European Court of Human Rights

 

 

FIFTH SECTION

CASE OF SEVASTYANOV v. UKRAINE

(Applications nos. 37650/13 and 55971/13)

 

 

 

 

JUDGMENT

STRASBOURG

25 November 2021

 

This judgment is final but it may be subject to editorial revision.

In the case of Sevastyanov v. Ukraine,

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

          Stéphanie Mourou-Vikström, President,
          Ganna Yudkivska,
          Lado Chanturia, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the applications (nos. 37650/13 and 55971/13) 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 Yuriy Mykolayovych Sevastyanov (“the applicant”), on 27 May 2013 and 12 August 2013 respectively;

the decision to give notice to the Ukrainian Government (“the Government”) of the complaints under Article 3 (police ill-treatment and effectiveness of investigation), Article 5 § 1 (unlawful arrest and detention), Article 5 § 3 (excessive length of pre-trial detention) and Article 6 § 1 of the Convention (trial within reasonable time) and to declare inadmissible the remainder of the applications;

the parties’ observations;

Having deliberated in private on 4 November 2021,

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

INTRODUCTION

1.  The case concerns the applicant’s allegations of ill-treatment while in police custody (Article 3), his unlawful and excessive pre-trial detention (Article 5 §§ 1 and 3) as well as the excessive length of criminal proceedings (Article 6 § 1).

THE FACTS

2.  The applicant was born in 1975 and lives in Vyshneve, Kyiv Region.

3.  The Government were represented by their Agent, Mr I. Lishchyna.

4.  The facts of the case, as submitted by the parties, may be summarised as follows.

5.  In 2008 and 2009 a series of robberies and burglaries were committed in the Kyiv, Kirovohrad, Volyn and Zhytomyr regions, leading to several criminal investigations being initiated. The applicant was suspected of having participated in the crimes as a member of a criminal group. The criminal proceedings were conducted concurrently in those regions of Ukraine.

I.        The applicant’s arrest, his alleged ill-treatment and pre-trial detention

6.  In the late evening of 2 September 2009 police officers arrested the applicant in the town of Vyshneve, Kyiv Region, near his home, and took him to the local police station. The officers allegedly beat him up during the arrest and detention. They then took him by car to the city of Kirovohrad, about 300 kilometres away. The applicant was allegedly held for the whole of the next day at the Kirovohrad Regional Police Department, where police officers allegedly beat him up again and put psychological pressure on him to obtain his confession to a robbery committed in the Kirovohrad Region.

7.  At 9.02 p.m. on 3 September 2009 a police investigator from the Ulyanivskyy District Police Department of the Kirovohrad Region formally placed the applicant under arrest and drew up an arrest report.

8.  On the same day a medical expert examined the applicant. On 4 September 2009 the expert issued a report stating that the applicant had sustained a bruise on the right ear, two abrasions on the mouth, and four abrasions on both forearms. The expert considered that the injuries had been inflicted by a blunt object, between one and three days before the examination.

9.  On 4 September 2009 the Ulyanivskyy District Court of the Kirovohrad Region (“Ulyanivskyy District Court”) prolonged the applicant’s preliminary detention to ten days, taking into account the charges and considering that it had been necessary to have more evidence regarding the applicant.

10.  On 11 September 2009 the same court ordered the applicant’s pre-trial detention for two months. The court noted that the applicant was charged with a serious crime and that he did not reside at his registered address; accordingly, there was a risk that the other preventive measures would not ensure his compliance with procedural decisions. On 22 September 2009 the Kirovohrad Regional Court of Appeal upheld that ruling, referring to the risks of absconding or impeding the investigation. The appellate court specified that the two-month period had to be calculated from 3 September 2009, when the applicant was arrested.

11.  Subsequently, between 2009 and 2016 the courts on numerous occasions extended the applicant’s pre-trial detention, considering that the applicant’s detention had been justified and there had been no grounds to change the preventive measure.

12.  On 24 March 2016 the Shevchenkivsky District Court of Kyiv examined the applicant’s complaint and found that, despite several pending criminal proceedings against the applicant, including the one where he had been convicted by a trial court (see paragraph 16 below), there had been no grounds to keep the applicant in detention. The court noted that the applicant’s conviction by the trial court had been still under review by the appellate court and there had been no valid pre-trial detention order. The court therefore considered that the applicant should be released.

13.  On 25 March 2016 the applicant was released.

14.  As of March 2017 the criminal proceedings against the applicant were pending.

II.     The applicant’s conviction in one of the criminal proceedings

15.  On 14 November 2014 the Ratne District Court of the Volyn Region commenced the trial of the applicant and the other defendants on charges of robbery committed in the Volyn Region.

16.  On 30 April 2015 the same court convicted the applicant of robbery committed in the Volyn Region and sentenced him to nine years’ imprisonment. The court also ordered the confiscation of his property. The applicant appealed.

17.  On 22 July 2015 the Volyn Regional Court of Appeal upheld the judgment of 14 November 2014, having amended its reasoning part.

18.  The applicant appealed on points of law to the Higher Specialised Court for Civil and Criminal Matters (“the HSCU”).

19.  On 17 March 2016 the HSCU quashed the appellate court’s decision of 22 July 2015 and remitted the case for a new hearing before the appellate court.

20.  On 5 September 2016 the Volyn Regional Court of Appeal quashed the judgment of 30 April 2015 and remitted the case to Kamin-Kashyrsk District Court for a new trial.

III.   Allegations of ill-treatment and their investigation

21.  On 26 November 2009 material from the criminal case file relating to the applicant’s allegations of police ill-treatment was submitted to the prosecutor of the Kirovohrad Region by an investigator of the Kirovohrad Regional Police Department.

22.  On 31 December 2009 the Kirovohrad Regional Prosecutor’s Office, having conducted a pre-investigation inquiry, refused to initiate criminal proceedings against the police officers due to a lack of constituent elements of crime.

23.  Following the applicant’s complaint of 26 February 2014, on 3 April 2014 the Kirovohrad Regional Prosecutor’s Office opened a criminal investigation into the applicant’s alleged ill-treatment.

24.  On 31 July 2014, 27 May and 30 September 2015 an investigator of the Kirovohrad Regional Prosecutor’s Office repeatedly closed the case due to a lack of evidence that the applicant had been ill-treated or unlawfully arrested by police officers. He referred, in particular, to the statements of the police officers, who denied subjecting the applicant to any ill-treatment or pressure. As to the injuries found on the applicant on 3 September 2009, the investigator considered that they could have been sustained before the applicant’s arrest or they could have been inflicted by the applicant himself.

25.  Following the applicant’s complaints, these decisions were quashed by the Leninskyy District Court of the Kirovohrad Region as unsubstantiated. The court found that the decisions had been taken without an assessment of all the evidence in the case. The origin of the applicant’s injuries and the circumstances of his arrest had not been investigated properly. In addition, the same court repeatedly found that the investigator had unlawfully refused to grant victim status to the applicant and to carry out other measures requested by the applicant.

26.  On 25 March 2016 the investigator once again closed the criminal proceedings on similar grounds as before. On 6 May 2016 the court dismissed the applicant’s complaint against that decision, noting that the injuries at issue could have been self-inflicted. The applicant tried to appeal against that decision, but his appeal was rejected as lodged out of time.

RELEVANT LEGAL FRAMEWORK

27.  The relevant domestic and international materials may be found in Kaverzin v. Ukraine (no. 23893/03, §§ 44-45, 49-50, 55-64, 67 and 69-79, 15 May 2012) and Nagorskiy v. Ukraine ((dec.), no. 37794/14, § 38, 12 January 2016).

THE LAW

I.        JOINDER OF THE APPLICATIONS

28.  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 VIOLATION OF ARTICLE 3 OF THE CONVENTION

29.  The applicant complained that he had been ill-treated by the police and that his complaint on that account had not been properly investigated. He relied on Article 3 of the Convention, which reads as follows:

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

A.    Admissibility

30.  The Government submitted that the applicant had failed to appeal against the court decision of 6 May 2016 by which the investigator’s decision to close the criminal proceedings had been upheld. Accordingly, the complaints under Article 3 had to be dismissed on the grounds of non‑exhaustion of domestic remedies.

31.  The applicant disagreed.

32.  The Court considers that the Government’s objection is closely linked to the substance of the applicant’s complaints. In these circumstances, it joins the objection to the merits of the applicant’s complaints.

33.  The Court further notes that this part of the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

B.    Merits

34.  The applicant argued that the Government have not explained the origin of his injuries reported during his detention and that the authorities failed in their procedural obligation under Article 3.

35.  The Government submitted that there had been no sufficient evidence to establish beyond reasonable doubt that the applicant had been ill-treated. They noted that the injuries documented on 4 September 2009 could have been inflicted by the applicant himself. Furthermore, the investigation of the applicant’s allegations of ill-treatment had been effective for the purpose of Article 3.

36.  Reviewing the facts of the present case in the light of the general principles established in its case-law (as a recent authority, see Bouyid v. Belgium [GC], no. 23380/09, §§ 81-90 and 114-23, ECHR 2015), the Court considers that the applicant raised a credible ill-treatment claim at the domestic level. That claim 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 applicant’s alleged injuries and identifying and punishing those responsible, should the ill-treatment allegations prove to be true.

37.  From the documents before the Court, it appears that the domestic investigations did not constitute a serious effort to determine the relevant facts. Nothings suggests that the investigators made a genuine attempt to carry out a thorough investigation and to determine the origin of the applicant’s injuries displayed after his arrest.

38.  It is notable that there were repeated remittals of the case for additional investigation owing to the insufficiency of the measures taken by the investigators and their failure to safeguard the applicant’s rights as a victim. In these circumstances, the Court has no reason to believe that yet another round of investigation following the quashing of the last decision to discontinue the proceedings would redress the earlier shortcomings and render the investigation effective.

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

40.  It follows that the Government’s objection based on the rule of exhaustion of domestic remedies must be dismissed.

41.  The Court further finds that the applicant’s account as to the circumstances of his alleged ill-treatment is detailed and coherent. The results of the investigations, given their shortcomings, did not disprove the applicant’s allegations that he had been the victim of police ill-treatment. In these circumstances, and given the onus on the State to provide a plausible explanation for injuries sustained by persons under the control of the police (see Bouyid, cited above, § 83, and also, by way of example, Adnaralov v. Ukraine, no. 10493/12, § 45, 27 November 2014; Kulik v. Ukraine, no. 10397/10, § 59, 19 March 2015; and Yaroshovets and Others v. Ukraine, nos. 74820/10 and 4 others, § 85, 3 December 2015), the Court concludes that the State’s responsibility for the applicant’s ill-treatment is engaged.

42.  The above findings are sufficient for the Court to establish that the applicant was subjected to ill-treatment which must be classified as inhuman and degrading.

43.  The Court therefore concludes that there has been a breach of Article 3 of the Convention in respect of the applicant’s ill-treatment, under both its procedural and substantive limbs.

III.   ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION

44.  The applicant complained under Article 5 § 1 of the Convention that between 2 and 3 September 2009 he was unlawfully arrested and detained.

45.  Article 5 § 1 of the Convention reads, in so far as relevant, 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

46.  The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

B.          Merits

47.  The applicant maintained his complaint.

48.  The Government submitted that the applicant was indeed arrested on 2 September 2009 but his arrest was documented the next day because it was not technically possible to report it earlier.

49.  The Court reiterates that the unacknowledged detention of an individual is a complete negation of the fundamentally important guarantees contained in Article 5 of the Convention, and discloses a grave violation of that provision. Failure to record such matters as the date, time and location of detention, the name of the detainee, the reasons for detention and the name of the person carrying it out must be seen as incompatible with the requirement of lawfulness and with the very purpose of Article 5 of the Convention (see, among other authorities, Smolik v. Ukraine, no. 11778/05, § 45, 19 January 2012).

50.  The Court has already found violations in similar circumstances (see Smolik, cited above, §§ 46-48; Grinenko v. Ukraine, no. 33627/06, § 75-78, 15 November 2012 and Beley v. Ukraine [Committee], no. 34199/09, §§ 46 and 59-61, 20 June 2019).

51.  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 there was a violation of Article 5 § 1 of the Convention.

IV.  ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION

52.  The applicant complained under Article 5 § 3 of the Convention that his pre-trial detention had been excessive.

53.  Article 5 § 3 of the Convention reads as follows:

“3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”

A.    Admissibility

54.  The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

B.    Merits

55.  The applicant’s pre-trial detention started on 2 September 2009 when he was de facto arrested on suspicion of criminal activity. His uninterrupted detention continued until 25 March 2016 when he was released pending trial. However, on 30 April 2015 the applicant was convicted of a crime in the concurrent criminal proceedings (see paragraph 16 above) and on 5 September 2016 that conviction was quashed (see paragraph 20 above).

56.  The applicant’s detention following the judgment of the trial court that convicted him falls within the exception set out in sub-paragraph (a) of Article 5 § 1 of the Convention (see Yaroshovets and Others v. Ukraine, nos. 74820/10 and 4 others, §§ 134 and 135, 3 December 2015), to which Article 5 § 3 does not apply (see, for example, Borisenko v. Ukraine, no. 25725/02, § 44, 12 January 2012).

57.  Accordingly, the period to be taken into consideration, after deducting the period covered by Article 5 § 1 (a) of the Convention lasted about five years and eight months.

58.  Reviewing the facts of the present case in the light of the general principles developed in the Court’s case-law (see, among other authorities, Buzadji v. the Republic of Moldova ([GC], no. 23755/07, §§ 84-91 and 102, 5 July 2016), the Court observes that the seriousness of the charges against the applicant and the procedural risks ensuing from those charges might have justified the applicant’s detention in the initial period. Subsequently, his detention was extended on numerous occasions for a prolonged period of time and the Court has not been provided with all the court decisions concerning the applicant’s detention. Having regard to the available material, it does not appear that the courts, at the relevant stages of the proceedings, made a thorough assessment of individual facts pertinent to the question of whether such a preventive measure was necessary in the circumstances.

59.  The Court has often found a violation of Article 5 § 3 of the Convention in cases against Ukraine on the basis that even in respect of lengthy periods of detention, the domestic courts have referred to the same set of grounds (if there were any) throughout the period of an applicant’s detention (see, for example, Kharchenko v. Ukraine, no. 40107/02, §§ 80‑81 and 99, 10 February 2011, and Ignatov v. Ukraine, no. 40583/15, §§ 41-42, 15 December 2016).

60.  In the light of the above circumstances, the Court considers that the authorities extended the applicant’s detention on grounds that cannot be regarded as “sufficient” and “relevant” to justify his continuing detention.

61.  There has accordingly been a violation of Article 5 § 3 of the Convention.

V.     ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

62.  The applicant complained that the proceedings against him had lasted for an excessively long time. He referred to Article 6 § 1 of the Convention, the relevant part of which reads as follows:

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”

A.    Admissibility

63.  The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

B.    Merits

64.  The Court reiterates that the reasonableness of the length of the proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities, and what was at stake for the applicant in the dispute (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999‑II, and Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000‑VII).

65.  In the leading case of Merit v. Ukraine (no. 66561/01, 30 March 2004), the Court found a violation in respect of issues similar to those in the present case.

66.  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 as to the merits of the present complaint concerning the length of the proceedings, which exceeded seven years and six months over three levels of jurisdiction. Having regard to its case-law on the subject, the Court considers that in the instant case, the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.

67.  This complaint therefore discloses a breach of Article 6 § 1 of the Convention.

VI.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

68.  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.”

69.  The applicant claimed EUR 1,000,000 euros (EUR) in respect of pecuniary and non-pecuniary damage. He further claimed EUR 10,000 for costs and expenses.

70.  The Government contested the above claims as exorbitant and unsubstantiated.

71.  The Court awards the applicant EUR 15,600 in respect of non-pecuniary damage, plus any tax that may be chargeable on the applicant. It rejects the remainder of the claims as unfounded.

72.  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.      Joins to the merits the Government’s objection of non-exhaustion of domestic remedies in respect of the applicant’s complaints under Article 3;

3.      Declares the applications admissible;

4.      Dismisses the Government’s objection of non-exhaustion of domestic remedies;

5.      Holds that there has been a violation of Article 3 of the Convention under both its procedural and substantive limbs;

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

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

8.      Holds that there has been a violation of Article 6 § 1 of the Convention;

9.      Holds

(a)  that the respondent State is to pay the applicant, within three months, EUR 15,600 (fifteen thousand six hundred 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;

10.  Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 25 November 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Martina Keller                                                   Stéphanie Mourou-Vikström
          Deputy Registrar                                                      President