67158/13

FIFTH SECTION CASE OF PULNYEV AND GVALIYA v. UKRAINE (Application no. 67158/13)             JUDGMENT   STRASBOURG 30 November 2023   This judgment is final but it may be subject to editorial revision. In the case of Pulnyev and Gvaliya v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:  Mārtiņš Mits, President,  María Elósegui,  Kateřina Šimáčková, judges, and Martina Keller, Deputy Section Registrar, Having regard to: the application (no. 67158/13) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 14 October 2013 by two Ukrainian nationals, Mr Igor Valentynovych Pulnyev and Ms Anna Uchayevna Gvaliya, born in 1964 and 1987 respectively, and living in Kherson (“the applicants”), who were represented by Mr F.S. Danylchenko, a lawyer practising in Kharkiv; the decision to give notice of the complaints under Articles 3, 5 and 13 of the Convention and Article 1 of Protocol No. 1 to the Ukrainian Government (“the Government”), represented by their Agent, Mr I. Lishchyna, of the Ministry of Justice, and to declare inadmissible the remainder of the application; the parties’ observations; Having deliberated in private on 9 November 2023, Delivers the following judgment, which was adopted on that date: SUBJECT MATTER OF THE CASE 1.  The case mainly concerns the first applicant’s allegations of ill-treatment and unlawful detention (Articles 3 and 5 of the Convention) and the seizure of the second applicant’s property (Article 1 of Protocol No. 1 and Article 13 of the Convention). the first applicantEvents as submitted by the first applicant 2.  On 5 April 2012 at about 6 a.m., several police officers approached the first applicant at a petrol station near a Chevrolet Lacetti (“the car”) belonging to the second applicant. The police officers knocked him to the ground, handcuffed him, put him in a police car and hit him. At around 8 a.m. they took him to the Kherson regional police station where he remained handcuffed and was punched. 3.  On 6 April 2012 police officers took him, still in handcuffs, to Volodymyr-Volynskyy police station (Volyn Region). 4.  On 7 April 2012 at 4 a.m., the first applicant arrived at the Volodymyr-Volynskyy police station where a police officer initiated criminal proceedings against him and ordered his detention for seventy-two hours for trafficking stolen goods. At around 7 a.m. that day, an ambulance doctor noted in a medical certificate, a copy of which is available in the case file, that he had an injury to his lip, a bruise under his eye, abrasions on his wrists and subluxation of both shoulders. From 7 to 9 April 2012, he was held in a temporary detention facility in Volyn Region. 5.  On 9 April 2012 a police officer ordered the first applicant’s release, but, instead, he was handcuffed, put in a police car and driven back to Kherson, arriving on 10 April 2012 at the Suvorovskyy District police station, where he remained in custody. 6.  On 16 April 2013 the applicant was released. On 12 July 2016 the criminal proceedings against him on a charge of selling a stolen car were terminated for lack of evidence. Investigation into the first applicant’s allegations of ill-treatment and unlawful detention 7.  During the investigation conducted by the prosecutor’s office, initiated at the first applicant’s request in April or May 2012, police officers from both the above-mentioned police stations denied the applicant’s allegations. They submitted that he had gone to both police stations of his own volition and that they had not seen him after his release on 9 April 2012. M., who had witnessed the events at the petrol station in person, confirmed the applicant’s account as described above. The investigation was terminated and resumed on the basis of court orders on several occasions. The courts noted that there had been no forensic medical examination of the applicant’s injuries. 8.  The prosecutors terminated the investigation, finding the first applicant’s allegations to be unsubstantiated. In particular, they established that he had gone voluntarily to the Kherson regional police station with six police officers. Subsequently, he had gone, in unknown circumstances, to Volodymyr-Volynskyy police station. The first applicant did not appeal against these decisions. 9.  He complained under both the substantive and procedural limbs of Article 3, and under Article 5 §§ 1, 2 and 5 of the Convention, about his deprivation of liberty from 5 to 10 April 2012. THE SECOND APPLICANT (Seizure of THE car and other items of property) 10.  During the events of 5 April 2012 (see paragraph 2 above), the police seized a car and various items found in it (including 15,000 United States dollars). Subsequently, it was established that the car had been stolen from R., to whom the car was returned. During the investigation initiated at the second applicant’s request, the prosecutors established that the car was registered in the second applicant’s name (the case file also contains a copy of the registration certificate attesting to that fact). However, the investigation was finally terminated. 11.  The second applicant’s request, lodged under the Code of Criminal Procedure, that the courts order the police to return the car and other items of property to her was finally dismissed, the courts having found that R. was the lawful owner of the car and there was a lack of evidence that the applicant was the owner of the items found in the car. 12.  The second applicant complained under Article 1 of Protocol No. 1 and Article 13 of the Convention regarding the seizure of the car and other items. THE COURT’S ASSESSMENT THE FIRST APPLICANTAlleged violations of Article 3 of the ConventionProcedural limb 13.  The Government’s objection concerning the first applicant’s failure to appeal against the decisions terminating the investigation (see paragraph 8 above) must be rejected in view of the previous case-law (see Kaverzin v. Ukraine, no. 23893/03, §§ 88-99, 15 May 2012). This part of the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. 14.  The applicable general principles were summarised in Assenov and Others v. Bulgaria (28 October 1998, § 102, Reports of Judgments and Decisions 1998-VIII) and El-Masri v. the former Yugoslav Republic of Macedonia ([GC], no. 39630/09, § 182, ECHR 2012). 15.  The Court considers that the first applicant’s bodily injuries constituted an arguable claim that he might have been ill‑treated by the police. Notwithstanding the investigative measures taken (see paragraph 7 above), it cannot be said that the investigation was thorough; for example, no forensic medical examination was carried out, despite the clear instructions by the courts. Furthermore, the prosecutors did not explain the origins of the first applicant’s injuries. They further disregarded, without providing any explanation, the statements of M., a neutral eyewitness who had been at the petrol station (see paragraph 7 above). It is noteworthy that the domestic courts quashed the prosecutor’s decisions to terminate the investigation multiple times (see Kaverzin, cited above, § 97). Accordingly, the first applicant’s complaints of ill-treatment were not properly investigated. Therefore, there has been a violation of Article 3 of the Convention under its procedural limb. Substantive limb 16.  The Government’s non-exhaustion plea under this head is rejected for the same reasons stated in paragraph 13 above. This part of the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. 17.  The applicable general principles were summarised in Bouyid v. Belgium ([GC], no. 23380/09, § 83, ECHR 2015). 18.  The Court observes that the Government provided no explanation as to the origins of the bodily injuries noted in the medical report of 7 April 2012 (see paragraph 4 above), the nature of which coincides with the circumstances described by the first applicant, in particular, while he was in the hands of the police (see paragraphs 2-3 above). 19.  Accordingly, there has been a violation of Article 3 of the Convention under its substantive limb. Alleged violations of Article 5 of the ConventionAlleged detention of the first applicant at the Kherson regional police station and his transportation to Volyn Region 20.  Given the absence of a finding that the applicant’s stay at the Kherson regional police station was unlawful, coupled with the fact that the domestic practice submitted by the Government concerned different issues of law and fact, the Court does not consider that a compensation claim under any provision of Ukrainian legislation offered a reasonable prospect of success. The Government’s non-exhaustion objection must therefore be rejected. This part of the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. 21.  The general principles were summarised in Guzzardi v. Italy (6 November 1980, § 92, Series A no. 39) and Van Droogenbroeck v. Belgium (24 June 1982, § 38, Series A no. 50). 22.  It has not been disputed by the parties that at approximately 8 a.m. on 5 April 2012, the first applicant entered the Kherson regional police station. Even if it were true that he did so at the request of six police officers (see paragraph 8 above), he cannot be regarded as having done so of his own volition. Neither the Government nor the prosecutors produced any evidence that the applicant had indeed left the station and they failed to demonstrate that he could have left the premises of his own free will (see Creangă v. Romania [GC], no. 29226/03, § 99, 23 February 2012). Furthermore, no evidence was submitted to cast doubt on the applicant’s account about his subsequent transportation, in a police car, to the Volodymyr-Volynskyy police station in the Volyn Region, where he was booked in on 7 April 2012 at 4 a.m. The case file does not contain any documentary evidence about the first applicant’s stay in the Kherson police station and his transportation to Volyn Region. 23.  There has accordingly been a violation of Article 5 § 1 of the Convention in respect of the first applicant’s unacknowledged detention at the Kherson regional police station and his transportation to Volyn Region. Remaining complaints 24.  Having regard to the facts of the case, the submissions of the parties and the above findings under Article 3 and Article 5 § 1 of the Convention, the Court considers that it has examined the main legal questions raised in respect of the first applicant, and that there is no need to give a separate ruling on the admissibility and merits of the remaining complaints (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014). ALLEGED VIOLATIONS IN RESPECT OF THE SECOND APPLICANT 25.  The Court notes that the case file contains a document (see paragraph 10 above) attesting to the second applicant’s ownership of the car. On the other hand, there is also a final court judgment stating that the car belonged to R. (see paragraph 11 above). 26.  Assuming that the second applicant was the lawful owner of the car, the Court considers that she was not precluded, as argued by the Government, from instituting judicial proceedings, under the Civil Code or the Code of Administrative Justice, against the police seeking restoration of her property or payment of damages. By failing to do so she failed to exhaust the domestic remedies available to her. In view of this finding, no issue arises under Article 13 of the Convention. This part of the application must therefore be declared inadmissible under Article 35 §§ 3 and 4 of the Convention. APPLICATION OF ARTICLE 41 OF THE CONVENTION 27.  The first applicant claimed 50,000 euros (EUR) in respect of non‑pecuniary damage and EUR 1,000 for legal representation before the Court. 28.  The Government contested these claims. 29.  In view of its findings in respect of the applicants and ruling on an equitable basis, the Court awards the first applicant EUR 15,600 in respect of non-pecuniary damage, plus any tax that may be chargeable. 30.  Having regard to the documents in its possession, the Court considers it reasonable to award the first applicant EUR 500 for legal representation before the Court. FOR THESE REASONS, THE COURT, UNANIMOUSLY, Declares (a)  the first applicant’s complaints under Article 3 and Article 5 § 1 of the Convention (concerning his detention at the Kherson regional police station and transportation to Volyn Region) admissible; (b)  the second applicant’s complaints under Article 1 of Protocol No. 1 and Article 13 of the Convention inadmissible; Holds that it is not necessary to examine the admissibility and merits of the first applicant’s remaining complaints under Articles 5 §§ 1, 2 and 5 of the Convention; Holds that there has been a violation of the substantive and procedural limbs of Article 3 of the Convention in respect of the first applicant; Holds that there has been a violation of Article 5 § 1 of the Convention in respect of the first applicant on account of his unacknowledged detention in Kherson regional police station and his transportation to Volyn Region; Holds (a)  that the respondent State is to pay the first applicant, within three months, EUR 15,600 (fifteen thousand six hundred euros) in respect of non-pecuniary damage, to be converted into the national currency at the rate applicable at the date of settlement, plus any tax that may be chargeable; (b)  that the respondent State is to pay the first applicant, within three months, EUR 500 (five hundred euros) for legal representation before the Court, to be converted into the national currency at the rate applicable at the date of settlement, plus any tax that may be chargeable; (c)  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; Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 30 November 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.  Martina Keller Mārtiņš Mits  Deputy Registrar President