Communicated on 7 December 2020 Published on 11 January 2021

FIFTH SECTION

Application no. 25236/16 Pavlo Valeriyovych CHERNATA against Ukraine lodged on 27 April 2016

SUBJECT MATTER OF THE CASE

The case concerns the applicant ’ s ill-treatment while in police custody, which entailed particularly grave consequences. More specifically, during his pre-trial detention in the Vinnytsya pre-trial detention centre (“the SIZO”), on 27 February 2010 the applicant sustained serious injuries, including a skull fracture and a brain haemorrhage , in circumstances which have never been clarified. After having spent a year and a half in a coma, he was diagnosed with irreversible severe dementia and was declared legally incapable on that ground.

The initially instituted criminal proceedings against one of the applicant ’ s cellmates, D., were discontinued after he had complained of having incriminated himself under police torture. Subsequently, criminal proceedings were instituted against two convicted prisoners, Ch. and R., whom the SIZO staff had admitted from the maximum-security sector to the pre-trial detention cell, in which the applicant was held shortly before the incident, in unclear circumstances. By the time of Ch. ’ s trial, the charge against him was limited to infliction of an insignificant injury on the applicant without any consequences for the latter ’ s health (namely, Ch. was accused of having kicked the applicant in the arm). The courts of two levels of jurisdiction (the Vinnytsya City Court on 23 March 2015 and the Vinnytsya Regional Court of Appeal on 27 October 2015) acquitted Ch. They held that the charge against him was “absurd” under the circumstances of the case and that, even within the scope of that charge, there was no proof of his guilt. The courts noted that there was considerable witness evidence suggesting that the SIZO staff were trying to conceal what had really happened. Several witnesses stated in the court hearing that, following a dispute among inmates, the applicant had been taken out of the cell without major injuries. On 14 July 2015 the investigator dropped a similarly formulated charge against R.

On an unspecified date (possibly in 2013) criminal proceedings were instituted against several staff members of the SIZO on suspicion of aggravated excess of power on account of illegal transfers of detainees from one cell to another. It appears that those proceedings neither included any further charges nor progressed beyond the pre-trial investigation stage.

The applicant ’ s wife, who is also his legal guardian, complains, with the reference to Articles 3 and 13 of the Convention, that the responsibility for the applicant ’ s ill-treatment lies with the SIZO staff whose direct involvement cannot be ruled out and who failed, in any event, to protect his health and well-being in detention. She also complains that there was no meaningful domestic investigation into the matter. These complaints fall to be examined under Article 3 of the Convention only.

QUESTIONS TO THE PARTIES

1. Was the applicant subjected to torture, inhuman or degrading treatment proscribed by Article 3 of the Convention during his detention in the Vinnytsya SIZO?

2. Bearing in mind the authorities ’ obligation under Article 3 of the Convention to account for injuries caused to persons within their control in custody, does the respondent State bear responsibility for the injuries sustained by the applicant on 27 February 2010 (see, mutatis mutandis , Shlychkov v. Russia , no. 40852/05, § 68, 9 February 2016)?

3. Did the respondent State comply with its duty to protect the physical well-being of the applicant as a person in a vulnerable position by virtue of being within the control of the authorities, as required by Article 3 of the Convention (see Premininy v. Russia , no. 44973/04, § 73, 10 February 2011)?

4. Having regard to the procedural protection from inhuman or degrading treatment (see Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000 ‑ IV) , was the investigation undertaken by the domestic authorities into the incident of 27 February 2010 in compliance with Article 3 of the Convention?

Your Government are requested to submit copies of all the relevant documents which are presently not in the case file before the Court.