FIFTH SECTIONCASE OF PULNYEV AND GVALIYA v. UKRAINE(Application no. 67158/13)      JUDGMENT STRASBOURG30 November 2023 This judgment is final but it may be subject to editorial revision.In the case of Pulnyev and Gvaliya v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Mārtiņš Mits, President, María Elósegui, Kateřina Šimáčková, judges,and Martina Keller, Deputy Section Registrar,Having regard to:the application (no. 67158/13) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 14 October 2013 by two Ukrainian nationals, Mr Igor Valentynovych Pulnyev and Ms Anna Uchayevna Gvaliya, born in 1964 and 1987 respectively, and living in Kherson (“the applicants”), who were represented by Mr F.S. Danylchenko, a lawyer practising in Kharkiv;the decision to give notice of the complaints under Articles 3, 5 and 13 of the Convention and Article 1 of Protocol No. 1 to the Ukrainian Government (“the Government”), represented by their Agent, Mr I. Lishchyna, of the Ministry of Justice, and to declare inadmissible the remainder of the application;the parties’ observations;Having deliberated in private on 9 November 2023,Delivers the following judgment, which was adopted on that date:SUBJECT MATTER OF THE CASE1. The case mainly concerns the first applicant’s allegations of ill-treatment and unlawful detention (Articles 3 and 5 of the Convention) and the seizure of the second applicant’s property (Article 1 of Protocol No. 1 and Article 13 of the Convention).the first applicantEvents as submitted by the first applicant2. On 5 April 2012 at about 6 a.m., several police officers approached the first applicant at a petrol station near a Chevrolet Lacetti (“the car”) belonging to the second applicant. The police officers knocked him to the ground, handcuffed him, put him in a police car and hit him. At around 8 a.m. they took him to the Kherson regional police station where he remained handcuffed and was punched.3. On 6 April 2012 police officers took him, still in handcuffs, to Volodymyr-Volynskyy police station (Volyn Region).4. On 7 April 2012 at 4 a.m., the first applicant arrived at the Volodymyr-Volynskyy police station where a police officer initiated criminal proceedings against him and ordered his detention for seventy-two hours for trafficking stolen goods. At around 7 a.m. that day, an ambulance doctor noted in a medical certificate, a copy of which is available in the case file, that he had an injury to his lip, a bruise under his eye, abrasions on his wrists and subluxation of both shoulders. From 7 to 9 April 2012, he was held in a temporary detention facility in Volyn Region.5. On 9 April 2012 a police officer ordered the first applicant’s release, but, instead, he was handcuffed, put in a police car and driven back to Kherson, arriving on 10 April 2012 at the Suvorovskyy District police station, where he remained in custody.6. On 16 April 2013 the applicant was released. On 12 July 2016 the criminal proceedings against him on a charge of selling a stolen car were terminated for lack of evidence.Investigation into the first applicant’s allegations of ill-treatment and unlawful detention7. During the investigation conducted by the prosecutor’s office, initiated at the first applicant’s request in April or May 2012, police officers from both the above-mentioned police stations denied the applicant’s allegations. They submitted that he had gone to both police stations of his own volition and that they had not seen him after his release on 9 April 2012. M., who had witnessed the events at the petrol station in person, confirmed the applicant’s account as described above. The investigation was terminated and resumed on the basis of court orders on several occasions. The courts noted that there had been no forensic medical examination of the applicant’s injuries.8. The prosecutors terminated the investigation, finding the first applicant’s allegations to be unsubstantiated. In particular, they established that he had gone voluntarily to the Kherson regional police station with six police officers. Subsequently, he had gone, in unknown circumstances, to Volodymyr-Volynskyy police station. The first applicant did not appeal against these decisions.9. He complained under both the substantive and procedural limbs of Article 3, and under Article 5 §§ 1, 2 and 5 of the Convention, about his deprivation of liberty from 5 to 10 April 2012.THE SECOND APPLICANT (Seizure of THE car and other items of property)10. During the events of 5 April 2012 (see paragraph 2 above), the police seized a car and various items found in it (including 15,000 United States dollars). Subsequently, it was established that the car had been stolen from R., to whom the car was returned. During the investigation initiated at the second applicant’s request, the prosecutors established that the car was registered in the second applicant’s name (the case file also contains a copy of the registration certificate attesting to that fact). However, the investigation was finally terminated.11. The second applicant’s request, lodged under the Code of Criminal Procedure, that the courts order the police to return the car and other items of property to her was finally dismissed, the courts having found that R. was the lawful owner of the car and there was a lack of evidence that the applicant was the owner of the items found in the car.12. The second applicant complained under Article 1 of Protocol No. 1 and Article 13 of the Convention regarding the seizure of the car and other items.THE COURT’S ASSESSMENTTHE FIRST APPLICANTAlleged violations of Article 3 of the ConventionProcedural limb13. The Government’s objection concerning the first applicant’s failure to appeal against the decisions terminating the investigation (see paragraph 8 above) must be rejected in view of the previous case-law (see Kaverzin v. Ukraine, no. 23893/03, §§ 88-99, 15 May 2012). 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.14. The applicable general principles were summarised in Assenov and Others v. Bulgaria (28 October 1998, § 102, Reports of Judgments and Decisions 1998-VIII) and El-Masri v. the former Yugoslav Republic of Macedonia ([GC], no. 39630/09, § 182, ECHR 2012).15. The Court considers that the first applicant’s bodily injuries constituted an arguable claim that he might have been ill‑treated by the police. Notwithstanding the investigative measures taken (see paragraph 7 above), it cannot be said that the investigation was thorough; for example, no forensic medical examination was carried out, despite the clear instructions by the courts. Furthermore, the prosecutors did not explain the origins of the first applicant’s injuries. They further disregarded, without providing any explanation, the statements of M., a neutral eyewitness who had been at the petrol station (see paragraph 7 above). It is noteworthy that the domestic courts quashed the prosecutor’s decisions to terminate the investigation multiple times (see Kaverzin, cited above, § 97). Accordingly, the first applicant’s complaints of ill-treatment were not properly investigated.

Outcome for Article 5: violation