CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 10 octobre 2024

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UKRAINE (Applications nos. 19524/13 and 6 others – see appended list)             JUDGMENT   STRASBOURG 10 October 2024   This judgment is final but it may be subject to editorial revision. In the case of Sysoyeva and Others v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:   Kateřina Šimáčková , President ,   Mykola Gnatovskyy,   Artūrs Kučs , judges , and Viktoriya Maradudina, Acting Deputy Section Registrar, Having deliberated in private on 19 September 2024, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in applications against Ukraine lodged with the Court under Article   34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table. 2.     The Ukrainian Government (“the Government”) were given notice of the applications. THE FACTS 3.     The list of applicants and the relevant details of the applications are set out in the appended table. 4.     The applicants complained of the ineffective investigation into ill ‑ treatment inflicted by private parties. In application no.   43020/19, the applicant also raised other complaints under the provisions of the Convention. THE LAW JOINDER OF THE APPLICATIONS 5.     Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. ALLEGED VIOLATION OF ARTICLE 3 of the Convention 6.     The applicants complained principally of the ineffective investigation into ill-treatment inflicted by private parties. They relied, expressly or in substance, on Article   3 of the Convention. 7.     The Court notes at the outset that the treatment in question fell within the scope of Article 3 of the Convention. The Court reiterates that Article   3 of the Convention requires that the authorities conduct an effective official investigation of alleged ill‑treatment, even if such treatment has been inflicted by private individuals (see M.C. v. Bulgaria , no. 39272/98, §   151, ECHR   2003‑XII, and Denis Vasilyev v. Russia , no.   32704/04, §   99, 17   December 2009). The minimum standards of effectiveness laid down by the Court’s case-law include the requirements that the investigation must be independent, impartial and subject to public scrutiny, and that the competent authorities must act with exemplary diligence and promptness (see, mutatis mutandis , Menesheva v. Russia , no.   59261/00, § 67, ECHR 2006-III). 8.     The procedural requirements of Article 3 go beyond the preliminary investigation stage when the investigation leads to legal action being taken before the national courts: the proceedings as a whole, including the trial stage, must meet the requirements of Article 3. This means that the domestic judicial authorities must on no account be prepared to let the physical or psychological suffering inflicted go unpunished. This is essential for maintaining the public’s confidence in, and support for, the rule of law and for preventing any appearance of the authorities’ tolerance of or collusion in unlawful acts (see, mutatis mutandis, Okkalı v. Turkey , no. 52067/99, §   65, ECHR   2006 XII (extracts)). 9.     Reviewing the facts of the present case in the light of those principles, the Court considers that the authorities, who were empowered to open and conduct a criminal investigation, did not make a genuine attempt to take a prompt and thorough examination of the matter, establish the facts and, if necessary, bring those responsible to account. The specific shortcomings are indicated in the appended table. 10.     In the leading case of Muta v. Ukraine (no. 37246/06, 31   July 2012) the Court already found violations in respect of issues similar to those in the present case. 11.     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 these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the investigations failed to meet the criteria of effectiveness. 12.     These complaints are therefore admissible and disclose a breach of Article   3 of the Convention under its procedural limb. OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW 13.     In application no.   43020/19, the applicant submitted other complaints under Articles 6 and 13 of the Convention, given the relevant well-established case-law of the Court (see appended table). These complaints are not manifestly ill-founded within the meaning of Article   35   §   3   (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 they also disclose violations of the Convention in the light of its findings in the well-established case-law set out in the appended table. APPLICATION OF ARTICLE   41 OF THE CONVENTION 14.     Regard being had to the documents in its possession and to its case ‑ law (see, in particular, Pobokin v. Ukraine, no. 30726/14, 6   April 2023), the Court makes no award in application no.   19524/13 since the applicant failed to submit her just satisfaction claims in accordance with Rule 60 of the Rules of Court. The Court further considers it reasonable to award the sums indicated in the appended table to the remaining applicants and rejects the remainder of the applicant’s claims for just satisfaction in application no.   55886/18. FOR THESE REASONS, THE COURT, UNANIMOUSLY, Decides to join the applications; Declares the applications admissible; Holds that these applications disclose a breach of Article 3 of the Convention concerning the ineffective investigation into ill-treatment inflicted by private parties; Holds that there has been a violation of the Convention as regards the other complaints raised under the well-established case-law of the Court (see appended table); Holds (a)   that the respondent State is to pay the applicants, save for the applicant in application no.   19524/13, 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; (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 applicant’s claims for just satisfaction in application no. 55886/18. Done in English, and notified in writing on 10 October 2024, pursuant to Rule   77   §§   2 and   3 of the Rules of Court.     Viktoriya Maradudina   Kateřina Šimáčková   Acting Deputy Registrar   President     APPENDIX List of applications raising complaints under Article 3 of the Convention (ineffective investigation into ill-treatment inflicted by private parties or in circumstances that exclude involvement of State agents) No. Application no. Date of introduction Applicant’s name Year of birth Representative’s name and location Background to the case and domestic proceedings Key issues Other complaints under well-established case-law Amount awarded for non-pecuniary damage per applicant (in euros) [1] Amount awarded for costs and expenses per application (in euros) [2]     19524/13 04/03/2013 Ganna Sergiyivna SYSOYEVA 1992   On 20/12/2008, during a rehearsal at school, one of the students, U., threw a rope in the applicant’s direction (the applicant being a minor at the material time). The rope hit her in an eye. The applicant suffered a medium severity injury, which resulted in a life-long vision disability. On 20/01/2009 the applicant (represented by her mother at the material time) complained to the police, which, having carried out pre-investigation inquiries, refused to institute criminal proceedings by a decision of 29/01/2009. However, the prosecutor quashed that decision and ordered further investigation. After a forensic examination had been carried out, on 14/09/2009 the criminal proceedings were officially instituted against U. for negligent infliction of a medium- severity injury. On 07/10/2009 a forensic medical examination was ordered, with a subsequent one on 17/11/2009; another examination was ordered on 22/03/2010. On 30/12/2010 the investigator terminated the proceedings due to the lack of evidence of a crime. On 12/01/2011 the prosecutor quashed that decision having found that the investigation in the case had not been sufficiently thorough; on 28/04/2011 the prosecutor provided his instructions as to further investigative actions in the case. On 14/06/2011 a repeated medical examination was ordered, and another one on 12/02/2013. On 28/03/2014 the investigator terminated the criminal proceedings again. On 22/04/2014 a local court quashed that decision having found that: (i) the investigator had failed to consider different versions of the events in questions, to take into account the controversy between the applicant’s and the perpetrator’s statements; (ii) the investigator had not executed the prosecutor’s instructions of 28/04/2011 and 24/12/2013; (iii) it was necessary to carry out further investigative actions in the case. On 29/06/2017 the investigator terminated the proceedings with the conclusion that there had been no guilt on the perpetrator’s side, and he could not have foreseen the consequences of his negligent behaviour. Failure to take the necessary steps to investigate the case thoroughly ( Skorokhodov v. Ukraine , no. 56697/09, §§ 34-35, 14 November 2013);     repeated remittal of the case for additional investigation ( Muta v. Ukraine , no. 37246/06, § 64, 31 July 2012);     shortcomings recognised by the national authorities themselves ( Muta v. Ukraine , no. 37246/06, § 65, 31 July 2012)   - -     55886/18 19/11/2018 Viktor Mykolayovych KALIBSKYY 1973 Tarakhkalo Mykhaylo Oleksandrovych Kyiv On 22 September 2007 the applicant was beaten by a private person, T. A forensic medical examination established that the applicant had suffered bodily injuries of medium severity. Shortly afterwards, on an unspecified date, criminal proceedings were instituted against T. On 14 August 2008 the applicant was again subjected to a forensic medical examination. The parties did not submit any information about developments in the criminal proceedings between 2007 and 2011. On 27 July 2011 the Starobysheve Court sentenced T. to two years of public works. It also ordered him to pay the applicant UAH 10,500 in compensation for pecuniary and non-pecuniary damage. On 15 June 2012 the Donetsk Regional Court of Appeal quashed that judgment following appeals lodged by the applicant and the prosecutor and remitted the case to the first instance court for a fresh consideration. On 4 September 2013 the Starobysheve Court terminated criminal proceedings against T. as time-barred. On 12 December 2013 the Donetsk Regional Court of Appeal quashed that decision following the applicant’s appeal and remitted the case to the first instance court for a fresh consideration. On 12 March 2014 the Starobysheve Court again closed the proceedings as time-barred, but that decision was quashed following the applicant’s appeal. The case was remitted to the Starobysheve Court, which received the casefile on 14 July 2014. In August 2014 Starobysheve was occupied by the military units controlled by the Russian Federation before the casefile could be transmitted to the territory controlled by the Ukrainian Government. On 24 December 2015 the Tokmak Court refused the applicant’s request to restore the casefile. The court noted that under the legislation then in force only proceedings which ended in a verdict could be restored and that the applicant did not provide sufficient documentary proof that the casefile had been lost. In 2017 the applicant lodged further requests for restoration of the case file, but to no avail. Groundless and significant periods of inactivity ( Muta v. Ukraine , no. 37246/06, § 65, 31 July 2012);   overall protracted character of the investigation and court proceedings ( Muta v. Ukraine , no. 37246/06, § 65, 31 July 2012)   3,000 250     43020/19 05/08/2019   AND   33807/20 19/07/2020 Valeryan Oleksandrovych GORBACHOV 1952     At the material time the applicant was the editor-in-chief of a local newspaper. On 27/08/2008 he was shot at and wounded. On 06/09/2008 the police refused to institute criminal proceedings into these events. Twenty days later criminal proceedings on suspicion of hooliganism were nevertheless instituted. During 2008-2009 the investigation carried out 6 forensic examinations. On 28/12/2011 the criminal proceedings were suspended for failure to identify a perpetrator. On 05/01/2012 the decision on suspension was quashed due to the investigation being incomplete. In 2012 an investigator was held disciplinary liable for long decision-making in the criminal proceedings. In 2013 identification of the alleged perpetrator and simultaneous interrogation of the applicant with him were conducted. In 2013-2021 prosecutors and investigators in the case changed several times. There is no indication that any investigating measures were performed during that period. In 2023 the investigating authorities questioned several witnesses and sent requests for information. Failure to take the necessary steps to investigate the case thoroughly ( Skorokhodov v. Ukraine , no. 56697/09, §§ 34-35, 14 November 2013);   groundless and significant periods of inactivity ( Muta v. Ukraine , no. 37246/06, § 65, 31 July 2012);   overall protracted character of the investigation and court proceedings ( Muta v. Ukraine , no. 37246/06, § 65, 31 July 2012);   shortcomings recognised by the national authorities themselves ( Muta v. Ukraine , no. 37246/06, § 65, 31 July 2012) Art. 13 - lack of any effective remedy in domestic law in respect of excessive length of civil proceedings – (see Karnaushenko   v. Ukraine , no. 23853/02, §§ 70 and 75, 30 November 2006);   Art. 6 (1) - excessive length of civil proceedings – the applicant had a status of a civil claimant and victim in the criminal proceedings related to fraud which lasted from 26/04/2010 to 21/05/2020, that is for slightly over 10 years before 3 levels of jurisdiction (see Karnaushenko v. Ukraine , no. 23853/02, §§ 70 and 75, 30 November 2006) 3,900 -     51548/19 20/09/2019 Dmytro Borysovych YUROVSKYY 1978     On 29/09/2014 the applicant was assaulted by a group of individuals. He was diagnosed with a concussion and broken nose. On the same day criminal proceedings on brigandage were instituted; the applicant was granted victim status. In October 2014 the applicant had a nose surgery and stayed in a hospital for ten days. According to the findings of a forensic medical examination of 05/11/2014, the applicant sustained a closed nasal trauma and facial and bodily bruises, that were qualified as light bodily injuries. During 2014-2015 six forensic examinations were performed. On 14/12/2018 a prosecutor provided investigators with instructions as regards the investigation. On 11/01/2019 the prosecutor informed the applicant that the investigation was ineffective and that an issue of an internal audit of the investigators had been raised. On 16/08/2019 a reconstruction of events was conducted, during which the applicant confirmed the circumstances of the incident and pointed to specific individuals who had assaulted him. On 24/01/2020 the prosecutor provided the investigators with instructions for further investigation, namely the instruction to examine available video recordings to identify the persons present. During 2014-2021 the applicant repeatedly asked the investigators and prosecutors to conduct the investigating measures, to adhere to reasonable terms, and to add an attempted murder to the list of charges. However, these requests were ignored. On 01/12/2020 an investigating judge found the investigators’ inactivity unlawful and obliged them to add an attempted murder to list of charges within 24 hours and to re-interrogate the applicant within 3 days. An attempted murder was added to the legal qualification shortly after. On 01/03/2021 at the applicant’s request the State Bureau of Investigation (the SBI) instituted criminal proceedings on official negligence of the investigators and prosecutors. On 16/04/2021 the investigating judge dismissed the prosecutors and investigators from the applicant’s case due to a potential conflict of interest arising from the SBI’s investigation against them. On 30/06/2023 a new investigating team was assigned to the case. In 2023 the investigating authorities sent several requests for information and questioned a witness. Failure to take the necessary steps to investigate the case thoroughly ( Skorokhodov v. Ukraine , no. 56697/09, §§ 34-35, 14 November 2013);   groundless and significant periods of inactivity ( Muta v. Ukraine , no. 37246/06, § 65, 31 July 2012); overall protracted character of the investigation and court proceedings ( Muta v. Ukraine , no. 37246/06, § 65, 31 July 2012);   shortcomings recognised by the national authorities themselves ( Muta v. Ukraine , no. 37246/06, § 65, 31 July 2012);   failure to secure the applicant’s right to participate effectively in the investigation ( Chernega and Others v. Ukraine , no. 74768/10, § 165-166, 18 June 2019, with further references).   3,000 -     20646/23 04/05/2023 Sergiy Sergiyovych ISTOMIN 1986 Mulko Anatoliy Volodymyrovych Solone On 10/10/2017 criminal proceedings into the fact of inflicting bodily injuries on the applicant were opened; the applicant was granted victim status. Between 2017 and 2023 the criminal proceedings were closed ten times due to the lack of evidence of a crime. All the resolutions on closure were subsequently quashed by prosecutors and investigating judges (the last resolution of 21/12/2022 was quashed by the investigating judge on 28/02/2023). The prosecutors and the investigating judges concluded that necessary investigative measures had not been conducted, while the criminal investigation itself had been superficial. Failure to take the necessary steps to investigate the case thoroughly ( Skorokhodov v. Ukraine , no. 56697/09, §§ 34-35, 14 November 2013);   groundless decisions to close or suspend the case ( Aleksandr Nikonenko v. Ukraine , no. 54755/08, §   45, 14 November 2013)   3,000 250     23325/23 17/05/2023 Artem Pavlovych GAGARSKYY 1989   Tetyana Gennadiyivna VYSHNYA 1989   The applicants are a couple. On 20/08/2021 a conflict broke out near their home in Dnipro: a certain G. allegedly threatened them with a pneumatic gun and then sprayed them with tear gas, which resulted in minor bodily injuries. Immediately after the incident, the applicants lodged their criminal complaints with the Dnipro District Police Department in the Dnipropetrovsk Region. The relevant criminal investigation was launched on 11/09/2021, after the applicants’ complaints against the police for failure to investigate had been allowed by an investigating judge. Nine days later the police investigator terminated the proceedings due to the lack of evidence of any crime. This decision was set aside by the Livoberezhna Circuit Prosecutor’s Office of Dnipro as premature since no investigative steps were taken. On 29/10/2021 G.’s wrongdoing was qualified as aggravated hooliganism. During the investigation, the investigator refused to acknowledge the applicants’ victim status, to consider their motions as to investigative measures to be carried out and to give them access to the case file materials. These numerous refusals were set aside as ill-reasoned by the prosecutor or the investigating judge of the Industrialnyy District Court of Dnipro. Upon the applicants’ complaints, the judge also recused five police investigators and prosecutors. The investigator several times terminated the proceedings referring to the lack of constituent elements of any crime in G.’s actions. These decisions were set aside either by the prosecutor as premature or by the investigating judge due to the failure to establish all the essential circumstances of the case. The last such decision was delivered on 13/04/2023 by the Dnipro Regional Court of Appeal and on 12/06/2023 the investigation was resumed. On 30/11/2023 an indictment against G. was sent to a court. According to the Government, the trial is currently pending. Failure to secure the applicant’s right to participate effectively in the investigation ( Chernega and Others v. Ukraine , no. 74768/10, § 165-166, 18 June 2019, with further references);   failure to take the necessary steps to investigate the case thoroughly ( Skorokhodov v. Ukraine , no. 56697/09, §§ 34-35, 14 November 2013);   groundless decisions to close or suspend the case ( Aleksandr Nikonenko v. Ukraine , no. 54755/08, §   45, 14 November 2013);   shortcomings recognised by the national authorities themselves ( Muta v. Ukraine , no. 37246/06, § 65, 31 July 2012).   3,000 -   [1] Plus any tax that may be chargeable to the applicants. [2] Plus any tax that may be chargeable to the applicants.