FIFTH SECTIONCASE OF ANTONYUK v. UKRAINE(Application no. 48040/09)      JUDGMENT STRASBOURG7 May 2020 This judgment is final but it may be subject to editorial revision.In the case of Antonyuk v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Yonko Grozev, President, Ganna Yudkivska, Lado Chanturia, judges,and Victor Soloveytchik, Deputy Section Registrar,Having deliberated in private on 24 March 2020,Delivers the following judgment, which was adopted on that date:PROCEDURE1. The case originated in an application (no. 48040/09) 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 Roman Grigoryevich Antonyuk (“the applicant”), on 24 August 2009.2. The applicant, who had been granted legal aid, was represented by Mr M.O. Tarakhkalo and Ms A. Saliuk, lawyers practising in Kyiv. The Ukrainian Government (“the Government”) were represented by their Agents, most recently Mr I. Lishchyna.3. On 7 September 2015 the Government were given notice of the complaints concerning alleged police ill-treatment, ineffective investigation of the relevant allegations and unfairness of the criminal proceedings against the applicant, and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.4. The Government did not object to the examination of the application by a Committee.THE FACTS5. The applicant was born in 1972 and resides in Kryvyy Rig.6. At about 7.30 a.m. on 22 January 2007 two men armed with knives and a wooden club, and wearing stockings over their heads, entered a house belonging to Ms I.G. in Kryvyy Rig. The men threatened I.G., her two-year old child and the child’s nanny, Ms L.Z., with violence and demanded that the women hand over money and valuables, which they did. Afterwards the men tied up the women and left.7. In mid-February 2007 Mr R.A., the applicant’s brother, was arrested in Kyiv on suspicion of having participated in the burglary of I.G.’s house, apparently after the police had traced the location of a mobile telephone stolen from it by the burglars.8. On an unspecified date R.A. confessed to having been one of the burglars and submitted that the other was called “Sasha”. On an unspecified subsequent date he modified his testimony, alleging that the other burglar was a certain Mr V.D.9. In July 2007 V.D. was arrested on suspicion of being an accomplice in the burglary.10. On an unspecified subsequent date V.D. testified to the police that the second man participating in the burglary had been the applicant, while he himself was guilty of aiding and abetting. He noted, in particular, that the idea of committing the crime had come from his friend, D.P., a former employee of I.G.’s family who was well informed of their lifestyle and financial situation. Having heard that idea, V.D. had refused to commit the burglary himself, but had decided to propose it to his acquaintance - the applicant - who had been living in Kyiv at the material time. The applicant had then passed the idea on to his brother R.A. and in January 2007, both of them had come to Kryvyy Rig, where V.D. had introduced them to D.P. It had then been decided that the applicant and R.A. would break into the house, while D.P. and V.D. would remain on the lookout in the vicinity. After the burglary, the four of them had celebrated the occasion in the flat of V.D.’s girlfriend and had shared the proceeds.11. On an unspecified further date D.P. was also arrested and charged. He pleaded not guilty.12. On 3 September 2007 the applicant was placed on the wanted list.13. On 21 November 2007 the applicant was arrested on charges of aggravated burglary and assault.14. At 9.45 a.m. on the same date the applicant signed a two-page document explaining to him the procedural rights of the accused, including the right to remain silent and to be represented by a lawyer. He made a hand-written inscription at the end of that document waiving his right to legal representation.15. From 1.30 p.m. to 4 p.m. on the same date the applicant was questioned by investigator M.T. of the Saksaganskiy district police in Kryvyy Rig and denied the charges brought against him. He submitted, in particular, that his brother had never told him about the burglary and he had learned about it only when R.A. had been arrested; that his acquaintance V.D. had never proposed that he commit any crime and that he had no idea who D.P. was. Due to the lapse of time, he had difficulty remembering where he had personally been on 22 January 2007, but he supposed that he had been in Kyiv, his habitual residence at the material time.16. On 22 November 2007 the Saksaganskiy District Court in Kryvyy Rig (“the District Court”) remanded the applicant in custody pending investigation of the charges against him.17. On 27 November 2007, during further questioning by investigator M.T., the applicant modified his initial submissions and pleaded guilty. His submissions were similar to V.D.’s, save for the distribution of the roles between them. In particular, the applicant alleged that it had been him who had remained on the lookout together with D.P., while his brother had broken into the house together with V.D.18. On the same date a reconstruction of the crime scene was carried out, in the course of which the applicant, in the presence of two lay witnesses, presented the same version of the events.19. On 4 December 2007 the applicant was taken to the District Court to participate in R.A.’s, V.D.’s and D.P.’s trial, which had already commenced. During the hearing the applicant refused to testify, referring to his right to remain silent.20. On the same date the applicant asked his mother, who was present in court, to complain to the prosecutor’s office that he had been ill-treated by the police, which she did.21. On 6 December 2007 the applicant’s father requested that lawyer P.B. be admitted to the case as the applicant’s representative.22. On 7 December 2007 that request was granted.23. On an unspecified date the Saksaganskiy district prosecutor’s office instructed investigator M.T. to inquire into the applicant’s ill-treatment complaints, apparently in response to the complaint lodged by the applicant’s mother.24. On 11 December 2007 M.T. and two escorting officers accompanied the applicant to the Kryvyy Rig medical forensic examination bureau. According to the applicant’s submissions made on that date, as recapitulated by expert Y.K. who carried out the examination, the facts relevant to the applicant’s ill-treatment allegations were as follows. At about 8.30 p.m. on 22 November 2007 N.R., a police officer, together with another unidentified officer, had taken the applicant to office no. 418 at the Saksaganskiy district police station. There, the officers had repeatedly kicked him in the legs, hit his body, head and arms with some unspecified “wooden object” and squeezed his front teeth with pliers, causing him severe pain and pressurising him to confess to the burglary.25. On an unspecified subsequent date the applicant amended his initial submissions, alleging that he could not remember whether the alleged ill‑treatment had taken place on 22 or 23 November 2007.26. Having interviewed and examined the applicant, Y.K. explained to M.T. that he was not competent to assess the applicant’s alleged dental injuries and that he needed to obtain an opinion by a dental specialist in this respect. Likewise, he instructed her to obtain an X-ray of the applicant’s swollen finger.27. On the same day M.T. and the escorting officers took the applicant to municipal hospital no. 1 for an X-ray and to the private dental surgery of Dr V.G. for a dental consultation.28. According to the report made by the hospital radiologist, the swelling on the applicant’s finger had been caused by deforming arthrosis dating back to one and a half to two years before the examination.29. According to a certificate provided by Dr V.G., the applicant’s oral cavity was free from injuries. On the other hand, the enamel of two upper‑front incisors was chipped. The dentist described the chipping as “old”.30. On the same date expert Y.K. issued his report. Referring to his examination of the applicant and the documents collected from the X-ray and dental specialists, he concluded that the applicant had suffered several injuries, which had been inflicted at various times and cumulatively qualified as “minor”. In addition to the aforementioned chipping to the applicant’s dental enamel and his swollen finger, he also noted a scar on the applicant’s head, which could have been sustained between six months and one and a half years prior to the examination, and some areas of damaged skin on his left arm and right leg “possibly” remaining from abrasions which could have been sustained “at least eleven to sixteen days” prior to the examination. The expert further noted that the abrasions had been caused by impact from a blunt hard object (or objects), which could possibly include a bare hand or a booted foot. The applicant had either received a blow with such an object or bumped into one. Alternatively, the abrasions could also have resulted from a single fall from his own height.31. On 12 December 2007 the applicant was presented to nanny L.Z. during an identification parade. She submitted that it had been him, rather than V.D., who had broken into I.G.’s house together with R.A. During a subsequent confrontation with L.Z., the applicant claimed that she was mistaken and that he had seen her for the first time on the day of the identification parade.32. On an unspecified date I.G. also submitted that, having met the applicant, she considered that it was him rather than V.D. who had broken into her house.33. On 20 December 2007 the applicant was committed to stand trial.34. During the trial, the applicant pleaded not guilty. As it appears from the recapitulation of his testimony by the District Court, he acknowledged that in January 2007 he had come to Kryvyy Rig from Kyiv together with his brother following an invitation from V.D. “to earn some money by helping a friend”, and V.D. had introduced him to D.P. However, the burglary itself had been committed only by R.A. and V.D., whereas he personally had not been involved in any manner. The applicant also acknowledged that he had visited the flat of V.D.’s girlfriend after the burglary and had seen his brother and V.D. sharing the proceeds. He had been aware that his brother had taken stolen goods to Kyiv, where he had proceeded to sell them. In addition, the applicant alleged that earlier he had given false self-incriminating statements as a result of having been tortured by N.R. and another, unidentified, police officer.35. On 9 January 2008 the District Court instructed the Saksaganskiy district prosecutor’s office to conduct an inquiry into the applicant’s ill‑treatment complaints.36. On 23 January 2008 the prosecutor’s office decided that there was no call to institute criminal proceedings as no traces of ill-treatment had been identified. That decision was joined to the case-file materials.37. On 4 March 2008 the court summoned investigator M.T., police officer N.R., expert Y.K. and Dr V.G. for questioning in connection with the applicant’s ill-treatment complaints. Those persons testified in court as follows:-  Officer N.R. refuted the applicant’s accusations and submitted that on the date of the purported ill-treatment, he had in fact been on leave;-  Investigator M.T. submitted that she had done everything in her power to secure evidence with a view to the prompt examination of the applicant’s ill-treatment complaints. In particular, she had taken the applicant to the forensic expert, had arranged for him to undergo an X-ray and a dental consultation, and had personally covered the relevant fees. Regarding the dental consultation, she had picked the first available private dentist practising in the neighbourhood, as upon arrival at the municipal hospital there had been no dental specialist available to examine the applicant;-  Expert Y.K. confirmed his previous assessment;-  Dr V.G. gave the following testimony, as recorded in the transcript of the court proceedings and insofar as relevant:“On 11 December 2007 the investigator and two escorting officers brought [the applicant] to me for an examination of his oral cavity ...... At first there came a woman and two men from the police, the woman paid for everything ... [she] said that there was a need to examine a patient, I agreed, and then two men brought [the applicant] ...The chips on the upper teeth were not eroded, but I can’t say anything about their age, such things can be learned only from the patients ...I am not an expert, I am simply a dentist ...The patient said that his front teeth had been injured, but I am not an expert, and there were no evident injuries in the oral cavity ... Small chips may be caused by anything ...The police were in the corridor, one can hear everything that I do from there. I did not close the doors of my office ...The chips were sharp, it is possible that they could have been caused by pliers, without damaging the mucous membrane ...[the applicant] said that his teeth had been injured, but when, by whom and how, he did not say, and I did not delve into this situation ...An old chip is [one] which dates back half a year, a year, i.e. it does not cut the tongue, the lip ... there were no complaints concerning discomfort. The lips [and] tongue were not injured, the mucous membrane was not damaged, the chips were small ...”38. On the same date the District Court ordered a further expert assessment with a view to establishing how the applicant had sustained the damage to his teeth and the timing of its infliction, as well as whether the enamel chips had been sharp and whether they could have been inflicted by the application of an iron object such as pliers.39. On 18 March 2008 expert V.B. of the Kryvyy Rig medical forensic examination bureau delivered a report which, insofar as relevant, read as follows:“...2. These injuries could result from impact with a blunt hard object (objects) with limited contact surface, including by the application of a metal object (slim pliers) ... or by squeezing ... a blunt hard object between the teeth ... with the application of physical force.3. The nature of the chips was not established by the dentist in the course of the consultation of 11 December 2007.4. The timing of these injuries is impossible to establish in view of the lapse of time ...”40. On unspecified dates the court watched a video-recording of the reconstruction of the crime scene of 27 November 2007, during which the applicant had pleaded guilty. It also questioned the two lay witnesses present during the procedure. The witnesses submitted that at the material time they had not seen any injuries on the applicant’s body and that he had willingly taken the initiative and demonstrated first-hand knowledge of various details pertinent to the case.41. On 12 May 2008 the District Court convicted the applicant and his co-defendants for having participated in aggravated burglary and sentenced them to various terms of imprisonment, ranging from seven and a half years (V.D.) to eleven years (the applicant). The court determined that the burglary itself had been committed by the applicant and R.A., while D.P. and V.D. had remained on the lookout. It concluded that this version of events, which had been consistently reiterated by V.D. in the course of the proceedings, was also corroborated by other sources of evidence. In this connection, the court referred to the statements of the two victims – I.G. and L.Z. – who had insisted that they recognised R.A. and the applicant as their assailants. In addition, the court referred to indirect evidence, such as mobile telephone logs indicating that the co-accused had been communicating with each other in the vicinity of I.G.’s house at the time of the offence, and to the testimony of two of I.G.’s neighbours examined in court. They testified that on the morning of the burglary, they had seen D.P. (personally known to them) in the company of three men in the vicinity of I.G.’s house. The court next referred to the applicant’s statements given on 27 November 2007 and during the identification parade of 12 December 2007. It noted that his conduct during the procedure and the various small remarks he had made indicated that he had very detailed knowledge of the relevant events. His oral submissions concerning his innocence and similar submissions by his brother had, on the contrary, lacked consistency. They had been modified on several occasions, and had not been corroborated by objective evidence. Insofar as the applicant had alleged that he had falsely incriminated himself at the pre-trial stage as a result of ill-treatment, his allegations had not proved to be substantiated.42. On 26 May 2008 the applicant complained to the prosecutor’s office that when familiarising himself with the case-file materials, he had discovered that the certificate concerning his dental examination of 11 December 2007 contained forgery. Namely, in the phrase “old enamel chips”, the word “old” in his view had been added by a different pen and hand, which had tried to imitate Dr V.G.’s handwriting. According to the applicant, this and several subsequent analogous requests had been left without reaction.43. On 17 June 2008 the applicant also complained to the prosecutor’s office that from the day of his arrest on 21 November 2007 and until the date on which he had confessed to the burglary (27 November 2007), he had been unlawfully detained at the district police station, in an unequipped cold office without any furniture or fixtures, and without having been provided with food. As a result of that treatment, he had been physically exhausted and his moral resistance had been broken. According to the applicant, that complaint and several other analogous complaints had yielded no reaction from the authorities.44. In June 2008 the applicant lodged an appeal against his conviction, reiterating his ill-treatment allegations and contesting the probative value of various pieces of evidence, the credibility of the victims’ and witnesses’ testimony, and the assessment of the evidence by the District Court.45. On 20 January 2009 the Dnipropetrovsk Regional Court of Appeal dismissed the applicant’s appeal, having found that the District Court’s conclusions as to the facts of the case and his ill-treatment allegations had been sufficiently and properly substantiated.46. The applicant lodged an appeal in cassation, essentially reiterating his previous arguments.47. On 16 July 2009 the Supreme Court rejected the applicant’s cassation appeal, and his conviction and sentence became final.THE LAWALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION48. The applicant complained that he had been ill-treated in police custody with a view to extorting self-incriminating statements and that his respective complaints had not been properly investigated. He referred to Article 3 of the Convention, which reads as follows:“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”49. The Government filed no comments concerning the admissibility or merits of the above complaints.Admissibility50. The Court notes that the applicant’s complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.Merits51. The applicant alleged that there had been violations of Article 3 of the Convention under both its substantive and procedural limbs.As to alleged ineffectiveness of the investigation52. Reviewing the facts of the present case in the light of the general principles established in its case-law (see, among other authorities, Bouyid v. Belgium ([GC], no. 23380/09, §§ 81-90 and 114-23, 28 September 2015), the Court considers that the applicant raised an arguable ill-treatment claim at the domestic level. The claim triggered an obligation on the part of the national authorities to carry out an effective official investigation with a view to establishing the origin of the injuries complained of and identifying and punishing those responsible, should the applicant’s allegations concerning ill-treatment have proved to be true.53. From the documents before the Court it appears that the origin of the applicant’s injuries has not been established and the domestic investigation did not reflect a serious effort to determine the relevant facts.54. In particular, the prosecutor’s office did not open a full-scale investigation into the applicant’s complaints and the applicant’s medical assessment in December 2007 was conducted by specialists lacking the necessary qualifications. Furthermore, the initial inquiry was not independent, as it was entrusted to the same investigator who was in charge of the applicant’s criminal case and who worked in the same police unit as the officers implicated in the ill-treatment allegation (see paragraphs 23-24, 27 and 37 above). The District Court’s attempt to compensate for those shortcomings – notably by ordering a further medical assessment by an independent expert in March 2008 – failed, as important evidence had been lost due to the lapse of time (see paragraphs 38-39 above).55. The Court notes that in a number of other cases against Ukraine it has already condemned patterns of investigation similar to those of the present case (see, inter alia, Savitskyy v. Ukraine, no. 38773/05, §§ 103-05, 26 July 2012; Danilov v. Ukraine, no. 2585/06, § 70, 13 March 2014; and Kirpichenko v. Ukraine, no. 38833/03, § 87, 2 April 2015). In the case of Kaverzin v. Ukraine (no. 23893/03, §§ 173-80, 15 May 2012) the Court found that the reluctance of the authorities to ensure a prompt and thorough investigation into the ill-treatment complaints lodged by criminal suspects constituted a systemic problem within the meaning of Article 46 of the Convention. In view of the circumstances of the present case and its relevant case-law, the Court considers that it constitutes another example of such a failure to ensure prompt and thorough investigation.56.

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