12387/17;22431/21

FIFTH SECTION CASE OF SHVAYKOVSKYY AND SAMOYLENKO v. UKRAINE (Applications nos. 12387/17 and 22431/21 – see appended list)           JUDGMENT   STRASBOURG 6 June 2024         This judgment is final but it may be subject to editorial revision.   In the case of Shvaykovskyy and Samoylenko v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:  Carlo Ranzoni, President,  Mārtiņš Mits,  María Elósegui, judges, and Viktoriya Maradudina, Acting Deputy Section Registrar, Having deliberated in private on 16 May 2024, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.  The case originated in applications against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table 2.  The Ukrainian Government (“the Government”) were given notice of the applications. THE FACTS 3.  The list of applicants and the relevant details of the applications are set out in the appended table. THE LAW JOINDER OF THE APPLICATIONS 4.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. ALLEGED VIOLATION OF ARTICLE 3 of the Convention 5.  The applicants complained of the ineffective investigation into ill-treatment inflicted by private parties or in circumstances that exclude involvement of State agents. They relied, expressly or in substance, on Article 3 of the Convention. 6.  The Court notes at the outset that the violent treatment in question fell within the scope of Article 3 of the Convention. The Court reiterates that Article 3 of the Convention requires that the authorities conduct an effective official investigation of alleged ill‑treatment, even if such treatment has been inflicted by private individuals (see M.C. v. Bulgaria, no. 39272/98, § 151, ECHR 2003‑XII, and Denis Vasilyev v. Russia, no. 32704/04, § 99, 17 December 2009). The minimum standards of effectiveness laid down by the Court’s case-law include the requirements that the investigation must be independent, impartial and subject to public scrutiny, and that the competent authorities must act with exemplary diligence and promptness (see, mutatis mutandis, Menesheva v. Russia, no. 59261/00, § 67, ECHR 2006-III). 7.  The procedural requirements of Article 3 go beyond the preliminary investigation stage when the investigation leads to legal action being taken before the national courts: the proceedings as a whole, including the trial stage, must meet the requirements of Article 3. This means that the domestic judicial authorities must on no account be prepared to let the physical or psychological suffering inflicted go unpunished. This is essential for maintaining the public’s confidence in, and support for, the rule of law and for preventing any appearance of the authorities’ tolerance of or collusion in unlawful acts (see, mutatis mutandis, Okkalı v. Turkey, no. 52067/99, § 65, ECHR 2006 XII (extracts)). 8.  Reviewing the facts of the present case in the light of those principles, the Court considers that the authorities, who were empowered to open and conduct a criminal investigation, did not make a genuine attempt to take a prompt and thorough examination of the matter, establish the facts and, if necessary, bring those responsible to account. The specific shortcomings are indicated in the appended table. 9.  In the leading cases of Muta v. Ukraine (no. 37246/06, 31 July 2012) the Court already found violations in respect of issues similar to those in the present case. 10.  Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the investigations failed to meet the criteria of effectiveness. 11.  These complaints are therefore admissible and disclose a breach of Article 3 of the Convention under its procedural limb. APPLICATION OF ARTICLE 41 OF THE CONVENTION 12.  Regard being had to the documents in its possession and to its case‑law (see, in particular, Pobokin v. Ukraine, no. 30726/14, 6 April 2023), the Court considers it reasonable to award the sums indicated in the appended table. FOR THESE REASONS, THE COURT, UNANIMOUSLY, Decides to join the applications; Declares the applications admissible; Holds that these applications disclose a breach of Article 3 of the Convention concerning the ineffective investigation into ill-treatment inflicted by private parties; Holds (a)  that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. Done in English, and notified in writing on 6 June 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.    Viktoriya Maradudina Carlo Ranzoni  Acting Deputy Registrar President       APPENDIX List of applications raising complaints under Article 3 of the Convention (ineffective investigation into ill-treatment inflicted by private parties or in circumstances that exclude involvement of State agents) No. Application no. Date of introduction Applicant’s name Year of birth   Background to the case and domestic proceedings Key issues Amount awarded for non-pecuniary damage per applicant (in euros)[1]     12387/17 11/03/2017 Leonid Ivanovych SHVAYKOVSKYY On 15/10/2013 the applicant was beaten by two private persons, certain R. and V., in his flat. The police, whom he called after R. and V. had tried to enter his flat, left before the incident, leaving R. and V. with the applicant. Immediately after the incident, the applicant was hospitalised. On 16/10/2013 the police instituted criminal proceedings, which were on an unspecified date requalified to robbery and then to infliction of minor bodily injuries. On 21/04/2015 the criminal proceedings were terminated since no evidence of the criminal offence had been identified. On 16/07/2015 the applicant successfully challenged the termination decision before a local court. The court noted, inter alia, that i) the investigator did not assess the credibility of R.’s and V.’s testimonies; ii) no witnesses were identified to counterbalance the applicant’s allegations about his beating; iii) the police officers present on the spot before the incident had never been interrogated; iv) the scene of the incident had not been examined; and v) the applicant’s allegation about a forgery of his handwritten explanations in the case-file had not been verified. On 06/11/2015 the criminal proceedings were terminated by the investigator again, but the prosecutor quashed that decision on 11/01/2016. Since then, the prosecutor had given the instructions to the investigator several times, but no investigative actions were taken. On 03/09/2019 the criminal proceedings were terminated due to the lack of evidence and impossibility to collect it. There is no indication that the applicant was informed of the termination. In 2016 the applicant filed a civil claim against the police seeking pecuniary and non-pecuniary damage. The courts rejected his claim as he had failed to prove the alleged unlawful actions or inactivity of the defendant and to substantiate the amounts claimed (the final decision of the Higher Specialised Court of Civil and Criminal Matters of 03/10/2016). Failure to take the necessary steps to investigate the case thoroughly (Skorokhodov v. Ukraine, no. 56697/09, §§ 34-35, 14 November 2013);   groundless and significant periods of inactivity (Muta v. Ukraine, no. 37246/06, § 65, 31 July 2012);   overall protracted character of the investigation and court proceedings (Muta v. Ukraine, no. 37246/06, § 65, 31 July 2012);   shortcomings recognised by the national authorities themselves (Muta v. Ukraine, no. 37246/06, § 65, 31 July 2012); 3,000     22431/21 02/04/2021 Vitaliy Anatoliyovych SAMOYLENKO On 21/12/2018 the applicant suffered a brain concussion due to an altercation involving M.O. and M.L. Following the applicant’s complaint on 19/01/2019, criminal proceedings were initiated. A forensic medical examination categorized the injuries as minor. The investigator questioned the applicant, M.O., and M.L. On 04/04/2019 the proceedings were terminated as it was determined that the applicant’s injuries resulted from a mutual physical conflict with M.O. and there was no intent on the part of the latter. On 16/04/2019 the court quashed that decision, citing insufficient reasoning and the failure to carry out necessary investigative actions, such as the need to question witnesses and conduct additional forensic medical examinations. On 27/02/2020 the proceedings were again terminated with reference to statements of M.O. and M.L., along with the findings from another medical examination. The court quashed that decision on 23/03/2020 as inadequately reasoned. On 19/04/2020 the investigator decided to terminate the proceedings for the expiration of the time-limit for investigation. This decision was overturned on 04/05/2020 by the court due to insufficient reasoning and non-compliance with previous court orders; the court noted the investigator’s failure to seek an extension of investigation time-limits to carry out all necessary investigative actions. On 19/06/2020 the court granted the investigator’s request to extend the time-limits. On 30/12/2020 the investigator terminated the proceedings. This decision was revoked on 22/01/2021 by the regional prosecutor, who determined that crucial investigative steps had not been taken and that the investigator had disregarded directives from both the prosecutor and the court. On 16/12/2021 the investigator terminated the proceedings once again. The applicant became aware of it only on 14/02/2024 and lodged a complaint with a court, which granted it and quashed the investigator’s decision referring the case for further investigation. Meanwhile, the applicant has filed numerous complaints with the prosecutor’s office and with courts about the inactivity and inefficiency of the investigation. On 04/09/2020 and 21/10/2020, the courts granted the applicant’s complaints and recognised various shortcomings in the investigation at hand. The proceedings appear to be pending. Groundless decisions to close or suspend the case (Aleksandr Nikonenko v. Ukraine, no. 54755/08, § 45, 14 November 2013);    shortcomings recognised by the national authorities themselves (Muta v. Ukraine, no. 37246/06, § 65, 31 July 2012). 3,000     [1] Plus any tax that may be chargeable to the applicants.