BELEY v. UKRAINE - 34199/09 (Judgment : Article 5 - Right to liberty and security : Fifth Section Committee) [2019] ECHR 475 (20 June 2019)

In the case of Beley v. Ukraine ,

The European Court of Human Rights ( Fifth Section ), sitting as a Committee composed of:

Yonko Grozev, President,
Gabriele Kucsko-Stadlmayer,
Lado Chanturia, judges,
and Milan Blaško , Deputy Section Registrar ,

Having deliberated in private on 28 May 2019 ,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 34199/09) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") by a Ukrainian national, Mr Vitaliy Nikolayevich Beley ("the applicant"), on 21 August 2009.

2. The applicant was initially represented by Mr M. Chernobay, a lawyer practising in Donetsk, who submitted observations on the admissibility and merits of the case as well as just satisfaction claims on behalf of the applicant. On 4 March 2017 the applicant requested the Court to continue correspondence with him as he lost contact with Mr Chernobay. The Ukrainian Government ("the Government") were represented by their Agent, most recently Mr I. Lishchyna.

3. The applicant complained under Articles 3 and 13 of the Convention that he had been tortured while in a police station and that there had been no effective investigation of the matter, and under Article 5 § 1 (c) of the Convention that his detention between 27 and 28 May 2008 had been unlawful.

4. On 10 March 2010 notice of the applicant ' s complaints under Articles 3 and 5 § 1 (c) of the Convention was given to the Government .

5. The Government objected to the examination of the application by a Committee, but provided no reasons. Having considered the Government ' s objection, the Court rejects it .

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

6. The applicant was born in 1977 and lives in the Poltava region.

A. The applicant ' s alleged detention, ill-treatment and ensuing inquiry

7 . According to the applicant, who lived in Donetsk at the material time, on 27 May 2008 a police officer called him and invited him to attend the Donetsk regional police station to discuss his past service in the police. When he arrived there at about 10 a.m. he was told that he would not be able to leave because he was going to be arrested. His mobile telephone was taken away and switched off. Two hours later police officers from the Volnovakha police arrived and took him to the Volnovakha police station, where at about 2 p.m. police officers G., P. and S. started threatening him and told him to confess to the murder of A. He refused and at about 9 p.m. they twisted his arms behind his back, put handcuffs on his wrists, pushed him down to the floor, put a plastic bag on his head blocking his airway, connected and switched on an electric shock device attached to his right wrist, and started hitting him in the head and body. After thirty minutes of ill-treatment he lost consciousness. When he regained consciousness, G. put the plastic bag on his head again. Afraid of further ill-treatment, he agreed to make written statements, dated 28 May 2008, concerning A. ' s murder. One of the police officers forced him to write his signature in an empty entry of the police visitors ' book ( книга обліку відвідувачів ). He was then held at the police station until the next evening when, at 7.52 p.m., he was taken to appear before the investigator, Sh. When the latter started drawing up the arrest report pursuant to Article 115 of the Code of Criminal Procedure, T., a lawyer from Donetsk hired by the applicant ' s father, entered Sh. ' s office and informed Sh. that she would provide legal assistance to the applicant.

8 . According to the Government, at 7.10 p.m. on 27 May 2008 the applicant attended the Volnovakha police station to "give explanations" and left at 9.10 p.m. the same evening. At 9.10 a.m. on 28 May 2008 he attended the police station again to "give explanations" and left at 11.40 a.m. At 7.52 p.m. he was arrested there in the presence of his lawyer, T.

9 . According to the police visitors ' book, on 27 May 2008 the applicant arrived at the police station at 7.10 p.m. and left at 9.10 p.m. On 28 May 2008 he arrived at the police station at 9.10 a.m. and left at 11.40 a.m., while T. came to the police station at 7.10 p.m. Only the above two entries were made on 28 May 2008. The photocopy of the visitors ' book provided by the Government does not contain a column with visitors ' signatures.

10 . According to the police arrestees ' logbook ( книга обліку доставлених ), at 7.52 p.m. on 28 May 2008 the applicant was brought to the police station on suspicion of aggravated murder.

11 . The arrest report drawn up by Sh. between 7.52 and 8.12 p.m. on 28 May 2008 contained the applicant ' s complaint that at about 9 p.m. on 27 May 2008 he had been beaten by police officers. It also contained a request by him to be taken to hospital for a medical examination. It also stated that the applicant ' s father had been notified of the applicant ' s arrest.

12 . It appears from the case file that on the evening of 28 May 2008 Sh. allowed T. to talk briefly with the applicant. During their conversation G. allegedly approached them, shouting at T. and threatening her. Later T. made a complaint against G. in the police visitors ' book.

13 . The search report, drawn up on 28 May 2008 and attested by witnesses K. and B., stated that nothing had been seized from the applicant during his search.

14 . At about 10 p.m. the same evening the applicant was examined in the local hospital. Doctors noted in a medical certificate that he had informed them that at about 9 p.m. on 27 May 2008 he had been beaten by police officers. They documented numerous bruises, haematomas and abrasions on his face, head, wrists and shoulders.

15 . At 10.45 p.m. the same evening t he applicant was placed in the Volnovakha temporary detention facility ("the ITT"). The ITT officers noted numerous injuries on the applicant ' s face, forehead, wrist joints, shoulder joints and right thigh. The ITT duty officer then reported those injuries to the head of the Volnovakha police station.

16 . On 29 May 2008 the applicant lodged a complaint with the town prosecutor regarding his alleged ill-treatment at the Volnovakha police station on the evening of 27 May and unla wful detention on 27 and 28 May 2008. In particular, he described in detail the alleged ill-treatment (as stated in paragraph 7 above). He also stated that his detention in that police station had not been recorded and that the duty officer had only made an entry in the police visitors ' book about his alleged visit to that police station at 9.10 a.m. on 28 May 2008 after T. ' s arrival.

17 . On the same day T. complained to the prosecutor that on the evening of 28 May 2008 G., who had ill-treated the applicant the day before, had threatened her during her conversation with the applicant in the police station corridor.

18. On the same day the applicant was questioned. In addition to the statements made in his complaint to the prosecutor, he stated that one of the alleged perpetrators had forced him to write his signature in an empty entry of the police visitors ' book.

19 . On the same day, at Sh. ' s request, P. conducted a forensic medical examination of the applicant. According to his expert report, completed on 2 July 2008, the applicant had a number of bruises , haematomas and abrasions, which were classified as minor bodily injuries. They had been caused by blunt objects or by impact with them. Some of them (abrasions on the right forearm and left wrist) had been sustained up to one day before the examination, while others had been sus tained three to four days (some bruises on his face, right shoulder joint and right shoulder) or five to seven days (haematomas in the right groin area and on the left shoulder joint) before the examination. A number of others (haematomas on the head, neck, face, left hip and forearm, left wrist and knee, abrasions on the right forearm, left leg, and a scratch on the right leg) could have been sustained during the period indicated by the applicant. There were no signs of electric shock treatment.

20. On 12 November 2008 the applicant acquainted himself with the above-mentioned report. He stated that he disagreed with it, because he still had signs of electric shock treatment, the injuries on his wrist joints had not been examined, and the manner in which they had been inflicted had not been established. He added that all the injuries had been sustained at the police station.

21 . On 3 June 2008 the prosecutor questioned the applicant as a suspect in A. ' s murder. According to the interview record, the prosecutor ' s first question concerned the vehicles which the applicant had used from 1 January 2008 "until the time of [his] arrest on 27 May 2008".

22 . Following the pre-investigation inquiries, on 7 June, 7 August and 28 November 2008, 21 January and 10 April 2009 the town prosecutor or his assistant refused to institute criminal proceedings in respect of the applicant ' s complaint of 29 May 2008. While mentioning the applicant ' s explanation that he had been beaten at the police station on 27 May 2008 and the expert report of 2 July 2008, which had established that he could have sustained a number of injuries during the period indicated by him, the prosecutor found that there was no evidence that those injuries had been inflicted at the police station and not elsewhere, because on 27 and 28 May 2008 the applicant had not been at the police station all the time. The prosecutor relied on statements given by the alleged perpetrators, the investigator Sh. and police officer K., who had been on duty on 28 May 2008. According to them, on 27 May 2008 G. had received a call from the Donetsk regional police informing him that they were holding the applicant, who was suspected of a crime committed on the territory of the Volnovakha district. G. and another police officer had gone by car to Donetsk, where they had arrived at about 5 p.m. They had taken the applicant and at about 7 p.m. had returned to the Volnovakha police station. The applicant had not been questioned that day because he had given confused answers to their questions and had asked for some time to think things over. He had left the police station at about 9 p.m. and written his signature in the police visitors ' book. The following day he had come back at around 9 a.m. and had written a statement concerning A. ' s murder. H e had then been invited to wait to be questioned by Sh., but he had said that he would wait for him outside and had left the police station premises at about 11 a.m., having put his signature in the visitors ' book. At 7.52 p.m. G. and S. had taken the applicant to the police station and then to appear before Sh. Nobody had seen any injuries on him, and he had not been handcuffed. When Sh. had started drawing up the arrest report, T. had entered Sh. ' s office, informing him that she had been appointed as the applicant ' s lawyer.

23 . The applicant appealed against the prosecutor ' s decisions. In his appeals he again described his alleged ill-tr eatment in detail (as stated in paragraph 7 above). Furthermore, he stated that his signatures in the police visitors ' book had been forged and that when he had asked for the book to state his complaints, it had been hidden from him. Only T. had been able to write her complaint against G. in it.

24 . On 21 July and 4 November 2008, 18 January, 30 March and 21 September 2009 the higher prosecutor or the Volnovakha Court set aside the above-mentioned decisions on the grounds that the inquiries were superficial and had not examined all the circumstances stated by the applicant. In decisions of 30 March and 21 September 2009 the latter court also instructed the prosecutor to order a handwriting analysis of the applicant ' s signatures in the police visitors ' book.

25 . On 14 January 2010 the town prosecutor ordered a handwriting analysis of two signatures allegedly written by the applicant in the visitors ' book on 27 and 28 May 2008. However, on the same day he again refused to institute criminal proceedings, largely for the same reasons as before.

26 . On 27 April 2010 a specialist, S., concluded that the signatures were authentic. In complaints lodged with the Volnovakha Court the applicant stated that he had only been informed of the results of the above-mentioned analysis in a letter from the prosecutor, but had not been provided with the document containing those results.

27 . On 30 April 2010 the prosecutor ordered an additional forensic medical examination of the applicant as per the court ' s instructions of 22 October 2009 (see paragraph 34 below). On 6 May 2010 P. supplemented his expert report of 2 July 2008 by adding that injuries which could have been sustained during the period indicated by the applicant had also included haematomas on his back.

28 . On 1 June 2010 the applicant complained to the Volnovakha Court about the decision of 14 January 2010. He stated, inter alia , that if the prosecutor had established that he had been taken to the police station on 28 May 2008 at about 8 p.m. without any visible injuries, and the medical examination at 10 p.m. had found numerous injuries on him, that meant that he had received them on 28 May 2008 between 8 and 10 p.m. The applicant also complained that those who had attended the police station on 27 and 28 May 2008 and could have been witnesses to the events on those days had not been identified.

29 . On 8 October 2010, following a request from the applicant ' s father, who was acting as his representative, two experts, G. and K. from the Kharkiv State Medical Academy, issued an expert medical report. That report, based on the material of the expert medical examination of 29 May 2008, established that the applicant ' s injuries had been caused by rubbing, compression and hyperextension of the skin and by blows. He had sustained at least twenty-two blows from blunt solid objects. Formation of haematomas on the neck and back of the head as a result of the tightening up of a plastic bag was "not excluded". A haematoma and abrasion on the forearms were "typical" handcuff injuries; their being sustained as a result of sharp raising by another person of the applicant ' s hands twisted behind his back was "not excluded". A haematoma on the applicant ' s left knee had been sustained upon impact of that area with a blunt object; it could have resulted from him falling over. Haematomas in the right part of the head and on the cheeks could have been caused by punches.

30 . On 27 April 2011 the Volnovakha Court set aside the decision of 14 January 2010 on the grounds that the inquiry was incomplete and one-sided. In particular, the prosecutor had not complied with the court decision requiring a handwriting analysis. He had not assessed the fact that, according to the expert report of 2 July 2008, some of the applicant ' s injuries had been sustained during the period indicated by him. Nor had he questioned the officer who had been on duty on 27 May 2008 and a doctor who had examined the applicant on 28 May 2008.

31 . On 6 July 2011 the prosecutor again refused to open criminal proceedings. The applicant ' s father complained to the higher prosecutors, pointing to a contradiction between the prosecutor ' s decisions in which it had been established that the police officers had not seen any injuries on the applicant when he had been taken to the police station on 28 May 2008, and the expert report of 2 July 2008, which stated that a number of injuries could have been sustained by the applicant on 27 May 2008. Therefore, those officers would have seen the injuries and had therefore given false statements.

32 . On 18 July 2011 M. and G., who shared a cell with the applicant for some time during his pre-trial detention, sent letters to the prosecutor stating that on 14 July 2011 S., one of the alleged perpetrators, who was later arrested on charges of bribery, had been placed in their cell for thirty minutes. M. and G. asked him whether he had participated in the applicant ' s ill-treatment. He had answered in the affirmative, adding that he would have been fired if he had not participated in the ill-treatment.

33 . On 25 July 2011 the higher prosecutor set aside the decision of 6 July 2011. The parties did not inform the Court of the subsequent events.

B. Criminal proceedings against the applicant

34 . The applicant also raised complaints of ill-treatment within the criminal proceedings against him. On 22 October 2009 the Donetsk Regional Court of Appeal sent the criminal case against him for further investigation, inter alia , on the grounds that the prosecutor ' s inquiry into his complaints was incomplete. In particular, the expert report of 2 July 2008 had not mentioned the injuries on the applicant ' s back and the expert had to establish the manner in which the injuries had been sustained and whether they could have been sustained in the circumstances alleged by the applicant.

35. The parties did not inform the Court of the subsequent events. Publicly available material shows that on 3 April 2014 the Dokuchayivsk Town Court acquitted the applicant for lack of evidence against him. In examining various pieces of evidence, it also referred to the applicant ' s statement given during the trial that, inter alia , on 27 May 2008 he had been ill-treated at the Volnovakha police station.

II. RELEVANT DOMESTIC LAW

36. The relevant provisions of the 1960 Code of Criminal Procedure, as in force at the material time, can be found in Kaverzin v. Ukraine ( no. 23893/03, § 45, 15 May 2012) as regards pre-investigation inquiries and in Strogan v. Ukraine (no. 30198/11, § 45, 6 October 2016) as regards the arrest of a suspect by a body of inquiry pursuant to Article 115 of the Code.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

37. The applicant complained under Article 5 § 1 (c) of the Convention that his detention at the Volnovakha police station from about 2 p.m. on 27 May until 7.52 p.m. on 28 May 2008 had been unrecorded and therefore unlawful. The relevant provision reads as follows:

"1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

...

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

..."

A. Admissibility

38. The Government submitted in their observations that the applicant had complained about his detention in his complaint of ill-treatment and that, since the inquiry in respect of that complaint was ongoing, he had not exhausted domestic remedies.

39. The applicant disagreed with that argument.

40. The Court notes that the applicant raised his allegation of unlawful detention at the Volnovakha police station in his complaint of 29 May 2008 concerning his alleged ill-treatment (see paragraph 16 above). The issue of unlawful detention was closely connected to the alleged ill-treatment and there is no particular reason to believe that the applicant should have taken any other steps to exhaust any remedies in respect of that complaint (see, mutatis mutandis , Grinenko v. Ukraine , no. 33627/06 , § 69 , 15 November 2012 ), nor did the Government claim otherwise. The Court further refers to its findings made in paragraphs 72-77 below that the inquiry referred to by the Government was ineffective for the purposes of investigating the applicant ' s complaint concerning ill-treatment. It considers that the same arguments are equally pertinent to the present aspect of the case, and finds that the applicant should be absolved from awaiting the results of the inquiry at issue. Lastly, it notes that, in the absence of any submissions by the Government concerning the availability of any other domestic remedy (such as a civil or administrative action), it must consider that the applicant exhausted the remedies available to him in res pect of his complaint (see, similarly, Belousov v. Ukraine , no. 4494/07 , § 73, 7 November 2013) .

41. The Court further notes that this complaint is not manifest ly ill - founded within the meaning of Article 35 § 3 (a) of the Convention and not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties ' submissions

(a) The applicant

42. The applicant stated that after his ill-treatment at the Volnovakha police station on 27 May 2008 he had been forced to write his signature in an empty column of the visitors ' book. The handwriting analysis conducted by S. could not be taken into account, because it had not been an expert examination, which could only be ordered in the framework of criminal proceedings, and S. had not been warned about criminal liability for false conclusions. Moreover, S. had allegedly analysed only one signature. Furthermore, according to the applicant, visitors had to write their signature in the visitors ' book both on arrival and departure. If he had actually attended the police station as alleged by the Government, then his two signatures on 27 May and two signatures on 28 May should have been analysed. Furthermore, if he had allegedly gone to the police station again on 28 May at 7.52 p.m., there would have been a fifth signature of his in the visitor ' s book, which had not been the case. His other signatures in the visitors ' book had been forged, because on 28 May 2008 only two entries (referring to his and T. ' s visits) had been made in it, as if only two visitors had attended the police station that day. The search report of 28 May 2008 attested by K. and B. (see paragraph 13 above) confirmed the forged entries in the visitors ' book, because the witnesses had not been registered in it on 28 May 2008.

43. His detention on 27 May 2008 had also been confirmed, inter alia , by the prosecutor ' s reference to his arres t on 27 May 2008 (see paragraph 21 above). He could not have been arrested on 28 May 2008 at 7.52 p.m. in the presence of T., as alleged by the Government (see paragraph 45 below), because from 27 to 28 May 2008 he had not left the police station, had had no ability to make calls and his relatives had not known his whereabouts. T. had been invited by his father, after the latter had been notified of his arrest. The visitors ' book had only contained the entry about T. ' s evening visit and not about his own visit. Moreover, if he had actually left the police station at 11.40 a.m. on 28 May, there had been no reason for him to come back in the evening, outside of working hours, instead of the next morning. If he had not been detained on 27 and 28 May 2008, he would have been moving around freely before the evening of 28 May 2008, and would have had an opportunity to talk with T. beforehand. They would have gone to the police station together, would have both been recorded in the visitors ' book and T. would not have asked Sh. to allow her to talk with him before questioning.

(b) The Government

44. The Government submitted that the handwriting analysis had confirmed that the two signatures in the police visitors ' book had belonged to the applicant. During questioning on 29 May 2008 he had not denied the authenticity of his signature but had stated that he had been forced to write it. Allegations of forgery had only appeared in his further compla ints. His signatures in the visitors ' book had ther efore confirmed that between 27 and 28 May 2008 he had twice attended and left the police station. The fact that he had remained there voluntarily during those two periods had been confirmed by the fact that neither he nor T. had made any complaints in the visitors ' book.

45 . Furthermore, in the arrest report a t 7.52 p.m. on 28 May 2008 (see paragraph 11 above) neither he nor T. had stated that they had disagreed with the date and time of his arr est. Nor in his complaint of 29 May 2008 (see paragraph 16 above) had the applicant referred to unlawfulness of his detention at the police station on 27 and 28 May 2008. Furthermore, he had been arrested in the presence of T., who had been appointed by him or his relatives, which contradicted his allegations that on 27 and 28 May 2008 he could not leave the police station or make calls and that his relatives had not known his whereabouts. Lastly, in her complaint of 29 May 2008 (see paragraph 17 above) T. had mentioned that she had spoken with the applicant in the police station corridor, which put into doubt that he had been deprived of his liberty at that time. In sum, the applicant had not been detained on 27 and 28 May 2008, as he had only been arrested at 7.52 p.m. on 28 May 2008.

2. The Court ' s assessment

46. The Court would first reiterate that, in the cases concerning alleged deprivation of liberty, the applicant must provide prima facie concordant evidence capable of showing that he was indeed under the exclusive control of the authorities on the day of the events, that is to say, that he was officially summoned by the authorities and entered premises which were under their control. If that condition is satisfied, the Court will be able to consider that he was not free to leave, particularly when investigative measures were under way. It could therefore require the Government to provide a detailed hour-by-hour report on what happened in the premises in question and to account for the time sp ent there by th e applicant. The Government would then have to provide satisfactory and convincing written evidence to support their version of the facts. Failure to provide such evidence would enable conclusions to be drawn as to the merits of the applicant ' s allegations (see Creangă v. Romania [GC], no. 29226/03, §§ 89 - 90, 23 February 2012) .

47 . Turning to the present case, the Court notes that the parties ' versions of the events of 27 and 28 May 2008 differ significantly. According to the applicant, from about 2 p.m. on 27 May and until 7.52 p.m. on 28 May 2008 he was detained at the Volnovakha police station. According to the Government, the applicant attended that police station between 7.10 and 9.10 p.m. on 27 May and between 9.10 and 11.40 a.m. on 28 May, and was not arrested until 7.52 p.m. on 28 May 2008. The Court must therefore establish whether the applicant was in unrecorded detention during the period stated by him.

48. The Court notes that the prosecutor established (see paragraph 22 above ) that on 27 May 2008 G. had received a call from the Donetsk regional police informing him that they were holding the applicant, who was suspected of a crime. G. and another police officer had then gone to Donetsk, where they had arrived at about 5 p.m. They had taken the applicant and had returned to the Volnovakha police station at about 7 p.m. Although the applicant alleges that he was at the police station from about 2 p.m., the Court finds no support for this particular allegation in the available case material. Accordingly, it will consider it established that the applicant was taken to the police station at least at about 7 p.m. Since the applicant only complained of unlawful detention in that police station, the Court will only examine whether he was unlawfully detained there from 7 p.m. on 27 May until 7.52 p.m. on 28 May 2008.

49. Assessing the available evidence, the Court firstly notes that on 27 April 2010 S. analysed two signatures in the police visitors ' book (and not just one as alleged by the applicant) and concluded that both had been written by the applicant. There is no evidence that, as alleged by the applicant, there were other signatures written in that book on his behalf which should have also been analysed. In particular, there is no proof that police visitors have to put their signatures bo th on arrival and departure. As regards the signatures analysed by S., the Court observes that the applicant did not deny that one of them had belonged to him: according to him, he had been forced to write it in an empty entry after his ill-treatment. As to the second signature, the Court notes that while it has no reason to doubt its authenticity, established by S., it observes that the applicant was not aware of the results of the analysis and was informed thereof in a letter from the prosecutor (see paragraph 26 above). Furthermore, it does not appear that the applicant, who had no formal status in the inquiry, could challenge those results. Lastly, the Government provided a copy of the visitors ' book without a column with visitors ' signatures (including those analysed by S.), which makes it impossible for the Court even to check the relevant signatures in the book against those analysed by S. In such circumstances, it cannot be concluded that the results of the handwriting analysis are decisive enough to support the Government ' s account.

50. As to the Government ' s argument that the applicant did not state his complaints in the police visitors ' book, the Court takes into account his explanation, not contested by the Governmen t, that he was not given it. As regards T., she did not witness the events complained of by the applicant such that she would also be supposed to state the relevant complaints in the visitors ' book. In any event, and contrary to the Government ' s submissions, the applicant complained about the alleged events of 27 May 2008 both in the arrest report of 28 May 2008 and in his complaint of 29 May 2008 (see , respectively, paragraphs 11 and 16 above).

51. Secondly, the Court notes that the Government only stated that the applicant had visited the Volnovakha police station at 7.10 p.m. on 27 May 2008, without mentioning the preceding events. However, according to the inquiry (see paragraph 22 above), at about 7 p.m. that day the applicant was taken by officers to the above-mentioned police station from the Donetsk police station, where he had remained for some time before 5 p.m., when he had been taken by those officers. In this connection, it does not appear from the case file that the applicant could leave the Donetsk police station or refuse to go to the Volnovakha police station . In other words, when he was taken to the latter police station, he was already under the control of the police (see, similarly, Grinenko , § 75, and Belousov , § 83, both cited above).

52. According to the prosecutor, the applicant was not questioned on 27 May 2008 and left the police station at about 9 p.m.; the next day he came back at around 9 a.m. and left at 11 a.m.; at 7.52 p.m. he was taken to the police station by G. and S. and arrested by Sh. The Court considers that version of events highly implausible. Apart from already being under the control of the police at the time he was taken to the Volnovakha police station on 27 May 2008, the applicant was de facto treated as a suspect of a serious crime. In the Court ' s view, it would be unrealistic to assume that either at that time or thereafter he was free to leave the police station of his own free will (see, mutatis mutandis , I.I. v. Bulgaria , no. 44082/98, § 87, 9 June 2005; Osypenko v. Ukraine , no. 4634/04, § 49, 9 November 2010; and Makarenko v. Ukraine , no. 622/11, § 62, 30 January 2018).

53 . In the latter connection, the Court also observes that the prosecutor did not attempt to support his version of events by establishing, for instance, where the applicant, a resident of Donetsk (which is some 65 km away from Volnovakha), had stayed on the night of 27 May 2008, and whether on 27 and 28 May 2008 he had contacted, visited, called or received calls from anyone who could confirm that he had not been at the police station during that entire period. The prosecutor did not attempt to identify the police visitors on 27 May 2008 and to question them as possible witnesses to the applicant ' s alleged early presence at the police station or even to identify and question the police officer who had been on duty on 27 May 2008. In the absence of such information or attempts to collect it, the official version of events is significantly undermined. Nor did the Government provide any information about the applicant ' s possible whereabouts and actions in the above period.

54. Thirdly, although the Government appear to claim that on 28 May 2008 at 7.52 p.m. the applicant attended the police station voluntarily and was arrested in the presence of his lawyer, that version is at odds with the prosecutor ' s findings and the arrestees ' logbook, which state that at that time G. and S. took the applicant to the police station on suspicion of murder. Moreover, the police visitors ' book does not contain any entry indicating that the applicant attended the police station at that time as a visitor. The Government ' s argument that he was able at some point to talk with T. in the police station corridor is therefore immaterial. Furthermore, neither the inquiry nor the Government attempted to establish or explain where the applicant had been taken from and why his arrival, if voluntary, had been registered in the arrestees ' logbook and not in the visitors ' book.

55. Fourthly, the Court notes that on 28 May 2008 T. arrived at the police station at 7.10 p.m. (see paragraph 9 above), while the applicant was allegedly taken there at 7.52 p.m. (see paragraph 10 above). No explanation was given as to why T. attended the police station forty-two minutes before the applicant was allegedly taken there. Furthermore, according to the arrest report which Sh. started drawing up at 7.52 p.m. (see paragraph 11 above), the applicant ' s father was notified of the arrest. The Court finds it incongruous a scenario in which T. could have come from Donetsk to Volnovakha at 7 p.m. after being hired by the applicant ' s father, who had only been notified of the applicant ' s arrest at 7.52 p.m. at the earliest. In its view, the only explanation for that scenario would be the fact that the applicant ' s father was notified of the applicant ' s de facto detention much earlier than at the time of his formal arrest at 7.52 p.m.

56. The Court further takes into account inconsistencies in the police visitors ' book on 28 May 2008. According to it, only two visitors attended the police station that day (the applicant at 9.10 a.m. and T. at 7.10 p.m.). However, according to the search report of 28 May 2008 (see paragraph 13 above), the search was attested by K. and B., but they were not registered in the visitors ' book that day.

57. The Court next considers logical the applicant ' s argument that if he had actually been at liberty on 28 May 2008, he would have attended the police station with a lawyer, and not alone. He could have done so during working hours on 28 or 29 May and n ot on the evening of 28 May. He would have had an opportunity to talk with T. beforehand and not at the police station. Moreover, the Court fails to see the applicant ' s motivation to go voluntarily to the police station several times, as alleged, and to write a statement relating to a serious crime which, as it eventually turned out, he did not commit (see, mutatis mutandis , Osakovskiy v. Ukraine , no. 13406/06 , § 73, 17 July 2014).

58. Lastly, the Court does not overlook that in his question put to the applicant during questioning on 3 June 2008 the prosecutor referred to 27 May 2008 as the date of the applicant ' s arrest (see paragraph 21 above).

59. Taking into account all the above elements, the Court considers that the applicant ' s version of events is more credible, concordant and logical than that of the domestic inquiry and the Government, the latter having failed to provide satisfactory and convincing evidence to support their version (see Creangă , cited above, § 90) . It therefore finds that from at least 7 p.m. on 27 May he was in unrecorded detention at the Volnovakha police station , which was only formalised at 7.52 p.m. on 28 May 2008.

60. The Court reiterates that unacknowledged detention of an individual is a complete negation of the fundamentally important guarantees contained in Article 5 of the Convention, and discloses a most grave violation of that provision. Failure to record the date, time, location of and reasons for detention, names of a detainee and a person carrying it out is incompatible with the requirement of lawfulness and the very purpose of Article 5 ( see Lopatin and Medvedskiy v. Ukraine , nos. 2278/03and 6222/03, § 84 , 20 May 2010, with further references ).

61 . Having regard to the above findings, the Court concludes that there has been a violation of Article 5 § 1 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

62. The applicant also complained under Articles 3 and 13 of the Convention that on 27 May 2008 he had been tortured at the Volnovakha police station and that the authorities had failed to investigate the matter. The Court considers that it is appropriate to examine the complaint under Article 3 of the Convention only (see, for instance, Voykin and Others v. Ukraine , no. 47889/08, § 84, 27 March 2018), which reads as follows:

"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."

A. Admissibility

63. The Government considered the complaint inadmissible for non-exhaustion of domestic remedies, because the prosecutor ' s inquiry into the applicant ' s ill-treatment complaint was ongoing.

64. The applicant stated that he had taken all necessary steps to protect his rights at the domestic level, but they had proven ineffective. Therefore, he considered that he had exhausted domestic remedies.

65. The Court considers that the Government ' s objection is closely linked to the applicant ' s complaint of ineffectiveness in the conduct of the inquiry into his ill-treatment complaint. In these circumstances it considers that the objection should be joined to the merits of the applicant ' s complaint (see, for instance, Lotarev v. Ukraine , no. 29447/04 , § 74, 8 April 2010).

66. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties ' submissions

(a) The applicant

67 . The applicant submitted that during the medical examination of 28 May 2008 (see paragraph 14 above) a number of injuries had been found on him. Neither the prosecutor nor the Government had proved their origin, other than that they had been sustained at the police station. The police officers questioned, including K. and Sh., had stated that they had not seen any visible injuries on him at the time he had allegedly been taken to the police station on the evening of 28 May 2008. If that had been the case, then they had been inflicted between the time when he had allegedly been taken to the police station and the medical examination. However, according to the expert report of 2 July 2008 (see paragraph 19 above), a number of his injuries could have been sustained during the period indicated by him (at 9 p.m. on 27 May 2008), which meant that those officers had given false statements.

68. The expert reports of 2 July 2008 and 5 May 2010 had not established the manner in which the applicant ' s injuries had been sustained and whether they had been caused in the circumstances described by him. His request for a further expert medical examination had been rejected. As to the alleged absence of signs of electric shock treatment on him, the expert P. had carried out only a visual examination, even though only a biological examination could have established them. An electrical burn which he had showed to P. had been described by him as an "abrasion". Moreover, P. had not been independent as he had been in a working relationship with the police and the prosecuto r. Only the report of 8 October 2010 (see paragraph 29 above) had established the manner and circumstances in which the applicant ' s injuries had been sustained and had fully confirmed his statements.

69. As to the inquiry into his complaint, it had been protracted and ineffective. It had not attempted to establi sh what had rea lly happened. No criminal proceedings had been instituted. The prosecutor had not complied with the court decisions, whereby his own decisions had repeatedly been set aside. None of the applicant ' s statements had been examined in further inquiries. The manner in which his injuries had been sustained had not been established. The handwriting analysis had not been conducted until 27 April 2010. The inquiry had not been independent, as the prosecutor and the perpetrators had been in a working relationship with each other.

(b) The Government

70. The Government submitted that the abrasions on the applicant ' s right forearm and left wrist described in the expert report of 2 July 2008 could have possibly resulted from the us e of handcuffs on him on 28 May 2008 when he had been arrested. However, he had not complained that the use of handcuffs during his arrest had violated his Article 3 rights. As to the injuries which could have been sustained during the period indicated by the applicant, on 27 May 2008 he had been at the police station for only two hours. The other injuries had been sustained before the alleged events and could not therefore be taken into account. The above-mentioned report had not established that any injuries could have resulted from electric shock treatment. Neither he nor T. had made any complaints in the police visitors ' book. Moreover, in his complaint of 1 June 2010 (see paragraph 28 above) the applicant had stated that injuries had been inflicted on him on 28 May 2008 after his arrest at 7.52 p.m. Given the above facts and contradictions in his statements, there was therefore no reason to believe that he had been ill-treated at the police station on 27 May 2008.

71. As to the investigation into the applicant ' s complaint, the prosecutor had examined all the circumstances of the case. He had taken explanations from the applicant and his lawyer, questioned witnesses (including police officers) and ordered the necessary examinations. Those actions had not confirmed the applicant ' s allegation of ill-treatment at the police station on 27 May 2008. The handwriting analysis had not been conducted for a long time because in his initial explanations the applicant had not denied that the signatures in the police visitors ' book had belonged to him. The domestic authorities had thus conducted a full examination of the applicant ' s allegations of ill-treatment.

2. The Court ' s assessment

(a) Procedural aspect of Article 3

72 . The Court reiterates that where an individual makes an arguable claim that he has been ill-treated by the State authorities, in breach of Article 3, that provision, read in conjunction with the State ' s general duty under Article 1 of the Convention, requires by implication that there should be an effective official investigation. For the investigation to be regarded as "effective", it should in principle be capable of leading to the establishment of the cause of injuries and to the identification and punishment of those responsible. This is not an obligation o f result, but one of means. The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including, inter alia , eyewitness testimony, forensic evidence, and so on. Any deficiency in the investigation which undermines its ability to establish the cause of injuries or the identity of the persons responsible will risk falling foul of this standard, and a requirement of promptness and reasonable expedition is implicit in this context (see, for instance, Mikheyev v. Russia , no. 77617/01, §§ 107-10, 26 January 2006, and Bouyid v. Belgium [GC], no. 23380/09, §§ 114-23, ECHR 2015).

73. In the present case, having regard to the findings made in the expert reports of 2 July 2008 and 6 May 2010 (see paragraphs 19 and 27 above) the Court considers that the applicant ' s injuries were serious enough and that his complaint of ill-treatment before the domestic authorities was arguable (see also paragraph 81 below). Therefore, it required that they carry out an effective investigation.

74. The Court notes that the above complaint was examined by means of a pre-investigation inquiry without a full-scale investigation being opened. It has repeatedly found that in many situations this procedure imposes unacceptable limitations on investigation, in particular because the authorities can take only a limited number of procedural steps within it and the victims have no formal status in it (see, for instance, Sav itskyy v. Ukraine , no. 38773/05, § 105, 26 July 2012, and Grigoryan and Sergeyeva v. Ukraine , no. 63409/11, §§ 61 and 62, 28 March 2017). Nor did in the present case such inquiry ensure a thorough and expedient investigation of the circumstances in which the applicant sustained injuries. Notably, seven decisions not to open criminal proceedings were set aside on eight occasions. Repetition of such decisions usually discloses a serious deficiency in the proceedings (see, for instance, Drozd v. Ukraine , no. 12174/03 , § 66, 30 July 2009) . Indeed, in setting aside those decisions the courts stated that the inquiry was superficial, incomplete and one-sided and that the prosecutor had not complied with the court instructions and had not examined all the circumstances stated by the applicant (see paragraphs 24, 30 and 34 above).

75. The Court further notes that in his decisions not to open criminal proceedings the prosecutor took at face value the statements given by the police officers, including the alleged perpetrators, and concluded that there was no evidence that the injuries referred to in the expert reports of 2 July 2008 and 6 May 2010 had been sustained at the police station (see paragraphs 22 and 25 above), while not offering any other plausible explanation for them. Furthermore, in verifying the applicant ' s allegations concerning the events on 27 May 2008, the prosecutor did not even attempt to establish information about the applicant ' s whereabouts, calls or visits or those with whom he had contact on 27 and 28 May 2008 (see paragraph 53 above), if he had actually not been at the police station for the entire period, and to question those concerned. Neither the duty officer on 27 May 2008 nor the doctor who had examined the applicant on 28 May 2008 were questioned. Furthermore, an attempt to resolve contradictions between the applicant ' s and police officers ' versions of events could have been made, for instance, by way of a confrontation between them and a reconstruction of events. However, those investigative actions could only have been conducted within criminal proceedings (see Serikov v. Ukraine , no. 42164/09, § 83, 23 July 2015) , which were not instituted in the present case.

76. The Court also notes delays on the part of the authorities in conducting the inquiry. Thus, despite the court instructions of 30 March 2009 (see paragraph 24 above), the prosecutor did not order a handwriting analysis until 14 January 2010 (see paragraph 25 above). However, the same day he decided, for an unexplained reason, not to wait for the results and hastily adopted a decision not to open criminal proceedings (see, similarly, Serikov , cited above, § 86 ). Despite the court instructions of 22 October 2009 (see paragraph 34 above), the prosecutor did not order an additional expert medical examination until 30 April 2010 (see paragraph 27 above). However, its findings largely repeated the findings made in the expert report of 2 July 2008 and did not seem to establish the information specified by the court (ibid.). Lastly, it took the Volnovakha Court, without any apparent reason, almost eleven months to examine one of the applicant ' s compl aints (see paragraphs 28 and 30 above).

77 . The foregoing considerations are sufficient for the Court to conclude that the inquiry conducted by the domestic authorities in respect of the applicant ' s allegation of ill-treatment di d not prove to be effective. It therefore dismisses the Government ' s objection as to the non-exhaustion of domestic remedies and holds that there has been a violation of procedural limb of Article 3 of the Convention.

(b) Substantive aspect of Article 3

78. The Court points out that in assessing evidence in a claim of a violation of Article 3 of the Convention, it adopts the standard of proof "beyond reasonable doubt", but notes that such proof may also follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Where the events at issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries occurring during such detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation. In the absence of such an explanation, the Court can draw inferences which may be unfavourable for the Government (see Bouyid , cited above, §§ 82 and 83).

79. As the Court has found, from at least 7 p.m. on 27 May 2008 and until 7.52 p.m. the following day the applicant was held in unrecorded detention at the Volnovakha police station (see paragraphs 47 - 61 above). That detention left him completely at the mercy of those holding him, putting his personal security at stake and rendering him vulnerable to ill - treatment by the police. This very fact weighs heavily in favour of the applicant ' s version of events (see, similarly, Olisov and Others v. Russia , nos. 10825/09and 2 others, § 79, 2 May 2017).

80. The Court notes that, according to the expert reports of 2 July 2008 and 6 May 2010 (see paragraphs 19 and 27 above), some of the injuries were sustained by the applicant three to seven days before his medical examination on 29 May 2008 - that is to say, before his detention on 27 May 2008. Accordingly, it cannot take them into account in examining the applicant ' s complaint. However, a number of other injuries were or could have been sustained by him in the period during which he had been in unrecorded detention. It is therefore for the Government to provide a satisfactory and convincing explanation for them.

81 . The Court first notes the Government ' s argument that the expert report of 2 July 2008 did not establish that some of the applicant ' s injuries could have resulted from the use of electric shock treatment. Although it is true, the fact remains that, regardless of their possible origin, a number of injuries were described in that report and the report of 6 May 2010 as injuries which were or could have been sustained by the applicant in the period during which, as found by the Court, he was in unrecorded detention. In this connection, the Court also considers, and the Government did not state otherwise, that those injuries were sufficiently serious to fall within the ambit of Article 3 of the Convention.

82. As to the Government ' s submission about contradictions in the applicant ' s complaint of 1 June 2010 (see paragraph 28 above), the Court considers that the applicant rather reacted to the position of the investigation by alleging that, if certain events had happened the way the investigation accepted, then there was a clear contradiction with other evidence .

83. Indeed, the Court finds it quite difficult to agree with the version that the police officers could not see any injuries on the applicant on the evening of 28 May 2008, as the ITT officers saw those injuries a few hours later (see paragraph 15 above). Instead of attempting to advance any explanation as to the applicant ' s injuries, which he stated had been inflicted on him at the Volnovakha police station, the prosecutor seems to have disregarded the findings of the expert reports of 2 July 2008 and 6 May 2010 concerning a number of those injuries and relied exclusively on the police officers ' statements and the entries in the police visitors ' book. As stated above, no attempt was made to establish where else the applicant might have been on 27 and 28 May 2008 and the circumstances in which he had or could have sustained injuries during that period, as per the above expert reports.

84. The Government also confined themselves to stating that on the evening of 27 May 2008 the applicant had only been at the police station for two hours. However, the Court has found that on 27 and 28 May the applicant was in unrecorded detention at the police station. Furthermore, the Government ' s version that some of the injuries on the applicant ' s wrists were possibly inflicted as a result of the use of handcuffs on him during his arrest on the evening of 28 May 2008 finds no support in the prosecutor ' s findings (see paragraph 22 above).

85. Lastly, the Court notes that the Government did not contest the statements written by the applicant ' s cellmates (see paragraph 32 above).

86. In the absence of any plausible explanation by the Government for the injuries sustained by the applicant during his unrecorded detention at the Volnovakha police station, the Court considers it sufficiently established that the applicant sustained them as a result of ill-treatment for which the defendant State must bear Convention responsibility.

87. The Court next considers that the description by the applicant of the way he was treated is credible and therefore accepts it. Indeed, the applicant ' s testimony about his ill-treatment was detailed, coherent and unchanged, both at the domestic level and before the Court (see paragraphs 7, 16 and 23 above). The formation of the applicant ' s injuries is largely supported by the expert medical report of 8 October 2010 which was not disputed by the Government. In particular, that report did not exclude the formation of a number of haematomas and abrasions on the applicant as a result of the tightening up of a plastic bag, sharp raising by another person of his hands twisted behind his back and as a result of punches (see paragraph 29 above). Even though the expert medical reports did not establish that some of the applicant ' s injuries had been caused by electric shock treatment and that all of his injuries had been caused during his unrecorded detention, they still established that numerous injuries had been sustained during that detention. Those injuries, even though classified as "minor" in those reports, attest to the severity of the ill-treatment the applicant suffered. This treatment was administered behind closed doors at the police station, where the applicant had no means of resistance. In these circumstances the physical pain associated with the above injuries must have been exacerbated by feelings of helplessness, acute stress and anxiety. Moreover, the applicant ' s ill-treatment was intentional and was aimed at extracting evidence from him in relation to the crime of which he was suspected (see, similarly, Belousov , cited above, § 67). In these circumstances, the Court concludes that, taken as a whole and having regard to its purpose and severity, the ill-treatment at issue amounted to torture within the meaning of Article 3 of the Convention.

88. Accordingly, there has been a violation of substantive limb of Article 3 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

89. 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."

A. Damage

90. The applicant claimed 100,000 euros (EUR) in respect of non-pecuniary damage.

91. The Government considered the above claim excessive and stated there was no causal link between the damage claimed and the alleged violations. They therefore invited the Court to reject it.

92. The Court awards the applicant EUR 25,000 in respect of non-pecuniary damage.

B. Costs and expenses

93. The applicant did not claim any costs and expenses.

94. Accordingly, there is no call for an award under this head.

C. Default interest

95. 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. Joins to the merits the Government ' s objection as to the admissibility of the applicant ' s complaint of ill-treatment by the police and dismisses it after an examination on the merits;

2. Declares the application admissible;

3. Holds that there has been a violation of Article 5 § 1 of the Convention;

4. Holds that there has been a violation of Article 3 of the Convention on account of the lack of an effective investigation into the applicant ' s allegation of torture by the police;

5. Holds that the applicant has been subjected to torture in violation of Article 3 of the Convention;

6. Holds

(a) that the respondent State is to pay the applicant, within three months, EUR 25,000 (twenty-five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, 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 amount 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 applicant ' s claim for just satisfaction.

Done in English, and notified in writing on 20 June 2019 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Milan Blaško Yonko Grozev
Deputy Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> BELEY v. UKRAINE - 34199/09 (Judgment : Article 5 - Right to liberty and security : Fifth Section Committee) [2019] ECHR 475 (20 June 2019) URL: http://www.bailii.org/eu/cases/ECHR/2019/475.html Cite as: CE:ECHR:2019:0620JUD003419909, [2019] ECHR 475, ECLI:CE:ECHR:2019:0620JUD003419909