CEDH · CASELAW;COMMUNICATEDCASES;ENG — 5 juillet 2019

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s3635F015 { margin-top:14pt; margin-left:29.2pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .sA36B60A1 { font-family:Arial; font-style:italic } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .sC36A6361 { font-family:Arial; color:#000000 } Communicated on 5 July 2019   FIFTH SECTION Application no. 49391/12 Roman Anatolyevich KOROLEV against Ukraine lodged on 20 July 2012 STATEMENT OF FACTS The applicant, Mr Roman Anatolyevich Korolev, is a Ukrainian national, who was born in 1979 and lives in Melitopol. The facts of the case, as submitted by the applicant, may be summarised as follows. As of April 2012 the applicant was a police officer. A .     Proceedings against the applicant On 7 April 2012, at about 10.30 a.m., while the applicant was in a cobbler’s workshop, he was approached by police officers A.B. and A.D. The officers alleged that he had taken a bribe from a certain Y.B. some minutes before. In presence of H.B. (the cobbler), and several lay witnesses, handcuffs were put on the applicant. The officers inspected his belongings and documented on a video and in a written report that an envelope containing 500 hryvnias (UAH) [1] was extracted from the applicant’s document case. At about 1.30 p.m. the officers took the applicant from the cobbler’s shop to the police office for questioning and further paperwork. At about 4.30 p.m. he was brought to an alcohol testing centre, where it was established that he was sober. At an unspecified time on the same day the applicant was released pending further inquiry into his suspected offence. On 25 April 2012 Y.D., assistant of the Melitopol Inter-district prosecutor, decided that the sum of money at stake being insignificant, the applicant’s criminal prosecution was unwarranted and instead he should be prosecuted for an act of corruption under the Code of Administrative Offences. On 28 April 2012 Y.D. drew up a report on this administrative offence and referred the case to the Melitopol Court. On 6 June 2012 the Melitopol Court found the applicant guilty as charged and sentenced him to a fine of UAH 1,700. Before having arrived at its conclusions, the court had examined the video-recording of the applicant’s arrest and inspection of his belongings, other material and documentary evidence. It also had heard numerous witnesses, including Y.B., who had submitted that he had given UAH 500 to the applicant as a bribe solicited by him in exchange for not interfering with the activity of the local farmers’ market during one week. On 3 July 2012 the Zaporizhzhia Regional Court of Appeal dismissed the applicant’s appeal against his conviction. On 24 July 2012 the applicant was dismissed from the police in view that his conviction of having committed an act of corruption had become final. B.     Investigation of the applicant’s complaints concerning ill ‑ treatment and arbitrary deprivation of liberty On 7 April 2012, at about 5.40 p.m., the applicant came to the Melitopol municipal hospital complaining about headache, vertigo, swelling in the hands and numerous bruises and abrasions in various body parts. He was placed on in-patient treatment and diagnosed with cerebral concussion, haemorrhage in the left eye, traumatic oedema of the soft cerebral tissues; abrasions on the wrists and bruising on both shoulders, hips, knees, legs, left side of the abdomen, and chest. On the same date the applicant lodged a criminal complaint with the Melitopol Police alleging that the aforementioned injuries resulted from ill ‑ treatment by police officers A.B. and A.D., cobbler H.B., and two lay witnesses, who had been present during his encounter with them in the cobbler’s shop earlier on that day. He alleged that the aforementioned persons had groundlessly attacked, kicked, punched, strangled and pushed him on the ground and then dragged him inside the cobbler’s shop to carry out a staged inspection with a view to identifying a planted bribe envelope. On an unspecified date the applicant supplemented his complaint, alleging, in particular, that officers A.B. and A.D. had arbitrarily deprived him of his liberty from 10.30   a.m. until nearly 6 p.m. on 7 April 2012. The case was referred to Y.D., assistant Melitopol Inter-district Prosecutor, who was also in charge of the proceedings initiated against the applicant on corruption charges. On 24 May 2012 a board of forensic medical experts concluded that the applicant’s injuries had resulted from contact with blunt objects and could be sustained in a variety of circumstances, including as a result of kicking, punching, or falling. Abrasions on the wrists could result from rubbing them against handcuffs. Cumulatively the applicant’s injuries were characterised as “minor”. According to the statements by the five persons implicated by the applicant in his ill-treatment given within the framework of the prosecutorial inquiry, none of the private parties had touched the applicant. As regards application of the force by officers A.B. and A.D., it was made necessary in view of the applicant’s conduct. When the officers had asked him to produce the money received as a bribe, he had attacked them, had sprayed pepper gas inside the cobbler’s workshop, and had ran to the exit. All those present inside the workshop had received chemical burns and had to evacuate urgently. The police officers had chased the applicant down the street, had immobilised him using martial arts and had put him in handcuffs. Ambulance had been called to assist the victims of the tear gas. When it arrived, Dr M. had examined the applicant and had found that he had not been in need of any medical assistance. Forty minutes after, when the cobbler’s shop had been sufficiently aerated, the parties concerned had re ‑ entered and proceeded with the inspection of the applicant’s belongings and the relevant paperwork. After the applicant had calmed down, the handcuffs had been removed. In addition, testimonies of three other persons who were present near the scene of the incident were collected, in which they acknowledged, in essence, seeing the applicant’s apprehension. They denied witnessing his deliberate beating by five persons. Finally, Dr M., who had arrived with the ambulance to assist the victims of the tear gas burns, alleged that he had not noticed any injuries on the applicant’s person at the moment of his intervention. On three occasions (20 and 25 April, and 1 October 2012) Y.D. decided that institution of criminal proceedings was unwarranted, as there was no case to answer. These decisions were quashed by hierarchical prosecutorial authorities following the applicant’s appeals with further inquisitorial actions being ordered. At some point the case was referred to senior investigator P.K. at the Melitopol Inter-District Prosecutor’s Office. On 15 November 2012 P.K. took a fresh decision not to institute criminal proceedings finding that no crime had been committed. The applicant challenged P.K.’s decision in court, seeking to institute criminal proceedings against the five persons concerned. On 27 February 2013 the Melitopol Court upheld the decision of 15   November 2012, having found that it had been sufficiently established that the injuries sustained by the applicant had resulted “ from lawful application of handcuffs in order to break [the applicant’s] resistance to the officers ... and [from their actions] with a view to terminating the breach of the public order by [the applicant]. The applicant appealed. He denied using tear gas, fleeing or attacking the officers and argued that the circumstances in which he had been injured had not been unequivocally established. In particular, regard being had to disperse location and gravity of the multiple injuries sustained by him on 7   April 2012, they could not have resulted solely from application of the force necessary to immobilise him. Instead, they were characteristic of intentional ill-treatment, notably kicking and punching. He also noted, in particular, that no arrest report or any other document justifying depriving him of his liberty between 10.30 a.m. and about 6 p.m. and holding him in handcuffs for several hours on 7 April 2012 had ever been drawn up and that the exact legal basis for his arrest had not been established in the course of the inquiry. On 14 March 2013 the Zaporizhzhia Regional Court of Appeal dismissed the applicant’s appeal. COMPLAINTS The applicant complains under Article 3 of the Convention that he was ill-treated during his arrest on 7 April 2012 and that the investigation into his relevant complaints was ineffective. He also complains that on the same date he was unlawfully deprived of liberty in breach of Article 5 § 1 of the Convention. QUESTIONS TO THE PARTIES 1.     Has the applicant been subjected to inhuman or degrading treatment, in breach of Article 3 of the Convention, on 7 April 2012 (see Spinov v.   Ukraine , no. 34331/03, §§ 48-51 and 55-58, 27 November 2008; Gordiyenko v. Ukraine , no. 27620/09, §§ 92-108, 16 October 2014 and a contrario Zalevskiy v. Ukraine , no. 3466/09, §§ 51-71, 16 October 2014)?   2.     Having regard to the procedural protection from inhuman and degrading treatment, (see paragraph   131 of Labita v. Italy [GC], no.   26772/95, ECHR 2000-IV), was the investigation of the applicant’s relevant complaint by the domestic authorities in breach of Article 3 of the Convention?   3.     Was the applicant deprived of his liberty on the aforementioned date in breach of Article 5 § 1 of the Convention? (see, for example, Grinenko v.   Ukraine , no. 33627/06, §§ 74-78 and 81-84, 15 November 2012 and Belousov v. Ukraine , no. 4494/07, §§ 79 ‑ 85, 7 November 2013). [1] .     About 50 euros at the material time.