section A above)<\/p>\n 4. Other relevant facts and documents:<\/em><\/p>\n Police officers A.B. and A.D. explained (within framework of ill-treatment investigation) that, having been notified by Y.B. at about 10.15 a.m. on 07\/04\/12 that he had paid bribe to applicant, they had immediately approached him and demanded to produce envelope with bribe money. In view of applicant\u2019s disorderly conduct and his attempt to flee, they had immobilised and handcuffed him. Once applicant had calmed down, handcuffs had been removed and he had been taken to police station for questioning. After applicant\u2019s questioning and alcohol intoxication test, he was released<\/td>\n<\/tr>\n Pecuniary damage<\/em>: EUR\u00a030,000 (no documents provided)<\/p>\n
\nGanna Yudkivska,
\nLado Chanturia, judges,
\nand Martina Keller, Deputy Section Registrar,<\/p>\n![\"INTRODUCTION\"](\"https:\/\/laweuro.com\/wp-content\/uploads\/2021\/10\/INTRODUCTION.jpg\")
<\/p>\n
\nDeputy Registrar\u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 President<\/p>\n\n\n
\n 1. Application no.\u00a07174\/11<\/strong><\/p>\n \n A. Complaint under Article\u00a03 concerning police ill-treatment<\/strong><\/td>\n<\/tr>\n \n Applicant\u2019s account of alleged ill-treatment<\/strong><\/td>\n<\/tr>\n \n At about 9\u00a0a.m. on 2\u00a0June\u00a02010, as the applicant entered a vending kiosk, a stranger grabbed him from behind and started choking him, while two others punched him in the stomach and groin. After having knocked the applicant to the floor, the strangers handcuffed him and, havingintroduced themselves to him as police officers, pushed him roughly into a civilian car, where they kept hitting him and squeezing his genitals. When they had arrived in a deserted forest area, the officers demanded that the applicant give self-incriminating statements concerning various crimes. One officer twisted the applicant\u2019s handcuffed hands behind his back and tried to raise them up, causing severe pain, while the others punched and kicked him all over his body. In addition, the officers jumped on the applicant\u2019s arms, pointed a gun at the applicant, threatening to kill him, and on several occasions they suffocated him by wrapping his clothes around his head, until he lost consciousness. After about an hour, when the applicant had succumbed to the pressure and agreed to sign false confessional statements, he was taken to the Moskovskyy district police station in Kharkiv for questioning and then, by 7\u00a0p.m. on the same date, taken to the temporary police detention facility (\u201cITT\u201d).<\/td>\n<\/tr>\n \n Relevant facts and documents<\/strong><\/td>\n Key issues<\/strong><\/td>\n<\/tr>\n \n 1. Medical and other evidence:<\/em><\/p>\n (i) State provided no plausible satisfactory and convincing explanation as to origin of applicant\u2019s injuries and did not disprove that they had been sustained in custody; there is no reason to doubt credibility of applicant\u2019s ill-treatment account (for relevant examples, see Oleksiy MykhaylovychZakharkin v. Ukraine<\/em>, no.\u00a01727\/04, \u00a7\u00a7\u00a061-62, 24\u00a0June\u00a02010; and Dushka v.\u00a0Ukraine<\/em>, no.\u00a029175\/04, \u00a7\u00a048, 3\u00a0February 2011);<\/p>\n \n B. Articles 3 and 13: conditions of detention, lack of effective remedies<\/strong><\/td>\n<\/tr>\n \n Facility:<\/em> Pre-trial detention centre (SIZO) no.\u00a027 in Kharkiv<\/p>\n \n C. Article\u00a05\u00a0\u00a7\u00a03 of the Convention: length of pre-trial detention<\/strong><\/td>\n<\/tr>\n \n Period<\/em>: 02\/06\/10 (date of arrest) \u2013 03\/04\/13 (date of first conviction)<\/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:<\/em><\/strong><\/p>\n \n\n
\n 2. Application no.\u00a049391\/12<\/strong><\/p>\n \n A. Complaint under Article\u00a03 concerning police ill-treatment<\/strong><\/td>\n<\/tr>\n \n Applicant\u2019s account of alleged ill-treatment<\/strong><\/td>\n<\/tr>\n \n At about 10.30\u00a0a.m. on 7\u00a0April\u00a02012, when the applicant, an off-duty police officer, entered a cobbler\u2019s workshop, he was suddenly approached by officers A.B. and A.D. from the Internal security police department, who alleged that he had recently received a bribe and insisted on searching him. The applicant protested, considering that demand to be unlawful. In response, the officers, accompanied by the cobbler and two civilians who had been invited as attesting witnesses to the search, knocked the applicant down, handcuffed, punched, kicked and attempted to strangle him, and inserted their fingers in his eyes. Then an envelope containing 500\u00a0hryvnias (UAH), which had been planted by A.B. and A.D., was seized from his folder. Subsequently the applicant (still handcuffed) was taken to the police station for questioning and then to an alcohol testing facility. After 5\u00a0p.m. on the same date the applicant was released without any procedural documents concerning his arrest or detention having been drafted. He immediately went to the hospital traumatology department and was admitted as an inpatient.<\/td>\n<\/tr>\n \n Relevant facts and documents<\/strong><\/td>\n Key issues<\/strong><\/td>\n<\/tr>\n \n 1. Medical and other evidence:<\/em><\/p>\n (i) Having regard to nature, gravity and dispersed location of injuries, and account of arrest operation, it has not been convincingly shown that all of applicant\u2019s injuries resulted from application of legitimate force (for relevant examples, see Rehbock v. Slovenia<\/em>, no.\u00a029462\/95, \u00a7\u00a076, ECHR 2000\u2011XII; Danilov v. Ukraine<\/em>, no.\u00a02585\/06, \u00a7\u00a7\u00a065-67, 13\u00a0March\u00a02014; and Sylenok and Tekhnoservis-Plus v. Ukraine<\/em>, no.\u00a020988\/02, \u00a7\u00a7\u00a069-70, 9\u00a0December 2010);<\/p>\n \n B. Article\u00a05\u00a0\u00a7\u00a01 of the Convention: unrecorded detention<\/strong><\/td>\n<\/tr>\n \n 1. Period of deprivation of liberty complained of \/arresting authority<\/em><\/p>\n \n C. 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