European Court of Human Rights

FIFTH SECTION

CASE OF ORLOV v. UKRAINE (No. 2)

(Application no. 54015/17)

JUDGMENT
 

STRASBOURG

4 July 2024

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

In the case of Orlov v. Ukraine (No. 2),

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

 Lado Chanturia, President,
 Carlo Ranzoni,
 María Elósegui, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 54015/17) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") on 4 November 2017 by a Polish national[1], Mr Aleksandr Aleksandrovich Orlov ("the applicant"), who was born in 1954, lives in Cracow and who was represented by Mr L. Bobyr, a lawyer practising in Odesa;

the decision to give notice of the applicant's complaints under Article 3 of the Convention concerning the incidents described in the judgment below to the Ukrainian Government ("the Government"), represented by their Agent, Ms Marharyta Sokorenko, and to declare the remainder of the application inadmissible;

the parties' observations;

the decision of the Polish Government not to exercise their right to intervene in the proceedings (Article 36 § 1 of the Convention);

Having deliberated in private on 13 June 2024,

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

SUBJECT MATTER OF THE CASE

1.  The case mainly concerns the applicant's complaints, under Article 3 of the Convention, about three incidents of alleged ill-treatment by fellow inmates, his suicide attempt in detention, and the alleged ineffectiveness of the related domestic investigations.

2.  In September 2011 the applicant was arrested on suspicion of having been involved in organising a murder by a criminal gang.  On 25 May 2016 he was released, and on an unspecified date thereafter his procedural status was changed to that of a witness.

3.  The facts relevant to the incidents complained about and the related investigations are set out in detail in the appended table.

THE COURT'S ASSESSMENT

1. alleged violation of article 3 of the convention In respect of incidents during the applicant's pre-trial detention and the related domestic investigations
   1. As regards the substantive limb
      1. Alleged ill-treatment of the applicant by other detainees (the first to third incidents)

4.  The applicant complained under Article 3 of the Convention that an assault on him by an unidentified detainee on 24 December 2012 ("the first incident") had been an act of revenge by the governor of the pre-trial detention centre ("the SIZO"), R., and officers of the police unit dealing with combating organised crime, in response to complaints that he had made and to various articles published by him in the media. The applicant also blamed the SIZO administration for an assault on him carried out by his cellmate, B., on 15 January 2015 ("the second incident"), given that, according to the applicant, B. was "a recidivist" cooperating with the administration, who had been placed in the applicant's cell with the purpose of putting pressure on him, contrary to the legal provision prohibiting placing persons facing criminal proceedings for the first time together with those with a criminal record. The applicant also complained, in general terms, that there had been a violation of the substantive limb of Article 3 of the Convention on account of an incident which had taken place on 18 December 2015 ("the third incident"). He specified, however, in so far as the first and third incidents were concerned, that he had no complaints against the convoy police who had been transporting him and other detainees when the incidents took place.

5.  The Government submitted that the applicant had not exhausted domestic remedies in so far as the first incident was concerned, as he had not appealed against the investigator's decision of 31 December 2021 to discontinue the investigation. The Government also contended that the complaint concerning the third incident was premature, since the related investigation was still ongoing.

6.  The Court does not consider it necessary to examine the above objections, as this part of the application is, in any event, inadmissible on the following grounds.

7.  It is well-established case-law of the Court that State authorities have an obligation under Article 3 of the Convention to take reasonable steps to protect a detainee from inhuman and degrading treatment inflicted by other detainees (see, for example, Dimcho Dimov v. Bulgaria (no. 2), no. 77248/12, §§ 51-62, 29 June 2017, and the case-law references therein).

8.  In so far as the applicant alleged that he had been exposed to potential violence by a convicted criminal ("the second incident"), the Court notes that this complaint is neither supported by evidence, nor has it ever been voiced by the applicant at the domestic level (contrast Sizarev v. Ukraine, no. 17116/04, §§ 110 and 114-15, 17 January 2013). Moreover, the applicant's only explanation of the reason for his conflict with B. was that he had suspected B. of stealing his food. It is also noteworthy that, prior to the incident, the applicant had been sharing his cell with B., without any conflict or complaints of fears for his safety, for about four months (contrast Sizarev, cited above, § 110).

9.  As regards the incidents which occurred while the applicant was being transported (the first and the third incidents), the applicant has consistently submitted, both at the domestic level and before the Court, that he has no complaint against the convoy police. Nor has he complained that the authorities knew or ought to have known that he stood a real risk of being assaulted by other detainees.

10.  The Court also notes that all the three incidents in question were brief in duration and do not reveal any pattern of systematic abuse (contrast Premininy v. Russia, no. 44973/04, §§ 79, 80 and 86, 10 February 2011, and see, mutatis mutandis, Korpachyova-Hofbauer v. Bulgaria (dec.), no. 56668/12, § 35, 1 September 2015).

11.  It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

2. Alleged driving of the applicant to suicide ("the fourth incident")

12.  The applicant complained, in vague and confused terms, that the State authorities had been doing everything possible to drive him to suicide. He referred in that connection to the incident of 14 March 2016.

13.  The Government observed that the applicant had not appealed against the investigator's decision to discontinue the investigation of 30 September 2019 and that, therefore, he had not exhausted domestic remedies in respect of that complaint either.

14.  Regardless of the above objection by the Government, the Court considers, for the following reasons, that this complaint is manifestly ill-founded.

15.  The Court has held that the obligation to protect the health and well-being of persons in detention clearly encompasses an obligation to take reasonable measures to protect them from harming themselves. That obligation, like the obligation to protect a person's life, must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities, bearing in mind the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources (see Ainis and Others v. Italy, no. 2264/12, § 54, 14 September 2023, with further case-law references).

16.  With regard to the specific case of detainees who voluntarily put their lives at risk, the Court has stated that acts prompted by pressure on the authorities cannot lead to a violation of the Convention, provided that those authorities have duly examined and managed the situation (see Ünsal and Timtik v. Turkey (dec.), no. 36331/20, § 37, 8 June 2021).

17.  Turning to the present case, the Court notes that the applicant, who had apparently resorted to self-harm on numerous occasions prior to the incident in question, was being monitored as a detainee at risk of self-harm or suicide. His complaint to the Court does not concern any allegations of deficiencies in that monitoring. Nor did he suggest that the authorities had failed to duly protect him from self-harm. The essence of his complaint is that he had suffered such unbearable distress that he had attempted to commit suicide. That allegation implies serious and systematic ill-treatment or abuse by detention staff capable of raising issues under Article 3 of the Convention. However, the Court cannot but observe, on the basis of the material at its disposal, that the applicant's complaint, which is couched in vague and confused terms, lacks substantiation. It appears from the documents available to it that the incident in question had been preceded by the seizure of the applicant's mobile telephone, which, even though it might have triggered severe frustration on his part, cannot be interpreted as raising any issue under Article 3 of the Convention.

18.  The Court therefore considers that this complaint should also be declared inadmissible as being manifestly ill-founded.

2. As regards the procedural limb

19.  The applicant complained that there had been no effective domestic investigation in respect of any of the four incidents in question.

20.  The Government contested that argument.

21.  The Court notes that it has dismissed as being manifestly ill-founded the applicant's complaints under the substantive limb of Article 3 of the Convention concerning the incidents in question. However, that finding is based on the information gathered during the domestic investigations which is currently available to the Court, and does not mean, in itself, that the applicant's initial complaints at domestic level were not arguable for the purposes of triggering the State's procedural obligation to investigate (see, for example, Skant v. Ukraine (dec.), no. 25922/09, 6 September 2016).

22.  In so far as the first to the third incidents are concerned, the Court notes that the applicant complained to the domestic authorities that he had been physically attacked by other detainees, and those complaints could not be regarded as being entirely devoid of any basis. As regards the fourth incident, it was established that the applicant had attempted to commit suicide, and his allegation that he had been driven to do so by detention staff could not be dismissed without a thorough investigation. In sum, the Court considers that the applicant's complaints in respect of all the four incidents triggered the positive obligation for the State to carry out an effective domestic investigation.

23.  The Court has summarised the general principles concerning the effectiveness of an investigation into arguable allegations of ill-treatment in Bouyid v. Belgium ([GC], no. 23380/09, §§ 116-23, ECHR 2015) and Muta v. Ukraine (no. 37246/06, §§ 59-62, 31 July 2012).

24.  In the present case, the Court discerns a number of deficiencies undermining the effectiveness of the domestic investigation in respect of all the four incidents.

25.  The Court notes, in particular, that a number of important investigative measures were carried out with considerable delay. This concerns, for example, the forensic medical expert report, which was issued about three years after the first incident. Furthermore, while it was essential to identify and question without delay the detainees who had been with the applicant in the van during the first and third incidents (compare Sizarev, cited above, § 123), the investigator did not undertake such an attempt in connection with the first incident until four years after the events, without success. As regards the third incident, no such attempt appears to have ever been made. Moreover, five years after the second and third incidents, the domestic prosecution authorities themselves admitted that even the most basic investigative measures had not been taken with a view to establishing the truth.

26.  The Court also takes note of the considerable delays - four and a half years in relation to the first incident, and a year and a half in relation to both the second and the fourth incidents - in granting the applicant victim status and thus enabling him to effectively intervene in the investigations (see Yatsenko v. Ukraine, no. 75345/01, § 47, 16 February 2012).

27.  It is also noteworthy that the investigations were discontinued and resumed many times (eleven times in connection with the first incident, five times in connection with the second incident, and four times in connection with both the third and fourth incidents), with the earlier decisions on termination having been found to be premature and unfounded. The Court has held that repeated remittals of a case for further investigation may disclose a serious deficiency in the domestic prosecution system (see, for example, Aleksandr Smirnov v. Ukraine, no. 38683/06, § 61, 15 July 2010, and Ochelkov v. Russia, no. 17828/05, § 122, 11 April 2013). It is evident that the new rounds of investigation ordered in connection with the second and third incidents could hardly have been expected to yield fruit, given that more than eight years have elapsed since the incidents in question.

28.  In the light of all these circumstances, the Court is not convinced that the domestic authorities acted promptly and in good faith, or that they made all reasonable efforts to establish exactly what had happened to the applicant within the walls of the detention facility and why, or to bring those responsible to justice (compare Sizarev, cited above, § 129).

29.  In view of the foregoing, the Court finds that there has been a violation of Article 3 of the Convention on account of the authorities' failure to duly investigate the incidents involving the applicant during his pre-trial detention.

2. remaining complaint

30.  Furthermore, relying on Article 3 of the Convention, the applicant alleged that on 28 December 2017 he had been attacked by officers of the State Security Service, as a result of which he had been hit by a car and had sustained serious injuries (see "Road traffic accident involving the applicant (the fifth incident)") in the appended table for factual details). In his reply to the Government's observations, the applicant contended, in vague terms, that the incident "[had not been] an accident, [but rather] "an attempt on the life of a journalist". He noted, in particular, that he had been near the SIZO, carrying out an independent investigation, without giving further details. The applicant also complained that there had been no effective domestic investigation into that matter.

31.  The Government submitted that the accident involving the applicant had been caused by his own careless actions, for which the State did not bear any responsibility. They also argued that the domestic authorities had taken all reasonable efforts to investigate the matter.

32.  The Court notes that in Nicolae Virgiliu Tănase v. Romania ([GC], no. 41720/13, § 123, 25 June 2019)) it held that bodily injuries and physical and mental suffering experienced by an individual following an accident which was merely the result of chance or negligent conduct could not be considered the consequence of "treatment" to which that individual had been "subjected" within the meaning of Article 3. The Court noted that, indeed, such treatment was in essence, albeit not exclusively, characterised by an intention to harm, humiliate or debase an individual, by a display of disrespect for or diminution of his or her human dignity, or by the creation of feelings of fear, anguish or inferiority capable of breaking his or her moral and physical resistance.

33.  The applicant's submissions in the present case can be interpreted as suggesting both "an intention to harm" by the State Security Service officers and a causal link between their actions and him having been hit by a car. None of those allegations is, however, supported by evidence in the case file before the Court. In other words, his complaint under the substantive limb of Article 3 of the Convention is unsubstantiated.

34.  The same conclusion is applicable to the applicant's complaint concerning the alleged ineffectiveness of the domestic investigation. The Court notes that a full-fledged criminal investigation was launched without delay not only in respect of a possible breach of traffic rules by the driver of the car which had hit the applicant, but also into the applicant's allegations of "an attempt on a journalist's life" and of an "abuse of power" by the State Security Service agents. For the Court, this demonstrates that the authorities took the applicant's case seriously. Obviously, the investigation was hindered by the applicant's amnesia in respect of the circumstances surrounding the accident. However, the investigator conducted a confrontation between the applicant and the officers concerned as soon as that became possible. Overall, the Court discerns nothing in the material in its possession to suggest that the domestic authorities' approach in the present case lacked promptness, expeditiousness or thoroughness.

35.  It follows that this part of the application should be rejected as being manifestly ill-founded, in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

36.  The applicant claimed 6,685,000 euros (EUR) in respect of "damage", without further details.

37.  The Government contested that claim as exorbitant and unsubstantiated.

38.   The Court considers it reasonable to award the applicant EUR 2,500 in respect of non-pecuniary damage.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the complaint concerning the alleged ineffectiveness of the domestic investigations into the incidents during the applicant's pre-trial detention admissible and the remainder of the application inadmissible;
2. Holds that there has been a violation of Article 3 of the Convention under its procedural limb in respect of the four incidents during the applicant's pre-trial detention;
3. Holds

(a)  that the respondent State is to pay the applicant, within three months, EUR 2,500 (two thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(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;

4. Dismisses the remainder of the applicant's claim for just satisfaction.

Done in English, and notified in writing on 4 July 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Martina Keller Lado Chanturia
 Deputy Registrar President

[1] The applicant was born and lived in Ukraine for many years, both before and after obtaining Polish nationality.