RUSTINOV proti Ukrajině

FIFTH SECTION

DECISION

Application no. 18939/16
Anton Volodymyrovych RUSTINOV
against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 11 July 2024 as a Committee composed of:

Lado Chanturia, President,
Stéphanie Mourou-Vikström,
Mykola Gnatovskyy, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 18939/16) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 16 March 2016 by a Ukrainian national, Mr Anton Volodymyrovych Rustinov (“the applicant”), who was born in 1975, lives in Kharkiv, and who was represented by Ms A.Y. Nikiforova, a lawyer practising in Lviv;

the decision to give notice of the application to the Ukrainian Government (“the Government”), represented by their Agent, most recently Ms Marharyta Sokorenko;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The case concerns the alleged failure of the police to protect the applicant, who was participating in a pro-Maidan demonstration on 1 March 2014 in Kharkiv, from ill-treatment inflicted by private individuals opposing the demonstration. The applicant complained under Article 3 of the Convention, both on its own and in conjunction with Article 13 of the Convention.

2. According to the applicant, on 1 March 2014 he and his friend F. were participating in a peaceful pro-Maidan demonstration near the Kharkiv Regional State Administration building (“the Administration building”). The applicant entered the Administration building at various intervals to warm up. Another demonstration, opposing the pro-Maidan demonstration, was being held in Independence Square, which faces the Administration building. Between 300 and 500 police officers, equipped with riot gear, were present to maintain order both inside and around the Administration building. At around 2 p.m. the anti-Maidan demonstrators stormed the Administration building. The applicant and F., fearing for their lives, left through a backdoor, and found themselves in the inner courtyard. They noticed a gate being opened and many anti-Maidan demonstrators coming through into the courtyard. The applicant and F. climbed over the fence and found themselves on Myronosytska Street. A crowd of anti-Maidan protesters saw them and started assaulting them with sticks and other items. The applicant sustained minor bodily injuries from the attack.

3. On 1 March 2014 a criminal case was opened into mass disorder (rioting) under Article 294 § 1 of the Criminal Code.

4. On 13 March 2014 a forensic medical doctor issued a report, classifying the applicant’s injuries – bruises on the right hand and torso, abrasions on the legs and contusions on the left leg – as minor. The report set out the applicant’s account that, on 1 March 2014 at around 2.10 p.m. near the “Administration of Metrology” («Управление Метрологии») building, he had been attacked by a group of unknown people, who had hit him with unidentified tools on his torso, buttocks, right arm and left leg. He had sought medical assistance at a local hospital.

1. Criminal case concerning mass rioting

5. On 30 January 2018 the Kyivskyi District Court of Kharkiv sentenced a certain Kr. to eight years’ imprisonment, with confiscation of his property, for, inter alia, having been one of the active participants in the anti-Maidan call to attack the pro-Maidan demonstrators. A civil claim by the State communal enterprise Derzhprom, which owned the Administration building, was allowed.

6. The applicant participated in those proceedings as a victim and made submissions. According to the judgment sentencing Kr., the applicant:

“... took part in the pro-Ukrainian [Maidan] demonstration and then went into the Kharkiv Regional Administration’s building. A group of separatists [anti-Maidan] demonstrators tried to get into the building. Pro-Ukrainian [Maidan] activists resisted those attempts and [anti-Maidan] demonstrators started to throw stones and grenades into the building. About five or six people ran into the building’s courtyard and attacked [the applicant] and [F]. [The applicant’s] leg was injured, but he managed to escape and was taken to hospital, where he was given stitches in his leg. His friend [F.] was assaulted and taken to a metro station.”

7. On 12 July 2018 the Kharkiv Regional Court of Appeal upheld the part of the judgment relating to Kr.’s conviction and remitted the civil claim for re-examination. On 3 December 2019 the Supreme Court upheld the decision of the appellate court.

2. Criminal case against the police officers

8. On 17 September 2014 the applicant, Ch., F., and V. filed four identical criminal complaints against the police officers who had been at the demonstration on 1 March 2014. They complained that as a result of inaction, those police officers had committed a criminal offence – neglect of official duty (Article 367 of the Criminal Code) and had failed to protect them.

9. The applicant submitted in reply to the Government’s observations that he had filed a criminal complaint against the police officers when it had become clear, in the course of the above-mentioned criminal proceedings in respect of mass rioting, that no information had been entered in the Unified Register of Pre-Trial Investigations in relation to the alleged inaction of the police officers at the demonstration on 1 March 2014. The applicant stated that, as a result of the alleged police inaction, many people had been injured, including himself, and that the Administration building and other people’s personal property had been damaged.

10. On 10 October 2014 criminal proceedings were opened. The applicant, other demonstrators and some of the police officers who had been present at the demonstration were questioned.

11. On 30 October 2014 the applicant was questioned as a witness by an investigator from the prosecutor’s office. The applicant stated:

“... anti-Maidan demonstrators entered the building from the side. As soon as they entered, they started throwing stun and smoke grenades. I saw fighting going on in various places and, fearing for my life, I went out into the courtyard, from where I left the grounds of the building. However, I was followed by anti-Maidan demonstrators, who assaulted me in Myronosytska Street, near the [State enterprise] Kharkiv Metrology (“Харківстандартметрологія”) building... I didn’t see any police officers there while I was being assaulted...”.

12. On 21 November 2014 and 23 April 2015 respectively, the criminal proceedings were discontinued for lack of evidence.

13. On 19 December 2014 and 13 August 2015 respectively, the Chervonozavodskyi District Court of Kharkiv quashed the above-mentioned decisions as premature, as the investigator had failed to give the names of the suspects in respect of whom there was no evidence, the police officers who had been responsible for ensuring public safety had not been questioned and no action had been taken to verify the content of video recordings from the cameras located in the buildings nearby. Later, the police questioned the police officers who had been responsible for ensuring public order on 1 March 2014 near the Administration building. Those officers testified that they had not received any complaints from demonstrators during the demonstration. In total 356 witnesses were questioned in respect of the events of 1 March 2014.

14. On 16 September 2015 the criminal case was again discontinued for lack of evidence, as no information had been obtained to indicate that the police officers in question had committed a criminal offence. The applicant did not appeal against that decision.

THE COURT’S ASSESSMENT

15. The applicant complained, under Article 3 of the Convention, both alone and in conjunction with Article 13 of the Convention, that, on 1 March 2014, the State had failed to fulfil its positive obligation to protect him from ill-treatment by private individuals and that the investigation into the alleged inaction of the police had been ineffective. The Court, being the master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 114 and 126, 20 March 2018) is of the view that the complaint falls to be examined under Article 3 of the Convention alone.

16. The Court notes at the outset that the applicant did not complain of a failure to investigate the ill-treatment itself, but rather of a failure by the police to protect him from that ill-treatment or to investigate the alleged inaction of the police.

17. The general principles concerning the positive obligations of the State to protect individuals against ill-treatment inflicted by others can be found in, for instance, Identoba and Others v. Georgia (no. 73235/12, § 66, 12 May 2015).

18. In the present case, the applicant participated in a pro-Maidan demonstration near the Administration building on 1 March 2014. He was assaulted by a group of people and sustained minor bodily injuries. It cannot escape the Court’s attention that the applicant provided different accounts of the events to the national courts, the investigator, the forensic doctor and the Court. In particular, in his application form, he stated that he had been assaulted by a crowd after he had climbed over the fence of the Administration building and had found himself on Myronosytska Street. In the national court proceedings, the applicant stated that he had been assaulted by five or six men in the courtyard of the building (see paragraph 6 above). The applicant told the forensic doctor that he had been assaulted near the “Administration of Metrology” building (see paragraph 4 above), which is located in Myronosytska Street, but at least 100 metres away from the Administration building. He told the investigator that he had been assaulted near the “Kharkiv Metrology” building (see paragraph 11 above), which is located in Myronosytska Street, but at least 210 metres away from the Administration building. The applicant also stated that there had been no police officers around (see paragraph 11 above). In his reply to the Government’s observations, at first the applicant reiterated his description of the events and stated that no police officer had been present, but he subsequently complained that he had been assaulted in the presence of “law‑enforcement officers who were standing nearby”. As such, the Court is unable to establish the circumstances surrounding the alleged ill-treatment, including the location of the assault and whether police officers had been present or should have been present.

19. Furthermore, the applicant only filed his criminal complaint on 17 September 2014, that is, more than six months after the events in question had taken place (see paragraph 8 above). The applicant submitted that he had filed his complaint after he had learned that no information about the alleged inaction of the police during the demonstration of 1 March 2014 had been included in the Unified Register of Pre-Trial Investigations (see paragraph 9 above). He also referred to the injuries sustained by third parties and by himself, and to the damage caused to the building and to the property of others, as reasons for filing his criminal complaint (see paragraph 9 above). The Court finds those arguments without merit. Moreover, they confirm that the applicant suffered little or no harm as a result of the alleged neglect. Lastly, the Court notes that the forensic medical examination was carried out shortly after the alleged assault, and that the applicant did not complain on that occasion that he had suffered serious physical or psychological harm as a result of the alleged failure of the police to protect him.

20. Consequently, in the light of the above, the Court finds that the applicant has failed to substantiate his complaint under Article 3 of the Convention. It follows that the complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 12 September 2024.

Martina Keller Lado Chanturia
Deputy Registrar President