FIFTH SECTION      CASE OF KULIK v. UKRAINE (Application no. 10397/10)       JUDGMENT    STRASBOURG 19 March 2015 FINAL 19/06/2015 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.In the case of Kulik v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Mark Villiger, President, Angelika Nußberger, Boštjan M. Zupančič, Ganna Yudkivska, Vincent A. De Gaetano, André Potocki, Aleš Pejchal, judges,and Claudia Westerdiek, Section Registrar,Having deliberated in private on 17 February 2015,Delivers the following judgment, which was adopted on that date:PROCEDURE1. The case originated in an application (no. 10397/10) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Vitaliy Vladimirovich Kulik (“the applicant”), on 8 February 2010.2. The applicant, who had been granted legal aid, was represented by Mr A. Bushchenko, a lawyer practising in Kyiv. The Ukrainian Government (“the Government”) were represented by their Agent at the time, Mr. N. Kulchytskyy.3. The applicant alleged under Article 3 of the Convention that he had been ill-treated by police officers and that there had been no effective investigation of the incident. He further complained under Article 13 of the Convention that he had had no civil remedy in respect of his allegations of ill-treatment.4. On 19 March 2012 the application was communicated to the Government.THE FACTSI. THE CIRCUMSTANCES OF THE CASE5. The applicant was born in 1977 and lives in the village of Budy, Kharkiv Region.6. On 4 May 2003 the applicant was arrested on suspicion of stealing cucumbers from a greenhouse on a vegetable farm. On the same day the applicant was also arrested for an administrative offence (disobeying and resisting police officers). The report concerning the applicant’s arrest for the administrative offence indicated that the applicant had no bodily injuries.7. According to the Government, the applicant was released on 4 May 2003.8. According to the applicant, on that day police officers beat him up in the Chervonozavodskyy District Police Department of Kharkiv (“the Police Department”), forcing him to confess to the theft. The applicant made self-incriminating statements. He was released on 5 May 2003 after the court had imposed a fine on him for the administrative offence.9. On 5 May 2003 the investigator of the Police Department instituted criminal proceedings against the applicant and another person (P.) in connection with the theft of the cucumbers. As a preventive measure the applicant signed a written undertaking not to abscond.10. On 5 May 2003 the applicant sought medical treatment at a hospital. A doctor at the trauma unit of the hospital noted that the applicant had numerous bruises on his body, and diagnosed him with concussion and a possible fracture of the nose.11. On 8 May 2003 the applicant was examined by a surgeon, who noted that he had bruises on his nose, on the right side of the waist and on the suprapubic area.12. On 12 May 2003 the applicant was admitted to the hospital for inpatient treatment on account of the injuries he had sustained.13. On 20 May 2003, in the course of questioning, P., another suspect in the criminal case, complained of ill-treatment to the police investigator and noted that on 4 May 2003 he had also been in the Police Department and had heard noises and the applicant shouting.14. On 13 June 2003 the applicant was discharged from the hospital.15. On 25 June 2003 the applicant denied any involvement in the theft and argued that his earlier self-incriminating statements had been made as a result of ill-treatment on the part of police officers.16. On 26 June 2003 a medical expert completed the medical examination (which started on 8 May 2003) and issued a report stating that the applicant was recovering from concussion accompanied by asthenic syndrome, he had bruises on the right leg and the trunk, swollen fingers on the left and right hands, and a swollen nose. The expert opined that the injuries had been inflicted by blunt solid objects and could have been sustained on 4 May 2003. The expert also cited the applicant’s statement that the injuries had been caused on 4 May 2003 by unknown persons in the street.17. On 27 June 2003, in the course of questioning, P. once again stated that on 4 May 2003 he had also been in the Police Department and had heard noises and the applicant shouting.18. On 8 July 2003 the applicant was examined by a psychiatrist and diagnosed with postcontusional syndrome accompanied by occasional anxious depression.19. On 10 July 2003 the applicant applied to the Chervonozavodskyy District Prosecutor’s Office of Kharkiv (“the District Prosecutor’s Office”) seeking criminal prosecution of police officers for ill-treatment.20. On 19 July 2003 the prosecutor, having conducted a pre-investigation enquires, refused to open criminal proceedings in connection with the applicant’s allegations of ill-treatment, for lack of corpus delicti.21. On 31 July 2003 the applicant was examined by a psychiatrist, who considered that the concussion had had a negative psychological effect on him and that he was showing signs of psychoorganic anxious depression syndrome with amnestic disorder.22. On 12 August 2003 the medical expert issued another report, noting that the applicant had sustained concussion which had caused psychoorganic anxious depression syndrome accompanied by amnestic disorder; that he had bruises on his right arm and trunk, and swellings of the right and left hands and face; the injuries were of medium severity and had been caused by blunt solid objects. The expert considered that the injuries could have been sustained on 4 May 2003. The expert again cited the applicant’s statement that the injuries had been caused on 4 May 2003 by unknown persons in the street.23. On 7 October 2003 the Kharkiv Regional Prosecutor’s Office quashed the decision of 19 July 2003 as unfounded and ordered further pre-investigation enquiries.24. On 17 October 2003 the District Prosecutor’s Office instituted criminal proceedings on account of the alleged ill-treatment of the applicant.25. On 31 March 2004 a medical expert issued an additional report which stated that the applicant’s craniocerebral injury accompanied by psychoorganic effects should be classified as an injury of medium severity; the other injuries (bruises and swellings) should be classified as minor injuries. It was noted in the report that the applicant stated that he had been beaten up by police officers on 4 May 2003. The expert opined that his injuries had been caused by blunt solid objects and could have been sustained on 4 May 2003 in the circumstances described by the applicant. The expert did not however exclude the possibility that those injuries had been caused by the applicant’s falling down.26. On 7 April 2004 the Kharkiv Regional Prosecutor’s Office informed the applicant’s father that the criminal case concerning the applicant’s ill-treatment had not been comprehensively investigated and that the investigator in charge had been given instructions as to what further steps must be taken.27. On 8 June 2004 a doctor diagnosed the applicant with anxious depression syndrome.28. On 17 November 2004 the investigation in that case was suspended as the perpetrators of the crime against the applicant could not be identified.29. On 30 March 2005 the investigation was resumed.30. On 11 April 2005 the investigation was suspended again because the perpetrators of the crime against the applicant could not be identified.31. On 1 August 2005 the criminal proceedings against the applicant concerning the theft of the cucumbers were terminated for lack of corpus delicti.32. On 27 January 2006 the Kharkiv Regional Prosecutor’s Office informed the applicant that the decision of 11 April 2005 had been quashed as unfounded and that instructions had been given for a proper investigation of the alleged ill-treatment.33. On 13 March 2006 the investigator of the District Prosecutor’s Office refused to institute criminal proceedings against specific officers of the Police Department in connection with the applicant’s alleged ill-treatment. The investigator noted that the police officers denied the applicant’s allegations and the applicant himself had not claimed at the beginning that he had been ill-treated; the available evidence did not suggest that the injuries had been caused to the applicant by police officers.34. On 14 March 2006 the District Prosecutor’s Office decided to refer the case to the investigation unit of the Police Department for further proceedings.35. On 20 August 2008 the investigation was suspended as the perpetrators of the crime against the applicant could not be identified.36. On 31 October 2008 the supervising prosecutor’s office quashed that decision as unfounded and gave instructions for a further investigation. By letter of the same date the prosecutor informed the applicant of the decision taken. In that letter the prosecutor also informed the applicant about the earlier decision of 13 March 2006, by which the investigator had refused to institute criminal proceedings against specific police officers.37. On 3 August 2009 the local prosecutor’s office informed the applicant that disciplinary proceedings had been instituted against the investigators for inadequate investigation of the case concerning the applicant’s ill-treatment.38. On 20 September 2012 the investigation was pending.II. RELEVANT DOMESTIC LAW39. The relevant provisions of the Code of Criminal Procedure of 1960 (in force at the relevant time) can be found in the judgment in the case of Kaverzin v. Ukraine (no. 23893/03, § 45, 15 May 2012).THE LAWI. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION40. The applicant complained under Article 3 of the Convention that he had been ill-treated by police officers and that there had been no effective investigation of the incident.41. Article 3 of the Convention reads as follows:“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”A. Admissibility42. The Government submitted that the complaint was inadmissible for non-exhaustion of domestic remedies. They argued that the applicant had failed to appeal against the decision of 13 March 2006 by which the investigator had refused to open criminal proceedings against specific police officers. As an alternative, the Government maintained that the complaint should be rejected for the applicant’s failure to comply with the six-month period, which should be calculated from the date the applicant became aware of the decision of 13 March 2006. In that regard the Government argued that the applicant must have become aware of the decision at least by the date of the prosecutor’s letter, 31 October 2008, while the application was introduced in 2010.43. The Government further contended that the applicant’s complaint was manifestly ill-founded. With reference to the medical reports, they emphasised that the applicant had given to the medical experts different descriptions of the circumstances of his ill-treatment. Furthermore, the Government noted that in the last medical report of 31 March 2004 the expert considered that the injuries could have been sustained on 4 May 2003 in the Police Department, although the possibility was not excluded that those injuries had been caused by the applicant’s falling down. The medical evidence was not therefore conclusive to support the allegations of ill-treatment. As to the statements of the co-suspect P., they were vague and did not indicate that the applicant had any injuries at that time. With regard to the procedural aspect of Article 3, the Government submitted that the applicant made a complaint against the police officers only belatedly; nevertheless, the investigation was effective and there had been no shortcomings on the part of the domestic authorities.44. The applicant disagreed and contended that his complaint was admissible.45. The Court considers that the Government’s objections raised on the grounds of non-exhaustion of domestic remedies and non-compliance with the six-month rule are closely linked to the substance of the applicant’s complaint. In these circumstances, it joins these objections to the merits of the case. The Court further considers that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and it is not inadmissible on any other ground. The complaint should therefore be declared admissible.B. Merits1. The parties’ submissions46. The Government did not provide specific comments

Article of the Convention at issue: Article 13
Outcome: violation