FIFTH SECTIONCASE OF PIKHUN v. UKRAINE(Application no. 63754/09)      JUDGMENT STRASBOURG12 December 2019 This judgment is final but it may be subject to editorial revision.In the case of Pikhun v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: André Potocki, President, Mārtiņš Mits, Lәtif Hüseynov, judges,and Milan Blaško, Deputy Section Registrar,Having deliberated in private on 19 November 2019,Delivers the following judgment, which was adopted on that date:PROCEDURE1. The case originated in an application (no. 63754/09) 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 Denis Aleksandrovich Pikhun (“the applicant”), on 24 November 2009 and on 25 January and 23 June 2010.2. The applicant was represented by Mr O.M. Voronkov, a lawyer practising in Dnipro. The Ukrainian Government (“the Government”) were represented by their Agent, Mr I. Lishchyna from the Ministry of Justice.3. On 22 February 2018 notice of the complaints under Articles 3, 5 and 6 of the Convention concerning the applicant’s alleged ill-treatment by the police as well as the lack of effective investigation in that connection, the unlawfulness of his detention on remand, and the unreasonable length of the criminal proceedings against him was given to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.THE FACTSTHE CIRCUMSTANCES OF THE CASE4. The applicant was born in 1980 and lives in Dnipro (named Dnipropetrovsk at the material time).Criminal investigation in respect of the applicant, his arrest and detention5. On 25 September 2006 a criminal investigation for illegal arms possession was instituted in respect of the applicant, who was a police officer at the material time.6. In the course of the investigation, the applicant was arrested and detained several times following court orders to that effect and then later released (most recently on 13 March 2009).7. In the meantime charges of murder, threat and abuse of power were brought against the applicant.8. On 30 November 2009 the applicant was arrested by the police in connection with new charges of firearms theft.9. On 3 December 2009 the Leninskyy District Court of Dnipropetrovsk (“the District Court”) ordered the applicant’s detention on remand.10. On 28 January 2010 the District Court held a hearing in the absence of the applicant and his defence lawyer and extended the applicant’s detention on remand up to four months, that is to say until 30 March 2010. The applicant appealed against that decision.11. On 1 February 2010 the criminal case against the applicant, together with the relevant bill of indictment, was transferred to the District Court for consideration on the merits.12. On 4 February 2010 the Dnipropetrovsk Regional Court of Appeal (“the Regional Court”) returned without examination his appeal against the decision of the District Court of 28 January 2010 on the grounds that the criminal case was being heard by the trial court.13. On 26 February 2010 in the course of the preparatory hearing of the applicant’s criminal case, the District Court remitted the case for additional investigation. The court also ordered the applicant’s continued detention on remand. No reasons for that detention or its time-limits were given.14. On 12 July 2010 the case file was again transferred to the trial court.15. On 4 October 2011 the District Court found the applicant guilty of issuing threats to kill with a weapon, of theft and of the unlawful use of firearms, and sentenced him to four years’ imprisonment.16. On 13 December 2011 the Regional Court quashed the above sentence and remitted the case to the trial court for fresh examination. The court released the applicant after replacing the preventive measure with an undertaking not to abscond.17. In the course of the examination of the case by the trial court, the prosecution limited the scope of the charges against the applicant to the charge of firearms theft.18. On 22 November 2013 the District Court found the applicant guilty of firearms theft but exempted him from any criminal liability due to the expiration of the statutory time-limits.19. On 20 February 2014 the Regional Court quashed the above sentence and remitted the case to the trial court for fresh examination.20. According to the information provided by the applicant, on 11 December 2018 the trial court terminated the proceedings against him in view of the charges having been dropped.21. According to the available material, in the course of the trial the court held eighty-six hearings dealing with the merits of the case (hearing the parties’ submissions and the witness testimony, and examining the evidence). In addition, sixty-six hearings were adjourned because the prosecution, the victim, an expert or a witness failed to appear. On those occasions the trial court ordered the witnesses’ enforced appearance but to no avail. On twenty-one occasions the court hearing was adjourned owing to the applicant’s or his defender’s absence. On eighteen occasions the hearing was adjourned owing to the judge’s inability to hear the case (participation in other proceedings, annual leave, withdrawal from the case, expiration of term of office). The latter set of adjournments led to extension of the time of case’s examination to approximately one year and six months.The applicant’s alleged ill-treatment by the police and the ensuing investigation22. In the course of the investigation, on 30 November 2009, the applicant came along with his defence lawyer to the prosecutor’s office following a request issued by the investigator. New charges of firearms theft (see paragraph 8 above) were brought against him.23. According to the applicant, after having refused to answer questions concerning new charges, he was physically assaulted by three police officers. The police officers throttled him and then handcuffed him. Shortly afterwards, as he was moved from the premises of the prosecutor’s office, the police officers hit his head against a car which was parked nearby. Although he was losing consciousness, the police officers continued throttling him and hitting him on the head.24. The applicant stated that he had been then brought to the police station where the police officers had continued ill-treating him. They had stubbed a cigarette out on his left hand and demanded that he refrain from asserting his rights and interests within the criminal investigation. The applicant had felt sick in his stomach and had asked the police to call an ambulance. Later the same day, he had been taken to the temporary detention centre, where an ambulance had been called for him.25. According to the report of the temporary detention centre (“the ITT”) issued on 22 December 2009, at the time of his admission on 30 November 2009 the applicant was recorded as having a wound on the head, scratches on the head and neck, and bruises on his wrists. The report further states that the applicant had complained of headache and sickness in his stomach. He had been given medical care by an ambulance team. The report further stated that on 2 December an ambulance had been called again but the applicant had refused the medical care offered.26. On 29 December 2009, 2 June, 9 and 12 August 2011 the applicant requested that the detention authorities provide him with the copies of documents concerning his medical examination upon admission to the detention facilities in November-December 2009 and other relevant documents concerning his state of health while in detention. According to the applicant, none of his requests were granted.27. Since 1 December 2009 the applicant has submitted numerous complaints to the prosecution authorities of having been ill-treated by police officers on 30 November 2009.28. On 3 December 2009, in the course of questioning as a suspect within the criminal case against him, the applicant provided the investigator with a detailed account of the alleged ill-treatment of 30 November 2009.29. On 28 January 2010 the applicant submitted a request to the investigator to access his medical-examination reports compiled following the events of 30 November 2009. On 1 February 2010 the investigator considered that the above request had been submitted within the criminal case opened against the applicant. On the basis of that, the request was rejected.30. According to the Government, on 29 January 2010 the investigator of the Leninskyy district prosecutor’s office in Dnipropetrovsk refused to institute criminal proceedings against police officers for the applicant’s alleged ill-treatment because there were no constituent elements of an offence. The investigator stated in his decision that the police officers had forcedly stopped and handcuffed the applicant after he had attempted to flee. Relying on the information from the SIZO, the investigator furthermore stated that no signs of cigarette burns had been found on the applicant, and bruises on his wrists had been the result of having been handcuffed. The Government stated that the applicant had not challenged the above decision.31. The Government further submitted that on 27 November 2009 the applicant complained to the police of having been beaten up by unknown individuals. On the same day he was questioned by the investigator concerning the event in question. The same day the applicant withdrew his complaint and on 28 November 2009 the investigator refused to institute criminal proceedings into the above event for lack of constituent elements of an offence. They provided copies of the applicant’s applications to institute the pre-investigation inquiry into the above event and to discontinue the pre-investigation inquiry, and the relevant decision of the police authorities of 28 November 2009 refusing to institute criminal proceedings.32. In letters dated 9 February and 3 March 2010 the Dnipropetrovsk regional prosecutor’s office informed the applicant that his ill-treatment complaints had not been forwarded for consideration since the criminal case file had been transferred to the trial court, which would have to examine these complaints in the course of the trial.33. In February 2010 the applicant instituted proceedings challenging the reply of the prosecution authorities of 9 February 2010. On 1 March 2010 the Zhovtnevyi District Court of Dnipropetrovsk discontinued the above proceedings, holding, with reference to the prosecutor’s statement, that no procedural decision had been taken by the prosecution authorities following the applicant’s ill-treatment complaints.34. On 22 November 2013 the District Court rendered a ruling in addition to its principal sentence (see paragraph 18 above), in which the court stated that the events of 30 November 2009 (see paragraphs 23 and 24 above) could indicate that the applicant had been ill-treated. The court notified the Dnipropetrovsk regional public prosecutor of its ruling “with a view of taking relevant actions and avoiding similar events in the future”.35. On 20 February 2014 the Regional Court quashed the above ruling together with the principal sentence (see paragraph 18 above) and remitted the case to the trial court for fresh examination. In its decision the Regional Court instructed the trial court to carefully examine the applicant’s ill‑treatment complaints.36. The parties did not inform the Court whether the above instruction of the Regional Court had been implemented.THE LAWALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION37. The applicant complained that he had been ill-treated by the police and that no effective investigation into his complaints had been carried out. He relied on Article 3 of the Convention, which reads as follows:“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”Admissibility38. The Government submitted that the applicant had failed to exhaust effective domestic remedies in respect of his ill-treatment complaints since he had failed to challenge the investigator’s decision of 29 January 2010 refusing to institute criminal proceedings against police officers for his alleged ill-treatment (see paragraph 30 above).39. The applicant argued that he had learned about the above decision only from the Government’s observations. He had not been given a copy and therefore he had not been able to challenge it. In his view, this decision had in any case been unlawful as it had been taken by a body lacking competence.40. The Court considers that the Government’s argument is closely linked to the substance of the applicant’s complaints under Article 3 of the Convention. It must therefore be joined to the merits.41. The Court further notes that the above complaints are neither manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention nor inadmissible on any other grounds. They must therefore be declared admissible.Merits42. The relevant general principles of the Court’s case-law concerning Article 3 of the Convention and the State’s obligations stemming from that provision are summarised in particular in El-Masri v. the former Yugoslav Republic of Macedonia ([GC] no. 39630/09, §§ 182-85 and 195-98, ECHR 2012) and Bouyid v. Belgium ([GC] no. 23380/09, §§ 81-90 and 100‑01 ECHR 2015).Procedural aspect of Article 3 of the Convention(a)   The parties’ submissions43. The applicant submitted that no investigation into his ill-treatment complaints had been carried out. The investigating authorities had failed to question the applicant, his father, and other witnesses, including the officers of the police office regarding his ill-treatment. He also stated that no forensic examination of his injuries had been carried out. He asserted that he had been unaware of the decision of 29 January 2010 since he had not been given a copy of it. He further stressed that had the above decision been taken, all the medical documents, which had been destroyed according to the Government, would have been attached to the above decision. Reference to the above decision would have been made in other material in the case file, for example in the decision of the Regional Court of 20 February 2014 (see paragraph 35 above).44. Lastly, the applicant submitted that his ill-treatment complaints had been examined in the course of his trial only. However, that examination had been limited to questioning the applicant, his father, and two witnesses without a full-scale investigation that would meet the requirements of Article 3 of the Convention.45. The Government submitted that the authorities had carried out an effective investigation into the applicant’s ill-treatment immediately after an event in question. In particular, they had immediately obtained statements from the police officers who had arrested the applicant on 30 November 2009. The above investigation had been discontinued on 29 January 2010 and had not been challenged by the applicant.(b)   The Court’s assessment46.

Article of the Convention at issue: Article 3
Outcome: violation