Communicated on 29 May 2019

FIFTH SECTION

Application no. 71848/13 Demyan Ivanovych STARENKYY and O thers against Ukraine lodged on 24 October 2013

STATEMENT OF FACTS

The list of the applicants is set out in the appendix. They all are Ukrainian nationals serving life imprisonment sentences in Novgorod ‑ Siverskyy Prison no. 31 in the Chernigiv region. They are represented by Ms O. Sapozhnikova, a lawyer practising in Kyiv.

The facts of the case, as submitted by the applicants, may be summarised as follows.

On 27 March 2012 there was a fire in Sokal Prison no. 47 in the Lviv region, where the applicants were serving their sentences at the time. While nobody died or was injured in the fire, the building of the maximum-security sector, which dated back to the sixteenth century, was almost entirely burned down. The entire population of the maximum-security sector (68 life prisoners) was evacuated, initially to the Lviv Pre-Trial Detention Facility (“the Lviv SIZO”) and subsequently to other detention facilities. According to the applicants, they were subjected to gratuitous and indiscriminate violence during the evacuation.

A. Alleged ill-treatment of the applicants on 27 March 2012

At about 7 p.m. the prison administration, together with officers of military unit no. 3002 charged with detainees ’ convoy, started the prisoners ’ evacuation, having previously handcuffed them with their hands behind the back. O fficers created a “live corridor” 50 to 70 metres long, through which the applicants, among other prisoners, were dragged. Those standing in the “live corridor” were punching and kicking the applicants, and hitting them with rubber truncheons or electric cable pieces, in the head, back, kidneys and so on. Many prisoners sustained various injuries. For example, it is alleged that Messrs Deynega, Kondrashyn and Baylo sustained injuries to their heads from being hit by rubber truncheons. Mr Kuznyetsov had his nose broken as a result of a kick.

When the applicants arrived to the Lviv SIZO, their clothes were torn and dirty, and they had numerous bruises and wounds. They remained handcuffed for several hours after their arrival to the SIZO. Overall, they had been handcuffed in an extremely tight manner from 6 p.m. on 27 March 2012 to 4 a.m. on 28 March 2012. As a result, the hands of many had turned violet and had lost sensibility. While the applicants were provided with some basic medical assistance following the evacuation and transfer to the Lviv SIZO, the SIZO staff refused to document their injuries referring to the lack of competence for doing that.

For three weeks the applicants were allegedly prohibited from having any contact with their families. Once the traces of their beating started to disappear, they were transferred to Novgorod-Siverskyy prison no. 31.

B. Domestic investigation

On 29 March 2012 Mr Starenkyy complained to the Lviv Regional Prosecutor ’ s Office (“the Lviv Prosecutor ’ s Office”) about his alleged beating on 27 March 2012.

On 23 April 2012 Mr Baylo raised a similar complaint before the Prosecutor General ’ s Office (“the PGO).

On an unspecified date Messrs Starenkyy, Baylo, Kuznetsov and Kulyk complained to the prosecution authorities that the officers of the military unit had beaten them during the evacuation on 27 March 2012. The case file before the Court as it presently stands does not contain a copy of that complaint.

On 9 August 2012 the Lviv Garrison Military Prosecutor ’ s Office delivered a ruling refusing to institute criminal proceedings against the officers concerned due to the absence of any evidence that a criminal offence had been committed. It was established that handcuffing was the only restraint measure that had been applied to all prisoners and that no force had been resorted to. The prosecutor relied on the statements of the senior officers concerned who denied any ill-treatment of prisoners. Furthermore, an official of the Lviv SIZO stated that the medical examination of all the sixty-eight prisoners upon their arrival there had established the absence of any injuries. Nor had the applicants (or any other prisoners) raised any complaints of ill-treatment. Several prisoners had been questioned and had stated that they had neither sustained nor witnessed any ill-treatment.

On 10 August 2012 the Lviv Prosecutor ’ s Office also refused to institute criminal proceedings against officials of the Sokal prison for the lack of constituent elements of a criminal offence in their actions. On 23 August 2012 that ruling was quashed (apparently, by the same prosecutor ’ s office) as not based on comprehensive investigation. The case file before the Court does not contain a copy of the above rulings.

Following another complaint from Mr Baylo, on 27 December 2012 the Sokal Town Prosecutor ’ s Office (“the Sokal Prosecutor ’ s Office”) made an entry in the Unified Register of Pre-Trial Investigations regarding an investigation into Mr Baylo ’ s allegations of his ill-treatment by the prison staff members. Such an entry was a new procedure for initiating a pre-trial investigation under the new Code of Criminal Procedure, which had come into effect on 19 November 2012.

On 3 January 2013 the Sokal Prosecutor ’ s Office discontinued the criminal investigation for the absence of the constituent elements of a criminal offence in the actions of the prison staff. The prosecutor questioned Mr Baylo, as well as several other prisoners (Messrs Drugov, Starenkyy, Deynega and Kuznetsov), who maintained their account of the events. However, the governor and fourteen staff members of the Sokal prison, as well as ten staff members of the Lviv SIZO, who had also been questioned, denied the veracity of the ill-treatment allegation.

It appears that on 16 January 2013 the Sokal Prosecutor ’ s Office delivered a similar ruling in respect of Mr Starenkyy ’ s complaint. On 14 March and 25 April 2013 the Sokal Town Court (“the Sokal Court”) and the Lviv Regional Court of Appeal (“the Court of Appeal”), respectively, upheld that ruling. None of the three above-mentioned decisions is presently in case file before the Court.

On 4 February 2013 the Sokal Court quashed the prosecutor ’ s ruling of 3 January 2013 and ordered additional investigation. More specifically, the judge ordered the investigator to ensure Mr Baylo ’ s forensic medical examination with a view to establishing whether he had sustained injuries, as alleged by him, on 27 March 2012. The judge also ordered the investigator to attach as evidence Mr Baylo ’ s clothes, which the latter had been wearing during the evacuation and which allegedly had traces of blood.

On 21 February 2013 the investigator attached the above-mentioned clothes as material evidence in the investigation. On the same date a forensic medical expert examined Mr Baylo. As indicated in the expert ’ s report of 25 February 2013 (not presently in the case file), Mr Baylo had a scar on the left temple, a light injury, which might have been inflicted by a blunt object on 27 March 2012.

On 22 March 2013 the Sokal Prosecutor ’ s Office once against discontinued the criminal investigation having found no indication of a criminal offence in the actions of the prison staff.

On 27 May 2013 the Sokal Court upheld that ruling. However, on 8 July 2013 the Court of Appeal quashed both the first-instance court ’ s decision and the prosecutor ’ s ruling in question, and ordered additional investigation, having found that the one carried out had been incomplete.

On 25 December 2013 the Lviv Prosecutor ’ s Office once again decided to terminate the criminal investigation. Mr Baylo had been additionally questioned. While he alleged that he had sustained about fifteen hits during his passage through the “live corridor”, that allegation was not corroborated by any evidence. Five other prisoners who were also questioned stated that they had neither sustained nor witnessed any ill-treatment. Three prisoners (Messrs Ovsiyenko, Starenkyy and Kuznetsov) submitted that they had seen that Mr Baylo had a head injury, but that they had not witnessed how he had sustained it. The prison and the SIZO staff had been questioned once again and denied the application of force to prisoners. The forensic medical expert, who had examined Mr Baylo, had specified in the course of her questioning that the scar was the only injury discovered and that, according to Mr Baylo, he had sustained it on 27 March 2012. Indeed, in the expert ’ s opinion, that injury could have been sustained within a year prior to the examination, but not necessarily on that date. It could not be ruled out that the injury might have been self-inflicted. The investigator also relied on an information note from the medical unit of the Lviv SIZO, according to which on 5 December 2013 Mr Baylo had undergone a medical examination and had been found in satisfactory heath. As it followed from his medical file, he had neither raised any complaints nor asked for medical assistance during his detention in the Lviv SIZO.

The above prosecutor ’ s ruling was upheld by courts.

It appears from the case-file material that Messrs Petryshak and Ferziyev also complained to the prosecution authorities about their alleged ill ‑ treatment on 27 March 2012, but without success.

COMPLAINTS

Relying on Articles 3 and 13 of the Convention, the applicants complain that they were ill-treated during the evacuation from Sokal prison no. 47 on 27 March 2012 and that there has been no effective domestic investigation into that matter.

QUESTIONS TO THE PARTIES

1. Did all the applicants exhaust the available domestic remedies, as required by Article 35 § 1 of the Convention?

2. Were applicants subjected to treatment or punishment in breach of Article 3 of the Convention during and following the evacuation of 27 March 2012?

3. Having regard to the procedural protection from ill-treatment (see paragraph 131 of Labita v. Italy [GC], no. 26772/95, ECHR 2000-IV), was the investigation undertaken by the domestic authorities into the applicants ’ allegation of ill-treatment in breach of Article 3 of the Convention?

The Government are also requested to submit copies of all the relevant documents, including but not limited to: the reports on the applicants ’ medical examination upon their arrival at the Lviv SIZO; the reports on their forensic medical expert examination following the evacuation if any; the applicants ’ complaints regarding their alleged ill-treatment if any, as well as the authorities ’ (prosecutor ’ s offices, courts, etc.) responses thereto (those presently not in the case file).

APPENDIX

No.

Name

Birth year

Demyan Ivanovych STARENKYY

1968Yelchin Burkhan Ogly AGABALAYEV

1974Oleg Grigoryevich BAYLO

1975Yan Dmytrovych DEYNEGA

1973Volodymyr Oleksandrovych DRUGOV

1964Rustam Zakirovich FARZIYEV

1984Mykhaylo Vasylyovych GRECHUKH

1982Dmytro Oleksandrovych KHAVRUTSKYY

1981Sergiy Sergiyovych KONDRASHYN

1982Sergiy Anatoliyovych KULYK

1968Mykhaylo Sergiyovych KUZNETSOV

1976Viktor Pavlovych LAVRENYUK

1977Andrey Sergeyevich OVSIYENKO

1979Igor Volodymyrovych PETRYSHAK

1983Myroslav Petrovych TOKACH

1980Vasyl Vasylyovych YOVDIY

1983