Published on 19 April 2021

FIFTH SECTION

Application no. 33529/13 Andrey Yuryevich VOVK against Ukraine and 4 other applications (see list appended) communicated on 30 March 2021

STATEMENT OF FACTS

On various dates the applicants complained to the Ukrainian authorities that they had been subjected to ill-treatment by law enforcement authorities during their arrest and/or whilst in custody. The facts related to the individual cases are summarised in the table appended below.

In most cases, the domestic courts repeatedly quashed the decisions of the investigative authority which had decided either not to institute criminal proceedings or to terminate criminal proceedings with a view to investigating the applicants ’ complaints, referring to various mistakes and omissions in the investigations.

Based on the case files, the circumstances in which the applicants suffered the injuries complained of have not been clearly and unequivocally established in any of the cases.

COMPLAINTS

The applicants complain under Article 3 of the Convention that they were subjected to ill-treatment by law enforcement authorities.

They further complain that their related complaints have not been effectively investigated by the domestic authorities. They invoke Articles 3, and/or 6 and 13 of the Convention in this respect.

The applicants also complain that their right to a fair trial was violated because the courts convicted them on the basis of self-incriminatory statements which were obtained against their will and as a result of ill ‑ treatment. They also complain that they were not provided with access to a lawyer from the outset of police questioning. They invoke Article 6 §§ 1 and 3 of the Convention in this respect.

The applicant also invokes Article 5 § 1 of the Convention complaining that he was arrested at 6.25 p.m. on 2 September 2011, while an arrest report was drawn up only at 2 a.m. on 3 September 2011.

In addition, he complains under Article 6 of the Convention that the length of the criminal proceedings initiated against him, which were still pending as of December 2019 according to the case file, has been excessive and that his freedom of movement has been restricted for an unreasonably lengthy period in view of the undertaking, which he was obliged to give to the Government in September 2011, not to abscond.

COMMON QUESTIONS TO THE PARTIES

Applications nos. 33529/13 (Mr A.Vovk ); 72204/13 (Mr S.Neugodnikov ); 38328/14 (Mr O.Khrus ); 77969/14 (Mr A.Dendevich ); and 28546/16 (Mr M.Gryshchuk )

1. With respect to the particular circumstances listed in the appended table, have the applicants been subjected to torture, inhuman or degrading treatment, in breach of Article 3 of the Convention ?

2. Having regard to the procedural protection from torture, inhuman and degrading treatment (see Labita v. Italy [GC], no. 26772/95, ECHR 2000 ‑ IV, and Kaverzin v. Ukraine , no. 23893/03, judgment of 15 May 2012), was the investigation by the domestic authorities in the present cases in breach of Article 3 of the Convention?

CASE SPECIFIC QUESTIONS TO THE PARTIES

A. Applications nos. 33529/13 (Mr A. Vovk ); 72204/13 (Mr S. Neugodnikov ); and 77969/14 (Mr A. Dendevich )

Did the applicants have a fair hearing in the determination of the criminal charges against them, as required by Article 6 §§ 1 and 3 of the Convention?

The parties are invited to comment , in particular, on the following aspects:

(a) Was there a violation of the applicants ’ rights not to incriminate themselves (see, in particular, Gäfgen v. Germany [GC], no. 22978/05, ECHR 2010; Zyakun v. Ukraine , no. 34006/06, judgment of 25 February 2016; and a recent example, Shumanskyy v. Ukraine [Committee], no. 70579/12, judgment of 8 October 2020) ?

(b) Were the applicants provided with access to a lawyer from the first interrogation as suspects, as required by Article 6 §§ 1 and 3 (c) of the Convention? If not, has the principle of fairness of the proceedings been impaired in this regard (see, in particular, Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others, judgment of 13 September 2016; Beuze v. Belgium [GC], no. 71409/10, judgment of 9 November 2018; and a recent example, Romanov v. Ukraine [Committee], no. 63782/11, judgment of 16 July 2020)?

B. Application no. 38328/14 (Mr O. Khrus )

1. Was the applicant deprived of his liberty between 6.25 p.m. on 2 September 2011 and 2 a.m. on 3 September 2011 in breach of Article 5 § 1 of the Convention (see, for example, Grinenko v. Ukraine , no. 33627/06 , judgment of 15 November 2012; Belousov v. Ukraine , no. 4494/07 , judgment of 7 November 2013; and a recent example, Us v. Ukraine [Committee], no. 41467/11, judgment of 9 January 2020 )?

2. Has the length of the criminal proceedings against the applicant been in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?

3. Has there been a restriction on the applicant ’ s right to liberty of movement, guaranteed by Article 2 § 1 of Protocol No. 4, by virtue of the undertaking, which he was obliged to give to the Government, not to abscond? If so, was that restriction in accordance with the law and necessary in terms of Article 2 § 3 of Protocol No. 4 (see Ivanov v. Ukraine , no. 15007/02, judgment of 7 December 2006; Nikiforenko v. Ukraine , no. 14613/03, judgment of 18 February 2010; and a recent example, Kopytets and Shtopko v. Ukraine [Committee], nos. 9706/19 and 9709/19, judgment of 17 October 2019)?

APPENDIX

Applicant

Date and location

of alleged ill-treatment

Documented injuries

Applicant ’ s account of ill-treatment and other relevant facts of the case

1. Application no. 33529/13 lodged on 16 May 2013

VOVK

Andrey Yuryevich

Ukrainian national

born in 1991

detained in Sokyriany

represented by Ms N.G. Okhotnikova and Mr L. L.Gulua

30 August 2009

Morske village council and

Sudak city police station

Abrasions on wrists, knees, a hip, left arm, and in abdominal area

(Report no. 143 of 2 September 2009, Sudak forensic medical expert bureau)

Police officers punched and pushed the applicant while his hands were handcuffed behind his back; lifted him by the handcuffs; stepped on his back while he was lying on the floor; threatened him with rape by other arrestees and deprived him of air by placing a plastic bag on his head, until he signed a confessional statement indicating that he had stabbed his classmate to death. No lawyer was provided during the initial interrogations.

Subsequently, the applicant was convicted for murder (final decision by the Higher Specialised Court in Civil and Criminal Matters taken on 8 November 2012 and notified to the applicant by post on 16 November 2012).

2. Application no. 72204/13 lodged on 10 November 2013

NEUGODNIKOV

Sergey Leonidovich

Lithuanian national

born in 1966

residing in Sumy

24-25 October 2012

Golosiyivskyy district police station in Kyiv

Facial abrasion and bruises on left arm and left buttock (Certificate of 29 October 2012, Dr K. of the Kyiv detention centre (“SIZO”)

Police officers repeatedly punched and kicked the applicant until he signed a confessional statement indicating that he had been involved in drug trafficking. His requests to be assisted by his lawyer, Mr Rostovtsev , were ignored.

Subsequently, the applicant was convicted for drug trafficking (final decision by the Higher Specialised Court in Civil and Criminal Matters taken on 21 August 2014).

3. Application no. 38328/14 lodged on 13 May 2014

KHRUS

Oleksandr Viktorovych

Ukrainian national

born in 1983

residing in Zhytomyr

2-3 September 2011

Entry to the block of flats where the applicant resided (during arrest) and

Zhytomyr State Security Service office

Bruise under the left eye (Report no. 3120 of 5 September 2011, Zhytomyr regional forensic medical expert bureau);

Cerebral concussion (Zhytomyr no. 1 and 2 city hospitals, certificates of inpatient treatment from 7 to 13 September 2011)

After the applicant had been arrested and was lying on the floor, an unidentified State Security Service officer kicked him in the head.

Following the applicant ’ s physical arrest at 6.25 p.m. on 2 September 2011, he was kept in unrecorded detention and subjected to psychological pressure in order to force him to confess to having taken a bribe. At 2 a.m. on 3 September 2011, after the applicant had given self-incriminating statements, an arrest report was drawn up and criminal proceedings were initiated.

On 23 September 2011 the applicant gave an undertaking not to abscond, which included an obligation not to leave his town without the authorisation of the law-enforcement authorities.

As of December 2019, criminal proceedings against the applicant were still pending.

4. Application no. 77969/14 lodged on 27 November 2014

DENDEVICH

Aleksey Aleksandrovich

born in 1965

detained in Odesa

24 January 2010

Tairovskyy police office in Kyivskyy district of Odesa

Two facial bruises, abrasions on hands and the left cheek, haemorrhages on thighs (Report no. 266 of 25 January 2010, Odesa regional forensic medical expert bureau)

Several police officers repeatedly hit the applicant, electrocuted him and hung him by his handcuffed hands on a crowbar forcing him to confess to having murdered I.D. and having stolen valuables from her flat. No lawyer was provided until the applicant wrote a confessional statement.

Subsequently the applicant was charged, convicted and sentenced to a term of imprisonment (final decision taken by the Higher Specialised Court in Civil and Criminal Matters on 3 June 2014).

5. Application no. 28546/16 lodged on 12 May 2016

GRYSHCHUK

Mykhaylo Mykhaylovych

born in 1979

residing in Raykivtsi

27 September 2013

Pivdenno-Zakhidnyy district police station in Khmelnytskyy

Spinal cord contusion ( Khmelnytskyy ambulance calls record no. 48051 of 28 September 2013)

Bruises on left shoulder and right arm (Report no. 1300 of 25 October 2013, Khmelnytskyy forensic medical expert bureau)

Police officers repeatedly punched, kicked and hit the applicant with truncheons forcing him to confess that he had hijacked a car.