Kadura and Smaliy v. Ukraine (Applications nos. 42753/14 and 43860/14)

A selection of key paragraphs can be found below the judgment.


Mr V. Kadura’s complaints (application no. 42753/14)

94.  Noting that the applicant’s complaint of ill-treatment by the police on 5 December 2013 is supported by medical evidence and his detailed account of the relevant events (see paragraphs 5 to 9 above), the Court considers that his complaint was arguable and triggered the authorities’ duty under Article 3 to investigate. 

95.  The Court observes that although he and his lawyer raised his complaint of illtreatment before different authorities, no meaningful official investigation into that incident was conducted. Notably, the appellate court completely disregarded the applicant’s lawyer’s submissions and his complaint that the investigating judge had failed to comply with his duty to ensure an investigation of allegations of ill-treatment (see paragraphs 15 and 16 above). Also, there is no information demonstrating that the applicant’s subsequent complaints of illtreatment, which he raised in June and July 2014 and December 2016 (see paragraphs 20 and 21 above), were adequately examined by the prosecutors. 

96.  The Court finds that, thus far, the authorities have failed to carry out an effective official investigation into the applicant’s complaint of illtreatment. 

97.  The Government provided no plausible explanation for the injuries recorded after the applicant’s arrest. Having regard to all the evidence before it, the parties’ submissions and the principles governing the distribution of the burden of proof in respect of injuries sustained by persons in custody (see the case-law cited in Shmorgunov and Others, cited above, §§ 360-62), the Court accepts the applicant’s version of the relevant events and finds that he was subjected to illtreatment by the police, in breach of Article 3 of the Convention. 

98.  Accordingly, there has been a violation of Article 3 of the Convention in its procedural and substantive aspects in respect of Mr V. Kadura (application no. 42753/14). 

Mr V. Smaliy’s complaints (application no. 43860/14)

108.  It is true that a number of important investigative actions – including the applicant’s forensic medical examination, his questioning, and the questioning of several witnesses – were conducted within a relatively short period of time after the incident. Eventually, the investigators identified several police officers whom they suspected of having ill-treated the applicant. 

109.  However, subsequently, the investigations were blocked because the authorities could not secure those suspects’ availability for the relevant proceedings. In this connection, the Court notes that in February and March 2015 the investigators asked the Pecherskyy District Court to authorise the suspects’ arrest, but their applications were refused. The reasons for the refusal are unclear (see paragraph 62 above). Nor was any information submitted to the Court demonstrating that the authorities had taken any other measures in order to compel those suspects to cooperate with the investigators. 

110.  On the whole, because of the scarce and insufficiently detailed material regarding the investigations in question with which the Court was provided, it cannot comprehensively assess whether from March 2015 onwards the authorities took any meaningful action in order to find the suspects and generally ensure that all the circumstances pertaining to the applicant’s alleged ill-treatment were duly established. 

111.  Furthermore, the applicant received no reply to his complaints regarding the investigations and the only publicly available information about the proceedings in question which he could obtain seems to have been the indication that the proceedings were ongoing, posted on the PGO’s dedicated website (see paragraphs 64-66 above). 

112.  In these circumstances, the Government have not convincingly shown that the authorities’ failure to establish all the circumstances pertaining to the applicant’s alleged ill-treatment, more than six years after the events, was due to objective difficulties that the authorities attempted but realistically could not overcome. Thus, it finds that, thus far, the authorities have failed to carry out an effective official investigation into that matter. 

113.  As to the complaint under the substantive limb of Article 3 of the Convention, it has not been contested that the applicant sustained significant injuries when he was arrested on 9 December 2013. Nor has it been suggested by the Government that those injuries were inflicted by anyone other than the law-enforcement officials who arrested him, or that the applicant’s actions justified the use of considerable force against him. The Court relies in this regard on the relevant medical evidence and the documents in the investigation file (see paragraphs 52 and, as regards the investigation in question, 57-61 above). Considering the lack of explanation for the applicant’s injuries and their extent, the Court finds that the applicant was subjected to ill-treatment. 

114.  In the light of the foregoing, the Court finds that there has been a violation of Article 3 of the Convention in its procedural and substantive aspects in respect of Mr V. Smaliy (application no. 43860/14). 


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