ZABOLOTNYY AND OTHERS v. UKRAINE - 19574/09 (Judgment : Prohibition of torture : Fifth Section Committee) [2020] ECHR 609 (03 September 2020)

JUDGMENT STRASBOURG 3 September 2020 This judgment is final but it may be subject to editorial revision. In the case of Zabolotnyy and others v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Gabriele Kucsko-Stadlmayer, President, Lado Chanturia, Anja Seibert-Fohr, judges, and Anne-Marie Dougin, Acting Deputy Section Registrar, Having regard to: the applications (nos. 19574/09 , 48353/09 and 8297/10 ) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three Ukrainian nationals, Mr Yuriy Mykolayovych Zabolotnyy, Mr Andrey Borisovich Drobotenko and Mr Valentin Vladimirovich Koliychuk (“the applicants”), on the various dates indicated in the appended tables; the decision to give notice of the applications to the Ukrainian Government (“the Government”); the parties’ observations; Having deliberated in private on 30 June 2020, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1. The present case concerns alleged ill-treatment of the applicants by police and the allegedly ineffective investigation of their respective complaints. In addition, it concerns an allegation by one of the applicants that the conditions of his detention were inhuman and degrading and that he had no effective remedies for this complaint. THE FACTS 2. The applicants’ details and the relevant facts are set out in the appended tables. 3. The Government were represented by their Agent, Mr I. Lishchyna. THE LAW I. JOINDER OF THE APPLICATIONS 4. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF ALLEGATIONS OF POLICE ILL-TREATMENT 5. 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 3 and 13 of the Convention. 6. 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 3 of the Convention only (see, among other authorities, Barysheva v. Ukraine , no. 9505/12 , § 45, 14 March 2017). That provision reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Admissibility 1. Application no. 19574/09 by Mr Y. Zabolotnyy 7. The Government submitted that Mr Zabolotnyy’s complaints should be dismissed as introduced outside of the six-month time-limit. They argued that the relevant period was to be calculated from 27 February 2008, when the District Court dismissed an appeal lodged by the applicant against the decision not to institute criminal proceedings into his ill-treatment allegations (see appended table 1. B.2 for details). Alternatively, they suggested that the applicant had failed to exhaust domestic remedies, as he had not brought the substance of his complaints before the higher courts as a result of his own procedural negligence. 8. The applicant contested that view. 9. Viewing the parties’ submissions in the light of the principles developed in its case law (see, in particular, Kaverzin v. Ukraine , no. 23893/03 , §§ 90-99 and 172-80, 15 May 2012, Zamferesko v. Ukraine , no. 30075/06 , §§ 39-41, 15 November 2012; and Buglov v. Ukraine , no. 28825/02 , § 63, 10 July 2014) the Court finds that the applicant in the present case provided the domestic authorities with appropriate opportunities to deal with his allegations. It also considers that he cannot be reproached for waiting for the Supreme Court to take a decision concerning his appeal. 10. The Court therefore dismisses the Government’s objections concerning non-compliance with the six-month rule and non-exhaustion of domestic remedies. 2. Other applications 11. The Government submitted no objections concerning the admissibility of the aforementioned complaints raised in the other applications within the time-limits established for that purpose. 3. Court’s overall conclusion concerning all applications 12. The Court notes that the applicants’ aforementioned complaints under Article 3 of the Convention are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. B. Merits 13. The applicants alleged that there had been violations of Article 3 of the Convention under both its substantive and procedural limbs in each of their respective cases. 14. The Government contested this allegation in respect of the complaints raised in applications nos. 19574/09 and 8297/10. In respect of application no. 48353/09 , no observations were received within the time-limit established by the Court. 15. The Court reiterates that in respect of a person who is deprived of his liberty or, more generally, is confronted with law-enforcement officers, any recourse to physical force which has not been made strictly necessary by his or her own conduct diminishes human dignity and is an infringement of the right set forth in Article 3 (see, among other authorities, El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09 , § 207, ECHR 2012, and Bouyid v. Belgium ([GC], no. 23380/09 , § 101, 28 September 2015). 16. Reviewing the facts of the present cases in the light of the general principles established in its case-law (see, among other authorities, Bouyid, cited above, §§ 81-90 and 114-23), the Court considers that the applicants raised arguable ill-treatment claims at the domestic level. Those claims triggered an obligation on the part of the national authorities to carry out an effective official investigation with a view to establishing the origins of the applicants’ injuries and identifying and punishing those responsible, should the applicants’ allegations concerning ill-treatment have proved to be true. 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). . In the case of Kaverzin , (cited above, §§ 173-80), the Court found that the reluctance of the authorities to ensure a prompt and thorough investigation of ill-treatment complaints lodged against police authorities constituted a systemic problem within the meaning of Article 46 of the Convention. In view of the circumstances of the present applications and its previous case-law, the Court considers that they constitute another example of such a failure to ensure prompt and thorough investigation. 19. The Court further finds that the applicants’ accounts as to the circumstances of their alleged ill-treatment are detailed and coherent, and that the results of the investigations, given their numerous shortcomings, did not disprove them. In these circumstances, and given the onus on the State to provide a plausible explanation for injuries sustained by persons under the control of the police (see, Bouyid , cited above, § 83 and also, by way of example, Adnaralov v. Ukraine , no. 10493/12 , § 45, 27 November 2014; Kulik v. Ukraine , no. 10397/10 , § 59, 19 March 2015; and Yaroshovets and Others v. Ukraine , nos. 74820/10 and 4 others, § 85, 3 December 2015), the Court concludes that the State’s responsibility for the applicants’ ill‑treatment is engaged. 20. 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. . There has, accordingly, been a breach of Article 3 of the Convention under both its procedural and substantive limbs. III. OTHER COMPLAINTS A. Application no. 19574/09 by Mr Y. Zabolotnyy 22. Mr Y. Zabolotnyy additionally complained that his conviction for insubordination to the police, followed by three days’ administrative detention, had not been amenable to appeal. Referring to the Court’s findings in the judgment in the case of Gurepka v. Ukraine (no. 61406/00 , §§ 59-62, 6 September 2005), he submitted that there had been a breach of Article 2 of Protocol No. 7 to the Convention in his case. 23. The Government argued that this complaint had been submitted outside of the six-month time-limit. 24. The applicant disagreed with the Government, but did not put forward any specific arguments. 25. The Court notes that the final decision in the applicant’s case was taken by the Leninskyy District Court in Vinnytsia on 8 January 2008, that is, more than six months before the present application was lodged (10 March 2009). It therefore upholds the Government’s objection. 26. It follows that this part of the aforementioned application was lodged outside of the six-month time-limit and must therefore be rejected as inadmissible pursuant to Article 35 §§ 1 and 4 of the Convention. B. Application no. 48353/09 by Mr A. Drobotenko 27. Mr A. Drobotenko complained that the conditions of his detention in Kherson SIZO had been inhuman and degrading (see details in appended table 2. C) and that there had been no effective remedies for his relevant complaint. 28. The Government did not submit observations on the subject within the established time-limit. 29. The Court refers to the principles established in its case-law regarding inadequate conditions of detention (see, for instance, Muršić v. Croatia [GC], no. 7334/13 , §§ 96‑101, ECHR 2016). It reiterates in particular that a serious lack of space in a prison cell weighs heavily as a factor to be taken into account for the purpose of establishing whether the detention conditions described are “degrading” from the point of view of Article 3 and may disclose a violation, taken alone or together with other shortcomings (see Muršić, cited above, §§ 122‑41, and Ananyev and Others v. Russia , nos. 42525/07 and 60800/08, §§ 149‑59, 10 January 2012). 30. In the leading case of Melnik v. Ukraine (no. 72286/01 , §§ 110-12, 28 March 2006; for more recent case-law see Beketov v. Ukraine [Committee], no. 44436/09 , §§ 125-30, 19 February 2019), the Court found a violation in respect of issues similar to those in the present case. 31. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of the present complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the applicant’s conditions of detention were inadequate. 32. The Court further notes that the applicant did not have at his disposal an effective remedy in respect of his complaint concerning the conditions of his detention. 33. The applicant’s complaints under Articles 3 and 13 of the Convention are therefore admissible and disclose breaches of those provisions. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 34. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” . 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. . 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 complaint under Article 2 of Protocol No. 7 raised in application no. 19574/09 inadmissible and the remainder of the applications 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 by the police raised by all of the applicants; 4. Holds that there has been a violation of Article 3 of the Convention in respect of the complaint concerning the conditions of detention raised in application no. 48353/09; 5. Holds that there has been a violation of Article 13 of the Convention in conjunction with Article 3 of the Convention in respect of the complaint concerning the conditions of detention raised in application no. 48353/09; 6. Holds (a) that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended tables, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement, simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period, plus three percentage points; 7. Dismisses the remainder of the applicants’ claims for just satisfaction. Done in English, and notified in writing on 3 September 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Anne-Marie Dougin Gabriele Kucsko-Stadlmayer Acting Deputy Registrar President APPENDIX 1. Application no. 19574/09 by Mr Yuriy Mykolayovych Zabolotnyy Ukrainian national born in 1973 and residing in Vinnytsia Lodged on 10 March 2009 A. Complaint under Article 3: substantive limb Alleged ill-treatment Key issues 1. Date/places: 12/12/07 - (i) during arrest (at warehouse), (ii) in police car, and (iii) in office no. 508 of Vinnytsia regional organised crime police unit (“UBOZ”) 2. Applicant’s description of alleged ill-treatment: (i) Several police officers in plain clothes, accompanied by X (private party) arrived at warehouse where applicant was on business, and demanded that he step into their car “for a conversation” concerning allegation that he had assaulted X earlier that day. In response to applicant’s verbal protests, in presence of several warehouse employees, police officers threw him to the ground, twisted his arms behind his back, handcuffed him and shoved him into their car (ii) They drove off, continuing to punch applicant in head and torso while driving (iii) At UBOZ office, several officers, headed by someone presenting himself as Lt-Col. Z, continued punching applicant for several hours and threatened to kill him unless he signed confession to having assaulted X 3. Medical and other evidence: 08/01/08 - certificate of temporary inaptitude to work (Vinnytsia municipal hospital no. 2) indicating that applicant had received in-patient treatment from 13/12/07 until 08/01/08 on account of closed head injury and concussion 4. Other relevant facts: (i) 12/12/07 - when questioned in UBOZ office without access to lawyer, applicant confessed to having assaulted X; (ii) after questioning at UBOZ office, he was placed in Leninskyy district police temporary detention facility (“ITT”); (iii) 13/12/07 - applicant started vomiting and was taken by ambulance from ITT directly to hospital; (iv) 08/01/08 - applicant was discharged from hospital, immediately arrested and taken to court on charges of disobedience to police orders on 12/12/07; (v) same date, Leninskyy District Court in Vinnytsia convicted applicant as charged and he was returned to ITT to serve three days’ administrative detention sentence; (vi) unspecified date, Staromiskyy district police decided not to institute criminal proceedings against applicant concerning alleged assault on X H aving regard to the nature and gravity of the injuries, no justification for the degree of force used during the arrest operation has been provided (for relevant examples, see Rehbock v. Slovenia , no. 29462/95 , § 76, ECHR 2000‑XII and Sylenok and Tekhnoservis-Plus v. Ukraine , no. 20988/02 , §§ 69-70, 9 December 2010 B. Complaint under Article 3: procedural limb Domestic investigation Key issues 1. Complaint lodged: 20/12/07, with Vinnytsia regional prosecutor’s office (by applicant’s brother) 2. Response by authorities: (i) 08/01/08 - decision not to institute criminal proceedings: no appearance of police ill-treatment (Vinnytsia regional prosecutor’s office) (ii) 27/02/08 - decision dismissing applicant’s appeal against above decision (Leninskyy District Court in Vinnytsia) (iii) 08/03/08 - further appeal by applicant, alleging that copy of aforementioned court decision had not been communicated to him until 03/03/08 (iv) 28/05/08 - decision dismissing applicant’s further appeal as lodged outside seven-day statutory time-limit from date of pronouncement (Vinnytsia Regional Court of Appeal) (v) 14/10/08 - decision not to grant applicant leave to appeal on points of law against preceding decisions (Supreme Court of Ukraine) 3. Findings: Applicant sustained injuries during arrest as result of application of force necessary to combat his resistance to police (decision of 08/01/08, see above) 4. Evidence collected: (i) On various dates, statements were taken from police officers involved in applicant’s arrest (ii) X’s complaint and other documents pertinent to applicant’s arrest were reviewed (i) No full-scale investigation, only pre-investigation inquiry (for relevant examples, see, mutatis mutandis , Davydov and Others v. Ukraine , nos. 17674/02 and 39081/02, §§ 310-12 , 1 July 2010 ; Lyapin v. Russia , no. 46956/09 , §§ 129 and 132-36, 4 July 2014; and Chernega and Others v. Ukraine , no. 74768/10 , § 167, 18 June 2019) (ii) Insufficient effort to collect objective evidence. Notably, neither applicant nor any witnesses to his arrest were questioned; no forensic examination of applicant’s injuries was ordered; conclusions as to facts were made predominantly based on version advanced by police taken at face value (for relevant examples, see Lopatin and Medvedskiy v. Ukraine , nos. 2278/03 and 6222/03 , § 67-69, 20 May 2010 and Kapustyak v. Ukraine , no. 26230/11 , § 80, 3 March 2016) (iii) No attempt made to assess proportionality of force used to restrain applicant during arrest, or probability of his allegation that he had been further ill-treated in police custody (for relevant examples, see Kaverzin , cited above, §§ 110-16 and Sadkov v. Ukraine , no. 21987/05 , § 96, 6 July 2017) C. Other complaints under well-established case-law Article 2 Protocol no. 7 - alleged impossibility to appeal against conviction 08/01/08 - Leninskyy District Court in Vinnytsia convicted applicant of administrative offence (insubordination to police) and sentenced him to three days’ administrative detention. According to applicable law at material time, that decision was final and not amenable to appeal D. Just satisfaction Parties’ submissions Court’s award Applicant: Non-pecuniary damage: 30,000 euros (EUR) Government: Claim exorbitant and unsubstantiated Non-pecuniary damage: EUR 15,000 plus any tax chargeable to applicant 2. Application no. 48353/09 by Mr Andrey Borisovich Drobotenko Ukrainian national born in 1957 and residing in Skadovsk represented by Mr A. A. Kristenko, a lawyer practising in Kharkiv Lodged on 3 September 2009 A. Complaint under Article 3: substantive limb Alleged ill-treatment Key issues 1. Date/place: 05/03/09 - (i) during arrest (Chapayeva street, Skadovsk) (ii) in police car, and (iii) near entrance to Skadovsk central district hospital 2. Applicant’s description of ill-treatment: (i) At about 5.30 p.m., having consumed 150-200 ml of vodka at birthday party, applicant was walking home when police officers X and Y stopped, searched and handcuffed him and shoved him into police car driven by officer Z (ii) They drove him towards deserted area and demanded that he pay them for not charging him for being drunk in public. Officer Y (sitting in front seat) took out knife and threatened that applicant would be taken to deserted beach and drowned. Afraid for his life, applicant pushed knife away with handcuffed hands, possibly accidentally hurting driver Z, and attempted to escape. In response, officers immobilised and punched him until he lost consciousness (iii) When applicant regained consciousness, he found himself lying on ground by entrance to Skadovsk central district hospital, with police officers kicking him. Eventually they dragged him inside hospital, where he was provided with medical assistance 3. Medical and other evidence: (i) Medical record no. 223 and certificate of 16/03/09 (Skadovsk central district hospital) indicating that applicant had been brought by police and admitted for treatment at 7.20 p.m. on 05/03/09. He received in-patient treatment until 07/03/09 for following conditions: alcohol intoxication, closed head injury, concussion of medium gravity, and multiple contusions to face, head and torso. Those documents also indicated that on 07/03/09 police removed applicant from hospital without consulting chief doctor and before completion of treatment (ii) 07/04/09 - report no. 22 (Skadovsk district forensic medical examinations bureau, expert L.) finding that on 05/03/09 applicant had sustained following injuries, cumulatively categorised as “minor”: (a) injuries inflicted by contact with blunt objects with limited surface: closed head injury, concussion, bruises on eyelids, haemorrhage in left eye, abrasions on left side of face, multiple haemorrhages around left shoulder blade, bruises on right wrist and right shin; and (b) injuries inflicted by sharp objects: one wound on each thumb and one wound on right thigh. Report also stated that blood samples taken on 05/03/09 showed that applicant had been in state of “light” alcohol intoxication 4. Other relevant facts and documents: (i) 06/03/09 - decision to institute criminal proceedings against applicant for armed assault on police officers and attempted murder of officer Z (Skadovsk district prosecutor’s office). According to official version of events, on 05/03/09 officers X and Y arrested applicant for public drunkenness and indecent behaviour and were taking him to hospital in car driven by officer Z for alcohol test. Suddenly he took out knife, attempted to kill officer Z, and resisted efforts to restrain him taken by officers Y and X (ii) 17/03/09 - decision to remand applicant in custody (Skadovsk District Court) (iii) 03/09/10 - judgment convicting applicant as charged and sentencing him to eleven years’ imprisonment (Kherson Regional Court of Appeal) (iv) 02/10/12 - decision allowing appeal lodged by applicant, remitting case for reinvestigation and ordering his release from detention (Higher Specialised Court in Civil and Criminal Cases) (v) 28/12/12 - decision to close criminal proceedings against applicant for lack of corpus delicti in his actions (investigator Sh. of Skadovsk district police) It has not been shown that force used against applicant was lawful and absolutely necessary, or that his injuries were wholly caused other than by police ill-treatment (for relevant examples, see Rehbock v. Slovenia , no. 29462/95 , § 76, ECHR 2000‑XII and Sylenok and Tekhnoservis-Plus v. Ukraine , no. 20988/02 , §§ 69-70, 9 December 2010) B. Complaint under Article 3: procedural limb Domestic investigation Key issues 1. Complaint lodged: 09/03/09, with Kherson regional prosecutor 2. Response by authorities: (i) 26/03/09 - decision not to institute criminal proceedings against police: applicant’s injuries had resulted from legitimate application of force to curtail his violent conduct (Skadovskyy district prosecutor’s office) (ii) 03/07/09 - decision rejecting appeal lodged by applicant as belated (Skadovsk District Court) (iii) 03/09/10 - judgment convicting applicant, which relied on findings made by prosecutor’s office in decision of 26/03/09 (Kherson Regional Court of Appeal) (iv) 02/10/2012 - decision quashing conviction and remitting case for re-investigation (Higher Specialised Court), which indicated that investigation was flawed and one-sided, whereas applicant’s version of events had not been duly verified 3. Present status: Way in which applicant’s injuries were inflicted has not been established (i) No full-scale investigation, only pre-investigation inquiry (for relevant examples, see, mutatis mutandis , Davydov and Others v. Ukraine , nos. 17674/02 and 39081/02, §§ 310-12 , 1 July 2010 ; Lyapin v. Russia , no. 46956/09 , §§ 129 and 132-36, 4 July 2014; and Chernega and Others v. Ukraine , no. 74768/10 , § 167, 18 June 2019) (ii) investigating authorities failed to take action necessary to remedy flaws of investigation indicated by judicial authorities (for relevant examples, see Samardak v. Ukraine , no. 43109/05 , § 45, 4 November 2010; and Serikov v. Ukraine , no. 42164/09, § 83, 23 July 2015) C. Other complaints under well-established case-law Article 3: conditions of detention and Article 13: lack of effective remedies Facility: Kherson pre-trial detention centre (“SIZO”) Period of detention : 18/03/09 - 19/09/12 Specific grievances: confinement in overcrowded cell, furnished with twenty-four beds and occupied by thirty-four to thirty-seven inmates; access to exercise and fresh air for only one hour a day during walk in small, unequipped yard; sleeping in turns in view of lack of beds; lack and poor quality of food D. Just satisfaction Parties’ submissions Court’s award Applicant: Non-pecuniary damage: EUR 40,000 Costs and expenses: 4,360 U. S. dollars (USD ) in legal fees to be transferred directly to Mr A. A. Kristenko, applicant’s lawyer (representation from date of lodging application) Supporting documents: (i) Legal representation contract dated 26/08/09 (ii) Certificate of acceptance of lawyer’s services by applicant, indicating that lawyer had spent forty-three and a half hours on consultations with applicant and preparation of submissions before Court Other relevant information: applicant was granted legal aid (EUR 850) Government: Non-pecuniary damage: claim exorbitant and unsubstantiated Costs and expenses: at Court’s discretion Non-pecuniary damage: EUR 15,000 Costs and expenses: EUR 2,000 to be transferred to applicant’s lawyer directly, as requested plus any tax chargeable to applicant 3. Application no. 8297/10 by Mr Valentin Vladimirovich Koliychuk Ukrainian national born in 1982 and residing in Bila Tserkva represented by Mr M. Tarakhkalo and Ms O. Protsenko, lawyers practising in Kyiv Lodged on 1 February 2010 A. Complaint under Article 3: substantive limb Alleged ill-treatment Key issues 1. Date/place: 21/03/08, during arrest at Baranova street, Zhytomyr 2. Applicant’s description of alleged ill-treatment: Traffic police vehicle suddenly blocked car driven by applicant, obliging him to make emergency stop. Between six and ten traffic police officers surrounded applicant’s car. Officers X and Y dragged him out, punched him in face and head; placed him face down on boot of his car, with hands handcuffed behind back. Officer Y held applicant’s handcuffed hands upwards, while officer Z repeatedly hit him with truncheon in back and buttocks. Officers also poured alcohol and tear gas onto applicant’s face. Eventually they took him to hospital for alcohol test and treatment of his injuries 3. Medical and other evidence: (i) 22/03/08 - Report no. 1369 (Zhytomyr regional substance-abuse clinic) indicating no alcohol in applicant’s blood samples taken on 21/03/08 (ii) 11/04/08 - excerpt from medical record no. 2135 (Hospital of military unit no. A1065 in Zhytomyr) indicating that applicant had received in-patient treatment from 21/03/08 until 11/04/08 for following conditions: closed head injury; concussion; kidney contusion; post-traumatic pyelonephritis; multiple haematomas of lumbar and sciatic areas; multiple abrasions to head, face and torso; nasal contusion; and subcutaneous haemorrhage of right eyelid. Record also indicated that applicant had been taken to hospital at about 3.50 a.m. by traffic police and that at relevant time he had been in state of “clouded consciousness” and unable to speak (iii) photographs featuring applicant with aforementioned injuries and abrasions on wrists (iv) 06/06/08 - report no. 71 (Zhytomyr regional forensic medical examination bureau) concluding that aforementioned injuries could have been sustained in circumstances indicated by applicant, that they were “of medium gravity” and had required extended period of convalescence. It also indicated that officer Z’s version of events was improbable (according to him, bruises on applicant’s back could have resulted from three or four truncheon blows inflicted by him while applicant had been on his feet and attempting to hit police officers) (v) 04/08/08 and 25/03/09 - certificates nos. 62/1078 and 813/91 (border guard service hospital) indicating that applicant had received in-patient treatment from 16/04/08 until 16/05/08; from 09/07/08 until 01/08/08 and from 25/02/09 until 25/03/09 for after-effects of head injury and concussion (vi) 20/05/09 - report no. 30-K (Vinnytsia regional forensic medical examination bureau) stating that (a) bruising in lumbar and sciatic areas could have been inflicted with rubber truncheons; and (b) impossible to establish whether other injuries could have resulted from traffic accident predating applicant’s arrest, as no concrete data concerning any particular accident had been collected by investigation 4. Other relevant facts and documents: (i) 21-27/03/08 - Reports by seven traffic police officers to their superiors, according to which applicant had been arrested because he had attempted to flee from them. Applicant’s conduct had generated major chase, involving up to nine police cars, lasting some forty minutes and causing dangerous traffic situations. Eventually, applicant having hit curb and punctured left-front tyre, he had been forced to make emergency stop. He had then attempted to hit approaching officers with hammer and had punched officer Y in stomach, causing him to fall. Six other officers had then applied “combat techniques” to immobilise and handcuff applicant, and officer Z had hit him with truncheon three to four times (ii) same date, report no. 741 (Zhytomyr regional forensic medical examination bureau), stating that officer Y had sustained one bruise on his stomach and abrasions on his head and elbow, cumulatively categorised as “minor” injuries; those injuries could have been sustained in circumstances described by him (i.e. he had fallen after being punched by applicant) (iii) 23/04/08 and 07/04/08 - judgments convicting applicant of malicious insubordination to lawful demands of police officers and breaches of several provisions of traffic code (administrative offences), and sentencing him to fines (Korolyovskyy District Court in Zhytomyr) (iv) 04/04/08 - decision to institute criminal proceedings against applicant for insubordination to police officers and causing injuries to one of them (Korolyovskyy district prosecutor’s office in Zhytomyr) (v) 28/08/08 - decision to close criminal proceedings against applicant on account of lack of corpus delicti in his actions (Zhytomyr garrison military prosecutor’s office, to which case had been transferred) Regard being had to nature, gravity and dispersed location of applicant’s injuries and account of arrest operation, notably, number of officers involved, it has not been shown that the force applied during applicant’s arrest was “proportionate” or that any of his injuries predated his arrest (for relevant examples, see Rehbock v. Slovenia , no. 29462/95 , § 76, ECHR 2000‑XII and Danilov v. Ukraine , no. 2585/06 , §§ 64-67, 13 March 2014) B. Complaint under Article 3: procedural limb Domestic investigation Key issues 1. Complaint lodged: 21/03/08, with Korolyovskyy district prosecutor in Zhytomyr (by applicant’s father) 2. Response by authorities: (i) 31/03/08 - conclusion that traffic police officers had acted lawfully (following internal inquiry by Zhytomyr regional police) (ii) 02/04/08 - decision not to institute criminal proceedings against traffic police officers: no appearance of ill-treatment (Korolyovskyy district prosecutor’s office in Zhytomyr) (iii) 16/10/08 - decision to institute criminal proceedings (General Prosecutor’s Office) (iv) 07/07/09 - decision to close criminal proceedings (Vinnytsia regional prosecutor’s office, to which case had been transferred) (v) 04/11/09 - decision rejecting appeal lodged by applicant against decision to close proceedings (Leninskyy District Court in Vinnytsia) (vi) 20/11/09 - decision rejecting further appeal lodged by applicant (Vinnytsia Regional Court of Appeal) 3. Findings: (i) Hematomas in lumbar and sciatic areas probably resulted from legitimate application of truncheon by officer Z to immobilise applicant, who had been resisting arrest (ii) Origin of applicant’s head and facial injuries impossible to establish; possibly sustained before encounter with police, notably, while making emergency stop and hitting himself against parts of own car, or in previous traffic accident or some other incident 4. Other relevant facts: Applicant was not accorded victim status during investigation: he was questioned as “witness” (i) Delay in instituting criminal proceedings leading to loss of evidence (for relevant examples, see Oleksiy Mykhaylovych Zakharkin v. Ukraine , no. 1727/04 , §§ 68-69, 24 June 2010 and Savitskyy v. Ukraine , no. 38773/05 , § 105, 2 July 2012) (ii) investigation did not determine origin of applicant’s head and facial injuries or disprove his relevant allegations (also confirmed by medical experts) that those, as well as his back injuries, had been inflicted by police after he had been handcuffed (for relevant examples, see Yaroshovets and Others , cited above, § 80, and Barysheva v. Ukraine , no. 9505/12 , § 60, 14 March 2017) (iii) no attempt was made to assess “necessity” of repeated truncheon blows to applicant’s back and buttocks to immobilise him during arrest operation (for relevant example, see Sadkov v. Ukraine , no. 21987/05 , § 96, 6 July 2017) (iv) 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) C. Just satisfaction Parties’ submissions Court’s award Applicant: Non-pecuniary damage: EUR 50,000 Costs and expenses: EUR 5,250 in legal fees to be transferred directly to Mr M. Tarakhkalo, one of applicant’s lawyers (representation from date of lodging application) Supporting documents: (i) legal representation contract dated 15/01/10 (ii) certificate of acceptance of lawyer’s services by applicant, indicating that lawyer had spent thirty-five hours on consultations with him and preparation of submissions before Court Other relevant information: applicant granted legal aid (EUR 850) Other requests: applicant also requested that Court indicate to Government of Ukraine under Article 46 of Convention that national legislation be amended with a view to regulating more scrupulously scope of police officers’ discretion in application of force Government: Non-pecuniary damage: claim exorbitant and unsubstantiated Costs and expenses: claim exorbitant Response to request under Article 46 : no need to amend applicable legislative framework Non-pecuniary damage: EUR 15,000 Costs and expenses: EUR 2,000 to be transferred to applicant’s lawyer (Mr Tarakhkalo) directly, as requested plus any tax chargeable to applicant Article 46: No need to indicate requested measure (see Magnitskiy and Others v. Russia , nos. 32631/09 and 53799/12, §§ 295-97, 27 August 2019) BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII