FIFTH SECTION

CASE OF KAPUSTYAK v. UKRAINE

(Application no. 26230/11)

JUDGMENT

STRASBOURG
3 March 2016

This judgment will become final in the circumstances set out in Article 44
2 of the Convention. It may be subject to editorial revision.

KAPUSTYAK v. UKRAINE JUDGMENT

In the case of Kapustyak v. Ukraine,

The European Court of Human Rights (Fifth Section), sitting as a
Chamber composed of:
Angelika Nuberger, President,
Ganna Yudkivska,
Andr Potocki,
Faris Vehabovi,
Sofra OLeary,
Carlo Ranzoni,
Mrti Mits, judges,
and Claudia Westerdiek, Section Registrar,
Having deliberated in private on 9 February 2016,
Delivers the following judgment, which was adopted on that date:

PROCEDURE
1. The case originated in an application (no. 26230/11) against Ukraine
lodged with the Court under Article 34 of the Convention for the Protection
of Human Rights and Fundamental Freedoms (the Convention) by a
Ukrainian national, Mr Petr Petrovich Kapustyak (the applicant), on
20 April 2011.
2. The Ukrainian Government (the Government) were represented by
their Agent, most recently Mr B. Babin, of the Ministry of Justice.
3. The applicant alleged, in particular, that he had been subjected to
ill-treatment by the police, that his complaints in this respect had not been
duly investigated and that he had not had a fair trial because the domestic
courts had refused to call a number of witnesses.
4. On 1 December 2014 the above complaints were communicated to the
Government and the remainder of the application was declared inadmissible
pursuant to Rule 54 3 of the Rules of Court.

THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1982 and is currently detained in
Gorodyshche prison.

KAPUSTYAK v. UKRAINE JUDGMENT

A. Events of 30 November 2008 and their aftermath

6. On 30 November 2008 the applicant, Mr A.S. and Mr V.S. broke into
the home of Mr N., a local businessman, which was located in the
Pustomyty District. The applicant had four prior convictions for theft,
burglary, robbery and carjacking. According to the findings of the domestic
court that subsequently convicted the applicant, Mr N. had fought with the
intruders and, unable to overcome his resistance otherwise, they had stabbed
him to death. As a result of the attack Ms P., N.s wife, sustained injuries of
medium severity. Numerous valuables and documents were stolen,
including some jewelry, a reserve officers card belonging to N. and
certificates showing his achievements in sports.
7. On 1 December 2008 the Pustomyty District police instituted criminal
proceedings in connection with the incident.
8. On 5 December 2008 V.S. was arrested and questioned. He stated that
the applicant had stabbed N. in the course of the burglary. V.S. had hit
Ms P., who had tried to come to N.s rescue.
B. The applicants arrest and the pre-trial investigation
9. At around 9 p.m. on 5 December 2008 I.Kot., V.Ye., I.G. and R.D.,
detectives from the Lviv Regional Police, located the applicant in
Chervonograd and apprehended him in the street. According to the
subsequent submissions of the applicant and the detectives to the domestic
authorities, the applicant attempted to flee; in order to stop him from fleeing
the detectives tripped him up, he fell on the asphalt pavement and was then
handcuffed. According to the applicant, after he had been handcuffed the
police officers continued to hit and kick him.
10. The applicant also claimed that following his arrest he had been
ill-treated by the police in order to extract his confession.
11. At 10.30 a.m. on 6 December 2008 an arrest report was drawn up by
the Pustomyty Police. According to a document provided by the
Government, at the same time the applicant was admitted to the Lviv
temporary detention facility ( , the
ITT).
12. On the same day an investigator, K., asked a forensic medical expert
to record any injuries on the applicants body and to provide an expert
opinion as to when and how they had been inflicted.
13. On the same day the forensic medical expert, G. (referred to as
Mr H. by the Government), issued a report stating that the applicant had the
following injuries: a bruise on his forehead and, overlapping it, four long,
deep, vertical parallel scratches; bruises on the bridge of his nose, his chin,
wrists and neck; nine small bruises on the fingers of his right hand; and
swelling of the back of his right hand. The bruises on his wrists were soft

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and pink in colour. The other bruises were covered in dry scabs. The expert
classified the injuries as minor and expressed the opinion that they could
have been inflicted on 30 November 2008. According to the report, the
applicant explained to the expert that he had injured his face and hands
when he fell trying to run away from the police.
14. At 2.30 p.m. on the same day K., the investigator from the
Pustomyty Police, questioned the applicant as a suspect. The applicant
stated that on 29 November 2008 he had agreed with V.S.s proposal to
burgle Mr N.s home. The applicant had not taken a knife with him and had
not seen V.S. or A.S. do so. Once they had broken into the house, the
applicant switched off the television set N. had been watching, while V.S.
and A.S. started punching N. Hearing N.s screams, P. tried to enter the
room, and the applicant hit and kicked her. Afterwards the applicant kicked
N. three or four times. While the others continued hitting N., the applicant
started looking for money, then took a knife from V.S. and cut some
paintings out of their frames. He also took other valuables from the house.
15. At 9.22 p.m. on the same day, following the applicants complaint
about his health, an ambulance was called to the ITT for the applicant. The
ambulance staff noted that the applicant had bruises on his face and right
hand, and was suffering from concussion, hypertension and an oedema.
16. On 8 December 2008 the applicant was charged with aggravated
burglary and infliction of grievous bodily harm resulting in the death of the
victim. Questioned on the same day as an accused, the applicant confirmed
the account of events he had given on 6 December 2008 and added that he
had seen V.S. hitting N. but not stabbing him. The applicant reiterated that
he had not stabbed N. and had had no intention of murdering him. He had
used the knife to cut paintings out of their frames. Prior to the burglary V.S.
had promised that he would take it upon himself to force N. to give up the
money.
17. On 9 December 2008 the applicant was examined by medical staff
on his admission to the Lviv pre-trial detention centre ( ,
hereinafter the SIZO). According to a certificate issued by the SIZO on
20 January 2015, the applicant did not raise any complaints during that
examination.
18. In the period from 5 February to 8 July 2009 the police took the
applicant from the SIZO at least eight times in order to carry out
investigative measures with him.
19. On 6 February 2009 Mr Ch. was appointed as the applicants
defence counsel. On the same day the applicant was questioned in Ch.s
presence. The applicant confirmed the account of events he had given on
6 and 8 December 2008, including the statement that at N.s house he had
used the knife to cut paintings out of their frames, and added that there had
been no plan to murder N. but simply to burgle his house. When he and his

KAPUSTYAK v. UKRAINE JUDGMENT

co-defendants had learned that N. would be home, the plan had been simply
to tie him up.
20. According to the Government, on 6 February 2009 the applicant was
familiarised with the medical experts report of 6 December 2008 and made
no comments or requests.
21. On 18 March 2009, having examined the applicant as an inpatient, a
panel of psychiatric experts issued a report concluding that the applicant
was not suffering from a mental illness. In discussing the applicants mental
health history the experts noted that in October 2008 he had been involved
in a fight, suffered a blow to the head and had received outpatient treatment
for the injury. On 17 April 2009 the applicant and his lawyer signed a
statement confirming that they had examined the report and had no
comments or requests to make.
22. On 7 May 2009 the applicant was questioned again in the presence
of his lawyer. He reiterated his earlier statement. In the course of the
questioning the investigator asked the applicant why he had not initially
joined his co-defendants in attacking N. The applicant refused to answer.
23. In the course of the pre-trial investigation A.S. stated that it had been
the applicant who had stabbed N. In the course of a confrontation between
the applicant and A.S., the latter reaffirmed his statement. The applicant
denied A.S.s allegations but refused to testify.
24. P. stated that it had been V.S., and not the applicant, who had
attacked and hit her.
25. Ms I.M. stated that on 1 December 2008 the applicant had given her
a mobile phone and a silver chain which he had stolen from N. and P.
C. Trial
26. On 30 July 2009 the case against the applicant and his codefendants, A.S. and V.S., was sent for trial to the Lviv Regional Court of
Appeal (the Court of Appeal), sitting as a trial court.
27. On 16 November 2009 the trial court informed the applicant that the
question of whether an additional psychiatric examination should be ordered
would be examined in the course of the trial.
28. The applicant pleaded guilty to the charge of theft of documents,
guilty in part to the charge of aggravated burglary, and not guilty to the
charge of murder. He refused to testify at length, but in response to a
question stated that he had used a knife to cut the paintings out of their
frames at the victims house. V.S. pleaded guilty to the charge of aggravated
burglary and A.S. pleaded guilty to that charge in part. They largely
reiterated the statements they had given during the pre-trial investigation
concerning the applicants role in the crime, in particular stating that they
had not stabbed N. and had seen the applicant, knife in hand and covered in

KAPUSTYAK v. UKRAINE JUDGMENT

blood, lead N., also covered in blood, to a safe to extract N.s money. V.K.
also stated that the applicant had told him that he had stabbed N.
29. Ms M.M. and Ms A.V. testified that late on the night of the murder
the defendants had left the house where they had been staying together. A.S.
had been carrying a knife. The defendants had then returned with various
objects, including paintings and documents. M.M. testified that she had seen
blood on the applicants clothes when he returned that night. A.V. also
testified that when the applicant had returned, he had given her his clothes
and had instructed her to burn them. However, she had left the clothes in the
house.
30. Two other witnesses testified that on 5 December 2008 they had
witnessed the owner of the house in question handing over to the police a
bag of clothes which had been left there by the defendants. According to
DNA expert reports, the applicants hair and blood possibly originating
from the victims were found on the clothes in the bag.
31. On 11 March 2010 the applicant asked the trial court to call G., the
medical expert, as a witness, on the grounds that in her report of
6 December 2008 she had failed to specify exactly when the injuries had
been inflicted on the applicant. In support of his request he stated that he
had been ill-treated in the course of and following his arrest. The applicant
also asked for I.Ku., an investigator from the Pustomyty Police to be called
as a witness, arguing that his statements during the pre-trial investigation
were untrue and had been dictated to him and given under pressure. He also
asked for police detectives I.Kot., V.Ye., I.G. and R.M. of the Lviv
Regional Police to be called as witnesses, arguing that they had ill-treated
him in the course of arrest and in the course of his initial interrogation,
causing the injuries recorded in the medical experts report of 6 December
2008. The trial court refused those requests. According to the Government,
the grounds for the refusal were that the trial court had in its possession the
transcripts of the interviews with the police officers in question conducted
during the pre-trial investigation. Moreover, the trial court considered that
the applicants allegations of ill-treatment had already been examined
within the framework of pre-investigation enquiries, in the course of which
no corroboration of the applicants allegations had been found.
32. On 25 March 2010 the trial court convicted all three applicants of
murder, of aggravated burglary, and of theft of documents. In respect of the
conviction for murder the applicant was sentenced to life imprisonment with
confiscation of all of his property, V.S. to thirteen years and A.S. to twelve
years imprisonment. Additional prison sentences were imposed in respect
of the other charges but because of the sentencing rules, the overall
sentences imposed were the same as the sentences for murder.
33. The court found it established that the applicant and his two codefendants, A.S. and V.S., had committed aggravated burglary of Mr N. and
Ms P. While it was the applicant who had stabbed N. to death, all the

KAPUSTYAK v. UKRAINE JUDGMENT

defendants had used violence against N. to overcome his resistance and so

were guilty of his murder. As evidence of the applicants guilt the court
referred to the testimony of the co-defendants, of Ms P., Ms I.M., Ms M.M.,
Ms A.V. (see paragraphs 24, 25 and 29 above), and of a number of other
witnesses who had described how the defendants had disposed of their
clothing and of the objects taken from the victims house. The court also
relied on physical and expert evidence. In reaching its finding that it had
been the applicant who had stabbed N., the court referred to the testimony
of his co-defendants, noting that it was consistent with P.s testimony to the
extent that all three had testified, contrary to the applicant, that it was V.S.,
and not the applicant, who had attacked P. The court also referred to the
DNA expert evidence which had found blood, possibly originating from N.,
on the trousers worn by the applicant on the night of the murder and seized
by the police at the house where the applicant had left them. The court also
referred to the applicants admission during the pre-trial investigation that
he had used the knife, that is the murder weapon, to cut paintings out of
their frames.
34. On 18 January 2011 the Supreme Court upheld the applicants
conviction and mitigated his sentence to fifteen years imprisonment.
D. Investigation into the applicants allegations of ill-treatment
1. Pre-investigation enquiries under the Code of Criminal Procedure
of 1960
35. On 12 July 2009 the applicant wrote to the head of the Security
Service of Ukraine in the Lviv Region complaining that he had been
ill-treated in the course of his arrest and afterwards by the police. In
particular, he stated that on the day of his arrest he had been going to a
meeting with a certain Ms Z. when he had been approached by a stranger,
who had turned out to be a police officer. Thinking that the stranger was
trying to steal his phone, the applicant started running away. However, other
officers tripped him up. He fell and the officers started kicking and
punching him. The police officers continued to kick him once he was in
their car and subsequently, in the place to which he was taken after his
arrest.
36. On 24 July 2009 the Chervonograd prosecutors office and on
27 August 2009 the Pustomyty prosecutors office refused to institute
criminal proceedings in connection with the applicants complaint.
37. On 26 February 2010 the Lviv regional prosecutors office (the
LRPO) quashed the decisions of 24 July and 27 August 2009 and remitted
the case to the Chervonograd and Pustomyty prosecutors for further
examination. The LRPO concluded that the pre-investigation enquiries had
been incomplete. The LRPO indicated that the Chervonograd prosecutors

KAPUSTYAK v. UKRAINE JUDGMENT

office should undertake a number of additional measures to establish the

circumstances of the incident, most notably: (i) interview Ms Z. whom the
applicant had been going to meet when he had been arrested; (ii) identify
the ambulance staff who had visited the applicant on 6 December 2008 and
interview them; (iii) interview the forensic medical expert to find out
whether the injuries observed by the expert on the applicant on 6 December
2008 were consistent with the applicants allegations of ill-treatment.
38. On 26 March 2010 the Chervonograd prosecutors office again
refused to institute criminal proceedings against detectives I.Kot., V.Ye.,
I.G., R.M. of the Lviv Regional Police. The decision was based on the
statements of the police detectives and the expert report of 6 December
2010. The detectives had stated that they had tripped up the applicant while
he had been attempting to escape. The prosecutors office concluded that
that fall explained the applicants injuries. On 28 March 2012 the
Chervonograd Court upheld that decision, rejecting as unsubstantiated the
applicants argument that his injuries had resulted from ill-treatment.
39. On 31 March 2010 the Pustomyty prosecutors office refused to
institute criminal proceedings against the investigator I.Ku. and two other
officers of the Pustomyty Police. The decision was based on the interviews
with the officers. The prosecutors office also referred to the ITT records
and an unspecified forensic medical expert report, according to which the
applicant had had no injuries at the relevant time. The applicant was
informed of that decision on 5 May 2011.
40. On an unspecified date the decision of 31 March 2010 was
overruled.
41. On 18 May 2012 the Pustomyty prosecutors office again refused to
institute criminal proceedings against the police officers of the Pustomyty
Police and of the Lviv Regional Police for lack of corpus delicti in their
actions. The decision was based on the statements of the officers, who had
denied the applicants allegations.
42. On 20 June 2013 the Pustomyty District Court quashed the decision
of 18 May 2012. The court found numerous omissions in the preinvestigation inquiry, in particular that the authorities had failed to explore
under what circumstances an ambulance had been called for the applicant
while he had been in the ITT; they had also failed to examine the records
from the facilities where the applicant had been detained.
2. Investigation under the Code of Criminal Procedure of 2012
43. On 19 November 2012 a new Code of Criminal Procedure came into
force. Under the new Code an investigation is commenced by creating an
entry in the Unified Register of Pre-Trial Investigations (the Register of
Investigations) (see paragraph 51 below).
44. On 15 March 2013 the Chervonograd Court granted the applicants
claim and ordered the Chervonograd prosecutors office to create an entry in

KAPUSTYAK v. UKRAINE JUDGMENT

the Register of Investigations in order to investigate the applicants

allegations of ill-treatment.
45. On 20 March 2013 the entry was created.
46. On 21 March 2013 the Chervonograd prosecutors office decided to
discontinue the investigation. On an unspecified date the Chervonograd
Court overruled that decision.
47. On 2 July 2013 the Chervonograd prosecutors office reopened the
investigation and the applicant was questioned. He insisted that he had been
ill-treated by police detectives I.Kot., V.Ye., I.G. and R.M. in the course of
his arrest and on the way to the Pustomyty police station, where his arrest
had been recorded. The police detectives were interviewed and denied any
ill-treatment, insisting that the applicant had been injured when he had
fallen while trying to flee.
48. On 24 September 2013 the Chervonograd prosecutors office
decided to discontinue the investigation for lack of corpus delicti in the
actions of detectives I.Kot., V.Ye, I.G. and R.M. The decision referred to an
earlier decision of July 2009 to refuse to institute criminal proceedings,
according to which the applicant had fallen while trying to flee from the
police. As a result, he had sustained concussion and bruises. The decision
also referred to a number of pieces of evidence supporting that version of
events, most notably the statements of the police officers and the medical
experts report of 6 December 2008.
49. The decision of 24 September 2013 was upheld by the Chervonograd
Court on 7 February 2014 and by the Court of Appeal on 11 March 2014.
II. RELEVANT DOMESTIC LAW AND PRACTICE
50. The provisions of the Code of Criminal Procedure of 1960
concerning pre-investigation enquiries can be found in the judgment in the
case of Kaverzin v. Ukraine (no. 23893/03, 45, 15 May 2012).
51. The Code of Criminal Procedure of 28 December 1960 was repealed
with effect from 19 November 2012 when the new Code of Criminal
Procedure of 2012 came into force. The new Code abolished the stage of
pre-investigation enquiries. The relevant provisions of the new Code can be
found in the decision Nagorskiy v. Ukraine (no. 37794/14, 38, 4 February
2016).

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THE LAW
I. SCOPE OF THE CASE
52. In his reply to the Governments observations, the applicant
submitted new complaints. He alleged that the conditions of his detention in
the prisons where he had been held in the period after his conviction and
until its review by the Supreme Court and in 2012 had been unacceptable.
He further complained that the domestic courts had extended his pre-trial
detention in his absence and had failed to provide him with copies of
relevant orders. He also alleged that in 2010 the detention facility
administration had interfered with his correspondence with his lawyer
concerning his complaint against the police. The Court notes that these new,
belated complaints are not an elaboration of the applicants original
complaints, on which the parties have commented. The Court considers,
therefore, that it is not appropriate now to take up these matters in the
context of the present case (see Khomullo v. Ukraine, no. 47593/10, 40,
27 November 2014).
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
53. The applicant complained that he had been ill-treated by the police
and that there had been no effective investigation of his complaint in this
respect. He relied on Article 3 of the Convention, which reads as follows:
No one shall be subjected to torture or to inhuman or degrading treatment or
punishment.

A. The parties submissions

54. The Government submitted that the applicant had tried to run away
from the police and had fallen on the asphalt pavement. In view of his
conduct, the applicant had been handcuffed. The applicant had not voiced
any complaints either to the medical staff at the ITT or to the medical expert
who had examined him on 6 December 2009. Nor had he complained to the
SIZO medical staff upon admission to the SIZO on 9 December 2008, even
though from that time on, he had no longer been under the control of the
police and had had no reason to fear reprisals. The medical expert had noted
that the injuries she had observed on the applicant on 6 December 2009
could have been inflicted on 30 November 2008. Moreover, in view of the
results of the psychiatric examination, which the applicant had undergone
during the pre-trial investigation, he could well have suffered the
concussion before his arrest. The applicant and his defence counsel, having
examined the medical experts report of 6 December 2009 and the results of

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KAPUSTYAK v. UKRAINE JUDGMENT

the psychiatric examination of 18 March 2009, had not raised any

objections. The Government also questioned the applicants allegation that
the supposed reason for the alleged ill-treatment had been to extract a
confession from him. They submitted that in the course of his trial, the
applicant had never altered his account of the events at the victims house
which he had originally given to the police on 6 December 2008. In view of
these considerations, the Government maintained that the applicants
complaint under the substantive limb of Article 3 was manifestly
ill-founded.
55. Concerning the procedural limb of Article 3, the Government
submitted that the investigation had been effective and there had been no
violation of this aspect of Article 3. They submitted in particular that the
prosecution authorities had conducted enquiries into the applicants
allegations, in the course of which they had had regard to the results of the
medical examination of 6 December 2008, and had interviewed the police
officers concerned and the applicant. The police officers had not disputed
the fact that they had tripped up the applicant, as a result of which he had
fallen on the asphalt, and used handcuffs to prevent his escape. The
Government submitted that the overruling of refusals to institute criminal
proceedings and the fact that the case had been remitted for further
investigation showed the authorities willingness to investigate the incident
effectively.
56. The applicant maintained his complaint. He stressed that there had
been a gap between the time of his arrest and the time at which his arrest
had been recorded which was unaccounted for. It was in that period of time
that he had been ill-treated. Concerning the delay in raising his complaint,
he submitted that even after he had been transferred from police custody to
the SIZO he had continued to fear reprisals from the police because they
had frequently taken him out of the SIZO and could have ill-treated him.
For that reason, he had not started complaining of ill-treatment until the pretrial investigation had been completed. He submitted that he had challenged
the results of the medical and psychiatric expert examinations before the
Court of Appeal but without success.
B. The Courts assessment
1. Alleged ill-treatment
(a) Admissibility

57. The Court notes that the complaint of ill-treatment raises serious
issues requiring an examination on the merits. Therefore, contrary to the
Governments submissions, the complaint is not manifestly ill-founded
within the meaning of Article 35 3 (a) of the Convention (compare

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11

Serikov v. Ukraine, no. 42164/09, 53, 23 July 2015). It is not inadmissible

on any other grounds. It must therefore be declared admissible.
(b) Merits
(i) General principles

58. The Court reiterates that Article 3 of the Convention enshrines one
of the most fundamental values of a democratic society. It prohibits in
absolute terms torture or inhuman or degrading treatment or punishment,
irrespective of the circumstances and the victims behaviour (see Kuda
v. Poland [GC], no. 30210/96, 90, ECHR 2000-XI).
59. When the police or other agents of the State, in confronting
someone, have recourse to physical force which has not been made strictly
necessary by the persons own conduct, it diminishes human dignity and is
an infringement of the right set forth in Article 3 of the Convention (see
Kop v. Turkey, no. 12728/05, 27, 20 October 2009, and Timtik v. Turkey,
no. 12503/06, 47, 9 November 2010).
60. In assessing evidence, the Court has adopted the standard of proof
beyond reasonable doubt. According to its established case-law, proof
may follow from the coexistence of sufficiently strong, clear and concordant
inferences or of similar unrebutted presumptions of fact. Furthermore, it is
to be recalled that Convention proceedings do not in all cases lend
themselves to a strict application of the principle affirmanti incumbit
probatio. Where the events in issue lie within the exclusive knowledge of
the authorities, as in the case of persons under their control in custody,
strong presumptions of fact will arise in respect of injuries and death
occurring during that detention. The burden of proof in such a case may be
regarded as resting on the authorities to provide a satisfactory and
convincing explanation (see El-Masri v. the former Yugoslav Republic of
Macedonia [GC], no. 39630/09, 151 and 152, ECHR 2012, with further
case-law references).
(ii) Application of the above principles to the present case

61. Turning to the facts of the case, the Court considers that there is
sufficient evidence (see paragraphs 13 and 15 above) that the applicant
sustained injuries which were serious enough to fall within the ambit of
Article 3. It remains to be considered whether the State should be held
responsible under Article 3 for inflicting those injuries.
62. The Court observes that it is not disputed between the parties that the
police officers used some force to arrest the applicant. The parties disagree,
however, on whether the use of force against the applicant in the course of
his arrest amounted to a breach of Article 3 and whether he was subjected to
ill-treatment contrary to Article 3 after the arrest. Accordingly, the Court
will examine two issues:

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KAPUSTYAK v. UKRAINE JUDGMENT

(i) whether the physical force used against the applicant in the course of
his arrest was compatible with the requirements of Article 3 of the
Convention;
(ii) whether the applicant was ill-treated after his arrest while in the
hands of the police.
() Whether the physical force used against the applicant in the course of his
arrest was compatible with the requirements of Article 3 of the
Convention

63. The applicant, by his own admission, attempted to flee from the
police, even though he sought to explain his escape attempt by a
misunderstanding (see paragraph 35 above). This circumstance counts
against the applicant, with the result that the burden on the Government to
prove that the use of force was not excessive is less stringent (see, mutatis
mutandis, Spinov v. Ukraine, no. 34331/03, 49, 27 November 2008, and
Berliski v. Poland, nos. 27715/95 and 30209/96, 62, 20 June 2002).
64. While the applicant was arrested by four police officers, the Court
does not consider that the number of police officers deployed excessively
outnumbered him. Account should be taken of the fact that, in planning the
applicants arrest, the police faced the task of arresting an individual wanted
for aggravated burglary and murder (compare Zalevskiy v. Ukraine,
no. 3466/09, 67, 16 October 2014).
65. Against this background, the Court further notes that the cause of the
applicants injuries was plausibly explained by the domestic authorities.
They found that the injuries had been caused in the course of the applicants
struggle with the victim on 30 November 2008 and when the applicant had
fallen while trying to flee, had been restrained and handcuffed. Given that
the applicant admitted that he had tried to run away from the police and had
fallen as a result, it is plausible that some of the injuries could also have
been sustained on that occasion. In particular, the applicant could have
suffered the bruises on his face and body and the concussion when he was
tripped up to prevent him from fleeing, fell on the asphalt pavement and was
subsequently restrained by the police officers. The bruises on his wrists
could have been caused by the handcuffs (compare Spinov, cited above,
50).
66. Moreover, the medical evidence suggests also that some of the
applicants injuries recorded on 6 December 2008 could have been caused
by the victim, Mr N., who, according to the findings of the domestic
authorities, had offered stiff resistance to his attackers (see paragraphs 6 and
33 above). It is relevant that on 6 December 2008 the medical expert
observed scabbing on the applicants bruises and stated that they could have
been inflicted on 30 November 2008. It would appear that the expert
concluded, in light of the degree of scabbing, that at least some of the

KAPUSTYAK v. UKRAINE JUDGMENT

13

applicants injuries were relatively old and pre-dated the arrest (compare
Gmen v. Turkey, no. 72000/01, 10, 11, 56, 17 October 2006).
67. The Court also notes the Governments submissions that some of the
applicants injuries could be explained by the blow to the head which the
applicant suffered in October 2008 and which was recorded in the
psychiatric experts report (see paragraph 21 above). However, given that
this possibility was apparently not explored in the course of the domestic
investigation, the Court does not consider it appropriate to examine it. In
any event, as the Court concluded above, the applicants injuries can be
sufficiently explained even without having to consider this possibility.
68. In the light of these circumstances the Court finds no reason to
conclude that the recourse to physical force by the police was not made
strictly necessary by the applicants own conduct. It was, therefore,
compatible with the requirements of Article 3 of the Convention.
() Whether the applicant was ill-treated while in the hands of the police
following his arrest

69. The Court is mindful of the fact that there was an unexplained gap of
about thirteen hours between the actual arrest of the applicant on
5 December 2008 and the time at which his arrest was recorded on
6 December 2008. Some, but apparently not all, of this period was no doubt
needed to transport the applicant from the place of his arrest in
Chervonograd to Pustomyty, a distance of about 109 kilometres. The Court
considers that in the present case the fact of unrecorded detention alone is
not sufficient to support a finding that the applicant was ill-treated.
70. None of the documents submitted to the Court contains reliable
information that the injuries observed on the applicant on 6 December 2008
had been inflicted while he had been in the hands of police following his
arrest. The Court also reiterates its finding that there was a plausible
explanation for those injuries.
71. Therefore, given all the information in its possession, the Court finds
it impossible to establish beyond reasonable doubt that the applicant
suffered ill-treatment while in the hands of the police following his arrest, as
alleged by him.
() Conclusion

72. There has, therefore, been no violation of the substantive limb of

Article 3 of the Convention.
2. Effectiveness of the investigation
(a) Admissibility

73. The Court notes that this part of the application is not manifestly
ill-founded within the meaning of Article 35 3 (a) of the Convention. It

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KAPUSTYAK v. UKRAINE JUDGMENT

further notes that it is not inadmissible on any other grounds. It must

therefore be declared admissible.
(b) Merits
(i) General principles

74. The Court reiterates that where an individual makes a credible

assertion that he has suffered treatment infringing Article 3 at the hands of
the police or other similar agents of the State, that provision, read in
conjunction with the States general duty under Article 1 of the Convention
to secure to everyone within their jurisdiction the rights and freedoms
defined in ... [the] Convention, requires by implication that there should be
an effective official investigation. Such an investigation should be capable
of leading to the identification and punishment of those responsible (see
Labita v. Italy [GC], no. 26772/95, 131, ECHR 2000-IV).
75. Any investigation into serious allegations of ill-treatment must be
both prompt and thorough. That means that the authorities must always
make a serious attempt to find out what has happened and should not rely
on hasty or ill-founded conclusions to close their investigation or to use it as
the basis for their decisions. They must take all reasonable steps available to
them to secure the evidence concerning the incident, including, inter alia,
eyewitness testimony and forensic evidence. Any deficiency in the
investigation which undermines its ability to establish the cause of injuries
or the identity of the persons responsible will risk falling foul of this
standard (see, for example, El-Masri, cited above, 183).
(ii) Application of the above principles to the present case

76. The Court notes that substantial injuries were observed on the
applicant on 6 December 2008, shortly after he had been arrested. It is true
that the applicant waited until 12 July 2009, that is for more than seven
months after the event, to complain that those injuries had been inflicted on
him while in police custody. In this context the Court reiterates that in
accordance with its case-law the scope of the obligation to apply promptly
to the domestic authorities, which is part of the duty of diligence incumbent
on the applicants, must be assessed in the light of the circumstances of the
case (see, mutatis mutandis, Mocanu and Others v. Romania [GC],
nos. 10865/09, 45886/07 and 32431/08, 265, ECHR 2014 (extracts)). In
this connection the Court observes that until 8 July 2009 the police had
frequently taken the applicant from the SIZO to participate in various
investigative measures (see paragraph 18 above). In view of this, the Court
is willing to lend some credence to the applicants explanation that he feared
reprisals from the police had he raised his complaint earlier.
77. In such circumstances the Court considers that once the applicant
had raised his ill-treatment complaint, accompanied as it was by medical

KAPUSTYAK v. UKRAINE JUDGMENT

15

evidence of the injuries, the domestic authorities were under an obligation to

carry out an effective investigation of the facts alleged by the applicant.
While the applicants lack of expedition in lodging the complaint no doubt
made the authorities task more difficult, it cannot alone explain the
deficiencies of the investigation which followed (compare Drozd
v. Ukraine, no. 12174/03, 65, 30 July 2009).
78. The Court observes that once the applicant had raised his complaint,
the authorities took five decisions not to institute criminal proceedings, four
of which were overruled as premature. The Court has held on numerous
previous occasions that the repetition of such decisions usually discloses a
serious deficiency in the proceedings (see ibid., 66).
79. Moreover, in overruling the initial decisions not to institute criminal
proceedings on 26 February 2010, the Lviv regional prosecutors office
identified a number of avenues of additional inquiry which should have
been undertaken, most notably the need to interview the medical expert and
the ambulance staff who had examined the applicant on 6 December 2008
(see paragraph 37 above).
80. It does not appear, however, that the investigating authorities
followed those instructions, since the subsequent decisions not to institute
criminal proceedings of 31 March 2010 and 18 May 2012 were based
exclusively on the statements of the police officers. The police officers
version of events prevailed and no effort was made to verify it through other
means of inquiry (compare Kaverzin, cited above, 175). It appears that the
applicant was not interviewed until the full criminal investigation was
opened on 20 March 2013, more than four years after the alleged events
(compare Aleksandr Smirnov v. Ukraine, no. 38683/06, 60, 15 July 2010).
It appears, moreover, that the medical expert and the ambulance staff were
never questioned, even after criminal proceedings were finally instituted on
20 March 2013.
81. It is evident, moreover, that the applicant experienced difficulties in
accessing the investigation procedure. In particular, he was not informed
about the decision of 31 March 2010 not to institute criminal proceedings
until 5 May 2011, nearly eleven months later. No explanation was provided
for that delay.
82. In the above circumstances, the Court concludes that the domestic
authorities did not ensure that an effective investigation was carried out into
the applicants allegations of ill-treatment.
83. There has, therefore, been a violation of Article 3 of the Convention
under its procedural limb.
III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
84. The applicant complained, under Article 6 of the Convention, that
despite his request, the medical expert G., the investigator I.Ku. of the

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KAPUSTYAK v. UKRAINE JUDGMENT

Pustomyty Police and police detectives I.Kot., V.Ye., I.G. and R.M. of the
Lviv Regional Police were not summoned as witnesses in the course of the
trial.
85. As the requirements of Article 6 3 are to be seen as particular
aspects of the right to a fair trial guaranteed by Article 6 1 (see, among
many other authorities, Van Mechelen and Others v. the Netherlands,
23 April 1997, 49, Reports of Judgments and Decisions 1997-III), the
Court will examine this complaint under those two provisions taken
together. The relevant parts read as follows:
1. In the determination of ... any criminal charge against him, everyone is entitled
to a fair ... hearing ... by [a] ... tribunal ...
...
3. Everyone charged with a criminal offence has the following minimum rights:
...
(d) to examine or have examined witnesses against him and to obtain the attendance
and examination of witnesses on his behalf under the same conditions as witnesses
against him ...

A. Admissibility
86. The Court notes that this part of the application is not manifestly
ill-founded within the meaning of Article 35 3 (a) of the Convention. It
further notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties submissions
87. The applicant maintained his complaint. He argued that the expert
G.s report did not fully correspond to the injuries he had, that the
investigator I.Ku. and police detectives I.Kot., V.Ye., I.G. and R.M. had
ill-treated him to force him to confess and that investigator I.Ku. had
falsified the record of his questioning of 6 December 2008.
88. The Government submitted that the medical expert G., whom the
applicant had wanted to call as a witness, had answered all the questions put
to her by the investigator. The applicant had examined her report during the
pre-trial investigation but neither he nor his counsel had raised any
objections. The Government argued that the expert would not have been in a
position to give an opinion as to the exact timing of the injuries at the court
hearing, more than a year and three months after the examination had been
conducted. As to the applicants request to call the police officers as
witnesses, the Government submitted that the applicants allegations had

KAPUSTYAK v. UKRAINE JUDGMENT

17

already been examined within the framework of pre-investigation enquiries.

The officers had also been questioned during the pre-trial investigation and
the court had had the transcripts of those interviews at its disposal and had
read them out in the course of the trial. It was not up to the court to conduct
its own investigation into the allegations of ill-treatment, but the court could
refuse to take into account any evidence it considered inadmissible. The
courts refusal to call the witnesses indicated by the applicant had not,
therefore, influenced the fairness of the proceedings. Accordingly, the
Government maintained that there had been no violation of Article 6 1
and 3 (d).
2. The Courts assessment
(a) General principles

89. The Court reiterates that the right to call witnesses is not absolute
and can be limited in the interests of the proper administration of justice.
Article 6 3 (d) does not require the attendance and examination of every
witness on the accuseds behalf; its essential aim, as indicated by the words
under the same conditions, is full equality of arms in the matter. The task
of the European Court is to ascertain whether the proceedings in issue,
considered as a whole, were fair (see Vidal v. Belgium, 25 March 1992,
33, Series A no. 235-B). An applicant claiming a violation of his right to
obtain the attendance and examination of a defence witness should show
that the examination of that person was necessary for the establishment of
the truth and that the refusal to call that witness was prejudicial to his
defence rights (see Guilloury v. France, no. 62236/00, 55, 22 June 2006).
Although it is normally for the national courts to assess the evidence before
them, as well as the relevance of the evidence which defendants seek to
adduce, there might be exceptional circumstances which could prompt the
Court to conclude that the failure to hear a person as a witness was
incompatible with Article 6 (see Bricmont v. Belgium, 7 July 1989, 89,
Series A no. 158, and Destrehem v. France, no. 56651/00, 41, 18 May
2004).
(b) Application of the above principles to the present case

90. The Court notes that the applicant sought examination of a number
of witnesses in an apparent attempt to corroborate his allegation that he had
been ill-treated by the police to make him confess. While the testimony of
the witnesses requested by the applicant could have shed light on the
question of his possible ill-treatment, this testimony would have been
relevant for the applicants trial had he made a confession to the police and
the domestic courts had relied on it securing his conviction (compare
Tarasov v. Ukraine, no. 17416/03, 105, 31 October 2013), or if this
testimony would be of other importance to his conviction (see, for example,

18

KAPUSTYAK v. UKRAINE JUDGMENT

Perna v. Italy [GC], no. 48898/99, 28 and 29, ECHR 2003-V). However,
for the following reasons the Court finds that this was not the case.
91. The Court observes, at the outset, that at no point in the proceedings
did any of the defendants, including the applicant, deny their involvement in
the burglary: they all pleaded guilty to the burglary charge. The
disagreement between the defendants and between the prosecution and the
applicant related solely to the role he played in the violent acts that led to
N.s death. The applicant consistently, from the first interview with the
police, denied having played any role in those acts. His co-defendants, to
the contrary, testified that it had been the applicant who had stabbed N.
92. The only element of the applicants pre-trial statements which
touched on the issue of who stabbed N. was his admission, on 6 December
2008, later repeated during the trial, that he used the knife to cut the victims
paintings out of their frames in order to steal them. While making this
admission, the applicant always insisted that he had not stabbed N. and,
indeed, had played a lesser role in attacking N. than his co-defendants. The
applicant never retracted this early admission but rather reiterated it in the
course of his trial. The admission was consistent with his position
throughout the proceedings.
93. The Court finds, therefore, that the applicant made no confession to
the police as to his involvement in stabbing of N. Moreover, it would appear
that the applicants conviction had solid evidentiary basis other than the
applicants own statements, most notably the statements of his codefendants, the fact that the co-defendants statements corresponded with
the surviving victims and not the applicants account, and the DNA expert
evidence that the applicants clothing bore traces of blood possibly
originating from N. (see paragraph 33 above).
94. In view of these considerations, the Court finds that any possible
testimony of the witnesses the applicant wished to call could not have
influenced the outcome of his trial (compare Dorokhov v. Russia,
no. 66802/01, 74, 14 February 2008).
95. Therefore, the Court concludes that the applicant did not
demonstrate that the domestic court had failed to question any witness
whose testimony would have affected the fairness of the proceedings as a
whole against him.
96. It follows that there has been no violation of Article 6 1 and 3 (d)
of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
97. Article 41 of the Convention provides:

KAPUSTYAK v. UKRAINE JUDGMENT

19

If the Court finds that there has been a violation of the Convention or the Protocols
thereto, and if the internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford just satisfaction to
the injured party.

98. The applicant did not submit a claim for just satisfaction.
Accordingly, the Court considers that there is no call to award him any sum
on that account.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;
2. Holds that there has been no violation of Article 3 of the Convention
under its substantive limb;
3. Holds that there has been a violation of Article 3 of the Convention
under its procedural limb;
4. Holds that there has been no violation of Article 6 1 and 3 (d) of the
Convention.
Done in English, and notified in writing on 3 March 2016, pursuant to
Rule 77 2 and 3 of the Rules of Court.

Claudia Westerdiek
Registrar

Angelika Nuberger
President