FIFTH SECTION

DECISION

Application no . 2704/11 Sergey Vasilyevich FESIK against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 11 December 2012 as a Chamber composed of:

Mark Villiger , President, Angelika Nußberger , Boštjan M. Zupančič , Ann Power-Forde , Ganna Yudkivska , Helena Jäderblom , Aleš Pejchal

and Claudia Westerdiek , Section Registrar ,

Having regard to the above application lodged on 21 December 2010,

Having regard to the declaration submitted by the respondent Government on 7 September 2012 requesting the Court to strike the application out of the list of cases and the applicant ’ s reply to that declaration,

Having deliberated, decides as follows:

FACTS AND PROCEDURE

The applicant, Mr Sergey Vasilyevich Fesik , is a Ukrainian national, who was born in 1980 and lives in Kharkiv . He was represented before the Court by Mr M.O. Tarakhkalo , a lawyer practising in Kharkiv .

The Ukrainian Government (“the Government”) were represented by their Agent, Mr N. Kulchytskyy , from the Ministry of Justice.

The application was communicated to the Government on 6 February 2012 under Article 3 of the Convention .

On 12 January 2008 at 10 p.m. the applicant was apprehended by officers of the Moskovskiy District Police Department of Kharkiv as he had no identity papers with him.

The applicant was taken to Saltovskiy police station and placed in a cell, in which he spent two hours. At some point the applicant tried to call a friend on his mobile phone and ask him to bring his passport or otherwise confirm his identity. The police officers attempted to take the telephone from the applicant despite his explanations that he needed it to contact family or friends in order for his passport to be fetched.

Then, according to the applicant, one of the police officers threw the applicant against the metal bars of the cell and handcuffed him. Then the police officers took him out of the cell and started punching and kicking him on the head, body and in the groin. The beating lasted until the early morning (around 3-5 a.m.). The applicant lost consciousness on several occasions. At some point, when he regained consciousness, one of the officers took him to the lavatory to wash his face. Then the applicant was taken to the hall where ambulance doctors were wai ting for him. The doctors examined the applicant and took him to hospital.

In the hospital the applicant was diagnosed with an injury to the left arm and an injury to the soft tissues of the head. He also had numerous bruises to his face.

In the evening of 14 January 2008 the applicant was discharged from the hospital.

On 14 or 15 January 2008 the applicant lodged a criminal complaint with the Moskovskiy District Prosecutor ’ s Office of Kharkiv (hereinafter “the MDPO”) against the police officers.

On 19 January 2008 the MDPO instituted criminal proceedings against the police officers for abuse of authority accompanied with violence.

In January and February 2008 the MDPO investigator conducted some investigative actions with the participation of the applicant. The applicant was not involved in any further investigative actions.

On 17 January 2009 the applicant was diagnosed with chronic prostatitis , which the applicant considered an after-effect of the beatings. In 2009 he twice underwent treatment for those conditions.

On 12 September 2009 investigator S. of the MDPO summoned the applicant for additional questioning. When the applicant arrived, the investigator wrote up a transcript of questioning on a computer without asking him any questions. Then the investigator told the applicant that he had no printer to print out the record and suggested that they go to the Moskovskiy District Police Department building located nearby.

In the Police Department the investigator printed out the transcript, which indicated that the applicant had been beaten up by persons unknown and that the applicant had accused the police officers of beating him up because he was drunk and could not remember anything. The applicant refused to sign the document. Then police officers from the department threatened him with further beatings if he did not sign. Because he was afraid, he signed the document.

On 28 September 2009 the applicant requested the MDPO to have investigator S. replaced, and described in detail the events of 12 September 2009. On 29 September 2009 his request was refused.

On 28 December 209 the applicant lodged a civil claim and a request for an additional forensic medical examination with the MDPO.

On 11 January 2010 the applicant was recognised as a civil claimant in the case, which entitled him to access to the file materials. The investigator also ordered an additional forensic examination of the applicant.

By a letter of 16 July 2010 the Kharkiv Regional Prosecutor ’ s Office informed the applicant that the forensic examination had not yet been carried out.

On 2 December 2010 the investigator refused the applicant ’ s request for access to the file materials.

THE LAW

The applicant complained about ill-treatment by the police and the lack of an effective investigation. He relied on Articles 3 and 13 of the Convention. The Court considered that the applicant ’ s complaints shall be examined under Article 3 only.

After the failure of attempts to reach a friendly settlement, by a letter of 7 September 2012 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.

The declaration provided as follows:

“The Government of Ukraine acknowledge that in the instant case there was a violation of the applicant ’ s rights guaranteed by Article 3 of the Convention in its substantive and procedural limbs.

I, Nazar Kulchytskyy , Government Agent before the European Court of Human Rights, declare that the Government of Ukraine offer to pay EUR 10,000 to Mr Sergey Vasilyevich Fesik .

The Government of Ukraine therefore invite the Court to strike the application out of the list of cases. They suggest that the present declaration might be accepted by the Court as “any other reason” justifying the striking out of the case of the Court ’ s list of cases, as referred to in Article 37 § 1 (c) of the Convention.

The sum of EUR 10,000 is to cover any pecuniary and non-pecuniary damage as well as costs and expenses, will be free of any taxes that may be applicable, and converted into the national currency of the respondent State at the rate applicable on the date of settlement. It will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the Convention. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it from expiry of that period until settlement, as a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

The payment will constitute the final resolution of the case.”

By letter of 1 October 2012, the applicant indicated that he was not satisfied with the terms of the unilateral declaration.

The Court recalls that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified, under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:

“for any other reason established by the Court, it is no longer justified to continue the examination of the application” .

It also recalls that in certain circumstances, it may strike out an application under Article 37 § 1(c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued.

To this end, the Court will examine carefully the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment ( Tahsin Acar v. Turkey , [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI); WAZA Spółka z o.o . v. Poland ( dec .) no. 11602/02, 26 June 2007; and Sulwińska v. Poland ( dec .) no. 28953/03).

The Court has established in a number of cases, including those brought against Ukraine , its practice concerning complaints about the violation of Article 3 of the Convention with respect of police brutality and lack of effective investigation (see Kaverzin v. Ukraine, no. 23893/03 , § 94, 15 May 2012, with further references) .

The Court considers that the costs and expenses requested are excessive and that in the circumstances of the present case, the sum of EUR 1,000 would have been more appropriate. That being so, the Court notes that the amount of compensation proposed by the Government is sufficient to cover such a sum of EUR 1,000 for costs and still remain s consistent with the amounts awarded for non-pecuniary damage in similar cases. Therefore, having regard to the nature of the admissions contained in the Government ’ s declaration, as well as the global amount of compensation proposed, the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1(c)).

Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the application (Article 37 § 1 in fine ).

Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the application could be restored to the list in accordance with Article 37 § 2 of the Convention ( Josipović v. Serbia ( dec .), no. 18369/07, 4 March 2008).

For these reasons, the Court unanimously

Takes note of the terms of the respondent Government ’ s declaration under Article 3 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;

Decides to strike the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention.

Claudia Westerdiek Mark Villiger Registrar President