FIFTH SECTIONCASE OF BELEY v. UKRAINE(Application no. 2705/20)  JUDGMENT Art 46 • Binding force and execution of judgments • Applicant’s complaints confined to a new period and new factual developments subsequent to those covered by a previous finding of procedural violation of Art 3 • Art 46 not precluding the Court from examining the new applicationArt 3 (procedural) • Continued ineffective investigation into complaints of ill-treatment by the police Prepared by the Registry. Does not bind the Court. STRASBOURG19 December 2024 FINAL 19/03/2025 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Beley v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Mattias Guyomar, President, María Elósegui, Armen Harutyunyan, Stéphanie Mourou-Vikström, Andreas Zünd, Diana Sârcu, Mykola Gnatovskyy, judges,and Victor Soloveytchik, Section Registrar,Having regard to:the application (no. 2705/20) 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 Nikolayevich Beley (“the applicant”), on 12 December 2019;the decision to give notice to the Ukrainian Government (“the Government”) of the applicant’s complaints under Article 3 of the Convention about the continued ineffective investigation into his allegations of ill-treatment;the parties’ observations;Having deliberated in private on 26 November 2024,Delivers the following judgment, which was adopted on that date:INTRODUCTION1. The application concerns the continued, and allegedly ineffective, investigation into the applicant’s complaints of ill-treatment by the police after the Court’s judgment in Beley v. Ukraine ([Committee], no. 34199/09, 20 June 2019), in which it found violations of the substantive and procedural limbs of Article 3 of the Convention.THE FACTS2. The applicant was born in 1977 and lives in the village of Chutove, in the Poltava Region. The applicant was represented by Mr V.F. Koval, a lawyer practising in Poltava.3. The Government were represented by their Agent, Ms M. Sokorenko.4. The facts of the case may be summarised as follows.Background information5. By a final judgment of 20 June 2019 in the case of Beley v. Ukraine (cited above – “the 2019 judgment”), the Court found, inter alia, a violation of Article 3 of the Convention on account of the torture the applicant had been subjected to while in unrecorded detention in 2008 and the lack of an effective investigation into his complaints of ill-treatment.6. In particular, as to the effectiveness of the investigation, the Court found that no full-scale investigation had been conducted into the applicant’s complaints, which had been examined by way of a preliminary inquiry that had been very limited in means and in which the applicant had had no formal status. Furthermore, the decisions taken by the prosecutor to not open criminal proceedings had been set aside on numerous occasions by the as superficial and one-sided. The Court also noted serious delays in the conduct of investigative actions and court reviews of the decisions not to open criminal proceedings, as well as the lack of diligence in gathering evidence and establishing all the circumstances of the case (see paragraphs 74-76 of the 2019 judgment).7. In view of the fact that the Government had failed to explain the nature and origins of the bodily injuries caused during the applicant’s unlawful detention, the Court also found a violation of Article 3 of the Convention. Noting that the ill-treatment at issue had been intentional and aimed at obtaining a confession from the applicant, the Court concluded that it had amounted to torture (see paragraphs 80-87 of the 2019 judgment).8. The Court awarded the applicant 25,000 euros (EUR) in respect of non-pecuniary damage in relation to the violations found.9. The execution of the 2019 judgment is pending before the Committee of Ministers of the Council of Europe.Facts regarding the present applicationThe applicant’s submissions10. In November 2019 the applicant lodged requests with the Prosecutor General of Ukraine and with the Minister of Justice of Ukraine to investigate his ill-treatment complaints, following the Court’s 2019 judgment.11. By a letter of 3 December 2019, received by the applicant on 11 December 2019, the Kramatorsk Department of the State Bureau of Investigation – after receiving the information from the Deputy Minister of Justice of Ukraine – informed the applicant that on 6 August 2019 criminal proceedings had been initiated for the “infliction of minor bodily harm” and “abuse of power”. He was further informed that his request had been joined to the case file.12. The applicant alleged that he had not been invited to be questioned as a victim until July 2021. The questioning took place on 3 August 2021, during which he named three police officers, Mr S., Mr H. and Mr P., whom he believed to have been involved in his ill-treatment.13. Subsequently, on 12 August 2021, the applicant asked the investigator to order an additional forensic medical examination to establish the nature of the injuries sustained in 2008 and the methods used to inflict them. That request was refused by the investigator, but on 10 November 2021 the investigator’s decision was set aside by a court and an additional forensic medical examination was ordered.14. According to the applicant, no other investigative actions have been undertaken.15. On 17 January 2022 the applicant lodged a complaint with the Donetsk regional prosecutor’s office regarding the investigator’s failure to conduct the investigation in a timely manner. By a letter of 8 February 2022, the applicant was informed that it had been established that the investigation had “not fully complied with the requirements [of effectiveness]” and that instructions had been given to the investigator with regard to further actions.16. On 1 March 2024 the investigator asked the Krasnogvardiyskyy District Court of Dnipro to terminate the proceedings owing to the impossibility of identifying the perpetrators and the expiry of the statutory limitation period for the alleged offence.17. On 1 April 2024 the above-mentioned request was rejected by the District Court, which noted that the applicant had clearly mentioned the individuals who might have been involved in the commission of an offence against him, so it could not be maintained that the possible perpetrators were unknown. The court further noted, with reference to the case-law of the Supreme Court, that in situations where a victim named a particular person as a possible perpetrator, the investigation should first establish whether an offence had occurred and, if so, whether the actions of that person constituted a punishable act and whether there was enough evidence to prove his or her guilt in court or to release that person from criminal liability. The court emphasised that, given the context in the applicant’s case, the grounds for terminating the proceedings on account of the expiry of the statutory limitation period and the impossibility of identifying the perpetrators were contradictory as in the former case the perpetrator had to have been identified. The applicant, who was present at the hearing, asked for the individuals he had named to be put on the wanted list. The prosecutor appealed against that decision, but the appellate court refused to open appeal proceedings.The Government’s submissions18. The Government confirmed that in August 2019 a criminal case concerning “abuse of power coupled with violence” had been initiated in relation to the applicant’s 2008 complaints of ill-treatment and the Court’s 2019 judgment. The investigation was entrusted to the Kramatorsk Department of the State Bureau of Investigation (Donetsk Region).19. In late August 2019 the investigator made requests to various authorities, including the local police and court, to obtain documents pertaining to the applicant’s case. The authorities were unable to provide any documents in reply; for example, the local court could not provide any materials owing to their “destruction”.20. Between March and June 2020 several requests were also made in an attempt to establish the possible whereabouts of the three police officers who might have been involved in the applicant’s ill-treatment, including, for example, to the State Border Guard Service, the Pension Fund and the Tax Service. Neither the Pension Fund nor the Tax Service had any information about the persons concerned; however, the State Border Guard Service stated that Mr P. and the applicant himself had crossed the border in 2018 and 2019.21. In December 2020 and July 2021 several more requests for documents and information were made; they were all futile.22. On 3 August 2021 the applicant was questioned as a victim.23. On 21 December 2021, a forensic examination of the applicant’s medical documents dating back to 2008 was ordered and the Donetsk Regional Bureau of Forensic Medical Expert Examinations was asked to carry it out. The forensic report has, however, not been obtained because of the Russian invasion of Ukraine.24. On 19 January 2022 Mr. P., one of the police officers named by the applicant, was questioned as a witness.25. On 4 September 2023 another forensic examination of the applicant’s medical documents was ordered and entrusted, this time, to the Dnipropetrovsk Regional Bureau of Forensic Medical Expert Examinations.26. As noted by the Government, in their report no. 247e/31 of 25 January 2024, the experts concluded that the location and the nature of the applicant’s bodily injuries and the method of their infliction, as established during the 2008 forensic medical examination, had not contradicted the applicant’s explanations in that regard when questioned on 29 May 2008 and 3 August 2021. The expert report itself has not been provided to the Court.27. With the beginning of the Russian invasion in Ukraine in February 2022, the town of Volnovakha, where the applicant had been placed in detention and ill-treated in 2008, was occupied and currently the Ukrainian authorities have no access to it, which also means that no access to the relevant documents or the persons involved is possible.28. On 4 December 2023 Mr. P. was questioned again as a witness. He denied inflicting bodily harm on the applicant.29. On 22 January 2024 a request was sent to the State Department of the National Police in the Donetsk Region to obtain information about the staff members of the Volnovakha temporary detention facility who, in 2008, had recorded the applicant’s injuries upon his arrival, and to obtain the relevant medical documents, as well as information about the applicant’s cellmates. No response has been received.30. The Government noted that the investigation into the offence, classified as possible abuse of power under Article 365 § 2 of the Criminal Code, was still ongoing and that “the pre-trial investigation materials could not be disclosed”. The Government provided no documents from the case file.THE LAWALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION31. The applicant complained, invoking Article 13 of the Convention about the State’s continued failure to investigate his ill-treatment complaints even after the Court’s 2019 judgment had been delivered. He submitted, in particular, that he had not been informed of the start of the investigation until he had asked about it and had not accordingly been granted victim status, and that no actual investigative measures had been undertaken.32. The Court, being the master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 114 and 126, 20 March 2018), considers that the applicant’s complaints fall to be examined under Article 3 of the Convention, which reads as follows:“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”AdmissibilityWhether Article 46 of the Convention precludes the examination of the applicant’s complaint33. In examining the admissibility of the present application, the Court must first ascertain whether it has jurisdiction to consider the applicant’s complaint without encroaching on the prerogatives of the respondent State and the Committee of Ministers under Article 46 of the Convention in the execution of the Court’s 2019 judgment.34.

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