CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 22 septembre 2022

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UKRAINE (Application no. 16495/13)             JUDGMENT     STRASBOURG 22 September 2022       This judgment is final but it may be subject to editorial revision.   In the case of Kulayev and Others v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:   Stéphanie Mourou-Vikström , President,   Lado Chanturia ,   Mykola Gnatovskyy , Judges, and Martina Keller, Deputy Section Registrar, Having regard to: the application (no.   16495/13) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 9   February   2013 by a Georgian, a Ukrainian and two Russian nationals, whose details are listed in the appendix (“the applicants”), represented by Mr   M.   Geyets, a lawyer practising in Kharkiv, subsequently replaced by Mrs   V.   Petruk, a lawyer practising in Chugyiv; the decision to give notice of the complaints set out in paragraph one below to the Ukrainian Government (“the Government”), represented by their Agent, Mr   I.   Lishchyna, and to declare the remainder of the application inadmissible; the parties’ observations; Having deliberated in private on 1 September 2022, Delivers the following judgment, which was adopted on that date: SUBJECT MATTER OF THE CASE 1.     The case concerns alleged ill-treatment by the police (all applicants); alleged ill-treatment by a warden in a detention facility (first applicant); lack of an effective investigation in respect of the ill-treatment allegations; allegedly unlawful deprivation of liberty; entry and search of the applicants’ home; and monitoring of their correspondence in detention. The applicants invoke Articles 3, 5 § 1 and Article 8 of the Convention. 2.     The applicants alleged, in particular, that on 21 April 2012, while they were sleeping, the police had groundlessly stormed and entered their flat by breaking down the door, handcuffed them, and conducted an unlawful search. The applicants were subsequently taken to the Kharkiv organised crime police office (“UBOZ”), held in undocumented detention and tortured to incriminate themselves as having committed an armed robbery in another town. Poorly reasoned arrest reports were subsequently drawn up, wrongly indicating that the applicants had been arrested at 2 p.m., in the UBOZ office. It was not until the afternoon of 24 April 2012, that is, after the expiry of the maximum seventy-two-hour period allowed by the domestic law for police detention, that the applicants were brought before a judge who decided to remand them in custody. The applicants’ subsequent complaints to various authorities concerning the breaches of their rights had resulted in a superficial and ineffective inquiry. In addition to the above, prison officers had monitored the applicants’ correspondence with the authorities. 3.     The first applicant also alleged that on 15   September   2013, M., a warden in the Kharkiv pre-trial detention facility (SIZO), had kicked him in the groin, causing him trauma with lasting effects. The first applicant’s complaints lodged with the prosecutor’s office were dismissed without a full ‑ scale investigation, because the wardens denied that the incident had taken place and no relevant medical record had been made. 4.     The parties have provided, in particular, the following documents concerning the events of 21 April 2012: (a)     Statements by several police officers, given on various dates, indicating that at about 4   a.m. on 21   April   2012 they had stormed the applicants’ flat and arrested them, because they disposed of “operational data” that the perpetrators of an armed robbery committed several hours before in Vovchansk (another town) were in that flat; (b)     A report on the incident site inspection (21   April   2012) indicating that between 5 a.m. and 6.15 a.m. the police searched the aforementioned flat (legal grounds not indicated) and seized a sum of money and a list of other items; (c)     Police arrest reports (21 April 2012) indicating that the applicants were arrested in the UBOZ premises at 2   p.m. on 21   April   2012 on the following statutory grounds set out in Article   115 of the Criminal Procedure Code: “(1) when a person is caught while committing an offence or immediately after having committed it; (2) when eyewitnesses, including the victim, directly indicate that that person is the perpetrator of the offence; [and] (3)     when apparent traces of the offence are detected on the suspect, on his or her clothing, in his or her possession, [or] in his or her dwelling.” Those reports contain no further explanation linking the above statutory grounds to the applicants’ specific case; and (d)     Records of the applicants’ examinations by medical staff at the police detention facility (ITT; 21 April 2012) and by a forensic expert (same date) - indicating the presence of minor injuries (see the appendix for details). 5.     On 24 April 2012 the applicants, who pleaded guilty, were taken to the Kyivskyi District Court in Kharkiv, which remanded them in custody. 6.     On 12 December 2012 the Chervonozavodskyi District Court in Kharkiv, before which the applicants were committed to stand trial, informed the Kharkiv regional prosecutor that the applicants had retracted their confessional statements as having been given as a result of alleged torture, and requested that he enquire into that matter. Subsequently, on a number of occasions the applicants lodged complaints with various authorities, seeking a criminal investigation into the allegedly arbitrary intrusion by the police into their home, their arrest, and alleged ill-treatment. Several sets of criminal proceedings were instituted, in which the applicants, questioned as witnesses, were, however, denied victim status. After several rounds of closures and re ‑ openings of the proceedings in view of procedural flaws, the last set was closed on 4   November   2015 on the ground that no breaches of the applicants’ rights had taken place. The decision relied, primarily, on the statements given by Ch. and other police officers. It contained no findings concerning the possible origin of the applicants’ documented injuries and no explanations concerning the grounds for breaking into and searching of their flat or other complaints raised by the applicants. In its final decision of 4   February   2016, the Kharkiv Regional Court of Appeal dismissed an appeal by the applicants. 7.     On 28   September   2016 the Chervonozavodskyi District Court convicted the applicants of the armed robbery and sentenced them to various prison terms. The court considered that the applicants’ allegations of ill ‑ treatment were unsubstantiated and that the reported minor injuries could “possibly” have been sustained by them during arrest. The court did not examine any further the circumstances of the arrest or the proportionality of the force used to effect it. The judgment was not appealed against and became final on 17   October   2016. THE COURT’S ASSESSMENT           Alleged violation of Article 3 of the Convention on account of ill-treatment by the police and ineffective investigation 8.     The Government submitted no admissibility objections in respect of this complaint. They argued that there was no breach of Article 3 of the Convention, as there was no evidence that the applicants had been ill-treated, and the relevant inquiries had been prompt and effective. 9.     Reviewing the present complaints in the light of the general principles established in its case-law (see, in particular,   Bouyid v.   Belgium   [GC], no.   23380/09, §§   81-90 and 114-23, ECHR 2015), the Court notes that the origin of the applicants’ documented injuries has not been clearly established, and considers that the domestic investigation did not reflect a serious effort to verify their ill-treatment allegations. 10.     In particular, the applicants were not granted victim status in the relevant proceedings, which were repeatedly closed and reopened in view of various procedural omissions. Notwithstanding the repeated re ‑ investigations, there is no appearance that a genuine effort was made to reconcile the discrepancies between the applicants’ and the police officers’ accounts, in particular by organising face-to-face confrontations, or to verify the compatibility of the applicants’ allegations with objective medical evidence. The final conclusions were reached, instead, essentially, on the basis of the statements of police officers taken at face value. In the light of its findings in a number of other cases (see, in particular,   Kaverzin v. Ukraine , no.   23893/03, §§   108-18 and 173-80, 15   May 2012) the Court considers that the investigation of the applicants’ ill-treatment complaints fell short of the Article   3 requirements. 11.     The Court further notes that in the present case the respondent State provided no plausible satisfactory and convincing explanation as to the origin of the applicants’ injuries and did not disprove that they had been inflicted at the hands of the police. While the available medical and other objective evidence (see appendix) is insufficient to corroborate the applicants’ allegations that they had been subjected to torture in custody, given the onus on the State to provide a plausible explanation for injuries sustained by persons under the control of the police, including during an arrest operation (see   Bouyid , cited above, §   83 and Sadkov v. Ukraine , no.   21987/05, §   101, 6   July   2017) the Court concludes that the State’s responsibility for the applicants’ ill-treatment, to be qualified as inhuman and degrading, is engaged. 12.     The present complaints are therefore admissible and disclose breaches of Article 3 of the Convention under its substantive and procedural limbs.      OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW 13.     Having examined all the material before it, the Court dismisses the Government’s non-exhaustion arguments concerning the applicants’ complaints lodged under Articles 5   §   1 and 8 of the Convention. It finds that the three examples of domestic judgments by first-instance civil and administrative courts awarding compensation to claimants for unlawful deprivation of liberty and searches, presented by the Government in support of that argument, are based on materially different facts. The first two judgments concerned situations where the unlawfulness of the police conduct had been previously recognised in other (criminal) proceedings. The third one concerned a handcuffing and forcible taking of a witness to the police for the taking of evidence. The Court further notes that one of those judgments was quashed on appeal (see Dubovych v. Ukraine , nos.   47821/10 and 66460/12 [Committee], §§   9-13, 22   July   2021) and that it is not evident whether the other two judgments had ever become final. 14.     The Court furthermore finds that the following complaints are admissible and disclose violations of the Convention in the light of its well ‑ established case-law: (a)     Article   3, in respect of the first applicant, on account of the authorities’ failure to investigate his allegations of ill-treatment by a prison warden on 15   September   2013, including, in particular, by organising a medical examination, in the light of the Court’s findings in Bouyid and Kaverzin (both cited above); (b)     Article   5   §   1, on account of the delayed and inaccurate documentation of the applicants’ arrest, without indication of due reasons for it, in the light of the Court’s findings in Grinenko v. Ukraine (no.   33627/06, §§   74-78 and 81-84, 15   November   2012), and Belousov v.   Ukraine (no.   4494/07, §§   73, 79 ‑ 85, 7 November 2013); and (c)     Article   8 in the light of the Court’s findings, mutatis mutandis, in Koval and Others v. Ukraine (no.   22429/05, §§   110-13, 15   November   2012); Belousov (cited above, §§   103-08); and Zosymov v.   Ukraine (no.   4322/06, §§   51 and 61-62, 7   July   2016), as it is not discernible from the file what the legal basis was for the search of the applicants’ flat and the seizure of the items documented in the Report on the incident site inspection , which referred to an offence that had taken place in another town. 15.     Regard being had to the above findings, the Court considers that it has addressed the main legal questions raised by the applicants and it is not necessary to address the remaining arguments and complaints raised by them under the above Convention provisions ( see Centre for Legal Resources on behalf of Valentin Câmpeanu v.   Romania [GC], no.   47848/08, §   156, ECHR 2014). APPLICATION OF ARTICLE 41 OF THE CONVENTION 16.     The first applicant claimed 131,000 euros (EUR) and the other applicants claimed EUR   109,000 each in respect of non-pecuniary damage. The applicants also claimed EUR   900 in legal fees, providing no documents indicating that that payment had been made by them or is due. The first applicant additionally claimed EUR   720 in postal, copying, and translation expenses. He submitted some receipts. 17.     The Government invited the Court to reject all the claims as exorbitant and unsubstantiated. 18.     Ruling on an equitable basis and having regard to the documents in its possession, the Court considers it reasonable to award the applicants EUR   15,000 each in respect of non-pecuniary damage. It further awards the first applicant EUR   200 covering costs and expenses under all heads. 19.     The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, Declares the complaints concerning alleged ill-treatment, lack of effective investigation in that respect, allegedly unlawful deprivation of liberty on account of delayed and inaccurate documentation of the applicants’ arrest, and an allegedly unlawful search of their flat, admissible; 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 lodged by all applicants concerning alleged police ill-treatment; Holds that there has been a violation of Article 3 of the Convention in respect of the complaint raised by the first applicant concerning failure to conduct an effective investigation into his alleged ill-treatment by a prison warden on 15 September 2013; Holds that there has been a violation of Article 5 §   1 of the Convention in respect of all applicants; Holds that there has been a violation of Article 8 of the Convention in respect of all applicants on account of the search of their flat; Holds   that it is not necessary to examine the admissibility and merits of other complaints raised by the applicants; Holds (a)   that the respondent State is to pay the applicants, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i)   EUR 15,000 (fifteen thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to each applicant; (ii)   EUR   200 (two hundred euros), plus any tax that may be chargeable to the first applicant, in respect of costs and expenses, to the first applicant only; (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; Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 22 September 2022, pursuant to Rule   77   §§   2 and 3 of the Rules of Court.     Martina Keller   Stéphanie Mourou-Vikström   Deputy Registrar   President APPENDIX List of applicants No. Applicant Year of birth Nationality Residence   Documented injuries 1. Vasi Dudarovich KULAYEV 1979 Georgian Kharkiv (a)     Alleged police ill-treatment: (i)     ITT (police detention facility) record (21   April   2012): multiple abrasions (back); bruise and abrasions (left shoulder); swollen wrists, and haematomas under eyes; (ii)     Report no.   1185 (expert D., Kharkiv forensic medical bureau; examination on 21 April 2012): multiple abrasions (back), sustained within one day of the examination. (b)     Alleged ill-treatment by warden M. on 15 September 2013: Handwritten affidavits by several inmates. 2. Aslan Nikolayevich ALBOROV 1986 Russian Kharkiv (i)     ITT record (21   April 2012): haematoma (back); (ii)     Report no.   1186 (expert D., Kharkiv forensic medical bureau; examination on 21 April 2012): hyperaemia of soft tissues on the back, measuring 15 x 8 cm. 3. James Tamerlanovich BESTAYEV 1982 Ukrainian Kharkiv (i)     ITT record (21 April 2012): abrasions (left arm, temples); (ii)     Report no.   1183 (expert D., Kharkiv forensic medical bureau; examination on 21   April   2012): abrasions (forehead, chest), inflicted within one day of the examination. 4. Anatoliy Ruslanovich PLIYEV 1984 Russian Kharkiv (i)     ITT record (21   April   2012): abrasions (back, arms, forehead, nose, under left eye, right cheekbone); (ii)     Report no.   1184 (expert D., Kharkiv forensic medical bureau; examination on 21 April 2012): multiple abrasions (back), sustained within one day of the examination.