European Court of Human Rights

 

 

FIFTH SECTION

CASE OF DEMIDETSKIY v. UKRAINE

(Application no. 50829/09)

 

 

 

 

 

 

JUDGMENT

STRASBOURG

6 October 2022

 

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

In the case of Demidetskiy v. Ukraine,

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

          Stéphanie Mourou-Vikström, President,

          Ivana Jelić,

          Mattias Guyomar, Judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 50829/09) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 27 August 2009 by a Ukrainian national, Mr Leonid Vladimirovich Demidetskiy (“the applicant”), who was born in 1979 and, according to the most recent information, was serving a prison sentence in Bakhmut, and who had been granted legal aid and was represented before the Court by Ms G. Ovdiyenko, a lawyer practising in Kharkiv;

the decision to give notice to the Ukrainian Government (“the Government”), represented by their Agent, most recently Mr I. Lishchyna of the Ministry of Justice, of the applicant’s complaints under Article 3 of the Convention that he was ill-treated by the police and that no effective investigation had been conducted into the matter; under Article 6 § 1 that the length of the criminal proceedings against him had been excessive; and under Article 6 § 3 (c) taken together with Article 6 § 1 that his right to mount a defence in the appeal proceedings had been violated;

the parties’ observations;

Having deliberated in private on 15 September 2022,

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

SUBJECT MATTER OF THE CASE

1.  The case concerns the applicant’s alleged ill-treatment by the police contrary to Article 3 and allegedly unreasonably lengthy and unfair criminal proceedings against him contrary to Article 6 of the Convention.

2.  On 31 July 2005 the applicant was arrested by the police on suspicion of murder and theft and was taken to a police station, where he was detained until 2 August 2005. According to the applicant’s detailed submissions, during that time various police officers repeatedly punched and kicked him, hit him with plastic bottles and books, subjected him to electric shocks through electrodes attached to his limbs, handcuffed him to a radiator for a prolonged period of time and put a plastic bag and a gas mask on his head and repeatedly interrupted the air flow, as a result of which the applicant lost consciousness several times. This was allegedly done in an attempt to force him to confess to having committed the crimes of which he was suspected. Medical reports dated 2 August and 12 October 2005 stated that the applicant had multiple haematomas on his body, face and limbs, most of which had been caused by the impact of “blunt and sharp objects”, while those on his wrists had been “most likely” caused by handcuffs. Between August 2005 and June 2017, numerous repeated investigations were carried out into complaints of police ill-treatment lodged by the applicant. The domestic courts criticised the investigations, inter alia on account of the prosecutors’ failure to establish the cause of the applicant’s injuries. Ultimately, by a decision of 6 June 2017, against which no appeal was lodged, the prosecutors terminated the investigations, finding that, although the applicant’s injuries as described in the relevant medical reports could have occurred between 31 July and 2 August 2005, there was no evidence that they had been caused by the police officers, on whose statements that conclusion was largely based. The prosecutors also noted that a witness had seen the applicant hitting his head against a wall while he had been detained at the police station. It is unclear whether that witness was a police officer.

3.  The criminal proceedings against the applicant ultimately led to a judgment by the Donetsk Court of Appeal on 11 February 2011 finding him guilty of aggravated murder, theft and destruction of property and sentencing him to life imprisonment. On 26 April 2012 the Higher Specialised Civil and Criminal Court held a hearing on the parties’ appeals, at which the applicant was not present or represented, and upheld his conviction and sentence.

THE COURT’S ASSESSMENT

I.        ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

4.  The applicant complained under Article 3 of the Convention that he had been ill-treated by the police and that no effective investigation had been conducted into the matter.

5.  The Court notes that these complaints 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.

6.  Reviewing the facts of the present case in the light of the general principles established in its case-law (see, among other authorities, Bouyid v. Belgium [GC], no. 23380/09, §§ 81-90 and 114-23, ECHR 2015), the Court observes that the applicant raised credible allegations at domestic level of his ill-treatment by the police. However, it appears that the domestic investigations did not reflect a serious effort to determine the relevant facts and in particular to establish the origin of the applicant’s injuries.

7.  In Kaverzin v. Ukraine (no. 23893/03, §§ 173-80, 15 May 2012), the Court found that the reluctance of the authorities to ensure the prompt and thorough investigation of ill-treatment complaints lodged against police authorities constituted a systemic problem in Ukraine for the purposes of Article 46 of the Convention. In view of the circumstances of the present case and its previous case-law, the Court considers that this case concerns another such example of a failure to ensure a prompt and thorough investigation.

8.  The Court further observes that the applicant’s account of the circumstances of his alleged ill-treatment is detailed and largely coherent. Although some of his allegations, notably those regarding his being subjected to electric shocks and his suffocation by a plastic bag or a gas mask having been placed on his head, are not corroborated by medical or other objective evidence, the results of the investigations, given their failure to establish the origin of the applicant’s injuries, cannot disprove his key allegation that the injuries noted in the relevant medical documents had been caused to him by the police (see paragraph 2 above). The Government’s argument that the applicant’s injuries had been self-inflicted, in that he had deliberately hit his head against the wall, cannot be accepted, since they failed to provide any explanation as to how that could have led to his having injuries on different parts of his body and limbs. Nor can the Court accept the Government’s argument that the handcuffs had been used on the applicant lawfully, since it lacks any relevant details or reference to any relevant material. 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.

9.  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.

10.  The Court therefore concludes that the applicant’s complaints disclose a breach of Article 3 of the Convention in respect of his purported ill‑treatment under both its procedural and substantive limbs.

II.     REMAINING complaints

A.    Complaints not requiring a separate examination

11.  The applicants complained under Article 6 § 1 that the length of the criminal proceedings against him had been excessive, and under Article 6 § 3 (c) taken together with Article 6 § 1 that the Higher Specialised Civil and Criminal Court had ignored his request of 17 April 2012 for free legal assistance in the appeal proceedings.

12.  Having regard to the facts of the case, the submissions of the parties and its findings above, the Court considers that it has examined the main legal questions raised in the present application and that there is no need to give a separate ruling on the admissibility and merits of these complaints (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014).

B.    Inadmissible complaint

13.  In his submissions of 25 March 2020, the applicant also complained under Article 6 of the Convention that his conviction had been based on his self-incriminating statements obtained following his ill-treatment by the police. That complaint was lodged more than six months after that conviction had been upheld with final effect by the Higher Specialised Civil and Criminal Court on 26 April 2012 (see paragraph 2 above) and thus must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

14.  The applicant claimed 20,000 euros (EUR) in respect of non‑pecuniary damage.

15.  The Government contested that claim.

16.  Regard being had to the documents in its possession and to its case‑law, the Court considers it reasonable to award the applicant EUR 15,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.

17.  The Court further 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.      Declares the complaints under Article 3 of the Convention concerning the applicant’s alleged ill-treatment by the police and the ineffectiveness of the investigation admissible;

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

3.      Holds that it is not necessary to examine the admissibility and merits of the complaints under Article 6 § 1 concerning the length of the criminal proceedings against the applicant and under Article 6 § 3 (c) taken together with Article 6 § 1 concerning the alleged violation of his right to mount a defence in the appeal proceedings;

4.      Declares the remainder of the application inadmissible;

5.      Holds

(a)  that the respondent State is to pay the applicant, within three months, EUR 15,000 (fifteen thousand euros), plus any tax that may be chargeable, in respect of 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;

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

Done in English, and notified in writing on 6 October 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

            Martina Keller                                         Stéphanie Mourou-Vikström
          Deputy Registrar                                                      President