FIFTH SECTION      CASE OF BELEY v. UKRAINE (Application no. 34199/09)            JUDGMENT This version was rectified on 5 July 2019under Rule 81 of the Rules of Court   STRASBOURG 20 June 2019   This judgment is final but 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 Committee composed of: Yonko Grozev, President, Gabriele Kucsko-Stadlmayer, Lado Chanturia, judges, and Milan Blaško, Deputy Section Registrar,Having deliberated in private on 28 May 2019,Delivers the following judgment, which was adopted on that date:PROCEDURE1. The case originated in an application (no. 34199/09) 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 Vitaliy Nikolayevich Beley (“the applicant”), on 21 August 2009.2. The applicant was initially represented by Mr M. Chernobay, a lawyer practising in Donetsk, who submitted observations on the admissibility and merits of the case as well as just satisfaction claims on behalf of the applicant. On 4 March 2017 the applicant requested the Court to continue correspondence with him as he lost contact with Mr Chernobay. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr I. Lishchyna.3. The applicant complained under Articles 3 and 13 of the Convention that he had been tortured while in a police station and that there had been no effective investigation of the matter, and under Article 5 § 1 (c) of the Convention that his detention between 27 and 28 May 2008 had been unlawful.4. On 10 March 2010 notice of the applicant’s complaints under Articles 3 and 5 § 1 (c) of the Convention was given to the Government.5. The Government objected to the examination of the application by a Committee, but provided no reasons. Having considered the Government’s objection, the Court rejects it.THE FACTSI. THE CIRCUMSTANCES OF THE CASE6. The applicant was born in 1977 and lives in the Poltava region.A. The applicant’s alleged detention, ill-treatment and ensuing inquiry7. According to the applicant, who lived in Donetsk at the material time, on 27 May 2008 a police officer called him and invited him to attend the Donetsk regional police station to discuss his past service in the police. When he arrived there at about 10 a.m. he was told that he would not be able to leave because he was going to be arrested. His mobile telephone was taken away and switched off. Two hours later police officers from the Volnovakha police arrived and took him to the Volnovakha police station, where at about 2 p.m. police officers G., P. and S. started threatening him and told him to confess to the murder of A. He refused and at about 9 p.m. they twisted his arms behind his back, put handcuffs on his wrists, pushed him down to the floor, put a plastic bag on his head blocking his airway, connected and switched on an electric shock device attached to his right wrist, and started hitting him in the head and body. After thirty minutes of ill-treatment he lost consciousness. When he regained consciousness, G. put the plastic bag on his head again. Afraid of further ill-treatment, he agreed to make written statements, dated 28 May 2008, concerning A.’s murder. One of the police officers forced him to write his signature in an empty entry of the police visitors’ book (книга обліку відвідувачів). He was then held at the police station until the next evening when, at 7.52 p.m., he was taken to appear before the investigator, Sh. When the latter started drawing up the arrest report pursuant to Article 115 of the Code of Criminal Procedure, T., a lawyer from Donetsk hired by the applicant’s father, entered Sh.’s office and informed Sh. that she would provide legal assistance to the applicant.8. According to the Government, at 7.10 p.m. on 27 May 2008 the applicant attended the Volnovakha police station to “give explanations” and left at 9.10 p.m. the same evening. At 9.10 a.m. on 28 May 2008 he attended the police station again to “give explanations” and left at 11.40 a.m. At 7.52 p.m. he was arrested there in the presence of his lawyer, T.9. According to the police visitors’ book, on 27 May 2008 the applicant arrived at the police station at 7.10 p.m. and left at 9.10 p.m. On 28 May 2008 he arrived at the police station at 9.10 a.m. and left at 11.40 a.m., while T. came to the police station at 7.10 p.m. Only the above two entries were made on 28 May 2008. The photocopy of the visitors’ book provided by the Government does not contain a column with visitors’ signatures.10. According to the police arrestees’ logbook (книга обліку доставлених), at 7.52 p.m. on 28 May 2008 the applicant was brought to the police station on suspicion of aggravated murder.11. The arrest report drawn up by Sh. between 7.52 and 8.12 p.m. on 28 May 2008 contained the applicant’s complaint that at about 9 p.m. on 27 May 2008 he had been beaten by police officers. It also contained a request by him to be taken to hospital for a medical examination. It also stated that the applicant’s father had been notified of the applicant’s arrest.12. It appears from the case file that on the evening of 28 May 2008 Sh. allowed T. to talk briefly with the applicant. During their conversation G. allegedly approached them, shouting at T. and threatening her. Later T. made a complaint against G. in the police visitors’ book.13. The search report, drawn up on 28 May 2008 and attested by witnesses K. and B., stated that nothing had been seized from the applicant during his search.14. At about 10 p.m. the same evening the applicant was examined in the local hospital. Doctors noted in a medical certificate that he had informed them that at about 9 p.m. on 27 May 2008 he had been beaten by police officers. They documented numerous bruises, haematomas and abrasions on his face, head, wrists and shoulders.15. At 10.45 p.m. the same evening the applicant was placed in the Volnovakha temporary detention facility (“the ITT”). The ITT officers noted numerous injuries on the applicant’s face, forehead, wrist joints, shoulder joints and right thigh. The ITT duty officer then reported those injuries to the head of the Volnovakha police station.16. On 29 May 2008 the applicant lodged a complaint with the town prosecutor regarding his alleged ill-treatment at the Volnovakha police station on the evening of 27 May and unlawful detention on 27 and 28 May 2008. In particular, he described in detail the alleged ill-treatment (as stated in paragraph 7 above). He also stated that his detention in that police station had not been recorded and that the duty officer had only made an entry in the police visitors’ book about his alleged visit to that police station at 9.10 a.m. on 28 May 2008 after T.’s arrival.17. On the same day T. complained to the prosecutor that on the evening of 28 May 2008 G., who had ill-treated the applicant the day before, had threatened her during her conversation with the applicant in the police station corridor.18. On the same day the applicant was questioned. In addition to the statements made in his complaint to the prosecutor, he stated that one of the alleged perpetrators had forced him to write his signature in an empty entry of the police visitors’ book.19. On the same day, at Sh.’s request, P. conducted a forensic medical examination of the applicant. According to his expert report, completed on 2 July 2008, the applicant had a number of bruises, haematomas and abrasions, which were classified as minor bodily injuries. They had been caused by blunt objects or by impact with them. Some of them (abrasions on the right forearm and left wrist) had been sustained up to one day before the examination, while others had been sustained three to four days (some bruises on his face, right shoulder joint and right shoulder) or five to seven days (haematomas in the right groin area and on the left shoulder joint) before the examination. A number of others (haematomas on the head, neck, face, left hip and forearm, left wrist and knee, abrasions on the right forearm, left leg, and a scratch on the right leg) could have been sustained during the period indicated by the applicant. There were no signs of electric shock treatment.20. On 12 November 2008 the applicant acquainted himself with the above-mentioned report. He stated that he disagreed with it, because he still had signs of electric shock treatment, the injuries on his wrist joints had not been examined, and the manner in which they had been inflicted had not been established. He added that all the injuries had been sustained at the police station.21. On 3 June 2008 the prosecutor questioned the applicant as a suspect in A.’s murder. According to the interview record, the prosecutor’s first question concerned the vehicles which the applicant had used from 1 January 2008 “until the time of [his] arrest on 27 May 2008”.22. Following the pre-investigation inquiries, on 7 June, 7 August and 28 November 2008, 21 January and 10 April 2009 the town prosecutor or his assistant refused to institute criminal proceedings in respect of the applicant’s complaint of 29 May 2008. While mentioning the applicant’s explanation that he had been beaten at the police station on 27 May 2008 and the expert report of 2 July 2008, which had established that he could have sustained a number of injuries during the period indicated by him, the prosecutor found that there was no evidence that those injuries had been inflicted at the police station and not elsewhere, because on 27 and 28 May 2008 the applicant had not been at the police station all the time. The prosecutor relied on statements given by the alleged perpetrators, the investigator Sh. and police officer K., who had been on duty on 28 May 2008. According to them, on 27 May 2008 G. had received a call from the Donetsk regional police informing him that they were holding the applicant, who was suspected of a crime committed on the territory of the Volnovakha district. G. and another police officer had gone by car to Donetsk, where they had arrived at about 5 p.m. They had taken the applicant and at about 7 p.m. had returned to the Volnovakha police station. The applicant had not been questioned that day because he had given confused answers to their questions and had asked for some time to think things over. He had left the police station at about 9 p.m. and written his signature in the police visitors’ book. The following day he had come back at around 9 a.m. and had written a statement concerning A.’s murder. He had then been invited to wait to be questioned by Sh., but he had said that he would wait for him outside and had left the police station premises at about 11 a.m., having put his signature in the visitors’ book. At 7.52 p.m. G. and S. had taken the applicant to the police station and then to appear before Sh. Nobody had seen any injuries on him, and he had not been handcuffed. When Sh. had started drawing up the arrest report, T. had entered Sh.’s office, informing him that she had been appointed as the applicant’s lawyer.23. The applicant appealed against the prosecutor’s decisions. In his appeals he again described his alleged ill-treatment in detail (as stated in paragraph 7 above). Furthermore, he stated that his signatures in the police visitors’ book had been forged and that when he had asked for the book to state his complaints, it had been hidden from him. Only T. had been able to write her complaint against G. in it.24. On 21 July and 4 November 2008, 18 January, 30 March and 21 September 2009 the higher prosecutor or the Volnovakha Court set aside the above-mentioned decisions on the grounds that the inquiries were superficial and had not examined all the circumstances stated by the applicant. In decisions of 30 March and 21 September 2009 the latter court also instructed the prosecutor to order a handwriting analysis of the applicant’s signatures in the police visitors’ book.25. On 14 January 2010 the town prosecutor ordered a handwriting analysis of two signatures allegedly written by the applicant in the visitors’ book on 27 and 28 May 2008. However, on the same day he again refused to institute criminal proceedings, largely for the same reasons as before.26. On 27 April 2010 a specialist, S., concluded that the signatures were authentic. In complaints lodged with the Volnovakha Court the applicant stated that he had only been informed of the results of the above-mentioned analysis in a letter from the prosecutor, but had not been provided with the document containing those results.27. On 30 April 2010 the prosecutor ordered an additional forensic medical examination of the applicant as per the court’s instructions of 22 October 2009 (see paragraph 34 below). On 6 May 2010 P. supplemented his expert report of 2 July 2008 by adding that injuries which could have been sustained during the period indicated by the applicant had also included haematomas on his back.28. On 1 June 2010 the applicant complained to the Volnovakha Court about the decision of 14 January 2010. He stated, inter alia, that if the prosecutor had established that he had been taken to the police station on 28 May 2008 at about 8 p.m. without any visible injuries, and the medical examination at 10 p.m. had found numerous injuries on him, that meant that he had received them on 28 May 2008 between 8 and 10 p.m. The applicant also complained that those who had attended the police station on 27 and 28 May 2008 and could have been witnesses to the events on those days had not been identified.29. On 8 October 2010, following a request from the applicant’s father, who was acting as his representative, two experts, G. and K. from the Kharkiv State Medical Academy, issued an expert medical report. That report, based on the material of the expert medical examination of 29 May 2008, established that the applicant’s injuries had been caused by rubbing, compression and hyperextension of the skin and by blows. He had sustained at least twenty-two blows from blunt solid objects. Formation of haematomas on the neck and back of the head as a result of the tightening up of a plastic bag was “not excluded”. A haematoma and abrasion on the forearms were “typical” handcuff injuries; their being sustained as a result of sharp raising by another person of the applicant’s hands twisted behind his back was “not excluded”. A haematoma on the applicant’s left knee had been sustained upon impact of that area with a blunt object; it could have resulted from him falling over. Haematomas in the right part of the head and on the cheeks could have been caused by punches.30. On 27 April 2011 the Volnovakha Court set aside the decision of 14 January 2010 on the grounds that the inquiry was incomplete and one-sided. In particular, the prosecutor had not complied with the court decision requiring a handwriting analysis. He had not assessed the fact that, according to the expert report of 2 July 2008, some of the applicant’s injuries had been sustained during the period indicated by him. Nor had he questioned the officer who had been on duty on 27 May 2008 and a doctor who had examined the applicant on 28 May 2008.31. On 6 July 2011 the prosecutor again refused to open criminal proceedings. The applicant’s father complained to the higher prosecutors, pointing to a contradiction between the prosecutor’s decisions in which it had been established that the police officers had not seen any injuries on the applicant when he had been taken to the police station on 28 May 2008, and the expert report of 2 July 2008, which stated that a number of injuries could have been sustained by the applicant on 27 May 2008. Therefore, those officers would have seen the injuries and had therefore given false statements.32. On 18 July 2011 M. and G., who shared a cell with the applicant for some time during his pre-trial detention, sent letters to the prosecutor stating that on 14 July 2011 S., one of the alleged perpetrators, who was later arrested on charges of bribery, had been placed in their cell for thirty minutes. M. and G. asked him whether he had participated in the applicant’s ill-treatment. He had answered in the affirmative, adding that he would have been fired if he had not participated in the ill-treatment.33. On 25 July 2011 the higher prosecutor set aside the decision of 6 July 2011. The parties did not inform the Court of the subsequent events.B. Criminal proceedings against the applicant34. The applicant also raised complaints of ill-treatment within the criminal proceedings against him. On 22 October 2009 the Donetsk Regional Court of Appeal sent the criminal case against him for further investigation, inter alia, on the grounds that the prosecutor’s inquiry into his complaints was incomplete. In particular, the expert report of 2 July 2008 had not mentioned the injuries on the applicant’s back and the expert had to establish the manner in which the injuries had been sustained and whether they could have been sustained in the circumstances alleged by the applicant.35. The parties did not inform the Court of the subsequent events. Publicly available material shows that on 3 April 2014 the Dokuchayivsk Town Court acquitted the applicant for lack of evidence against him. In examining various pieces of evidence, it also referred to the applicant’s statement given during the trial that, inter alia, on 27 May 2008 he had been ill-treated at the Volnovakha police station.II. RELEVANT DOMESTIC LAW36. The relevant provisions of the 1960 Code of Criminal Procedure, as in force at the material time, can be found in Kaverzin v. Ukraine (no. 23893/03, § 45, 15 May 2012) as regards pre-investigation inquiries and in Strogan v. Ukraine (no. 30198/11, § 45, 6 October 2016) as regards the arrest of a suspect by a body of inquiry pursuant to Article 115 of the Code.THE LAWI. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION37. The applicant complained under Article 5 § 1 (c) of the Convention that his detention at the Volnovakha police station from about 2 p.m. on 27 May until 7.52 p.m. on 28 May 2008 had been unrecorded and therefore unlawful. The relevant provision reads as follows:“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:...(c)  the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;...”A. Admissibility38. The Government submitted in their observations that the applicant had complained about his detention in his complaint of ill-treatment and that, since the inquiry in respect of that complaint was ongoing, he had not exhausted domestic remedies.39. The applicant disagreed with that argument.40. The Court notes that the applicant raised his allegation of unlawful detention at the Volnovakha police station in his complaint of 29 May 2008 concerning his alleged ill-treatment (see paragraph 16 above). The issue of unlawful detention was closely connected to the alleged ill-treatment and there is no particular reason to believe that the applicant should have taken any other steps to exhaust any remedies in respect of that complaint (see, mutatis mutandis, Grinenko v. Ukraine, no. 33627/06, § 69, 15 November 2012), nor did the Government claim otherwise. The Court further refers to its findings made in paragraphs 72-77 below that the inquiry referred to by the Government was ineffective for the purposes of investigating the applicant’s complaint concerning ill-treatment. It considers that the same arguments are equally pertinent to the present aspect of the case, and finds that the applicant should be absolved from awaiting the results of the inquiry at issue. Lastly, it notes that, in the absence of any submissions by the Government concerning the availability of any other domestic remedy (such as a civil or administrative action), it must consider that the applicant exhausted the remedies available to him in respect of his complaint (see, similarly, Belousov v. Ukraine, no. 4494/07, § 73, 7 November 2013).41. The Court further notes that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention and not inadmissible on any other grounds. It must therefore be declared admissible.B. Merits1. The parties’ submissions(a)  The applicant42. The applicant stated that after his ill-treatment at the Volnovakha police station on 27 May 2008 he had been forced to write his signature in an empty column of the visitors’ book. The handwriting analysis conducted by S. could not be taken into account, because it had not been an expert examination, which could only be ordered in the framework of criminal proceedings, and S. had not been warned about criminal liability for false conclusions. Moreover, S. had allegedly analysed only one signature. Furthermore, according to the applicant, visitors had to write their signature in the visitors’ book both on arrival and departure. If he had actually attended the police station as alleged by the Government, then his two signatures on 27 May and two signatures on 28 May should have been analysed. Furthermore, if he had allegedly gone to the police station again on 28 May at 7.52 p.m., there would have been a fifth signature of his in the visitor’s book, which had not been the case. His other signatures in the visitors’ book had been forged, because on 28 May 2008 only two entries (referring to his and T.’s visits) had been made in it, as if only two visitors had attended the police station that day. The search report of 28 May 2008 attested by K. and B. (see paragraph 13 above) confirmed the forged entries in the visitors’ book, because the witnesses had not been registered in it on 28 May 2008.43. His detention on 27 May 2008 had also been confirmed, inter alia, by the prosecutor’s reference to his arrest on 27 May 2008 (see paragraph 21 above). He could not have been arrested on 28 May 2008 at 7.52 p.m. in the presence of T., as alleged by the Government (see paragraph 45 below), because from 27 to 28 May 2008 he had not left the police station, had had no ability to make calls and his relatives had not known his whereabouts. T. had been invited by his father, after the latter had been notified of his arrest. The visitors’ book had only contained the entry about T.’s evening visit and not about his own visit. Moreover, if he had actually left the police station at 11.40 a.m. on 28 May, there had been no reason for him to come back in the evening, outside of working hours, instead of the next morning. If he had not been detained on 27 and 28 May 2008, he would have been moving around freely before the evening of 28 May 2008, and would have had an opportunity to talk with T. beforehand. They would have gone to the police station together, would have both been recorded in the visitors’ book and T. would not have asked Sh. to allow her to talk with him before questioning.(b)  The Government44. The Government submitted that the handwriting analysis had confirmed that the two signatures in the police visitors’ book had belonged to the applicant. During questioning on 29 May 2008 he had not denied the authenticity of his signature but had stated that he had been forced to write it. Allegations of forgery had only appeared in his further complaints. His signatures in the visitors’ book had therefore confirmed that between 27 and 28 May 2008 he had twice attended and left the police station. The fact that he had remained there voluntarily during those two periods had been confirmed by the fact that neither he nor T. had made any complaints in the visitors’ book.45. Furthermore, in the arrest report at 7.52 p.m. on 28 May 2008 (see paragraph 11 above) neither he nor T. had stated that they had disagreed with the date and time of his arrest. Nor in his complaint of 29 May 2008 (see paragraph 16 above) had the applicant referred to unlawfulness of his detention at the police station on 27 and 28 May 2008. Furthermore, he had been arrested in the presence of T., who had been appointed by him or his relatives, which contradicted his allegations that on 27 and 28 May 2008 he could not leave the police station or make calls and that his relatives had not known his whereabouts. Lastly, in her complaint of 29 May 2008 (see paragraph 17 above) T. had mentioned that she had spoken with the applicant in the police station corridor, which put into doubt that he had been deprived of his liberty at that time. In sum, the applicant had not been detained on 27 and 28 May 2008, as he had only been arrested at 7.52 p.m. on 28 May 2008.2. The Court’s assessment46. The Court would first reiterate that, in the cases concerning alleged deprivation of liberty, the applicant must provide prima facie concordant evidence capable of showing that he was indeed under the exclusive control of the authorities on the day of the events, that is to say, that he was officially summoned by the authorities and entered premises which were under their control. If that condition is satisfied, the Court will be able to consider that he was not free to leave, particularly when investigative measures were under way. It could therefore require the Government to provide a detailed hour-by-hour report on what happened in the premises in question and to account for the time spent there by the applicant. The Government would then have to provide satisfactory and convincing written evidence to support their version of the facts. Failure to provide such evidence would enable conclusions to be drawn

Article of the Convention at issue: Article 5
Outcome: violation