FIFTH SECTION

DECISION

Application no. 6312/16 Bogdan Anatoliyovych KACHUROVSKYY against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 6 July 2023 as a Committee composed of:

Lado Chanturia , President , Stéphanie Mourou-Vikström, Mykola Gnatovskyy , judges , and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 6312/16) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 16 January 2016 by a Ukrainian national, Mr Bogdan Anatoliyovych Kachurovskyy, who was born in 1999 and who lives in Odesa (“the applicant”), and who was represented by Mr A.A. Fedorov, a lawyer practising in Odesa;

the decision to give notice of the application to the Ukrainian Government (“the Government”), represented by their then acting Agent, Mrs O. Davydchuk;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The applicant complained under Articles 3 and 13 of the Convention of ill-treatment by private security guards and of a lack of an effective investigation into the matter.

2 . According to the applicant, at 2 a.m. on 6 July 2015 he was detained in a peach field by private security guards who suspected him of stealing peaches. They put him in a van and drove to the office of the company that owned the field. The applicant complained that between 2 and 9 a.m. he was locked in the van without food, water, or warm clothes and had no opportunity to use the toilet. The van had not been equipped with a place to sit or to lie down. While the applicable law required the security guards to inform the police of his detention immediately, they had only called the police at 9 a.m. The applicant was released from the van at around 10 a.m. when the police arrived.

3 . In his reply to the Government’s observations, the applicant repeated that he had been detained at 2 a.m. and had been put in the van, but stated that he had been held by the security guards for more than eight hours in the peach field.

4. On 7 July 2015 criminal proceedings for attempted theft of peaches were opened. The applicant was later charged with that offence and on 12 March 2016 he was convicted as charged by the Ovidiopol District Court of the Odesa Region (“the Ovidiopol Court”). On 6 July 2016 the Odesa Regional Court of Appeal quashed the verdict of the first-instance court considering there was a lack of proof and closed the proceedings. On 1 November 2016 the Higher Specialised Court for Civil and Criminal Matters upheld the decision of the appellate court.

5. On 10 July 2018 the Ovidiopol Court allowed the applicant’s claim for compensation for unlawful prosecution and awarded the applicant 178,704 Ukrainian hryvnyas (UAH) (approximately 5,956 euros (EUR) at the material time).

6 . The applicant provided the Court with a copy of a forensic medical report dated 6 February 2017, evaluating the negative impact that the criminal proceedings had had on his mental health. The applicant had provided the Ovidiopol court with that document in support of his above-mentioned compensation claim. The report contains a short description, provided by the applicant, of the events of the night in question. In particular, the applicant stated that at around 11 p.m. he had been thirsty and had decided to buy some water. On his way to the shop, he had seen some people running away from private security guards. However, the private security guards caught up with them and detained them, along with the applicant, and took them all to an office ( «робоча база» ). The police arrived the following morning and took the applicant to the police station. The applicant made no mention in that report of being kept in a van for several hours without food or water.

7 . On 8 December 2015 the applicant’s representative wrote to the head of the local police department, requesting that an entry be created in the Unified Register of Pre-Trial Investigations (“the Register”) and that the applicant’s complaint surrounding his detention and ill-treatment be investigated. The applicant’s representative stated that on 6 July 2015 at around 4 a.m., private security guards had detained the applicant along with a number of other people in the village of Mykolayivka on suspicion of stealing peaches from a field located on the outskirts of that village. They had been placed in a van and taken to the village of Nadlymanske. The van had been parked, and the applicant and the other people had been left inside it until 9 a.m., when the police had arrived.

8. A police officer drafted a response dated 29 December 2015 in reply to the applicant’s criminal complaint, in which he stated that he had found no evidence of a criminal offence in the actions of the private security guards. In order to prevent the detention of the applicant and other detained persons without food, water or heating, the private security guards had transferred them to a place with humane conditions and had provided them with an opportunity to rest and access to the sanitary facilities. The applicant alleged that he had not received a copy of the above-mentioned decision. The Government disputed that argument, pointing to the letter from the Chief Office of the National Police in the Odesa Region of 4 January 2016 directed to the applicant and his representative, setting out the reasons for the refusal to open a criminal case concerning the applicant’s ill-treatment.

9. On 28 December 2015 the Ovidiopol Court rejected the applicant’s application of 22 December 2015 seeking an order obliging the police to create an entry in the Register, considering the criminal complaint to be a defence strategy in the criminal case opened against him. On 4 January 2016 the Court of Appeal upheld the above-mentioned decision.

10. On 20 January 2016 the police created an entry in the Register regarding the alleged abduction of the applicant.

11. On 16 March 2016 the police closed the criminal proceedings for lack of corpus delicti .

12. The applicant submitted that he had learned of the above-mentioned criminal proceedings only from the Government’s observations. The Government contested that argument.

THE COURT’S ASSESSMENT

13. The applicant complained that he had been ill-treated by private security guards and that the State had failed to investigate his allegations of ill-treatment.

14. The Government raised the issue of non-exhaustion of domestic remedies.

15. The Court considers that it is not necessary to examine this objection, as the application in any event is inadmissible on the following grounds.

16. The general principles concerning ill-treatment inflicted by private individuals and the obligation of the State to investigate an arguable claim or a credible assertion of ill-treatment have been summarised in Bouyid v. Belgium ([GC], no. 23380/09, §§ 86 and 116, ECHR 2015), M. and Others v. Italy and Bulgaria (no. 40020/03, § 100, 31 July 2012), and Tkachenko v. Ukraine ([Committee] (dec.) no. 74479/14, § 37, 27 May 2021).

17. The Court notes that the applicant has provided contradictory statements of facts in relation to his complaint of ill-treatment. Firstly, in his application form, the applicant stated that he had been detained at 2 a.m. and taken in the van to the company’s office (see paragraph 2 above). In his reply to the Government’s observation, the applicant reiterated that he had been detained at 2 a.m. but stated that he had been kept in the van in the peach field (see paragraph 3 above). In the criminal complaint to the police, the applicant’s representative stated that the applicant had been detained at 4 a.m. and had been taken to another village (see paragraph 7 above). According to the forensic medical report, the applicant stated that he had decided to buy some water at 11 p.m., had been detained by the private security guards and then had been taken to the company’s office (see paragraph 6 above). Lastly, it has to be noted that the applicant had not mentioned his complaint of being kept the night in the van without food, water or warm clothes to a medical expert, when he had described the night in question. That description was included in a forensic medical report dated 6 February 2017, provided to the Ovidiopol Court in support of the applicant’s compensation claim (see paragraph 6 above).

18. The Court observes that the applicant has not provided any explanation for these significant differences in his presentation of the facts.

19. Moreover, the applicant failed to substantiate his complaint as regards his alleged ill-treatment – he did for instance not submit any witness statements from the persons who were allegedly kept in the van with him or other elements in support of his complaint nor did he allege that he had been unable to provide such evidence.

20. The Court thus considers that the applicant’s assertion about being subjected to the alleged degrading or inhuman treatment by the private security guards is unsubstantiated.

21. This complaint, therefore, is inadmissible for being manifestly ill ‑ founded and must be rejected in accordance with Article 35 § 3 (a) of the Convention.

22. The applicant also raised a complaint under Article 13 of the Convention concerning the lack of an effective remedy for his complaint of ill-treatment.

23. The Court notes that the applicant’s complaint under Article 6 § 1 of the Convention is inadmissible within the meaning of Article 35 § 3 (a) of the Convention. It follows that he has no “arguable claim” of a violation of his rights under Article 6 § 1 for the purposes of Article 13 of the Convention.

24. Accordingly, this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 31 August 2023.

Martina Keller Lado Chanturia Deputy Registrar President