I correctly predicted that there was a violation of human rights in ORLOV v. UKRAINE.

Judgment

FIFTH SECTION
CASE OF ORLOV v. UKRAINE (No. 2)
(Application no. 54015/17)

JUDGMENT
This version was rectified on 19 July 2024 under Rule 81 of the Rules of Court. STRASBOURG
4 July 2024

This judgment is final but it may be subject to editorial revision. In the case of Orlov v. Ukraine (No. 2),
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Lado Chanturia, President, Carlo Ranzoni, María Elósegui, judges,and Martina Keller, Deputy Section Registrar,
Having regard to:
the application (no. 54015/17) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 4 November 2017 by a Polish national[1], Mr Aleksandr Aleksandrovich Orlov (“the applicant”), who was born in 1954, lives in Cracow and who was represented by Mr L. Bobyr, a lawyer practising in Odesa;
the decision to give notice of the applicant’s complaints under Article 3 of the Convention concerning the incidents described in the judgment below to the Ukrainian Government (“the Government”), represented by their Agent, Ms Marharyta Sokorenko, and to declare the remainder of the application inadmissible;
the parties’ observations;
the decision of the Polish Government not to exercise their right to intervene in the proceedings (Article 36 § 1 of the Convention);

Having deliberated in private on 13 June 2024,
Delivers the following judgment, which was adopted on that date:
SUBJECT MATTER OF THE CASE
1. The case mainly concerns the applicant’s complaints, under Article 3 of the Convention, about three incidents of alleged ill-treatment by fellow inmates, his suicide attempt in detention, and the alleged ineffectiveness of the related domestic investigations. 2. In September 2011 the applicant was arrested on suspicion of having been involved in organising a murder by a criminal gang. On 25 May 2016 he was released, and on an unspecified date thereafter his procedural status was changed to that of a witness. 3. The facts relevant to the incidents complained about and the related investigations are set out in detail in the appended table. THE COURT’S ASSESSMENT
4. The applicant complained under Article 3 of the Convention that an assault on him by an unidentified detainee on 24 December 2012 (“the first incident”) had been an act of revenge by the governor of the pre-trial detention centre (“the SIZO”), R., and officers of the police unit dealing with combating organised crime, in response to complaints that he had made and to various articles published by him in the media. The applicant also blamed the SIZO administration for an assault on him carried out by his cellmate, B., on 15 August[2] 2015 (“the second incident”), given that, according to the applicant, B. was “a recidivist” cooperating with the administration, who had been placed in the applicant’s cell with the purpose of putting pressure on him, contrary to the legal provision prohibiting placing persons facing criminal proceedings for the first time together with those with a criminal record. The applicant also complained, in general terms, that there had been a violation of the substantive limb of Article 3 of the Convention on account of an incident which had taken place on 18 December 2015 (“the third incident”). He specified, however, in so far as the first and third incidents were concerned, that he had no complaints against the convoy police who had been transporting him and other detainees when the incidents took place. 5. The Government submitted that the applicant had not exhausted domestic remedies in so far as the first incident was concerned, as he had not appealed against the investigator’s decision of 31 December 2021 to discontinue the investigation. The Government also contended that the complaint concerning the third incident was premature, since the related investigation was still ongoing. 6. The Court does not consider it necessary to examine the above objections, as this part of the application is, in any event, inadmissible on the following grounds. 7. It is well-established case-law of the Court that State authorities have an obligation under Article 3 of the Convention to take reasonable steps to protect a detainee from inhuman and degrading treatment inflicted by other detainees (see, for example, Dimcho Dimov v. Bulgaria (no. 2), no. 77248/12, §§ 51-62, 29 June 2017, and the case-law references therein). 8. In so far as the applicant alleged that he had been exposed to potential violence by a convicted criminal (“the second incident”), the Court notes that this complaint is neither supported by evidence, nor has it ever been voiced by the applicant at the domestic level (contrast Sizarev v. Ukraine, no. 17116/04, §§ 110 and 114-15, 17 January 2013). Moreover, the applicant’s only explanation of the reason for his conflict with B. was that he had suspected B. of stealing his food. It is also noteworthy that, prior to the incident, the applicant had been sharing his cell with B., without any conflict or complaints of fears for his safety, for about four months (contrast Sizarev, cited above, § 110). 9. As regards the incidents which occurred while the applicant was being transported (the first and the third incidents), the applicant has consistently submitted, both at the domestic level and before the Court, that he has no complaint against the convoy police. Nor has he complained that the authorities knew or ought to have known that he stood a real risk of being assaulted by other detainees. 10. The Court also notes that all the three incidents in question were brief in duration and do not reveal any pattern of systematic abuse (contrast Premininy v. Russia, no. 44973/04, §§ 79, 80 and 86, 10 February 2011, and see, mutatis mutandis, Korpachyova-Hofbauer v. Bulgaria (dec.), no. 56668/12, § 35, 1 September 2015). 11. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. 12. The applicant complained, in vague and confused terms, that the State authorities had been doing everything possible to drive him to suicide. He referred in that connection to the incident of 14 March 2016. 13. The Government observed that the applicant had not appealed against the investigator’s decision to discontinue the investigation of 30 September 2019 and that, therefore, he had not exhausted domestic remedies in respect of that complaint either. 14. Regardless of the above objection by the Government, the Court considers, for the following reasons, that this complaint is manifestly ill-founded. 15. The Court has held that the obligation to protect the health and well-being of persons in detention clearly encompasses an obligation to take reasonable measures to protect them from harming themselves. That obligation, like the obligation to protect a person’s life, must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities, bearing in mind the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources (see Ainis and Others v. Italy, no. 2264/12, § 54, 14 September 2023, with further case-law references). 16. With regard to the specific case of detainees who voluntarily put their lives at risk, the Court has stated that acts prompted by pressure on the authorities cannot lead to a violation of the Convention, provided that those authorities have duly examined and managed the situation (see Ünsal and Timtik v. Turkey (dec.), no. 36331/20, § 37, 8 June 2021). 17. Turning to the present case, the Court notes that the applicant, who had apparently resorted to self-harm on numerous occasions prior to the incident in question, was being monitored as a detainee at risk of self-harm or suicide. His complaint to the Court does not concern any allegations of deficiencies in that monitoring. Nor did he suggest that the authorities had failed to duly protect him from self-harm. The essence of his complaint is that he had suffered such unbearable distress that he had attempted to commit suicide. That allegation implies serious and systematic ill-treatment or abuse by detention staff capable of raising issues under Article 3 of the Convention. However, the Court cannot but observe, on the basis of the material at its disposal, that the applicant’s complaint, which is couched in vague and confused terms, lacks substantiation. It appears from the documents available to it that the incident in question had been preceded by the seizure of the applicant’s mobile telephone, which, even though it might have triggered severe frustration on his part, cannot be interpreted as raising any issue under Article 3 of the Convention. 18. The Court therefore considers that this complaint should also be declared inadmissible as being manifestly ill-founded. 19. The applicant complained that there had been no effective domestic investigation in respect of any of the four incidents in question. 20. The Government contested that argument. 21. The Court notes that it has dismissed as being manifestly ill-founded the applicant’s complaints under the substantive limb of Article 3 of the Convention concerning the incidents in question. However, that finding is based on the information gathered during the domestic investigations which is currently available to the Court, and does not mean, in itself, that the applicant’s initial complaints at domestic level were not arguable for the purposes of triggering the State’s procedural obligation to investigate (see, for example, Skant v. Ukraine (dec.), no. 25922/09, 6 September 2016). 22. In so far as the first to the third incidents are concerned, the Court notes that the applicant complained to the domestic authorities that he had been physically attacked by other detainees, and those complaints could not be regarded as being entirely devoid of any basis. As regards the fourth incident, it was established that the applicant had attempted to commit suicide, and his allegation that he had been driven to do so by detention staff could not be dismissed without a thorough investigation. In sum, the Court considers that the applicant’s complaints in respect of all the four incidents triggered the positive obligation for the State to carry out an effective domestic investigation. 23. The Court has summarised the general principles concerning the effectiveness of an investigation into arguable allegations of ill-treatment in Bouyid v. Belgium ([GC], no. 23380/09, §§ 116-23, ECHR 2015) and Muta v. Ukraine (no. 37246/06, §§ 59-62, 31 July 2012). 24. In the present case, the Court discerns a number of deficiencies undermining the effectiveness of the domestic investigation in respect of all the four incidents. 25. The Court notes, in particular, that a number of important investigative measures were carried out with considerable delay. This concerns, for example, the forensic medical expert report, which was issued about three years after the first incident. Furthermore, while it was essential to identify and question without delay the detainees who had been with the applicant in the van during the first and third incidents (compare Sizarev, cited above, § 123), the investigator did not undertake such an attempt in connection with the first incident until four years after the events, without success. As regards the third incident, no such attempt appears to have ever been made. Moreover, five years after the second and third incidents, the domestic prosecution authorities themselves admitted that even the most basic investigative measures had not been taken with a view to establishing the truth. 26. The Court also takes note of the considerable delays – four and a half years in relation to the first incident, and a year and a half in relation to both the second and the fourth incidents – in granting the applicant victim status and thus enabling him to effectively intervene in the investigations (see Yatsenko v. Ukraine, no. 75345/01, § 47, 16 February 2012). 27. It is also noteworthy that the investigations were discontinued and resumed many times (eleven times in connection with the first incident, five times in connection with the second incident, and four times in connection with both the third and fourth incidents), with the earlier decisions on termination having been found to be premature and unfounded. The Court has held that repeated remittals of a case for further investigation may disclose a serious deficiency in the domestic prosecution system (see, for example, Aleksandr Smirnov v. Ukraine, no. 38683/06, § 61, 15 July 2010, and Ochelkov v. Russia, no. 17828/05, § 122, 11 April 2013). It is evident that the new rounds of investigation ordered in connection with the second and third incidents could hardly have been expected to yield fruit, given that more than eight years have elapsed since the incidents in question. 28. In the light of all these circumstances, the Court is not convinced that the domestic authorities acted promptly and in good faith, or that they made all reasonable efforts to establish exactly what had happened to the applicant within the walls of the detention facility and why, or to bring those responsible to justice (compare Sizarev, cited above, § 129). 29. In view of the foregoing, the Court finds that there has been a violation of Article 3 of the Convention on account of the authorities’ failure to duly investigate the incidents involving the applicant during his pre-trial detention. 30. Furthermore, relying on Article 3 of the Convention, the applicant alleged that on 28 December 2017 he had been attacked by officers of the State Security Service, as a result of which he had been hit by a car and had sustained serious injuries (see “Road traffic accident involving the applicant (the fifth incident)”) in the appended table for factual details). In his reply to the Government’s observations, the applicant contended, in vague terms, that the incident “[had not been] an accident, [but rather] “an attempt on the life of a journalist”. He noted, in particular, that he had been near the SIZO, carrying out an independent investigation, without giving further details. The applicant also complained that there had been no effective domestic investigation into that matter. 31. The Government submitted that the accident involving the applicant had been caused by his own careless actions, for which the State did not bear any responsibility. They also argued that the domestic authorities had taken all reasonable efforts to investigate the matter. 32. The Court notes that in Nicolae Virgiliu Tănase v. Romania ([GC], no. 41720/13, § 123, 25 June 2019)) it held that bodily injuries and physical and mental suffering experienced by an individual following an accident which was merely the result of chance or negligent conduct could not be considered the consequence of “treatment” to which that individual had been “subjected” within the meaning of Article 3. The Court noted that, indeed, such treatment was in essence, albeit not exclusively, characterised by an intention to harm, humiliate or debase an individual, by a display of disrespect for or diminution of his or her human dignity, or by the creation of feelings of fear, anguish or inferiority capable of breaking his or her moral and physical resistance. 33. The applicant’s submissions in the present case can be interpreted as suggesting both “an intention to harm” by the State Security Service officers and a causal link between their actions and him having been hit by a car. None of those allegations is, however, supported by evidence in the case file before the Court. In other words, his complaint under the substantive limb of Article 3 of the Convention is unsubstantiated. 34. The same conclusion is applicable to the applicant’s complaint concerning the alleged ineffectiveness of the domestic investigation. The Court notes that a full-fledged criminal investigation was launched without delay not only in respect of a possible breach of traffic rules by the driver of the car which had hit the applicant, but also into the applicant’s allegations of “an attempt on a journalist’s life” and of an “abuse of power” by the State Security Service agents. For the Court, this demonstrates that the authorities took the applicant’s case seriously. Obviously, the investigation was hindered by the applicant’s amnesia in respect of the circumstances surrounding the accident. However, the investigator conducted a confrontation between the applicant and the officers concerned as soon as that became possible. Overall, the Court discerns nothing in the material in its possession to suggest that the domestic authorities’ approach in the present case lacked promptness, expeditiousness or thoroughness. 35. It follows that this part of the application should be rejected as being manifestly ill-founded, in accordance with Article 35 §§ 3 (a) and 4 of the Convention. APPLICATION OF ARTICLE 41 OF THE CONVENTION
36. The applicant claimed 6,685,000 euros (EUR) in respect of “damage”, without further details. 37. The Government contested that claim as exorbitant and unsubstantiated. 38. The Court considers it reasonable to award the applicant EUR 2,500 in respect of non-pecuniary damage. FOR THESE REASONS, THE COURT, UNANIMOUSLY,
(a) that the respondent State is to pay the applicant, within three months, EUR 2,500 (two thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 4 July 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Martina Keller Lado Chanturia Deputy Registrar President
APPENDIX

Facts and documents relating to the incident
Key investigation-related developments
First incident of alleged ill-treatment by another detainee while in pre-trial detention
On 24 December 2012 the applicant allegedly sustained several unexpected punches to the head from an unidentified detainee. The incident took place in a van used to transport detainees from court to their detention facility (“the SIZO”). According to the applicant, the following day he was diagnosed with a microfracture in his right eardrum. As recorded in his medical records, the applicant complained to the SIZO medical unit of a headache and pain in his right ear and was diagnosed with and treated for otitis. On 26 December 2012 the applicant complained about the incident to the Odesa regional prosecutor’s office. The applicant alleged that his assault had been orchestrated by the police unit dealing with combating organised crime, which he had accused of falsifying his criminal case file. On 9 September 2013 a criminal investigation was launched in respect of a charge of battery. On 28[3] October 2015 a forensic medical expert report was issued. As stated therein, it was impossible to confirm or refute the applicant’s allegations as to the injuries sustained, given that the expert assessment had been based on the applicant’s medical file only, rather than on a personal examination of him. In December 2016 an investigator attempted to identify the other detainees who had been in the van with the applicant at the time of the incident, but found it impossible, given the considerable lapse of time. On 17 July 2017 the applicant was attributed the procedural status of an aggrieved party and was questioned in that capacity. He expressed the view that his assault had been orchestrated by the SIZO governor, R. The applicant also gave the name of one of the detainees who had witnessed the incident. In June 2018 that detainee was questioned. He confirmed, in general terms, the applicant’s allegation. In June 2018 the investigator questioned the convoy police officers concerned. They stated that they had not witnessed an assault and had not received any complaints from the applicant. On eleven occasions (on 29 September 2013, 26 November 2014, 29 April and 29 October 2015, 26 December 2016, 31 July 2017, 31 August and 27 December 2018, 15 March and 27 June 2019, and 26 May 2020) the investigation was discontinued for lack of evidence of a criminal offence. All those decisions were quashed on account of the failure to carry out all the necessary investigative measures and to comply with earlier instructions in that regard (on 19 June 2014, 17 March and 28 September 2015, 18 October 2016, 25 April and 28 December 2017, 12 September 2018, 20 February and 14 June 2019, 13 February 2020, and 5 May 2021). On 31 December 2021 the investigator discontinued the investigation for the twelfth time. That decision remains in force. Second incident of alleged ill-treatment by another detainee while in pre-trial detention
On 15 August 2015 the applicant attracted the attention of SIZO guards by shouting and banging on his cell door. He alleged that his cellmate, B., (with whom he had been sharing a cell since April 2015 without any issues) had assaulted him. B denied that allegation. The applicant was taken to the medical unit, where an abrasion was noted on his upper lip. The applicant reportedly refused medical assistance. On 15 August 2015 the SIZO administration questioned B., who denied having touched the applicant. On 16 August 2015 the applicant complained about the incident to the prosecution authorities, and a criminal investigation was launched in respect of infliction of light bodily injuries. On 28 February 2017 the applicant was questioned as an aggrieved party for the first time. He submitted that he had accused his cellmate of stealing his food and that his cellmate had then assaulted him. The investigation was discontinued on five occasions on account of the lack of indications of a crime (on 30 April 2016, 29 June 2017, 13 March and 30 October 2019, and 10 November 2021). All those decisions, however, were quashed as premature and unfounded (on 8 September 2016, 26 October 2017, 13 May 2019, 10 December 2020, and 28 June 2023). The prosecutor of the Odesa regional prosecutor’s office noted in a decision of 10 December 2020 that the investigator had not carried out a single investigative measure with the aim of establishing the truth. The case file before the Court does not contain a copy of the most recent ruling of 28 June 2023. The investigation remains pending. Third incident of alleged ill-treatment by another detainee while in pre-trial detention
On 18 December 2015 an unidentified individual threw liquid, appearing to be brilliant green antiseptic, in the applicant’s face as he was getting into a van to be transported from the SIZO to court. Several days later the applicant found an anonymous handwritten note in his cell stating that the liquid in question had been infected with HIV. On 25 December 2015 the applicant complained about the incident to the Prosecutor General’s Office, stating that he suspected that it could have been carried out by one of two detainees who were co-accused in his criminal case. On 24 April 2017 the Odesa Prymorskyy District Court found that the prosecution authorities had unlawfully omitted to launch an investigation into the applicant’s complaint. On 3 May 2017 a pre-trial investigation was launched in respect of suspected abuse of power (apparently, implying possible omissions by the convoy police officers in charge of the detainees’ transportation). On 24 May 2017 the classification of the criminal offence was changed to “hooliganism” at the request of the applicant, who emphasised that he had no complaints regarding the convoy police. In addition, on 19 May 2017 a criminal investigation was launched in respect of the alleged threats to the applicant’s life. It was discontinued on four occasions (on 18 December 2017, 9 June 2018, 25 July 2019, and 25 December 2020), with all those decisions having been quashed as premature (on 13 March 2018, 7 February 2019, 14 March 2020, and 2 April 2021). In so far as the investigation into the hooliganism-related allegation was concerned, it was discontinued on 23 March 2019. On 10 December 2020 the Odesa regional prosecutor’s office, however, quashed that decision, finding that even the most basic investigative measures had not been carried out. The investigation remains pending. The applicant’s suicide attempt in pre-trial detention (the fourth incident)
On 14 March 2016 a search was carried out in the applicant’s cell. A mobile telephone was seized, in spite of the applicant’s vehement objections. After the SIZO staff members left the cell, the applicant tried to hang himself. His cellmate called for help and held the applicant in the air, thus preventing him from getting strangulated. The applicant refused to be examined by the SIZO paramedic and ambulance staff, who immediately arrived at the scene. He also refused to give any explanations. Instead, he announced his intention to go on hunger strike, until his mobile telephone was returned to him. On 17 March 2016 the applicant complained to the prosecution authorities that, through the poor conditions of detention, permanent humiliation and an unfair attitude, the SIZO governor, N., had been driving him to suicide. On 30 March 2016 a criminal investigation was launched into that allegation. On 6 September 2018 the applicant was questioned as a victim. The investigator noted that the applicant had been monitored as a detainee inclined to self-injury or suicide since 27[4] April 2012 and sought the applicant’s comments in that connection. The applicant submitted that he had been “under pressure from the prison machinery”, that he had cut himself many times, that he often banged his head against the walls, and that he had warned the staff many times that he would commit suicide. The applicant specified that his behaviour was not related to alleged wrongdoing on the part of the SIZO governor, N., who had only been appointed to that post in early 2016. In so far as the events of 14 March 2016 were concerned, the applicant submitted that the search in his cell had taken an unusually long time. He further noted that there were frequent and lengthy searches in his cell, which he perceived as an attempt by the SIZO governor to put pressure on him, given that the applicant often complained about the conditions of detention. When the investigator invited the applicant to share the results of an investigation which he had apparently been undertaking into various crimes in the SIZO and which he had apparently intended to publish, the applicant submitted that he had nothing to share. The criminal investigation was discontinued owing to a lack of any indication of a criminal offence on five occasions (on 29 July 2016, 28 February 2017, 27 June 2018, 31 January 2019 and 30 September 2019). All those decisions, except the last one, were quashed as premature and superficial (on 8 February and 7 December 2017, 29 August 2018 and 19 April 2019). Road traffic accident involving the applicant (the fifth incident)
On 28 December 2017 the applicant was crossing a road near the Odesa SIZO, where, according to him, he had been carrying out “an investigation as a journalist”, when he was hit by a car. He was hospitalised with serious head injuries, which led to his amnesia in respect of the circumstances of the accident. Statements by several witnesses to the accident, confirmed by a video recording from a dash camera in one of the cars passing by, indicated that the applicant had unexpectedly run into the road at a pedestrian crossing despite the red-light signal for pedestrians and the heavy traffic, and was hit by a car. Two individuals wearing camouflage uniform then approached the crossing. They tried to provide the applicant with first aid and helped to lift him into an ambulance. They stayed there until the arrival of the police. As subsequently established, the two individuals were officers of the State Security Service who were in charge of accompanying vehicles transporting detainees to and from the SIZO. On 29 December 2017 a criminal investigation was launched in respect of a possible breach of traffic rules by the driver whose car had hit the applicant. On 31 May 2018 it was discontinued on the grounds that, as confirmed by all the evidence, it had been impossible for the driver to avoid the accident. On 14 February 2018 the applicant requested the Odesa regional prosecutor’s office to launch an investigation into “an attempt on a journalist’s life”. He referred to the fact that he was a member of the Union of Journalists of Ukraine and that in early December 2017 he had published posts on social media, alleging various acts of wrongdoing by the State Security Service. In so far as the events of 28 December 2017 were concerned, the applicant stated that he had been filming the entrance to the SIZO on his mobile telephone, in connection with the investigation he was undertaking in his role as a journalist, in particular into the manner in which food parcels for detainees were handled. He did not remember the circumstances surrounding the accident. On 14 March 2018 a criminal investigation was launched into the applicant’s allegation of “an attempt on a journalist’s life”. In addition, on 15 March 2018 a criminal investigation was launched into a possible abuse of power by the State Security Service officers. On 7 May 2018 the Odesa Regional Department of the State Security Service issued an internal investigation report in respect of the events of 28 December 2017. It was established that two convoy officers had noticed a suspicious person filming the convoy vehicle and, when they had tried to approach him, he had run away into the road and had been hit by a car. The report noted that, while the officers had been under an obligation to act diligently, they had not been entitled to leave the convoy vehicle. They were therefore reprimanded. On 24 July 2018 the investigator conducted confrontations between the applicant and the two officers concerned. The applicant submitted, in vague terms, that, while he did not remember the accident, he had been afraid that law-enforcement authorities might wish to kidnap and kill him. On 5 December 2018 the investigation into a possible abuse of power by the State Security Service officers was discontinued owing to the lack of indication of a criminal offence. On 6 March 2019 that ruling was quashed following the applicant’s complaint that it had not been based on a comprehensive investigation. On 18 July 2019 the investigation into an attempt on a journalist’s life was also discontinued. On 17 July 2020 that decision was quashed as superficial and unfounded. On 7 March 2023 the related investigation was discontinued again. On an unspecified date the applicant moved to Poland. In early 2021 the investigator allowed the applicant’s request to be questioned at his place of residence in Poland with the involvement of the Polish law-enforcement authorities. It appears that the investigation is pending in so far as it concerns the possible abuse of power by the State Security Service officers. [1] The applicant was born and lived in Ukraine for many years, both before and after obtaining Polish nationality. [2] Rectified on 19 July 2024: the text was “January”. [3] Rectified on 19 July 2024: the text was “29”. [4] Rectified on 19 July 2024: the text was “17”. FIFTH SECTION
CASE OF ORLOV v. UKRAINE (No. 2)
(Application no. 54015/17)

JUDGMENT
This version was rectified on 19 July 2024 under Rule 81 of the Rules of Court. STRASBOURG
4 July 2024

This judgment is final but it may be subject to editorial revision. In the case of Orlov v. Ukraine (No. 2),
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Lado Chanturia, President, Carlo Ranzoni, María Elósegui, judges,and Martina Keller, Deputy Section Registrar,
Having regard to:
the application (no. 54015/17) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 4 November 2017 by a Polish national[1], Mr Aleksandr Aleksandrovich Orlov (“the applicant”), who was born in 1954, lives in Cracow and who was represented by Mr L. Bobyr, a lawyer practising in Odesa;
the decision to give notice of the applicant’s complaints under Article 3 of the Convention concerning the incidents described in the judgment below to the Ukrainian Government (“the Government”), represented by their Agent, Ms Marharyta Sokorenko, and to declare the remainder of the application inadmissible;
the parties’ observations;
the decision of the Polish Government not to exercise their right to intervene in the proceedings (Article 36 § 1 of the Convention);

Having deliberated in private on 13 June 2024,
Delivers the following judgment, which was adopted on that date:
SUBJECT MATTER OF THE CASE
1. The case mainly concerns the applicant’s complaints, under Article 3 of the Convention, about three incidents of alleged ill-treatment by fellow inmates, his suicide attempt in detention, and the alleged ineffectiveness of the related domestic investigations. 2. In September 2011 the applicant was arrested on suspicion of having been involved in organising a murder by a criminal gang. On 25 May 2016 he was released, and on an unspecified date thereafter his procedural status was changed to that of a witness. 3. The facts relevant to the incidents complained about and the related investigations are set out in detail in the appended table. THE COURT’S ASSESSMENT
4. The applicant complained under Article 3 of the Convention that an assault on him by an unidentified detainee on 24 December 2012 (“the first incident”) had been an act of revenge by the governor of the pre-trial detention centre (“the SIZO”), R., and officers of the police unit dealing with combating organised crime, in response to complaints that he had made and to various articles published by him in the media. The applicant also blamed the SIZO administration for an assault on him carried out by his cellmate, B., on 15 August[2] 2015 (“the second incident”), given that, according to the applicant, B. was “a recidivist” cooperating with the administration, who had been placed in the applicant’s cell with the purpose of putting pressure on him, contrary to the legal provision prohibiting placing persons facing criminal proceedings for the first time together with those with a criminal record. The applicant also complained, in general terms, that there had been a violation of the substantive limb of Article 3 of the Convention on account of an incident which had taken place on 18 December 2015 (“the third incident”). He specified, however, in so far as the first and third incidents were concerned, that he had no complaints against the convoy police who had been transporting him and other detainees when the incidents took place. 5. The Government submitted that the applicant had not exhausted domestic remedies in so far as the first incident was concerned, as he had not appealed against the investigator’s decision of 31 December 2021 to discontinue the investigation. The Government also contended that the complaint concerning the third incident was premature, since the related investigation was still ongoing. 6. The Court does not consider it necessary to examine the above objections, as this part of the application is, in any event, inadmissible on the following grounds. 7. It is well-established case-law of the Court that State authorities have an obligation under Article 3 of the Convention to take reasonable steps to protect a detainee from inhuman and degrading treatment inflicted by other detainees (see, for example, Dimcho Dimov v. Bulgaria (no. 2), no. 77248/12, §§ 51-62, 29 June 2017, and the case-law references therein). 8. In so far as the applicant alleged that he had been exposed to potential violence by a convicted criminal (“the second incident”), the Court notes that this complaint is neither supported by evidence, nor has it ever been voiced by the applicant at the domestic level (contrast Sizarev v. Ukraine, no. 17116/04, §§ 110 and 114-15, 17 January 2013). Moreover, the applicant’s only explanation of the reason for his conflict with B. was that he had suspected B. of stealing his food. It is also noteworthy that, prior to the incident, the applicant had been sharing his cell with B., without any conflict or complaints of fears for his safety, for about four months (contrast Sizarev, cited above, § 110). 9. As regards the incidents which occurred while the applicant was being transported (the first and the third incidents), the applicant has consistently submitted, both at the domestic level and before the Court, that he has no complaint against the convoy police. Nor has he complained that the authorities knew or ought to have known that he stood a real risk of being assaulted by other detainees. 10. The Court also notes that all the three incidents in question were brief in duration and do not reveal any pattern of systematic abuse (contrast Premininy v. Russia, no. 44973/04, §§ 79, 80 and 86, 10 February 2011, and see, mutatis mutandis, Korpachyova-Hofbauer v. Bulgaria (dec.), no. 56668/12, § 35, 1 September 2015). 11. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. 12. The applicant complained, in vague and confused terms, that the State authorities had been doing everything possible to drive him to suicide. He referred in that connection to the incident of 14 March 2016. 13. The Government observed that the applicant had not appealed against the investigator’s decision to discontinue the investigation of 30 September 2019 and that, therefore, he had not exhausted domestic remedies in respect of that complaint either. 14. Regardless of the above objection by the Government, the Court considers, for the following reasons, that this complaint is manifestly ill-founded. 15. The Court has held that the obligation to protect the health and well-being of persons in detention clearly encompasses an obligation to take reasonable measures to protect them from harming themselves. That obligation, like the obligation to protect a person’s life, must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities, bearing in mind the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources (see Ainis and Others v. Italy, no. 2264/12, § 54, 14 September 2023, with further case-law references). 16. With regard to the specific case of detainees who voluntarily put their lives at risk, the Court has stated that acts prompted by pressure on the authorities cannot lead to a violation of the Convention, provided that those authorities have duly examined and managed the situation (see Ünsal and Timtik v. Turkey (dec.), no. 36331/20, § 37, 8 June 2021). 17. Turning to the present case, the Court notes that the applicant, who had apparently resorted to self-harm on numerous occasions prior to the incident in question, was being monitored as a detainee at risk of self-harm or suicide. His complaint to the Court does not concern any allegations of deficiencies in that monitoring. Nor did he suggest that the authorities had failed to duly protect him from self-harm. The essence of his complaint is that he had suffered such unbearable distress that he had attempted to commit suicide. That allegation implies serious and systematic ill-treatment or abuse by detention staff capable of raising issues under Article 3 of the Convention. However, the Court cannot but observe, on the basis of the material at its disposal, that the applicant’s complaint, which is couched in vague and confused terms, lacks substantiation. It appears from the documents available to it that the incident in question had been preceded by the seizure of the applicant’s mobile telephone, which, even though it might have triggered severe frustration on his part, cannot be interpreted as raising any issue under Article 3 of the Convention. 18. The Court therefore considers that this complaint should also be declared inadmissible as being manifestly ill-founded. 19. The applicant complained that there had been no effective domestic investigation in respect of any of the four incidents in question. 20. The Government contested that argument. 21. The Court notes that it has dismissed as being manifestly ill-founded the applicant’s complaints under the substantive limb of Article 3 of the Convention concerning the incidents in question. However, that finding is based on the information gathered during the domestic investigations which is currently available to the Court, and does not mean, in itself, that the applicant’s initial complaints at domestic level were not arguable for the purposes of triggering the State’s procedural obligation to investigate (see, for example, Skant v. Ukraine (dec.), no. 25922/09, 6 September 2016). 22. In so far as the first to the third incidents are concerned, the Court notes that the applicant complained to the domestic authorities that he had been physically attacked by other detainees, and those complaints could not be regarded as being entirely devoid of any basis. As regards the fourth incident, it was established that the applicant had attempted to commit suicide, and his allegation that he had been driven to do so by detention staff could not be dismissed without a thorough investigation. In sum, the Court considers that the applicant’s complaints in respect of all the four incidents triggered the positive obligation for the State to carry out an effective domestic investigation. 23. The Court has summarised the general principles concerning the effectiveness of an investigation into arguable allegations of ill-treatment in Bouyid v. Belgium ([GC], no. 23380/09, §§ 116-23, ECHR 2015) and Muta v. Ukraine (no. 37246/06, §§ 59-62, 31 July 2012). 24. In the present case, the Court discerns a number of deficiencies undermining the effectiveness of the domestic investigation in respect of all the four incidents. 25. The Court notes, in particular, that a number of important investigative measures were carried out with considerable delay. This concerns, for example, the forensic medical expert report, which was issued about three years after the first incident. Furthermore, while it was essential to identify and question without delay the detainees who had been with the applicant in the van during the first and third incidents (compare Sizarev, cited above, § 123), the investigator did not undertake such an attempt in connection with the first incident until four years after the events, without success. As regards the third incident, no such attempt appears to have ever been made. Moreover, five years after the second and third incidents, the domestic prosecution authorities themselves admitted that even the most basic investigative measures had not been taken with a view to establishing the truth. 26. The Court also takes note of the considerable delays – four and a half years in relation to the first incident, and a year and a half in relation to both the second and the fourth incidents – in granting the applicant victim status and thus enabling him to effectively intervene in the investigations (see Yatsenko v. Ukraine, no. 75345/01, § 47, 16 February 2012). 27. It is also noteworthy that the investigations were discontinued and resumed many times (eleven times in connection with the first incident, five times in connection with the second incident, and four times in connection with both the third and fourth incidents), with the earlier decisions on termination having been found to be premature and unfounded. The Court has held that repeated remittals of a case for further investigation may disclose a serious deficiency in the domestic prosecution system (see, for example, Aleksandr Smirnov v. Ukraine, no. 38683/06, § 61, 15 July 2010, and Ochelkov v. Russia, no. 17828/05, § 122, 11 April 2013). It is evident that the new rounds of investigation ordered in connection with the second and third incidents could hardly have been expected to yield fruit, given that more than eight years have elapsed since the incidents in question. 28. In the light of all these circumstances, the Court is not convinced that the domestic authorities acted promptly and in good faith, or that they made all reasonable efforts to establish exactly what had happened to the applicant within the walls of the detention facility and why, or to bring those responsible to justice (compare Sizarev, cited above, § 129). 29. In view of the foregoing, the Court finds that there has been a violation of Article 3 of the Convention on account of the authorities’ failure to duly investigate the incidents involving the applicant during his pre-trial detention. 30. Furthermore, relying on Article 3 of the Convention, the applicant alleged that on 28 December 2017 he had been attacked by officers of the State Security Service, as a result of which he had been hit by a car and had sustained serious injuries (see “Road traffic accident involving the applicant (the fifth incident)”) in the appended table for factual details). In his reply to the Government’s observations, the applicant contended, in vague terms, that the incident “[had not been] an accident, [but rather] “an attempt on the life of a journalist”. He noted, in particular, that he had been near the SIZO, carrying out an independent investigation, without giving further details. The applicant also complained that there had been no effective domestic investigation into that matter. 31. The Government submitted that the accident involving the applicant had been caused by his own careless actions, for which the State did not bear any responsibility. They also argued that the domestic authorities had taken all reasonable efforts to investigate the matter. 32. The Court notes that in Nicolae Virgiliu Tănase v. Romania ([GC], no. 41720/13, § 123, 25 June 2019)) it held that bodily injuries and physical and mental suffering experienced by an individual following an accident which was merely the result of chance or negligent conduct could not be considered the consequence of “treatment” to which that individual had been “subjected” within the meaning of Article 3. The Court noted that, indeed, such treatment was in essence, albeit not exclusively, characterised by an intention to harm, humiliate or debase an individual, by a display of disrespect for or diminution of his or her human dignity, or by the creation of feelings of fear, anguish or inferiority capable of breaking his or her moral and physical resistance. 33. The applicant’s submissions in the present case can be interpreted as suggesting both “an intention to harm” by the State Security Service officers and a causal link between their actions and him having been hit by a car. None of those allegations is, however, supported by evidence in the case file before the Court. In other words, his complaint under the substantive limb of Article 3 of the Convention is unsubstantiated. 34. The same conclusion is applicable to the applicant’s complaint concerning the alleged ineffectiveness of the domestic investigation. The Court notes that a full-fledged criminal investigation was launched without delay not only in respect of a possible breach of traffic rules by the driver of the car which had hit the applicant, but also into the applicant’s allegations of “an attempt on a journalist’s life” and of an “abuse of power” by the State Security Service agents. For the Court, this demonstrates that the authorities took the applicant’s case seriously. Obviously, the investigation was hindered by the applicant’s amnesia in respect of the circumstances surrounding the accident. However, the investigator conducted a confrontation between the applicant and the officers concerned as soon as that became possible. Overall, the Court discerns nothing in the material in its possession to suggest that the domestic authorities’ approach in the present case lacked promptness, expeditiousness or thoroughness. 35. It follows that this part of the application should be rejected as being manifestly ill-founded, in accordance with Article 35 §§ 3 (a) and 4 of the Convention. APPLICATION OF ARTICLE 41 OF THE CONVENTION
36. The applicant claimed 6,685,000 euros (EUR) in respect of “damage”, without further details. 37. The Government contested that claim as exorbitant and unsubstantiated. 38. The Court considers it reasonable to award the applicant EUR 2,500 in respect of non-pecuniary damage. FOR THESE REASONS, THE COURT, UNANIMOUSLY,
(a) that the respondent State is to pay the applicant, within three months, EUR 2,500 (two thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 4 July 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Martina Keller Lado Chanturia Deputy Registrar President
APPENDIX

Facts and documents relating to the incident
Key investigation-related developments
First incident of alleged ill-treatment by another detainee while in pre-trial detention
On 24 December 2012 the applicant allegedly sustained several unexpected punches to the head from an unidentified detainee. The incident took place in a van used to transport detainees from court to their detention facility (“the SIZO”). According to the applicant, the following day he was diagnosed with a microfracture in his right eardrum. As recorded in his medical records, the applicant complained to the SIZO medical unit of a headache and pain in his right ear and was diagnosed with and treated for otitis. On 26 December 2012 the applicant complained about the incident to the Odesa regional prosecutor’s office. The applicant alleged that his assault had been orchestrated by the police unit dealing with combating organised crime, which he had accused of falsifying his criminal case file. On 9 September 2013 a criminal investigation was launched in respect of a charge of battery. On 28[3] October 2015 a forensic medical expert report was issued. As stated therein, it was impossible to confirm or refute the applicant’s allegations as to the injuries sustained, given that the expert assessment had been based on the applicant’s medical file only, rather than on a personal examination of him. In December 2016 an investigator attempted to identify the other detainees who had been in the van with the applicant at the time of the incident, but found it impossible, given the considerable lapse of time. On 17 July 2017 the applicant was attributed the procedural status of an aggrieved party and was questioned in that capacity. He expressed the view that his assault had been orchestrated by the SIZO governor, R. The applicant also gave the name of one of the detainees who had witnessed the incident. In June 2018 that detainee was questioned. He confirmed, in general terms, the applicant’s allegation. In June 2018 the investigator questioned the convoy police officers concerned. They stated that they had not witnessed an assault and had not received any complaints from the applicant. On eleven occasions (on 29 September 2013, 26 November 2014, 29 April and 29 October 2015, 26 December 2016, 31 July 2017, 31 August and 27 December 2018, 15 March and 27 June 2019, and 26 May 2020) the investigation was discontinued for lack of evidence of a criminal offence. All those decisions were quashed on account of the failure to carry out all the necessary investigative measures and to comply with earlier instructions in that regard (on 19 June 2014, 17 March and 28 September 2015, 18 October 2016, 25 April and 28 December 2017, 12 September 2018, 20 February and 14 June 2019, 13 February 2020, and 5 May 2021). On 31 December 2021 the investigator discontinued the investigation for the twelfth time. That decision remains in force. Second incident of alleged ill-treatment by another detainee while in pre-trial detention
On 15 August 2015 the applicant attracted the attention of SIZO guards by shouting and banging on his cell door. He alleged that his cellmate, B., (with whom he had been sharing a cell since April 2015 without any issues) had assaulted him. B denied that allegation. The applicant was taken to the medical unit, where an abrasion was noted on his upper lip. The applicant reportedly refused medical assistance. On 15 August 2015 the SIZO administration questioned B., who denied having touched the applicant. On 16 August 2015 the applicant complained about the incident to the prosecution authorities, and a criminal investigation was launched in respect of infliction of light bodily injuries. On 28 February 2017 the applicant was questioned as an aggrieved party for the first time. He submitted that he had accused his cellmate of stealing his food and that his cellmate had then assaulted him. The investigation was discontinued on five occasions on account of the lack of indications of a crime (on 30 April 2016, 29 June 2017, 13 March and 30 October 2019, and 10 November 2021). All those decisions, however, were quashed as premature and unfounded (on 8 September 2016, 26 October 2017, 13 May 2019, 10 December 2020, and 28 June 2023). The prosecutor of the Odesa regional prosecutor’s office noted in a decision of 10 December 2020 that the investigator had not carried out a single investigative measure with the aim of establishing the truth. The case file before the Court does not contain a copy of the most recent ruling of 28 June 2023. The investigation remains pending. Third incident of alleged ill-treatment by another detainee while in pre-trial detention
On 18 December 2015 an unidentified individual threw liquid, appearing to be brilliant green antiseptic, in the applicant’s face as he was getting into a van to be transported from the SIZO to court. Several days later the applicant found an anonymous handwritten note in his cell stating that the liquid in question had been infected with HIV. On 25 December 2015 the applicant complained about the incident to the Prosecutor General’s Office, stating that he suspected that it could have been carried out by one of two detainees who were co-accused in his criminal case. On 24 April 2017 the Odesa Prymorskyy District Court found that the prosecution authorities had unlawfully omitted to launch an investigation into the applicant’s complaint. On 3 May 2017 a pre-trial investigation was launched in respect of suspected abuse of power (apparently, implying possible omissions by the convoy police officers in charge of the detainees’ transportation). On 24 May 2017 the classification of the criminal offence was changed to “hooliganism” at the request of the applicant, who emphasised that he had no complaints regarding the convoy police. In addition, on 19 May 2017 a criminal investigation was launched in respect of the alleged threats to the applicant’s life. It was discontinued on four occasions (on 18 December 2017, 9 June 2018, 25 July 2019, and 25 December 2020), with all those decisions having been quashed as premature (on 13 March 2018, 7 February 2019, 14 March 2020, and 2 April 2021). In so far as the investigation into the hooliganism-related allegation was concerned, it was discontinued on 23 March 2019. On 10 December 2020 the Odesa regional prosecutor’s office, however, quashed that decision, finding that even the most basic investigative measures had not been carried out. The investigation remains pending. The applicant’s suicide attempt in pre-trial detention (the fourth incident)
On 14 March 2016 a search was carried out in the applicant’s cell. A mobile telephone was seized, in spite of the applicant’s vehement objections. After the SIZO staff members left the cell, the applicant tried to hang himself. His cellmate called for help and held the applicant in the air, thus preventing him from getting strangulated. The applicant refused to be examined by the SIZO paramedic and ambulance staff, who immediately arrived at the scene. He also refused to give any explanations. Instead, he announced his intention to go on hunger strike, until his mobile telephone was returned to him. On 17 March 2016 the applicant complained to the prosecution authorities that, through the poor conditions of detention, permanent humiliation and an unfair attitude, the SIZO governor, N., had been driving him to suicide. On 30 March 2016 a criminal investigation was launched into that allegation. On 6 September 2018 the applicant was questioned as a victim. The investigator noted that the applicant had been monitored as a detainee inclined to self-injury or suicide since 27[4] April 2012 and sought the applicant’s comments in that connection. The applicant submitted that he had been “under pressure from the prison machinery”, that he had cut himself many times, that he often banged his head against the walls, and that he had warned the staff many times that he would commit suicide. The applicant specified that his behaviour was not related to alleged wrongdoing on the part of the SIZO governor, N., who had only been appointed to that post in early 2016. In so far as the events of 14 March 2016 were concerned, the applicant submitted that the search in his cell had taken an unusually long time. He further noted that there were frequent and lengthy searches in his cell, which he perceived as an attempt by the SIZO governor to put pressure on him, given that the applicant often complained about the conditions of detention. When the investigator invited the applicant to share the results of an investigation which he had apparently been undertaking into various crimes in the SIZO and which he had apparently intended to publish, the applicant submitted that he had nothing to share. The criminal investigation was discontinued owing to a lack of any indication of a criminal offence on five occasions (on 29 July 2016, 28 February 2017, 27 June 2018, 31 January 2019 and 30 September 2019). All those decisions, except the last one, were quashed as premature and superficial (on 8 February and 7 December 2017, 29 August 2018 and 19 April 2019). Road traffic accident involving the applicant (the fifth incident)
On 28 December 2017 the applicant was crossing a road near the Odesa SIZO, where, according to him, he had been carrying out “an investigation as a journalist”, when he was hit by a car. He was hospitalised with serious head injuries, which led to his amnesia in respect of the circumstances of the accident. Statements by several witnesses to the accident, confirmed by a video recording from a dash camera in one of the cars passing by, indicated that the applicant had unexpectedly run into the road at a pedestrian crossing despite the red-light signal for pedestrians and the heavy traffic, and was hit by a car. Two individuals wearing camouflage uniform then approached the crossing. They tried to provide the applicant with first aid and helped to lift him into an ambulance. They stayed there until the arrival of the police. As subsequently established, the two individuals were officers of the State Security Service who were in charge of accompanying vehicles transporting detainees to and from the SIZO. On 29 December 2017 a criminal investigation was launched in respect of a possible breach of traffic rules by the driver whose car had hit the applicant. On 31 May 2018 it was discontinued on the grounds that, as confirmed by all the evidence, it had been impossible for the driver to avoid the accident. On 14 February 2018 the applicant requested the Odesa regional prosecutor’s office to launch an investigation into “an attempt on a journalist’s life”. He referred to the fact that he was a member of the Union of Journalists of Ukraine and that in early December 2017 he had published posts on social media, alleging various acts of wrongdoing by the State Security Service. In so far as the events of 28 December 2017 were concerned, the applicant stated that he had been filming the entrance to the SIZO on his mobile telephone, in connection with the investigation he was undertaking in his role as a journalist, in particular into the manner in which food parcels for detainees were handled. He did not remember the circumstances surrounding the accident. On 14 March 2018 a criminal investigation was launched into the applicant’s allegation of “an attempt on a journalist’s life”. In addition, on 15 March 2018 a criminal investigation was launched into a possible abuse of power by the State Security Service officers. On 7 May 2018 the Odesa Regional Department of the State Security Service issued an internal investigation report in respect of the events of 28 December 2017. It was established that two convoy officers had noticed a suspicious person filming the convoy vehicle and, when they had tried to approach him, he had run away into the road and had been hit by a car. The report noted that, while the officers had been under an obligation to act diligently, they had not been entitled to leave the convoy vehicle. They were therefore reprimanded. On 24 July 2018 the investigator conducted confrontations between the applicant and the two officers concerned. The applicant submitted, in vague terms, that, while he did not remember the accident, he had been afraid that law-enforcement authorities might wish to kidnap and kill him. On 5 December 2018 the investigation into a possible abuse of power by the State Security Service officers was discontinued owing to the lack of indication of a criminal offence. On 6 March 2019 that ruling was quashed following the applicant’s complaint that it had not been based on a comprehensive investigation. On 18 July 2019 the investigation into an attempt on a journalist’s life was also discontinued. On 17 July 2020 that decision was quashed as superficial and unfounded. On 7 March 2023 the related investigation was discontinued again. On an unspecified date the applicant moved to Poland. In early 2021 the investigator allowed the applicant’s request to be questioned at his place of residence in Poland with the involvement of the Polish law-enforcement authorities. It appears that the investigation is pending in so far as it concerns the possible abuse of power by the State Security Service officers. Facts and documents relating to the incident
Key investigation-related developments
First incident of alleged ill-treatment by another detainee while in pre-trial detention
On 24 December 2012 the applicant allegedly sustained several unexpected punches to the head from an unidentified detainee. The incident took place in a van used to transport detainees from court to their detention facility (“the SIZO”). According to the applicant, the following day he was diagnosed with a microfracture in his right eardrum. As recorded in his medical records, the applicant complained to the SIZO medical unit of a headache and pain in his right ear and was diagnosed with and treated for otitis. On 26 December 2012 the applicant complained about the incident to the Odesa regional prosecutor’s office. The applicant alleged that his assault had been orchestrated by the police unit dealing with combating organised crime, which he had accused of falsifying his criminal case file. On 9 September 2013 a criminal investigation was launched in respect of a charge of battery. On 28[3] October 2015 a forensic medical expert report was issued. As stated therein, it was impossible to confirm or refute the applicant’s allegations as to the injuries sustained, given that the expert assessment had been based on the applicant’s medical file only, rather than on a personal examination of him. In December 2016 an investigator attempted to identify the other detainees who had been in the van with the applicant at the time of the incident, but found it impossible, given the considerable lapse of time. On 17 July 2017 the applicant was attributed the procedural status of an aggrieved party and was questioned in that capacity. He expressed the view that his assault had been orchestrated by the SIZO governor, R. The applicant also gave the name of one of the detainees who had witnessed the incident. In June 2018 that detainee was questioned. He confirmed, in general terms, the applicant’s allegation. In June 2018 the investigator questioned the convoy police officers concerned. They stated that they had not witnessed an assault and had not received any complaints from the applicant. On eleven occasions (on 29 September 2013, 26 November 2014, 29 April and 29 October 2015, 26 December 2016, 31 July 2017, 31 August and 27 December 2018, 15 March and 27 June 2019, and 26 May 2020) the investigation was discontinued for lack of evidence of a criminal offence. All those decisions were quashed on account of the failure to carry out all the necessary investigative measures and to comply with earlier instructions in that regard (on 19 June 2014, 17 March and 28 September 2015, 18 October 2016, 25 April and 28 December 2017, 12 September 2018, 20 February and 14 June 2019, 13 February 2020, and 5 May 2021). On 31 December 2021 the investigator discontinued the investigation for the twelfth time. That decision remains in force. Second incident of alleged ill-treatment by another detainee while in pre-trial detention
On 15 August 2015 the applicant attracted the attention of SIZO guards by shouting and banging on his cell door. He alleged that his cellmate, B., (with whom he had been sharing a cell since April 2015 without any issues) had assaulted him. B denied that allegation. The applicant was taken to the medical unit, where an abrasion was noted on his upper lip. The applicant reportedly refused medical assistance. On 15 August 2015 the SIZO administration questioned B., who denied having touched the applicant. On 16 August 2015 the applicant complained about the incident to the prosecution authorities, and a criminal investigation was launched in respect of infliction of light bodily injuries. On 28 February 2017 the applicant was questioned as an aggrieved party for the first time. He submitted that he had accused his cellmate of stealing his food and that his cellmate had then assaulted him. The investigation was discontinued on five occasions on account of the lack of indications of a crime (on 30 April 2016, 29 June 2017, 13 March and 30 October 2019, and 10 November 2021). All those decisions, however, were quashed as premature and unfounded (on 8 September 2016, 26 October 2017, 13 May 2019, 10 December 2020, and 28 June 2023). The prosecutor of the Odesa regional prosecutor’s office noted in a decision of 10 December 2020 that the investigator had not carried out a single investigative measure with the aim of establishing the truth. The case file before the Court does not contain a copy of the most recent ruling of 28 June 2023. The investigation remains pending. Third incident of alleged ill-treatment by another detainee while in pre-trial detention
On 18 December 2015 an unidentified individual threw liquid, appearing to be brilliant green antiseptic, in the applicant’s face as he was getting into a van to be transported from the SIZO to court. Several days later the applicant found an anonymous handwritten note in his cell stating that the liquid in question had been infected with HIV. On 25 December 2015 the applicant complained about the incident to the Prosecutor General’s Office, stating that he suspected that it could have been carried out by one of two detainees who were co-accused in his criminal case. On 24 April 2017 the Odesa Prymorskyy District Court found that the prosecution authorities had unlawfully omitted to launch an investigation into the applicant’s complaint. On 3 May 2017 a pre-trial investigation was launched in respect of suspected abuse of power (apparently, implying possible omissions by the convoy police officers in charge of the detainees’ transportation). On 24 May 2017 the classification of the criminal offence was changed to “hooliganism” at the request of the applicant, who emphasised that he had no complaints regarding the convoy police. In addition, on 19 May 2017 a criminal investigation was launched in respect of the alleged threats to the applicant’s life. It was discontinued on four occasions (on 18 December 2017, 9 June 2018, 25 July 2019, and 25 December 2020), with all those decisions having been quashed as premature (on 13 March 2018, 7 February 2019, 14 March 2020, and 2 April 2021). In so far as the investigation into the hooliganism-related allegation was concerned, it was discontinued on 23 March 2019. On 10 December 2020 the Odesa regional prosecutor’s office, however, quashed that decision, finding that even the most basic investigative measures had not been carried out. The investigation remains pending. The applicant’s suicide attempt in pre-trial detention (the fourth incident)
On 14 March 2016 a search was carried out in the applicant’s cell. A mobile telephone was seized, in spite of the applicant’s vehement objections. After the SIZO staff members left the cell, the applicant tried to hang himself. His cellmate called for help and held the applicant in the air, thus preventing him from getting strangulated. The applicant refused to be examined by the SIZO paramedic and ambulance staff, who immediately arrived at the scene. He also refused to give any explanations. Instead, he announced his intention to go on hunger strike, until his mobile telephone was returned to him. On 17 March 2016 the applicant complained to the prosecution authorities that, through the poor conditions of detention, permanent humiliation and an unfair attitude, the SIZO governor, N., had been driving him to suicide. On 30 March 2016 a criminal investigation was launched into that allegation. On 6 September 2018 the applicant was questioned as a victim. The investigator noted that the applicant had been monitored as a detainee inclined to self-injury or suicide since 27[4] April 2012 and sought the applicant’s comments in that connection. The applicant submitted that he had been “under pressure from the prison machinery”, that he had cut himself many times, that he often banged his head against the walls, and that he had warned the staff many times that he would commit suicide. The applicant specified that his behaviour was not related to alleged wrongdoing on the part of the SIZO governor, N., who had only been appointed to that post in early 2016. In so far as the events of 14 March 2016 were concerned, the applicant submitted that the search in his cell had taken an unusually long time. He further noted that there were frequent and lengthy searches in his cell, which he perceived as an attempt by the SIZO governor to put pressure on him, given that the applicant often complained about the conditions of detention. When the investigator invited the applicant to share the results of an investigation which he had apparently been undertaking into various crimes in the SIZO and which he had apparently intended to publish, the applicant submitted that he had nothing to share. The criminal investigation was discontinued owing to a lack of any indication of a criminal offence on five occasions (on 29 July 2016, 28 February 2017, 27 June 2018, 31 January 2019 and 30 September 2019). All those decisions, except the last one, were quashed as premature and superficial (on 8 February and 7 December 2017, 29 August 2018 and 19 April 2019). Road traffic accident involving the applicant (the fifth incident)
On 28 December 2017 the applicant was crossing a road near the Odesa SIZO, where, according to him, he had been carrying out “an investigation as a journalist”, when he was hit by a car. He was hospitalised with serious head injuries, which led to his amnesia in respect of the circumstances of the accident. Statements by several witnesses to the accident, confirmed by a video recording from a dash camera in one of the cars passing by, indicated that the applicant had unexpectedly run into the road at a pedestrian crossing despite the red-light signal for pedestrians and the heavy traffic, and was hit by a car. Two individuals wearing camouflage uniform then approached the crossing. They tried to provide the applicant with first aid and helped to lift him into an ambulance. They stayed there until the arrival of the police. As subsequently established, the two individuals were officers of the State Security Service who were in charge of accompanying vehicles transporting detainees to and from the SIZO. On 29 December 2017 a criminal investigation was launched in respect of a possible breach of traffic rules by the driver whose car had hit the applicant. On 31 May 2018 it was discontinued on the grounds that, as confirmed by all the evidence, it had been impossible for the driver to avoid the accident. On 14 February 2018 the applicant requested the Odesa regional prosecutor’s office to launch an investigation into “an attempt on a journalist’s life”. He referred to the fact that he was a member of the Union of Journalists of Ukraine and that in early December 2017 he had published posts on social media, alleging various acts of wrongdoing by the State Security Service. In so far as the events of 28 December 2017 were concerned, the applicant stated that he had been filming the entrance to the SIZO on his mobile telephone, in connection with the investigation he was undertaking in his role as a journalist, in particular into the manner in which food parcels for detainees were handled. He did not remember the circumstances surrounding the accident. On 14 March 2018 a criminal investigation was launched into the applicant’s allegation of “an attempt on a journalist’s life”. In addition, on 15 March 2018 a criminal investigation was launched into a possible abuse of power by the State Security Service officers. On 7 May 2018 the Odesa Regional Department of the State Security Service issued an internal investigation report in respect of the events of 28 December 2017. It was established that two convoy officers had noticed a suspicious person filming the convoy vehicle and, when they had tried to approach him, he had run away into the road and had been hit by a car. The report noted that, while the officers had been under an obligation to act diligently, they had not been entitled to leave the convoy vehicle. They were therefore reprimanded. On 24 July 2018 the investigator conducted confrontations between the applicant and the two officers concerned. The applicant submitted, in vague terms, that, while he did not remember the accident, he had been afraid that law-enforcement authorities might wish to kidnap and kill him. On 5 December 2018 the investigation into a possible abuse of power by the State Security Service officers was discontinued owing to the lack of indication of a criminal offence. On 6 March 2019 that ruling was quashed following the applicant’s complaint that it had not been based on a comprehensive investigation. On 18 July 2019 the investigation into an attempt on a journalist’s life was also discontinued. On 17 July 2020 that decision was quashed as superficial and unfounded. On 7 March 2023 the related investigation was discontinued again. On an unspecified date the applicant moved to Poland. In early 2021 the investigator allowed the applicant’s request to be questioned at his place of residence in Poland with the involvement of the Polish law-enforcement authorities. It appears that the investigation is pending in so far as it concerns the possible abuse of power by the State Security Service officers. [1] The applicant was born and lived in Ukraine for many years, both before and after obtaining Polish nationality. [2] Rectified on 19 July 2024: the text was “January”. [3] Rectified on 19 July 2024: the text was “29”. [4] Rectified on 19 July 2024: the text was “17”.