FIFTH SECTIONCASE OF SHUMANSKYY v. UKRAINE(Application no. 70579/12)    JUDGMENT          STRASBOURG8 October 2020 This judgment is final but it may be subject to editorial revision.In the case of Shumanskyy v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Gabriele Kucsko-Stadlmayer, President, Ganna Yudkivska, Mattias Guyomar, judges,and Anne-Marie Dougin, Acting Deputy Section Registrar,Having regard to:the application 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 Vasyl Myroslavovych Shumanskyy (“the applicant”), on 22 October 2012;the decision to give notice to the Ukrainian Government (“the Government”) of the complaints under Article 3, Article 5 §§ 1 and 3, as well as Article 6 §§ 1 and 3 (c), and to declare inadmissible the remainder of the application;the parties’ observations;Having deliberated in private on 15 September 2020,Delivers the following judgment, which was adopted on that date:INTRODUCTION1. The applicant complained under Article 3 of the Convention that he had been ill-treated by the police and that there had been no effective domestic investigation into the matter. He also complained under Article 5 § 1 that his detention from 5 to 8 September 2008 had been unlawful and under Article 5 § 3 that he had not been brought promptly before a judge. Lastly, he complained under Article 6 §§ 1 and 3 (c) that he had not had a fair trial.THE FACTS2. The applicant was born in 1971 and is serving a prison sentence in Gorodyshche Prison no. 67. He was represented by Mr M.G. Kovalyuk, a lawyer practising in Beregomet, Chernivtsi region.3. The Government were represented by their Agent, most recently Mr I. Lishchyna.4. The facts of the case, as submitted by the parties, may be summarised as follows.5. Late at night on 20 August 2008 several unidentified persons broke into a house belonging to Mr and Ms L. and assaulted and robbed them. The victims received multiple blows with sticks, as a result of which Mr L. died.6. On the same date the police opened a criminal investigation into the matter.7. On 2 September 2008 Mr M. and Mr T. (see, in particular, paragraph 10 below) were arrested on suspicion of an unrelated theft committed the previous night.8. On 5 September 2008 the police arrested the applicant in Kitsman. As indicated in their report, the reason for his arrest was that he had been swearing in public. On the same day the Kitsman Town Court found the applicant guilty of the administrative (minor) offence of swearing in public and sentenced him to three days’ administrative detention, which started running at 6 p.m. on that day. The applicant was detained during that period in the Kitsman police station.9. According to the applicant, the reasons for his arrest were not explained to him. He was allegedly severely ill-treated by the police after his arrest, with a view to making him confess to the robbery and murder (see paragraphs 5 and 6 above). His alleged ill-treatment included hits and punches to various parts of his body, as well as strangulation with a plastic bag. As a result, he signed “some documents”. He specified, however, that he had not signed the “explanations” of 6 September 2008 or the confession statement of 8 September 2008 (see paragraphs 10 and 12 below).10. The case file contains a document entitled “explanations” of 6 September 2008, supposedly signed by the applicant. As indicated therein, the applicant had found out from an acquaintance, Mr D., that the L. family had money. Subsequently, the applicant had spoken of his financial hardships to a stranger (M.) at a bus station and they had decided to rob the L. family together. Another person (T.) had also joined them. It was noted in the “explanations” that the applicant had not entered the L. family’s house. According to the applicant, he made no statements, nor did he sign the above-mentioned document.11. On 8 September 2008 M. and T. wrote statements of “voluntary surrender to the police”, in which they confessed to having assaulted and robbed the L. family. According to M., a person known to him as Sergiy had also been involved. He submitted, in particular, that Sergiy had joined him and T. in beating the victims. As to T.’s statements of that date, he wrote that Sergiy, a friend of M.’s, had waited for them near the car and had not entered the L. family’s house.12. The case file contains a similar statement of “voluntary surrender to the police” of the same date, supposedly written and signed by the applicant. It repeated, in substance, the earlier “explanations” (see paragraph 10 above). According to the applicant, he neither wrote that statement nor signed it.13. On the evening on 8 September 2008 a criminal case was opened against the applicant, as well as M. and T., on suspicion of robbery and murder.14. On an unspecified date T. and M. recognised the applicant as the person allegedly known to them as “Sergiy” (see paragraph 11 above). According to the applicant, they did so on the instructions of the police.15. Also on 8 September 2008, an investigator of the Kitsman police questioned the applicant. According to his report, the applicant had no injuries and made no complaints.16. In the evening of the same day, the applicant’s term of administrative detention (see paragraph 8) expired and he was transferred from the Kitsman police station to the Chernivtsi temporary detention facility (“the Chernivtsi ITT”). Before being admitted, however, he was taken to the regional emergency hospital concerning a “trauma sustained on 5 September 2008”. He was diagnosed with bruises and abrasions on his hips and buttocks and was prescribed treatment. It appears that the police officer accompanying the applicant informed the doctor that the applicant had been injured as a result of a domestic incident.17. Also on the evening of 8 September 2008 the applicant signed a report confirming that his rights as a suspect had been explained to him. He expressed a wish to be represented by a lawyer.18. On 9 September 2008 lawyer B. was appointed to represent the applicant. When questioned as a suspect in the presence of his lawyer on that day, the applicant refused to make any statements.19. On the same day the lawyer complained to the prosecution authorities of his client’s ill-treatment and asked that he undergo an immediate forensic medical examination.20. On 10 September 2008 the investigator ordered such an examination and on 16 September 2008 it was carried out. The applicant told the expert that he had been beaten up by the police following his arrest on 5 September 2008. According to the examination report, the applicant had three bruises on the right hip measuring 5cm by 3 cm, 5.5 cm by 1.5 cm and 5 cm by 1.5 cm, an 8 cm by 8 cm bruise on his left hip, and bruises on his buttocks measuring 7 cm by 6 cm and 6 cm by 2.5 cm. The report specified that the injuries were minor and had been inflicted by blunt objects. The expert’s conclusion was that the injuries in question could have been inflicted at the time and in the circumstances indicated by the applicant.21. On 18 September 2008 the applicant was questioned as an accused, in the presence of his lawyer. He denied any involvement in the crimes of which he was accused and submitted that he did not even know his supposed accomplices. He refused to make any further statements.22. On 3 November 2008 T. was questioned in the presence of a lawyer. He retracted his earlier confession statements, including those concerning “Sergiy” (see paragraph 11 above), as having been obtained under duress. At the same time, T. confessed to the unrelated count of theft committed together with M. (see paragraph 7 above).23. On 19 November 2008 M. did the same.24. On 15 December 2008 the investigator issued a ruling in which he decided to sever from the case the material concerning the applicant’s injuries for an additional investigation. It was observed in the ruling that, as established by the expert report of 16 September 2008 (see paragraph 20 above), the applicant had sustained injuries during his detention in the Kitsman police station.25. On 19 December 2008 the Chernivtsi regional prosecutor’s office (“the Chernivtsi prosecutor’s office”) refused to open a criminal investigation against certain police officers in respect of the alleged ill-treatment of T., who had apparently raised a complaint in that regard.26. On 22 December 2008 one of the victims, Ms L., was questioned. She submitted that she could not remember exactly whether two or three persons had attacked her and her husband. At the same time, she was confident about the involvement of M. and T., whom she had recognised earlier.27. On 24 December 2008 a forensic report was issued in respect of the fingerprints from the crime scene, which had earlier been identified as not belonging to members of the L. family. The expert concluded that none of the fingerprints belonged to the applicant, M. or T. On 27 January 2009 a forensic report was issued in respect of hairs found at the crime scene. The expert concluded that none of the hairs belonged to the applicant or M.28. On 16 January 2009 the Kitsman town prosecutor’s office (“the Kitsman prosecutor’s office”) refused to open a criminal investigation against the police in respect of the applicant’s allegation of ill-treatment. It noted that although the forensic expert report of 16 September 2008 had recorded some injuries on the applicant, there was no evidence that they had been inflicted on him by the police. The prosecutor observed that the applicant had been detained in the Kitsman police station from 5 to 8 September 2008, whereas his forensic medical examination had taken place about eight days thereafter. Having regard to that circumstance and noting that the applicant had not complained of his ill-treatment at the time, the prosecutor concluded that the applicant might have sustained the injuries in question “as a result of his own recklessness”. Furthermore, the prosecutor relied on the statements of the police officers concerned, who had denied any coercion in respect of the applicant.29. On 28 January 2009 the applicant, T. and M. were questioned again in the presence of their lawyers. They stated that their initial confessions had been extracted by ill-treatment. T. and M., however, maintained their confessions to the unrelated theft (see paragraph 7 above).30. On 23 March 2009, during a hearing before the Chernivtsi Regional Court of Appeal (“the Chernivtsi Court”), sitting as a court of first instance, the victim, Ms L., submitted that she recognised T. and M., but not the applicant, because she had not seen the third intruder well.31. On 17 July 2009 the Chernivtsi Court found the applicant guilty of robbery, but acquitted him of murder. He was sentenced to thirteen years’ imprisonment and confiscation of all his personal property. The court relied, in particular, on the applicant’s “explanations” of 6 September 2008 and his confession of 8 September 2008 (see paragraphs 10 and 12 above). The applicant’s allegation that he had been coerced into making self‑incriminating statements was dismissed as unsubstantiated.32. The applicant appealed against his conviction, submitting that it was based on inconclusive evidence collected with gross violations of the law on criminal procedure. He complained that initially he had been detained on an artificial pretext and that during that period he had been ill-treated by the police. The applicant also pointed out inconsistencies in the statements given by his co-defendants during the pre-trial investigation. He insisted that he had never met them before.33. On 8 December 2009 the Supreme Court quashed the judgment of 17 July 2009 and remitted the case to the same first-instance court for a fresh examination by a different panel. It noted, in particular, that the trial court’s conclusion about the absence of sufficient evidence of the applicant’s guilt in respect of the murder had been premature.34. On 5 July 2010 the Kitsman prosecutor’s office refused to open a criminal investigation against the police officers in respect of the alleged ill‑treatment of M.35. On 6 December 2010 the Chernivtsi Court found all the accused guilty of murder and robbery. It sentenced the applicant to fifteen years’ imprisonment and confiscation of all his property. It was noted in the judgment that Ms L. recognised M. and T. without hesitation and considered that the applicant “looked similar” to one of the attackers. The court also relied on the initial confessions made by the accused. It dismissed their allegations of ill-treatment as unsubstantiated on the grounds that the prosecution had refused to open criminal investigations into that matter on several occasions (see paragraphs 25, 28 and 34 above).36. The applicant lodged a cassation appeal, in which he alleged, in particular, that he had incriminated himself under duress and without legal assistance. In a supplementary submission, he claimed that he had not in fact written or signed any confessions. He further argued that the courts had lacked any solid evidence for his conviction.37. On 24 April 2012 the Higher Specialised Court for Civil and Criminal Matters upheld the judgment. It noted, in general terms, that the convicts had confessed to the crimes imputed to them during the pre-trial investigation in the presence of their lawyers and that their later retraction of those confessions was to be regarded as a mere attempt to escape criminal liability. It considered their guilt to be established by the totality of the evidence. Lastly, the court dismissed as unfounded the convicts’ allegations of ill-treatment.38. In April 2012 the case file on the administrative offence proceedings against the applicant (see paragraph 8 above) was destroyed as the statutory period for its storage had expired.RELEVANT LEGAL FRAMEWORK39. The relevant provisions of the Constitution of Ukraine and the Code of Criminal Procedure can be found, in particular, in the Court’s judgment in the case of Kaverzin v. Ukraine (no. 23893/03, §§ 44 and 45, 15 May 2012).THE LAWALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION40. The applicant complained that he had been ill-treated by the police and that there had been no effective domestic investigation into the matter. 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.”Admissibility41. The Court notes that 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.MeritsThe parties’ submissions42. Referring to the emergency hospital’s records of 8 September 2008 and the forensic medical report of 16 September 2008 (see paragraphs 16 and 20 above), the applicant submitted that his ill-treatment allegation was supported by sufficient evidence. He further complained that there had been no meaningful domestic investigation into his complaint in that regard. 43. The Government contested those arguments. They admitted that the applicant had sustained some injuries, but contended that nothing proved that those injuries had resulted from his ill-treatment by the police between 5 and 8 September 2008. Had the applicant indeed been subjected to the continuous serious ill-treatment alleged by him, his injuries would have been far more serious. Moreover, the domestic authorities had made all reasonable efforts to look into his allegation, and there were no reasons for questioning their conclusion that it was unsubstantiated.The Court’s assessment44. The relevant general principles of the Court’s case-law are summarised in Bouyid v. Belgium ([GC], no. 23380/09, §§ 81-90 and 100‑01, ECHR 2015), and El-Masri v. the former Yugoslav Republic of Macedonia ([GC], no. 39630/09, §§ 182-85, ECHR 2012).45. The Court considers that in the present case the available medical evidence conclusively demonstrates that the applicant sustained extensive bruising shortly after his placement in administrative detention. There is no indication that he could have sustained those injuries before his arrest on 5 September 2008. It is noteworthy in this regard that neither the police nor the Kitsman Town Court noted any injuries on the applicant when he was arrested and heard on the charge of swearing in public (see paragraphs 8, 16 and 20 above). It was therefore for the State to provide a plausible explanation for the injuries sustained.46. The applicant’s lawyer complained to the prosecution about his client’s ill-treatment as soon as he was assigned to represent him in the proceedings, namely on 9 September 2008 (see paragraphs 18 and 19 above). The Court considers that the applicant’s complaint of ill-treatment was “arguable” for the purposes of Article 3, and his injuries were sufficiently serious, therefore, to require the domestic authorities to carry out an effective investigation.47. Although the investigator ordered a forensic medical expert examination of the applicant without delay, on 10 September 2008, the examination was not actually carried out until six days later. By that time the applicant had been under the control of the police for eleven days and some of his injuries might have healed. However, he was still severely bruised (see paragraph 20 above).48. The expert confirmed the applicant’s allegation as regards the timing and the possible origin of his injuries. However, for some unknown reason, the Kitsman prosecutor’s office, in its ruling of 16 January 2009, did not consider that finding convincing and advanced instead its own explanation of the applicant’s injuries – that he might have sustained them “as a result of his own recklessness” (see paragraph 28 above). The prosecutor explained that assumption by the following considerations: firstly, that the forensic medical examination of the applicant had taken place about eight days after the end of his detention in the Kitsman police station; and, secondly, that the applicant had not complained of ill-treatment at the time. Neither of those arguments stands up to scrutiny. After his detention in the Kitsman police station the applicant had been transferred to the Chernivtsi ITT and had therefore remained under the control of the police (see paragraph 16 above). The implication that the applicant might have sustained his injuries after his detention in the Kitsman police station still placed an obligation on the State to investigate what had happened and punish those responsible. Furthermore, the Court finds it difficult to understand how the applicant could be reproached for his failure to complain of ill-treatment during a three-day period when he had been under the full control of those who had allegedly ill-treated him and without any legal assistance. He did complain as soon as a lawyer was appointed to represent him (see paragraphs 18 and 19 above).49.

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