FIFTH SECTIONCASE OF MOLOKOV v. UKRAINE(Application no. 60865/16)      JUDGMENT STRASBOURG12 October 2023 This judgment is final but it may be subject to editorial revision.In the case of Molokov 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. 60865/16) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 10 October 2016 by a Ukrainian national, Mr Mykola Mykolayovych Molokov (“the applicant”), who was born in 1991 and whose current place of residence is unknown[1]; he was represented by Mr V. Melnychuk, a lawyer practising in Kyiv and currently residing in Berlin;the decision to give notice of the application to the Ukrainian Government (“the Government”), represented by their Agent, most recently Ms Marharyta Sokorenko;the parties’ observations;Having deliberated in private on 21 September 2023,Delivers the following judgment, which was adopted on that date:SUBJECT MATTER OF THE CASE1. The case concerns the applicant’s alleged ill-treatment in detention and the alleged inadequacy of the domestic investigation (Article 3 of the Convention).FIRST EPISODE2. The first incident took place on 17 February 2015 during a search of the applicant’s cell in the Zaporizhzhya pre-trial detention centre (“the SIZO”).3. According to the applicant, several guards hit him with truncheons and kicked him after he had protested against rude remarks which they had made. According to official records, “physical force and handcuffing” were applied to the applicant in response to his aggressive behaviour.4. The record of the SIZO medical unit stated that on that date the applicant had sustained abrasions and haematomas on the chin, forehead, scalp and neck, as well as on the left shoulder.5. On 18 February 2015 the applicant’s mother complained to the prosecution authorities of his alleged ill-treatment.6. On 19 March 2015 the Zaporizhzhya Regional Prosecutor’s Office launched a criminal investigation into the matter.7. On 11 June 2015 the applicant was questioned as an aggrieved party.8. On 18 August 2015 a forensic medical expert examination report based on the available medical documentation was issued. Given that in the meantime, on 27 February 2015, the applicant had sustained additional injuries (see paragraphs 11 and 12 below) and that the relevant medical records lacked precision, the expert found it impossible to establish the origin of the applicant’s injuries sustained on 17 February 2015.9. The investigation was discontinued on three occasions (on 29 December 2015, 22 March 2017 and 27 February 2022) for absence of any indication of a criminal offence in the actions of the SIZO staff. All those decisions were set aside as premature and unlawful (on 5 May 2016, 21 December 2021 and 31 May 2022 respectively)[2].10. The investigation remains pending.SECOND EPISODE11. On 27 February 2015 the applicant, together with twelve other prisoners, was taken to Berdyansk Prison no. 77. While still inside the van, the applicant and some of the other prisoners harmed themselves by cutting their forearms with disposable razor blades. According to the applicant, they did so to protest against the unjustified application of force on prisoners after they had heard sounds of ill-treatment from one of the van’s compartments. The applicant also alleged that, while the prisoners had not manifested any resistance or violence, they had been subjected to cruel beating. According to the applicant, his beating had continued after he had been dragged out of the van. He alleged that he had been taken to some industrial premises nearby, where several guards had hit and kicked him and poured water on him after he had fainted. According to the prison administration, force had been applied to the newly arrived prisoners after they had refused to get out of the van and had harmed themselves at the instigation of the applicant[3].12. On 28 February 2015 a forensic medical expert examined the applicant. The report issued on 2 March 2015 stated that there were numerous bruises and abrasions all over the applicant’s body resulting from at least twelve traumatic impacts of blunt objects. In addition, a cut wound on his left forearm was noted, possibly self-inflicted with a razor blade.13. On 2 March 2015 a criminal investigation was launched into the applicant’s allegation that he had been ill-treated on 27 February 2015.14. On 6 March 2015 he was questioned as an aggrieved party (see paragraph 11 above for his version of the events). The prison guards concerned, who were also questioned at around the same time, submitted that the applicant had violently resisted their attempts to take him out of the van and that, as a result, they had hit him with a truncheon several times. Given that the floor of the van had been slippery, being covered with the prisoners’ blood as a result of their harming themselves, the guards noted that the applicant might have also accidentally hit himself.15. On 24 November 2015 an additional forensic medical expert examination report was issued. It determined that the applicant’s and the prison guards’ versions of the facts regarding the origin of the applicant’s injuries were equally plausible.16. The investigation was discontinued on four occasions (on 31 March, 12 May and 26 November 2015, as well as on 27 February 2022) for absence of constituent elements of a criminal offence in the prison officers’ actions. All those decisions were set aside as premature and unlawful (on 1 April and 28 July 2015, on an unspecified date between 26 November 2015 and 27 February 2022 and on 31 May 2022)[4].17. The investigation is pending, its progress being hindered, in particular, by the fact that Berdyansk is currently under Russian occupation.THE COURT’S ASSESSMENT18. The applicant alleged that he had been ill-treated by the staff of the Zaporizhzhya SIZO and of Berdyansk Prison and that there had been no effective domestic investigation into those incidents.19. The Government argued that the applicant had abused his right to individual application by failing to inform the Court of one of the prosecutor’s rulings, of 22 March 2017, on the termination of the criminal investigation into his complaint of ill-treatment which had allegedly taken place on 17 February 2015 (see paragraph 9 above). They also observed that he had not challenged that ruling and that it had eventually been set aside by the prosecution authorities of their own motion. The Government therefore invited the Court to declare the application inadmissible either for abuse of the right of individual application or for non-exhaustion of domestic remedies.20. The Court notes that, in the absence of any indication of the applicant’s intention to mislead the Court, there are no grounds for rejecting his complaints for abuse of the right of application, that being an exceptional measure in the Court’s practice (see Miroļubovs and Others v. Latvia, no. 798/05, § 62, 15 September 2009, and Gross v. Switzerland [GC], no. 67810/10, § 28, ECHR 2014).21. As regards the issue of exhaustion of domestic remedies, it is closely linked to the substance of the applicant’s complaint concerning the alleged lack of an effective investigation and must therefore be joined to the merits of that complaint (see, for example, Starenkyy and Others v. Ukraine [Committee], no. 71848/13, § 75, 24 June 2021).22. The Court further notes that the application is neither manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention nor inadmissible on any other grounds. It must therefore be declared admissible.23. The general principles concerning the prohibition of ill-treatment and the State’s obligation to carry out an effective investigation of such allegations have been summarised in Bouyid v. Belgium ([GC], no. 23380/09, §§ 81-90 and 114-23, ECHR 2015).24. The Court is mindful of the difficulties States may encounter in maintaining order and discipline in penal institutions (see Gablishvili and Others v. Georgia, no. 7088/11, § 62, 21 February 2019, and the cases cited therein). Indeed, the use of force may be necessary on occasion to ensure prison security, to maintain order or to prevent crime in penal facilities. Nevertheless, such force may be used only if indispensable and must not be excessive (see Karabet and Others v. Ukraine, nos. 38906/07 and 52025/07, § 325, 17 January 2013).25. It is undisputed in the present case that physical force was applied to the applicant in the SIZO on 17 February 2015 and in Berdyansk Prison on 27 February 2015, as a result of which he sustained injuries. In so far as the first incident is concerned, its circumstances have never been elucidated in an unequivocal manner and it is not known whether there was any justification for the use of force against the applicant. In so far as the second incident is concerned, the Court takes note of the following established fact: the applicant and the other prisoners arrived at Berdyansk Prison equipped with razor blades, which they used to harm themselves. Contrary to the applicant’s argument that the self-harming occurred as a spontaneous protest, it is obvious that it was a premeditated action involving serious risks to the physical integrity of both prisoners and guards and capable of undermining prison security and order in general. The Court therefore accepts that the use of force was necessary under such circumstances. That said, neither the scope nor the proportionality of the force used against the applicant was duly assessed. While it was established by a forensic medical expert that the applicant suffered “at least twelve traumatic impacts of blunt objects” (see paragraph 12 above), no answer has ever been given as to how that happened: the applicant’s version of the origin of his injuries was found to be as plausible as the one advanced by the prison guards (see paragraph 15 above).26. It follows that the State has not satisfactorily established, in respect of both episodes, that the use of force against the applicant was lawful and absolutely necessary and that his injuries were caused otherwise than by the ill-treatment alleged. This being so, the Court considers that the applicant was subjected to treatment contrary to Article 3 of the Convention (compare Sadkov v. Ukraine, no. 21987/05, § 101, 6 July 2017).27. In assessing the effectiveness of the domestic investigation in the present case, the Court notes that a number of important investigative measures were carried out with considerable delay. This concerns, for example, the forensic medical examinations of 18 August 2015 in respect of the first episode (eight months after the incident) and of 24 November 2015 in respect of the second episode (almost nine months after the incident) (see paragraphs 8 and 15 above). It is also noteworthy that the investigation was discontinued and resumed many times, most recently on 31 May 2022, and that the earlier decisions on its termination were found to be premature and unlawful (see paragraphs 9 and 17 above). The Court has held that repeated remittals of a case for further investigation may disclose a serious deficiency in the domestic prosecution system (see Starenkyy and Others, cited above, § 91, with further references). Obviously, the new round of investigation ordered in the present case can hardly be expected to yield fruit, not only because of the ongoing war in Ukraine, but also given that more than seven years have elapsed since the incidents complained of. The investigation cannot therefore be considered effective.28.

Outcome for Article 3: violation