KLIMOV AND SLYVOTSKYY v. UKRAINE - 51100/17 (Judgment : Article 3 - Prohibition of torture : Fifth Section Committee) [2023] ECHR 196 (02 March 2023)

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You are here: BAILII >> Databases >> European Court of Human Rights >> KLIMOV AND SLYVOTSKYY v. UKRAINE - 51100/17 (Judgment : Article 3 - Prohibition of torture : Fifth Section Committee) [2023] ECHR 196 (02 March 2023) URL: http://www.bailii.org/eu/cases/ECHR/2023/196.html Cite as: ECLI:CE:ECHR:2023:0302JUD005110017, CE:ECHR:2023:0302JUD005110017, [2023] ECHR 196

In the case of Klimov and Slyvotskyy 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 applications against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by the individuals listed in the appended table (“the applicants”), on the dates indicated therein;

the decision to give notice of the complaints expounded in paragraph 1 below to the Ukrainian Government (“the Government”), represented most recently by their acting Agent, Ms M. Sokorenko;

the parties’ observations;

Having deliberated in private on 2 February 2023,

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

SUBJECT MATTER OF THE CASE

1. The applicants alleged, under Articles 3 and 13 of the Convention, that they had been ill-treated by the police with a view to extracting false self‑incriminating statements from them and that the investigation into their respective complaints had been ineffective. The facts relevant to the individual applications are set out in detail in the appended tables.

THE COURT’S ASSESSMENT

I. JOINDER OF THE APPLICATIONS

2. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.

II. ALLEGED POLICE ILL-TREATMENT AND LACK OF AN EFFECTIVE INVESTIGATION

3. The applicants complained that they had been ill-treated by the police and that their respective complaints had not been properly investigated. They relied on Articles 3 and 13 of the Convention.

4. The Court, which is master of the characterisation to be given in law to the facts of a case (see, among other authorities, Barysheva v. Ukraine, no. 9505/12, § 45, 14 March 2017), finds that the complaints in issue fall to be examined under Article 3 of the Convention only.

5. The Government argued that the first applicant, Mr P.V. Klimov (application no. 51100/17), had lodged his complaint prematurely, as the domestic investigation was still under way. They lodged no objections to the admissibility of the complaint lodged by the second applicant, Mr M.V. Slyvotskyy (application no. 69370/17).

6. Reviewing the available documents and the parties’ submissions in the light of the principles developed its case-law (see, in particular, Kaverzin v. Ukraine, no. 23893/03, §§ 91-98 and 172-80, 15 May 2012, and Belousov v. Ukraine, no. 4494/07, §§ 48-49 and 56-58, 7 November 2013 ), the Court finds that Mr Klimov provided the domestic authorities with appropriate opportunities to deal with his allegations and that the Government’s objection concerning non-exhaustion of domestic remedies should therefore be dismissed.

7. The Court further finds that the applicants’ allegations are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. They must therefore be declared admissible.

8. Reviewing the facts of the present case in the light of the general principles established in its case-law (see Bouyid v. Belgium [GC], no. 23380/09, §§ 81-90 and 114-23, ECHR 2015), the Court considers that the applicants raised credible ill-treatment claims at the domestic level. Those claims triggered an obligation on the part of the national authorities to carry out an effective and thorough investigation with a view to establishing the origin of the applicants’ alleged injuries, as well as identifying and punishing those responsible, should the allegations of ill-treatment have proven to be true.

9. Regard being had to the evidential gaps and contradictions in the domestic case files and in the factual submissions by the parties (see appended tables for details), the Court finds it impossible to establish beyond reasonable doubt that the applicants sustained their injuries while under the control of the police, as alleged. The Court considers that the difficulty in determining the substance of the applicants’ allegations of ill-treatment stems from the authorities’ failure to investigate their complaints effectively (see, in particular, Popa v. Moldova, no. 29772/05, §§ 39 and 45, 21 September 2010; Grimailovs v. Latvia, no. 6087/03, §§ 109 and 119, 25 June 2013; and Barysheva, cited above, § 55).

10. From the documents before the Court, it appears that the domestic investigations did not constitute a serious effort to determine the relevant facts.

11. The Court notes that in the case of Kaverzin (cited above, §§ 173‑80) it found that the reluctance of the authorities to ensure a prompt and thorough investigation of ill-treatment complaints lodged against police authorities constituted a systemic problem within the meaning of Article 46 of the Convention. The Court considers that the present applications, in view of their circumstances and its previous case-law, constitute another example of such a failure to ensure a prompt and thorough investigation.

12. The Court therefore concludes that the present complaints disclose a breach of Article 3 of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

13. The applicants lodged just satisfaction claims under Article 41 of the Convention (see appended tables for details).

14. Regard being had to the documents in its possession and to its case‑law, the Court considers it reasonable to award the applicants the sums indicated in the appended tables. It dismisses the remainder of the applicants’ claims for just satisfaction.

15. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Decides to join the applications;

2. Declares the applications admissible;

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

4. Holds

(a) that the respondent State is to pay the applicants, 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;

5. Dismisses the remainder of the applicants’ claims for just satisfaction.

Done in English, and notified in writing on 2 March 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Martina Keller Stéphanie Mourou-Vikström
Deputy Registrar President

APPENDIX

1. Application no. 51100/17 by Mr Pavlo Volodymyrovych Klimov Ukrainian national born in 1966 and residing in Apostolove Represented by Mr M. Tarakhkalo, Ms Y. Kapalkina, Ms V. Lebid and Mr Y. Chekariov, lawyers practising in Kharkiv Lodged on 5 July 2017
Facts and documents relevant to alleged ill-treatment	Key issues
(i) Applicant’s account: On 19-20 December 2006, in the applicant’s home and subsequently in the Komunarskyi district police station, several law-enforcement officers repeatedly kicked and punched him and inserted a metal object in his ear, forcing him to confess that on 18 December 2006 he had caused grievous injuries to his partner during a domestic argument, which had resulted in her death. (ii) Medical and other evidence: (a) 20 December 2006, report no. 3159 (Zaporizhzhia regional forensic expert bureau): minor injuries (abrasions, face and ear); possibly sustained during the applicant’s fight with his partner; (b) 9 January 2007, inpatient treatment record (Zaporizhzhia municipal hospital): surgery for purulent post-traumatic haematoma on the left leg; (c) 5 December 2008, report no. 2847 and 25 January 2017, report no. 4/k (Zaporizhzhia regional forensic expert bureau): the purulent haematoma, qualifying as an “intermediately grave injury”, was likely of traumatic origin; infliction of the trauma on 19-20 December 2006, as claimed by the applicant, was not implausible. (iii) Domestic findings (preliminary, investigation pending): The injuries could possibly have been inflicted by the applicant’s partner during the domestic argument.	(i) Delay in opening a full‑scale investigation (complaint lodged on 02/10/07, Komunarskyi District Court, Zaporizhzhia; investigation launched on 13/11/13), preceded by repeated rounds of pre-investigation inquiry (for relevant examples, see, mutatis mutandis, Davydov and Others v. Ukraine, nos. 17674/02 and 39081/02, §§ 310-12, 1 July 2010, and Chernega and Others v. Ukraine, no. 74768/10, § 167, 18 June 2019). (ii) Overall length of the investigation (currently pending, last update: May 2019) and repeated expert assessments lacking comprehensiveness (for relevant examples, see Mikhalkova and Others v. Ukraine, no. 10919/05, §§ 46 and 57, 13 January 2011, and Barysheva v. Ukraine, no. 9505/12, § 58, 14 March 2017).
Just satisfaction
Parties’ submissions	The Court’s award
*Applicant:* Non-pecuniary damage: 200,000 euros (EUR). Costs and expenses: EUR 3,750 in legal fees (Convention proceedings; payment outstanding) to be paid directly to the applicant’s lawyer, Mr M. Tarakhkalo. Other relevant information: the applicant obtained EUR 850 in legal aid. *Government:* Claims exorbitant.	*Non-pecuniary damage: EUR 7,500 plus any tax chargeable. Costs and expenses:* EUR 500 To be paid to Mr M. Tarakhkalo, as requested, plus any tax chargeable to the applicant.

2. Application no. 69370/17 by Mr Mykola Volodymyrovych Slyvotskyy Ukrainian national born in 1981 and detained in Berdychiv Represented by Mr O. Veremiyenko and Mr V. Khekalo, lawyers practising in Kyiv Lodged on 12 September 2017
Relevant facts and documents	Key issues
(i) Applicant’s account: On 03 November 2003 several officers of the Voznesensk police took the applicant to a forest and subjected him to “Palestinian hanging”, threatened to torture his relatives, punched and kicked him, and pressed pistols against his forehead in order to force him to confess to a murder. On 4 November 2003 the beatings and threats continued on the premises of the Voznesensk police station. Subsequently, in breach of the applicable law, the applicant was detained until April 2004 in subhuman conditions in the basement cell of the Voznesenk police detention centre (“ITT”, designed for short-term detention only) with a view to breaking his moral resistance and forcing him to confess to several other crimes; two convicted inmates frequently woke the applicant at night to keep him exhausted, acting on police orders. (ii) Medical and other evidence: (a) 3 November 2003, a copy of the statement of surrender signed by the applicant, from which, according to him, it should be apparent that it had been signed by a swollen hand; (b) 21 January 2004, a photograph apparently depicting the applicant during the reconstruction of the crime scene, from which, according to him, it should be apparent that he had a haematoma on his face; (c) 24 March 2016, a certificate from the Mykolayiv pre-trial detention centre (“SIZO”) stating that having first arrived in the SIZO on 8 December 2003, the applicant was taken back to the Voznesensk ITT on four occasions for a combined period of about three months; (d) 20 December 2016, Report no. 652 (Voznesensk forensic medical expert bureau): no medical evidence that the applicant suffered any injuries in 2003 has been presented. (iii) Domestic findings: No appearance that the applicant had suffered any injuries or duress.	(i) Extreme delay in opening a full‑scale investigation (complaint lodged on 25/05/04, Mykolayiv Regional Court of Appeal; investigation launched on 27/02/13) and repeated rounds of pre-investigation inquiries (for relevant examples, see, mutatis mutandis, Davydov and Others v. Ukraine, §§ 310-12, 1 July 2010, and Chernega and Others v. Ukraine, no. 74768/10, § 167, 18 June 2019). (ii) Significant delay in arranging a forensic medical examination and launching other investigative steps (such as attempts to locate the applicant’s fellow inmates) leading to a loss of evidence (for relevant examples, see Oleksiy Mykhaylovych Zakharkin v. Ukraine, no. 1727/04, §§ 68‑69, 24 June 2010, and Savitskyy v. Ukraine, no. 38773/05, § 105, 26 July 2012). (iii) Overall length of investigation (closed on 30/03/18) and repeated remittals for reinvestigation (at least four times) in view of the shortcomings recognised by the domestic authorities (for relevant examples, see Belousov v. Ukraine, no. 4494/07, § 56, 7 November 2013, and Adnaralov v. Ukraine, no. 10493/12, § 50, 27 November 2014). (iv) No appearance of sufficient efforts to collect objective evidence, in particular: no face-to-face confrontations held, or measures taken to establish whether or not the applicant’s statement of surrender had been signed with a swollen hand, and no attempt to respond to an allegation that the applicant’s photographs of 21 January 2004 depicted him with facial injuries and, if so, to establish their origin (for relevant examples, see Drozd v. Ukraine, no. 12174/03, §§ 69-70, 30 July 2009, and Kapustyak v. Ukraine, no. 26230/11, § 80, 3 March 2016). (v) Hasty conclusion that no ill-treatment took place, which was based essentially on the officers’ own testimonies taken at face value and the unavailability of medical records (for relevant examples, see Gordiyenko v. Ukraine, no. 27620/09, §§ 95‑96, 16 October 2014, and Kleutin v. Ukraine, no. 5911/05, § 68, 23 June 2016).
Just satisfaction
Parties’ submissions	The Court’s award
*Applicant:* Non-pecuniary damage: EUR 1,100,000 euros. Costs and expenses: unspecified amount in legal fees to be transferred to the accounts of the applicant’s lawyers, Mr Veremiyenko and Mr Khekalo. *Government:* Claims exorbitant and unsubstantiated.	*Non-pecuniary damage*: EUR 7,500 plus any tax chargeable.