Published on 19 April 2021

FIFTH SECTION

Application no. 24427/15 Mykola Vasylyovych VARVA against Ukraine lodged on 13 May 2015 communicated on 30 March 2021

STATEMENT OF FACTS

The applicant, Mr Mykola Vasylyovych Varva, is a Ukrainian national, who was born in 1955 and lives in Kharkiv.

The facts of the case, as submitted by the applicant and as established on the basis of the documents provided by him or available from public sources, may be summarised as follows.

(a) Political and security context

In the aftermath of the 2014 Ukrainian revolution (often referred to as “Euromaidan”), in spring 2014 illegal armed groups started operating in the Donetsk and Lugansk regions (Donbas), seizing control of certain parts of those regions by force. They announced the creation of self-proclaimed entities known as the “Donetsk People ’ s Republic” and “Lugansk People ’ s Republic” (“DPR” and “LPR”). In response, the Ukrainian Government launched a military operation.

Unrest gripped also the Kharkiv region (adjacent to the Donestk and Lugansk regions). Notably, there was a series of explosions there in summer and autumn 2014, mainly targeting military facilities and buildings associated with those supporting the Ukrainian military effort in the east of Ukraine. The responsibility for those explosions was attributed to an armed separatist group calling themselves “Kharkiv partisans”.

On 5 September 2014 representatives of Ukraine, the Russian Federation and the OSCE, as well as “DPR” and “LPR”, signed an agreement to halt the war in Donbas. It was documented as the “Protocol on the results of consultations of the Trilateral Contact Group” [1] and is commonly known as “the Minsk Protocol”. One of its points concerned “immediate release of all hostages and illegally detained persons”.

On 26 December 2014 the first big “prisoners ’ exchange” took place between the Ukrainian Government and “DPR” and “LPR”, pursuant to the above-mentioned agreement. The Ukrainian Government handed over to “DPR” and “LPR” about 220 detainees facing, in particular, separatist-related terrorism charges. Instead, the self-proclaimed entities released about 150 Ukrainian army servicemen.

(b) Further events of relevance

The applicant actively participated in the anti-government protests in Kharkiv in summer 2014.

On 14 November 2014 a search was carried out at his home in the context of the investigation into the explosions in Kharkiv and the region. Nothing illegal was found.

On 16 November 2014 a certain Ms K. was arrested on suspicion of involvement in the explosions. She was also suspected of having organised a trip of about fifteen persons to Russia where they had allegedly been trained to handle firearms and bombs with a view to destabilising the situation in the Kharkiv region. The police found arms, bombs and explosives in Ms K. ’ s garage in the course of a search conducted on the same date. It appears that at some point Ms K. indicated the applicant as one of the participants of the above-mentioned military training.

According to the applicant, on 16 November 2014, at about 11.30 a.m., while walking near his home, he was apprehended by the Security Service of Ukraine (“the SBU”) officers, who pushed him in a car, put a bag on his head and handcuffed him. Apart from mentioning that they were from the SBU, the officers gave no further explanations.

The applicant was taken to the Kharkiv regional department of the SBU, where he allegedly sustained serious ill-treatment. Notably, during his questioning (the applicant provides no details on the substance of the questions posed to him), when the officers were not satisfied with his answers, they hit him with a heavy book in the back of the head. Once that book slipped and hit him, painfully, in the nose bridge. Furthermore, the officers put a gas mask on the applicant ’ s face, with lit cigarettes being inserted into the air valve. As a result, he fainted several times. They also kicked him in the ribs and the hips each time he fell. The applicant ’ s alleged ill-treatment lasted from about 2 p.m. to 11 p.m.

On 17 November 2014 the applicant was not ill-treated physically, but allegedly received threats in respect of his family in case he would not cooperate.

On 18 November 2014 he signed all the documents as instructed. An appointed lawyer was present but did not react to the applicant ’ s numerous visible injuries.

Late in the evening on 18 November 2014 the applicant was taken to the Kharkiv Temporary Detention Facility (“the Kharkiv ITT”). According to him, he complained of having been tortured by the SBU and asked for a medical examination. His complaints and requests were allegedly ignored.

The case file before the Court contains a copy of a letter from the Kharkiv ITT governor to the applicant ’ s lawyer dated 16 March 2015 (a reply to the lawyer ’ s unspecified enquiry). As stated therein, after his arrival at the ITT the applicant was questioned by the officer on duty in respect of any complaints or injuries. The applicant raised no complaints. At the same time, the following injuries were documented: sores on the wrists, hematomas in the ribs ’ area, sores on the nose bridge, sores and contusion on both calves and on the left hip, as well as contusion in the back of the head. It was noted in the letter that the ITT administration had informed the Kharkiv City Prosecutor ’ s Office about the applicant ’ s injuries.

At 11.50 a.m. on 18 November 2014 the investigator drew up a report on the applicant ’ s arrest. It stated that the applicant had been arrested at 10.50 a.m. that day on the following grounds:

“[The applicant] has been arrested near his residence address ... while walking towards a car parking area. The grounds for [his] arrest stem from the fact that he has been directly and actively participating in [the activities of] the terrorist organisation “Kharkiv partisans”. In other words, [the applicant] has been arrested while committing a criminal offence under Article 258-3 § 1 of the Criminal Code of Ukraine, which warrants the application of an arrest measure in compliance with Article 208 § 1 of the Code of Criminal Procedure.”

It was noted in the report that during the applicant ’ s personal search following his arrest the police had seized, in particular, three mobile telephones.

The report contained an explanation of the applicant ’ s procedural rights. The applicant wrote therein that he requested a non-custodial preventive measure.

On 20 November 2014 the Kharkiv Kyivskyy District Court (“the Kyivskyy Court”) remanded the applicant in custody as a preventive measure for two months. It noted that he was suspected of having committed a crime under Article 258-3 § 1 of the Criminal Code (participation in a terrorist organisation). Notably, the applicant was suspected of having participated in a military training from 20 August to 2 September 2014 in Russia, together with several other persons under the leadership of Ms K., within the “Kharkiv partisans” terrorist organisation. The court considered that suspicion reasonable referring, in particular, to the reports on the applicant ’ s arrest and questioning of 18 November 2014, as well as the reports on Ms K. ’ s questioning of 16 November 2014 and presenting photographs for identification to her, as well as to another person, on 18 November 2014. It was indicated in the ruling that the applicant admitted his guilt in part. The Kyivskyy Court held that there was a risk of the applicant ’ s absconding given that he had no strong social ties. It noted that the applicant was unemployed. It further observed that, in accordance with Article 176 § 5 of the Code of Criminal Procedure (“the CCP”), applying a non-custodial preventive measure was impossible under the circumstances.

The applicant appealed. The case file before the Court does not contain a copy of that appeal. According to the applicant, he pointed out, in particular, that he had a big family for whom he was the only breadwinner, that he was the founder and director of a private commercial company and that he had no criminal record.

On 27 November 2014 the Kharkiv Regional Court of Appeal upheld the ruling of 20 November 2014. Its reasoning was confined to the reference to Article 176 § 5 of the CCP.

On 25 December 2014 the Kharkiv Regional Prosecutor ’ s Office discontinued the criminal proceedings in respect of the applicant for want of evidence of his guilt and ordered his release. The prosecutor noted that, as it had been established, the applicant “had important weight in the circles linked with the “LNR” and the “DNR” terrorist organisations [and] his detention could have a negative impact on the liberation from captivity of the Ukrainian army servicemen, as well other persons kept hostage in the area of the anti-terrorist operation in the Lugansk and the Donetsk regions”. It was also stated in the ruling that it was adopted with a view to the implementation of the Peace Plan of the President of Ukraine.

In the morning on 26 December 2014 the applicant was taken out of his cell with all his belongings. He was familiarised with the prosecutor ’ s ruling of 25 December 2014 and was handed a release certificate. As stated therein, he was released on 26 December 2014 and “was heading to his place of residence” (his address in Kharkiv was indicated).

The applicant was not released, however. He was informed that he was “on the list for the exchange”. According to the applicant, he did not understand what that meant. Together with several other persons, he was taken to the SBU where they joined a bigger group. They were placed in several buses, which then left in an unspecified direction. After several hours of driving, the detainees were made change buses. Within about an hour, they reached their destination. As the applicant then discovered, he was brought to Donetsk.

According to the applicant, some armed persons subjected him to extensive questioning as to the reasons for him being within the group for the “prisoners ’ exchange”. He was allegedly suspected to be a spy of the SBU.

The case file contains a copy of the applicant ’ s “temporary ID card” issued by the so-called “War Prisoners ’ Commission of the Defence Ministry of the Donetsk People ’ s Republic” on 5 January 2015. It contains the applicant ’ s photo, his residence address in Makiyivka (Donetsk region) and the following text:

“The holder of the present temporary ID was in captivity, was illegally detained on the enemy-controlled territory; he has no other ID documents. Status: “political prisoner”.”

On 27 January 2015 the regional prosecutor ’ s office quashed its ruling of 25 December 2014 as “unfounded and premature”. It stated that the suspicion against the applicant was based on extensive witness evidence, as well as material evidence collected during the search in Ms K. ’ s garage.

According to the applicant, his lawyer accidentally found out about the above-mentioned ruling in May 2015.

On 9 February 2015 the investigator severed the charges in respect of the applicant and sixteen other persons suspected of involvement in the “Kharkiv partisans” terrorist organisation on the ground of their absconding. They were declared wanted by the police.

In August 2015 the Kyivskyy Court rejected the request of the applicant ’ s lawyer for access to the data regarding the location of the applicant ’ s mobile telephones during the period from 9 a.m. on 16 November 2014 to 11.50 a.m. on 18 November 2014. It held that the applicant was on the wanted list and that the investigation had been stayed on those grounds. In such circumstances, no investigative measures other than those aimed at locating the applicant were possible.

On 10 February 2017 the applicant ’ s wife wrote to the Ombudsman that on 26 December 2014 she had witnessed her husband being taken from the Kharkiv SIZO in a bus going in an unknown direction and that she had found out from mass media that he had been on the “prisoners ’ exchange” list. She insisted that the applicant had never given his consent for that and asked the Ombudsman for help in establishing his whereabouts. It is not known whether there was any reply to that letter.

In October 2018 the SBU allegedly informed the applicant ’ s wife that they envisaged discontinuing the criminal proceedings against him.

On 28 November 2018 the applicant entered the Ukrainian territory having crossed the Ukrainian-Russian border in the Kharkiv region (allegedly in compliance with the SBU ’ s instructions). He was immediately brought to the SBU, where he was briefed as to his further conduct.

The applicant accepted “to write whatever was dictated to him” in exchange for a promise to be exempted from criminal liability. That was allegedly the only possibility to get his criminal prosecution discontinued.

On 8 January 2019 the Kyivskyy Court exempted the applicant from criminal liability under Article 258-3 § 2 of the Criminal Code. It held that, although the applicant had admitted having participating in a military training in Russia in August 2014 with a view to destabilising the situation in the Kharkiv region, he had voluntarily offered his cooperation to the authorities in disclosing criminal activities of the “Kharkiv partisans” terrorist group and had shared all the information in his possession as regards, in particular, the preparation of the terrorist attack in Kharkiv in November 2014 [2] .

(a) In the SBU Kharkiv Regional Department (from 16 to 18 November 2014)

The applicant allegedly spent two nights in a basement, sleeping on a wooden shield placed on the floor in a shower cabin, with no matrass, pillow or bedding. There was no heating and the temperature was very low.

(b) In the Kharkiv ITT (from 18 to 21 November 2014)

The applicant was detained in three different cells with similar conditions. There was no hot water; the supply of cold water was irregular, and its quality was poor. The applicant had no access to shower. Artificial light was on day and night.

On the days when the applicant was taken out for investigative measures, he left the ITT after the breakfast and returned late in the evening missing all the meals. No alternative catering arrangements were provided for him. The applicant also had no access to drinking water on those days.

(c) In the Kharkiv SIZO (from 21 November to 26 December 2014)

Upon his arrival at the Kharkiv SIZO on 21 November 2014, the applicant had his hair and beard shaved off. According to him, before that he had always been wearing a beard and had never shaved his head bold or cut his hair too short. The applicant submitted a copy of his passport photo, on which he had hair and a beard, and a copy of the certificate on his release of 26 December 2014 containing a photo of him bold and beardless.

During the initial two days in the SIZO the applicant was detained in cell no. 604, which had four beds for five inmates. There were dirty matrasses and no bedding. The door to the toilet was missing. There was no hot water. The temperature in the cell was very low and the light was poor.

Subsequently, the applicant was transferred to cell no. 643, with largely similar conditions.

During the entire period of his detention in the Kharkiv SIZO the applicant had no access to shower.

Articles 28 and 29, which are relevant to the case, are quoted in Nechiporuk and Yonkalo v. Ukraine (no. 42310/04, § 121, 21 April 2011).

Article 258-3 § 1 provides for imprisonment of between eight and fifteen years for creation of a terrorist group or organisation, or its management, or participation therein, or aiding and abetting its activities by any means. Under Article 258-3 § 2, a person (except for the organiser/leader of a terrorist group or organisation) shall be exempted from criminal liability if he/she has voluntarily informed the authorities about terrorist activity, has contributed to putting an end to that activity or disclosing related crimes, and if there is no indication of any other criminal offence in his/her actions.

The relevant provisions and materials can be found in Grubnyk v. Ukraine (no. 58444/15, §§ 40-46 and 53, 17 September 2020).

COMPLAINTS

The applicant complains under Article 3 of the Convention:

- that he was tortured by the SBU officials and that there was no effective domestic investigation into the matter;

- that he was subjected to the humiliating shaving off of his hair and beard; and

- that he was detained in appalling conditions in the SBU Kharkiv Regional Department, the Kharkiv ITT and the Kharkiv SIZO.

The applicant also complains under Article 5 § 1 of the Convention that he was held in unrecorded detention between 16 and 18 November 2014 and that his arrest, which was formalised on 18 November 2014, was not based on a prior court decision.

Furthermore, the applicant complains under Article 5 § 3 of the Convention that he was brought before a judge only on the fourth day after his de facto arrest. He also complains under the same provision that the domestic courts did not provide relevant and sufficient reasons in justification of his pre-trial detention and that they were prevented from examining the possibility of a non-custodial preventive measure in his case by Article 176 § 5 of the Code of Criminal Procedure.

The applicant next complains under Article 5 § 4 (additionally relying on Articles 6 and 13) that the Kharkiv Regional Court of Appeal did not conduct a meaningful examination of his arguments against the detention order.

Lastly, the applicant raises the following complaints in relation to his allegedly forceful participation in the “prisoners ’ exchange” of 26 December 2014:

- under Article 3 of the Convention that the Ukrainian authorities subjected his life and health to serious danger by having handed him over, contrary to his will, to armed persons whom the Government themselves considered terrorists;

- under Article 5 § 1 of the Convention about the failure to release him, contrary to the order on his release of 25 December 2014 and in the absence of his consent for the “prisoners ’ exchange”;

- under Article 8 of the Convention and Article 2 of Protocol No. 4 that his allegedly forceful transfer by the Ukrainian Government to “DPR” was in breach of his rights to respect for his private and family life and his freedom of movement.

QUESTIONS TO THE PARTIES

1. With regard to the events of 16-18 November 2014, did the SBU officials subject the applicant to torture, inhuman or degrading treatment or punishment, in breach of Article 3 of the Convention? Was any explanation provided to the applicant ’ s injuries documented upon his arrival at the Kharkiv ITT?

2. Having regard to the procedural protection from torture and inhuman or degrading treatment (see paragraph 131 of Labita v. Italy [GC], no. 26772/95, ECHR 2000-IV), was the investigation in the present case by the domestic authorities of the applicant ’ s alleged ill-treatment on 16 ‑ 18 November 2014 in breach of Article 3 of the Convention?

The Government are requested to submit copies of all the documents regarding the domestic investigation in respect of the applicant ’ s injuries documented upon his arrival at the Kharkiv ITT, as well as any other documents regarding his alleged ill-treatment.

3. Did the applicant have his hair and beard shaved off upon his arrival at the Kharkiv SIZO on 21 November 2014? If so:

- Was that measure compatible with Article 3 of the Convention (see Yankov v. Bulgaria , no. 39084/97, §§ 108-21, ECHR 2003 ‑ XII (extracts))?

- Did it amount to an interference with the applicant ’ s right to respect for his private life within the meaning of Article 8 § 1 of the Convention? Was that interference in accordance with the law and necessary in terms of Article 8 § 2?

4. Did the conditions of the applicant ’ s detention – from 16 to 18 November 2014 in the SBU Kharkiv Regional Department (if he was detained there), from 18 to 21 November 2014 in the Kharkiv ITT and from 21 November to 26 December 2014 in the Kharkiv SIZO – amount to inhuman or degrading treatment contrary to Article 3 of the Convention?

5. Was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention between 16 and 18 November 2014?

6. Was the applicant ’ s detention, based on the arrest report of 18 November 2014, in breach of Article 5 § 1 of the Convention?

7. Was the applicant promptly brought before a judge as required by Article 5 § 3 of the Convention?

8. Did the domestic courts provide relevant and sufficient reasons in justification of the applicant ’ s pre-trial detention, as required by Article 5 § 3 of the Convention (see Grubnyk v. Ukraine , no. 58444/15, §§ 110-30, 17 September 2020)?

9. Did the applicant have at his disposal an effective procedure by which he could challenge the lawfulness of his pre-trial detention, as required by Article 5 § 4 of the Convention (see Kharchenko v. Ukraine , no. 40107/02, § 85, 10 February 2011)?

10. Did the applicant give his consent for the participation in the “prisoners ’ exchange” of 26 December 2014? If not:

- Was his handing over by the Ukrainian Government to the “DPR” self-proclaimed entity in compliance with Article 3 of the Convention regard being had to the inherent risks which he alleged?

- Was the failure of the Ukrainian authorities to release the applicant contrary to the ruling of the Kharkiv Regional Prosecutor ’ s Office of 25 December 2014 in compliance with Article 5 § 1 of the Convention?

- Was there a violation of the applicant ’ s right to respect for his private and family life under Article 8 of the Convention on account of his participation in the “prisoners ’ exchange” allegedly contrary to his will?

- Was there a violation of Article 2 of Protocol No. 4 on account of the restrictions on the applicant ’ s movement on 26 December 2014?

[1] “The Trilateral Contact Group on Ukraine” was formed in June 2014 as a group of representatives from Ukraine, the Russian Federation and the OSCE to facilitate a diplomatic resolution to the war in east of Ukraine.

[2] Apparently, the reference was made to the explosion in “Stina” pub (a popular gathering spot for local pro-Ukrainian activists and volunteers) of 9 November 2014, which caused numerous injuries. As known from public sources, on 7 October 2019 the Kyivskyy Court found Ms K. guilty of that terrorist attack.