FIFTH SECTION

CASE OF ZALEVSKIY v. UKRAINE

( Application no. 3466/09 )

JUDGMENT

STRASBOURG

16 October 2014

FINAL

23/03/2015

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Zalevskiy v. Ukraine ,

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

Mark Villiger, President, Angelika Nußberger, Boštjan M. Zupančič, Ganna Yudkivska, Vincent A. De Gaetano, André Potocki, Aleš Pejchal, judges, and Claudia Westerdiek , Section Registrar ,

Having deliberated in private on 23 September 2014 ,

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

PROCEDURE

1 . The case originated in an application (no. 3466/09) 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 Viktor Vasilyevich Zalevskiy (“the applicant”), on 19 December 2008 .

2 . The applicant was represented by Mr V.V. Ruban, a lawyer practising in Vinnytsya . The Ukrainian Government (“the Government”) were represented by their then a cting Agent, Mr M. Bem .

3 . The applicant alleged, in particular, that he had been ill-treated during his arrest and that no effective investigation had been carried out in that respect .

4 . On 7 September 2012 the application was communicated to the Government .

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5 . The applicant was born in 1964 and lives in Vinnytsya .

6 . On 21 November 1995 the applicant was provided with a flat by the local authorities in the city of Vinnytsya.

7 . On 1 December 1995 the applicant married S. and t he couple lived in that flat.

8 . On 22 December 1997 the applicant and S. had a son.

9 . On 13 March 2001 the couple divorced, but neither of them would agree to vacate the flat.

10 . According to the applicant, after the divorce his former wife repeatedly demanded that he sell the flat. As he refused to do so, he allegedly received threats from S., her relatives and certain police officers. Whenever disputes broke out between the former spouses living in the same flat, S. called the police to handle the m .

11 . In December 2005 the Zamostyanskyy District Court of Vinnytsya considered an administrative case against the applicant following the submissions of the police concerning the domestic violence by the applicant . The court found the applicant guilty of violent behaviour in respect of his son and former spouse and imposed a fine on him .

A . I ncident of 14 and 15 February 2006

12 . At about 11 p.m. on 14 February 2006 th ree police officers arrived at the applicant ’ s flat after receiving a telephone call from S. complaining about the applicant. According to the Government, the call was made by the applicant ’ s neighbour; the applicant was shouting and threatening S. and the latter was crying that the applicant was threatening her with a knife.

13 . According to the applicant, he refused to let the police officers in as they did not show their ID cards or present themselves, it was too late at night and the light in the corridor was turned off. The police tried to enter but failed to do so. At about 2 a.m. on 15 February 2006 two of S. ’ s brothers arrived and demanded that the applicant open the door. By that time, the light in the corridor was switched on and the applicant checked to see who was there by looking through the peephole in the door. As he saw only the two brothers without any police officers , he decided to open the door. Once he had unlocked the door, the brothers together with three police officers burst in and started to beat up the applicant. The applicant did not resist. When trying to handcuff the applicant the police officers twisted his arms and broke his right arm. The y then took the applicant to the police station. T he y allegedly ill-treated him on his way to the police station and once there .

14 . According to the Government , S. ’ s brothers arrived at the scene after receiving a call from S. A t 2 a.m. on 15 February 2006 they managed to persuade the applicant to open the door. However, as soon as he did so , he saw the police officers in the corridor and made an attempt to close the door. S. ’ s brothers and the police officers push ed against the door and burst into the flat . H aving been pushed away from the door , the applicant fell on to a chair and the floor . In order to arrest the applicant and take him to the district police station, the police officers decided to handcuff him. As the applicant was resisting his arrest, the y had to apply force against him. I n the course of handcuff ing the applicant, his arm was unintentionally broken .

15 . In the police station the applicant complained about his broken arm. An ambulance was therefore called and he was taken to the Vinnytsya City Hospital no. 2 (“the hospital”) .

B . Treatment in the hospital

16 . In the hospital the applicant was diagnosed with a fracture d right humerus accompanied by displacement of bone fragments , neuritis of the radial nerve, crushed soft tissue, and bruises on both wrists and on his jaw .

17 . On 16 February 2006 t he applicant underwent an operation on his arm . He stayed in the hospital until 1 March 2006 for inpatient treatment .

C . Proceedings against the applicant

18 . On 15 February 2006 S. complained to the district police that the applicant had threatened to kill her and their son .

19 . On the same day the police questioned S., her brothers, the applicant and the neighbours . T hey also inspected the scene of the events.

20 . On 16 February 2006 a forensic medical examination of S. was carried out. The expert report stated that S. had a bruise on her right lower leg, which could have been caused by a blunt object on 14 February 2006.

21 . On 23 February 2006 the police , having regard to S. ’ s refusal to maintain her complaint, refus ed to institute criminal proceedings against the applicant .

22 . On 21 September 2006 the investigator instituted criminal proceedings against the applicant in connection with an offence under Article 129 § 1 of the Criminal Code of Ukraine ( t hreat to kill). According to the applicant, the criminal case was closed for lack of evidence.

D . Proceedings concerning the applicant ’ s ill-treatment

23 . On 2 1 February 2006 the applicant complained to the Zamostyanskyy District Prosecutor ’ s Office of Vinnytsya (“the district prosecutor ’ s office”) on account of his ill-treatment by the police and his former wife ’ s brothers .

24 . On 14 March 2006 the assistant prosecutor at the district prosecutor ’ s office refused to institute criminal proceedings in connection with the alleged ill-treatment. Considering the facts of the incident, he noted that the applicant had been pushed backwards when the door had been forced open and had fallen on to a chair , hitting his right arm against the floor. He held that t hat might have been when the applicant had sustained the injuries. Having regard to th o se circumstances and the applicant ’ s behaviour during the conflict , t he assistant prosecutor concluded that there had been no corpus delicti in the actions of the police officers. The decision was based on the reports of the police officers and the interviews of the applicant, S., her brothers and the neighbours. The assistant prosecutor also had regard to the city police ’ s internal inquiry report of 2 8 February 2 006 , which suggested that the police officers had acted lawfully .

25 . On 28 March 2006 the district prosecutor quashed that decision as unfounded and ordered additional pre-investigati ng enquiries . He noted, in particular, that the medical examination of the applicant had not been completed and the role of S. ’ s brothers in the incident had not been properly examined .

26 . On 3 April 2006 the district prosecutor ’ s office received an internal inquiry report of the Vinnytsya Regional Police Department suggesting that the applicant had sustained his injuries when falling on to a chair and the floor .

27 . T he medical examination of the applicant was completed on 26 April 2006 . The experts noted in their report that, apart from a fracture d right humerus , the applicant had sustained bruises on his right forearm, right shoulder, left leg and both wrists.

28 . On 6 May 2006 the district prosecutor ’ s office , having carried out additional pre-investigati ng enquiries , refused to institute criminal proceedings in connection with the alleged ill-treatment for the reason that there had been no elements of crime in the conduct of the police officers. The decision reproduced the same version of events as the one established earlier by the authorities, suggesting that the applicant had sustained his injuries when falling on to a chair and the floor. It specif i ed that the applicant had a strong constitution and had offered resistance during the arrest. T he police officers had therefore been assisted by S. ’ s brothers when restraining and handcuffing the applicant.

29 . On 9 June 2006 the Vinnytsya Region al Prosecutor ’ s Office quashed that decision and ordered further pre-investigati ng enquiries. It considered that it was necessary to examine the applicant ’ s personality , his behaviour before the quarrel with S., and whether he had been drunk at the time . Furthermore, the circumstances in which the applicant was injured and the role of each of the participant s of the incident had to be scrutinised and an additional medical examination of the applicant carried out.

30 . During the additional pre-investigati ng enquiries the authorities once again interviewed the applicant and S. They took statements from the ambulance paramedic as to the circumstances of the applicant ’ s hospitalisation . They inspected the scene of the incident, and enclosed a negative reference letter from the local house - maintenance authority in respect of the applicant.

31 . On 26 June 2006 the juvenile department of the city council interviewed the applicant ’ s minor son in the presence of S., a school teacher and a school psychologist . By that time the son had undergone a psychological examination by the school psychologist , who had concluded, inter alia, that the son was scared of his father and d id not include him in the family circle . During the interview at the juvenile department the applicant ’ s son claimed that his father had uttered obscenities and had threatened him and his mother; occasionally, h is father would grab hold of him and shake him. He alleged that his father had taken a knife and had chased his mother around the flat; his father had also often threatened to throw his mother off the balcony. When asked about his attitude to wards his father , the applicant ’ s son replied that he was scared of his father and wished to live just with his mother.

32 . On 18 August 2006 the panel of experts concluded that the fracture of the applicant ’ s arm had resulted from a rotary application of force, when the arm had been turned about its axis. They noted that this corresponded to the applicant ’ s statement that his arms had been twisted behind his back. The experts added that the fracture could not have been caused by a direct application of force, including when the applicant, as alleged by the police officers, had fallen down as the door had been pushed open .

33 . On 25 September 2006 the medical expert was interviewed as regards the possible origin of the applicant ’ s injuries. The expert opined that the bruises on the applicant ’ s wrists could have been caused by the handcuffs. He did not exclude the possibility that t he other identified injuries, except for the fracture d arm , might have resulted from the applicant ’ s fall and the impact with a chair and the floor.

34 . On 26 September 2006 the district prosecutor ’ s office refused to open an investigation in connection with the alleged ill-treatment for the reason that there were no elements of crime in the conduct of the police officers . According to the decision, the applicant might have sustained the fracture d arm when the police officers , assisted by S. ’ s brothers , were twisting his arms in order to handcuff him; the bruises on his wrists might have been caused by the handcuffs; the other bruises might have been caused by the applicant ’ s fall on to a chair and the floor when he was pushed backwards by the entrance door. The decision specified that the applicant had a strong constitution and had offered resistance during the arrest .

35 . On 28 November 2006 the Staromiskyy District Court of Vinnytsya quashed the decision of 26 September 2006 , holding that the pre-investigati ng enquiries were in complete . The court ordered the authorities to take additional measures to scrutinise the circumstances of the incident , the role of each participant , the personality of the applicant and the situation in the family.

36 . On 12 February 2007 the district prosecutor ’ s office , having conducted additional enquiries, refused to institute criminal proceedings in connection with the alleged ill-treatment. The decision set out the facts in the following way. I n the evening of 14 February 2006 the local police station received a telephone call reporting a domestic dispute at the applicant ’ s flat. At about 11 p.m. three police officers arrived at the flat but could not enter as the applicant refused to open the door. The police officers could hear a woman and a child crying for help . In particular, the woman was crying that the applicant was wielding a knife and threatening to kill her. The woman asked the applicant to open the door several times , but to no avail. The p olice officers attempted to negotiate with the applicant . Two neighbours stood nearby and observ ed the situation.

A t 2 a.m. on 15 February 2006 two of S. ’ s brothers arrived and asked the applicant to open the door , claiming that the police had left. When t he applicant unlocked the door the police officers and the brothers burst into the flat , pushing the applicant backwards with the door , which he was trying to shut . The applicant fell on to a chair and the floor , and might have been injured .

In the flat the police officers decided to hand cuff the applicant and take him to the police station . As the applicant had a strong constitution and resisted the arrest, the police officers were assisted by S. ’ s brothers. They twisted the applicant ’ s arms behind his back and handcuffed him. Once the applicant had been taken to the police station , he started to complain of pain in his right arm . H e was then taken to the hospital by ambulance for treatment.

37 . Relying on th o se facts, t he district prosecutor ’ s office found that the police officers and S. ’ s brothers had acted lawfully and had had no intention of injuring the applicant. Their intention had been to arrest him and stop his unlawful and dangerous conduct. T he recourse to physical force had been lawful and necessary in the circumstances . The fracture d arm might have been caused when the applicant resisted the twisting of his arm s behind his back; the bruises on his wrists were probably caused by the handcuffs, and the other bruises might have resulted from the applicant ’ s fall on to a chair and the floor when he was pushed away from the door. The district prosecutor ’ s office concluded that in those circumstances there had been no corpus delicti in the actions of the police officers and S. ’ s two brothers.

38 . On 23 March 2007 the Staromiskyy District Court of Vinnytsya upheld the decision of 12 February 2007 , finding that the prosecutor ’ s office had taken all the necessary measures and examined the incident thoroughly, comprehensively and objectively .

39 . On 17 May 2007 and 12 July 2008 the Vinnytsya Region Court of Appeal and the Supreme Court, respectively, upheld the decision of the first-instance court of 23 March 2007.

II. RELEVANT DOMESTIC LAW

A. Criminal Code of 5 April 2001

40 . Article 129 § 1 of the Criminal Code provides as follows:

“ 1. A ny t hreat to kill , if there were reasonable grounds for believing that it might be fulfilled, shall be punishable either by detention for up to six months or by restriction of liberty for up to two years.”

B. Code of Criminal Procedure of 28 December 1960 (in force at the material time)

41 . The relevant provisions of the Code of Criminal Procedure can be found in the judgment in the case of Davydov and Others v. Ukraine (nos. 17674/02 and 39081/02 , § 112, 1 July 2010) .

C. The Police Act of 20 December 1990

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

44 . The applicant complained that he had been ill-treated by police officers and private individuals and that no effective investigation had been carried out in that regard.

45 . Article 3 of the Convention reads as follows:

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

A. Admissibility

46 . The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties ’ submissions

47 . As regards the procedural aspect of Article 3 of the Convention, t he Government submitted that the applicant ’ s allegations of ill-treatment had been investigated effectively. The authorities had taken all necessary steps in order to collect the evidence and to establish the circumstances in which the applicant had sustained his injuries. Therefore the requirements under Article 3 had been complied with.

48 . As to the substantive aspect of Article 3, the Government insisted on the version of the events developed by the domestic authorities. They submitted that the police officers had been obliged to overcome the applicant ’ s resistance and to terminate his unlawful conduct. Accordingly, their recourse to physical force had been lawful and necessitated by the applicant ’ s own behaviour.

49 . The applicant claimed that the investigation into his allegations of ill-treatment had not been effective since the decisions of the district prosecutor ’ s office refusing to institute criminal proceedings had been quashed several times by the supervising authorities . That suggested that the pre-investigatin g enquiries had been carried out superficially. In his opinion , the investigating and judicial authorities had failed to examine the case properly .

50 . The applicant further argued that the domestic authorities had wrongly established the facts relating to the incident in question. He claimed that the police officers and S. ’ s brothers had beaten him up and had used force against him that had not been necessary as he did not resist . With respect to his behaviour during the incident, the applicant noted that he had not been found guilty of any offence. He therefore insisted that his treatment had been contrary to Article 3 of the Convention.

2. The Court ’ s assessment

(a) The procedural aspect of Article 3

52 . The Court notes at the outset that the applicant ’ s injuries were serious enough (see paragraphs 1 6 and 2 7 above) and his complaint of ill-treatment was arguable for the purpose of Article 3 of the Convention requiring the domestic authorities to carry out an effective investigation.

53 . T he Court observes that the domestic enquiries were entrusted to the district prosecutor ’ s office, which was hierarchically independent from the police authorities. The enquiries were subject to supervision and control by senior prosecutors and the judicial authorities of three instances . There is nothing to suggest that the domestic proceedings did not ensure an independent and impartial examination of the matter raised by the applicant.

54 . In the course of the domestic proceedings the investigating authorities interviewed the persons involved, assembled the relevant evidence, including the medical reports, and took other steps in order to establish the circumstances of the incident and the origin of the injuries. It has to be noted that the initial enquiries were based on incomplete material, lacking, most importantly , medical evidence, which initially led to hasty conclusions as to the origin of the applicant ’ s fractured arm. Nevertheless, in the course of further enquiries , ordered by the supervising authorities, that deficiency was removed and the domestic courts eventually concluded that the district prosecutor ’ s office had thoroughly examined the matter. The Court does not find a ground to question this conclusion.

55 . As to the length of the proceedings, all the enquiries were completed within one year . I n the subsequent period of one year and five months the domestic courts examined the lawfulness of the findings reached by the district prosecutor ’ s office . Overall, the length of the proceedings was not excessive and t he Court does not find any significant protraction on the part of the authorities which could have diminish ed the effectiveness of the domestic proceedings . Similarly, the Court does not find any indication that the applicant was unable effectively to participate in the proceedings, or that his procedural rights were otherwise affected in the course of the domestic proceedings.

57 . Accordingly, a ssessing the domestic proceedings on the whole, the Court considers that the State properly discharged its procedural obligations under Article 3 of the Convention.

58 . There has therefore been no procedural violation of Article 3 of the Convention .

( b ) The substantive aspect of Article 3

(i) R elevant principles

60 . In assessing evidence, the Court has generally applied the standard of proof “beyond reasonable doubt”. However, proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see, among other authorities, Yerokhina v. Ukraine , no. 12167/04 , § 52, 15 November 2012, with further references).

61 . As to the burden of proof, in cases of alleged ill-treatment during arrest, it is incumbent on the State to provide a plausible explanation of how the injuries were caused and to show that the use of force was not excessive , failing which a clear issue arises under Article 3 of the Convention (see Rehbock , cited above, Zelilof v. Greece , no. 17060/03, § 47, 24 May 2007; Lewandowski and Lewandowska v. Poland , no. 15562/02, § 58 , 13 January 2009; Staszewska v. Poland , no. 10049/04, § 52 , 3 November 2009; Mikiashvili v. Georgia , no. 18996/06 , § 69 , 9 October 2012 ).

62 . In determining whether there was a plausible explanation for the use of force and the resulting injuries , attention should be paid to the adequacy of the domestic investigations carried out in respect of the allegations of ill-treatment (see K arbowniczek v. Poland , no. 22339/08, § 58, 27 September 2011) .

( ii ) Application of the above principles

(α) A s to the standard and burden of proof

63 . I t is common ground that the applicant sustained his injuries o n the night of his arrest and during the conflict between him, on the one side , and the police officers and private individuals (S. ’ s brothers) on the other . Th o se facts are substantiated by the evidence available in the file. In these circumstances , t he burden rests on the Government to provide a plausible explanation justifying the use of force during the incident and the origin of the injuries .

(β) E xplanation for the use of force and the origin of the injuries

64 . The domestic authorities established the sequence of events and provided the following explanation for the injuries sustained by the applicant. P hysical tension between the parties first arose when the applicant tried to resist the opening of the entrance door to his flat . As a result, he was pushed backwards and fell on to a chair and the floor. That was when he sustained injuries to several parts of his body , as further documented at the domestic level (except for the fracture d arm and the bruises on his wrists ). T ension occurred again when the applicant resisted his handcuffing. His right arm might have been broken w hen his arms were twisted behind his back . The police officers then handcuffed him, which probably caused the bruises on his wrists (see paragraphs 36 and 37) .

65 . It follows therefore that the authorities accounted for the applicant ’ s injuries. The question remains whether that explanation is plausible.

(γ) Is the explanation plausible ?

66 . The Court refers to its findings above under the procedural aspect of Article 3 and notes that the explanation for the incident was given by the authorities in the course of the domestic proceedings , which were compatible with the requirements of effectiveness. It not es that the initial version of the district prosecutor ’ s office, briefly suggesting that the applicant ’ s injuries had been sustained by his fall, was not endorsed by the supervising prosecutor ’ s office which ordered further examination of the matter (see paragraph 29 above) . Eventually , the domestic authorities arrived at the detailed explanations for the applicant ’ s injuries and these explanations were coherent with the medical expert reports and opinions (see paragraphs 32 and 33 above).

68 . As regards the applicant ’ s further allegation that h e was ill-treat ed on the way to the police station and therein , t here is no material at hand to demonstrate that at that time the applicant was subjected to any ill - treatment serious enough to breach Article 3 of the Convention (see Yerokhina, cited above, § 53).

69 . More specifically , as to the situation and intensity of the conflict, the domestic authorities considered that the police officers had been faced with the applicant ’ s unlawful and dangerous conduct and therefore had a duty to terminate the incident. T he conflict between the police officers and the applicant took place not in the course of a planned arrest operation, but in rather spontaneous circumstances which could have had unforeseen and serious consequences . Accordingly, t he police officers might have been reasonably expected to act with resolve, given the history of the applicant ’ s relationship with his former wife and their son. It appears that t he decision to apply the handcuffs was justified by the circumstances . In explaining why the police officers had been assisted by two private individuals , the domestic authorities specified that the applicant had a strong constitution , and that observation remain ed uncontested.

(δ) Conclusion

70 . In view of the above considerations the Court conclude s that the authorities provided a plausible explanation for the applicant ’ s injuries and showed that the use of force against him was not excessive.

II . OTHER ALLEGED VIOLATIONS OF THE CONVENTION

72 . T he applicant complained of other violations of his rights by the domestic authorities.

73 . The Court has examined these complaints and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. Accordingly, the Court rejects them as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

FOR THESE REASONS, THE COURT , UNANIMOUSLY,

1 . Declares the complaint under Article 3 of the Convention admissible and the remainder of the application inadmissible;

2 . Holds that there has been no procedural violation of Article 3 of the Convention;

3 . Holds that there has been no substantive violation of Article 3 of the Convention .

Done in English, and notified in writing on 16 October 2014 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

             Claudia Westerdiek Mark Villiger Registrar President