In the case of Koval and Others v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as
a Chamber composed of:
Dean Spielmann, President,
Mark Villiger,
Boštjan M. Zupančič,
Angelika Nußberger,
André Potocki,
Paul Lemmens, judges,
Stanislav Shevchuk, ad
hoc judge,
and Claudia Westerdiek, Section Registrar,
Having deliberated in private on 16 October 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no. 22429/05)
against Ukraine lodged with the Court under Article 34 of the Convention for
the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by four
Ukrainian nationals, Mr Mikhail Petrovich Koval, Mrs Anna Petrovna Koval, Mr
Dmitriy Mikhaylovich Brik and Mrs Yelena Mikhaylovna Dubova (“the applicants”),
on 2 June 2005.
The applicants, who had been granted legal aid,
were represented by Mr A.P. Bushchenko, a lawyer practising in Kharkiv. The Ukrainian
Government (“the Government”) were represented by their Agent, Mr N. Kulchytskyy,
of the Ministry of Justice of Ukraine.
The applicants alleged, in particular, that the
first, second and third applicants had been ill-treated and that there had been
no effective investigation of their complaints, that the first and third applicants
had been unlawfully arrested, and that the police officers had unlawfully
entered the applicants’ appartment and seized some items of property.
On 11 May 2010 the President of the Fifth Section
decided to give notice of the application to the Government. Mrs G. Yudkivska,
the judge elected in respect of Ukraine, was unable to sit in the case (Rule 28
of the Rules of Court). The President of the Chamber decided to appoint
Mr Stanislav Shevchuk to sit as an ad hoc judge (Rule 29 § 1(b)).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicants were born in 1944, 1955, 1977 and
1980 respectively and live in the city of Chernigiv, Ukraine. The third and
fourth applicants are children of the first and second applicants.
A. The events of 14 August 2001 and further
investigation
In the morning of 14 August 2001 two private individuals, R. and O.,
acquaintances of the third applicant, went to the applicants’ apartment and
said that the third applicant should return an electric drill to them. The
third applicant was absent but R. and O. insisted and tried to enter the
apartment. The first applicant picked up a gas gun and requested them to leave.
R. went to the police station and complained that the first applicant had
threatened him with a weapon. It could be also understood from the available
materials that R. and O. had bribed the police officers to go and seize the
drill (see paragraph 31).
At around 7 p.m. on the same day the same two people, accompanied by police
officers G., D. and F., went to the applicants’ apartment. R. and O. again
asked for the drill and when the first applicant tried to close the door a
fight broke out.
According to the first applicant, when he opened the door, he was knocked down
but managed to break free and shouted for help. He was knocked down again and his
attackers tried to push him into the apartment. One of them sat on the
applicant, put his knee on the first applicant’s neck and hit him on the head
with a gun handle. The third applicant tried to free his father but was
handcuffed.
According to the second applicant, when she was returning from work, she saw
“that something was going on near their apartment and that several people were
beating her son in the corridor of their apartment”. She tried to separate the
third applicant and the attackers. One of the attackers (who, it emerged later,
was the private individual, O.) allegedly kicked her in the stomach and hit her
on the head. The applicants’ neighbours heard the noise and came out on to the
stairs. The police officers asked them to call the police station. More police
officers arrived and the first and third applicants were taken to the police
station. According to the Government, they were taken “to give explanations”.
The second applicant accompanied them but was not allowed to stay.
Upon arrival, the first and third applicants were allegedly beaten up in the
police station by eight or ten people. They were hit on the head, in the chest,
on the ribs and in the stomach and also hit on the head with a plastic bottle
filled with water. The third applicant was hit on the ears. According to him,
he was handcuffed the whole time. According to the applicants, they were
threatened with being injected with drugs and with being put in a cell where they
would be raped by other detainees. The first applicant was allegedly forced to
sign a document stating that he had voluntarily handed over a gas gun and an
electric drill to the police officers.
At around 11 p.m. the first applicant was taken home by police officers S.
and T., where he gave them the drill and the gas gun. The drill was later
handed over to R. The third applicant was released the same evening.
On 15 and 16 August 2001 the first and second applicants requested the
prosecutor to arrange a forensic medical examination for them. In particular,
the second applicant submitted that she “had been beaten by the bandits who had
beaten her husband and son”. She further noted that she had been beaten by O.
On 15 August 2001 the first applicant underwent a forensic medical
examination, which concluded that the first applicant had concussion, a broken
rib, bruises and scratches on the head. These injuries were of medium severity
and could have been inflicted by the first applicant’s falling against some
objects.
The first applicant was in hospital between 16 August and 7 September
2001.
On 17 August 2001 the second and third applicants were examined by a forensic
expert, who found that the third applicant had bruises on and behind the ears,
a black eye and bruises on his chest. They were classified as light bodily
injuries. The second applicant told the expert that she had been hit on the
head and kicked in the stomach. She had not sought medical assistance at the
time. The expert examined the second applicant and found no visible injuries.
The second applicant was advised to consult a neurosurgeon, and later the expert
added that “by 3 September 2001 no neurosurgeon’s opinion had been received”.
Between 22 August and 6 September 2001 the second applicant was treated in
the neurological department of Chernigiv Regional Hospital. She was diagnosed
with a closed craniocerebral injury. The second applicant told doctors that on
14 August 2001 she had been hit on the left temple by an unknown person.
On 23 August 2001 the police office decided not to institute criminal
proceedings against the first applicant for threatening R. with a gas gun. It
was also found that the first applicant’s licence to keep such a gun had
expired.
On 24 August 2001 the Head of the Criminal Investigation Department of the
Chernigiv City Police Department (начальник
відділу
кримінального
розшуку
Чернігівського
міського
відділу УМВС
України в
Чернігівській
області) terminated
an internal investigation into the events of 14 August 2001. It was found that
R. had complained to the police that the first applicant had threatened him
with “an object which looked like a gun and with an object which looked like a
sword”. Following this complaint police officers had gone to the first
applicant’s apartment. When they identified themselves and showed their police
cards, the first and third applicants began fighting and swearing. The police
officers used martial arts techniques and handcuffs.
On 26 August 2001 the first applicant complained to the Chernigiv City
Prosecutor that he and his son had been unlawfully arrested and beaten up, and
that their property had been seized unlawfully. In particular, the first
applicant submitted that at around 7 p.m. on 14 August 2001 somebody had rung
their doorbell. When the first applicant opened the door he was knocked down,
dragged into his apartment and threatened with a gun. When neighbours appeared
because of the noise and wanted to call the police, the attackers said that
they themselves were police officers. They were accompanied by R. and O., who
kicked the second applicant. The first and third applicants were beaten, put
into a police car which had arrived by this time, and taken to the police
station. In the police station the first applicant was also beaten and told to
give up any weapon he had. According to the first applicant, the beatings were
“directed” by the police officer who had earlier hit him with a gun handle.
Later the first applicant stated that a certain police officer, A., had also “joined
in torturing him”. A couple of hours later the first applicant was brought home
where, in the presence of two witnesses, he handed over to police a gas gun and
an electric drill.
On 31 August 2001 the second and fourth applicants lodged similar complaints.
In particular, the second applicant complained that O. had hit her on the head
and kicked her in the stomach. She further complained that her son had been
beaten up.
On 6 September 2001 the third applicant complained to the Chernigiv
Prosecutor’s Office that he had been beaten up by police. On an unidentified
date he also stated that O. had pushed his mother and kicked her.
Written explanations were collected from the participants of the events in
question. In particular, on 11 September 2001 O. submitted that the first and
third applicants started to fight, that the third applicant had broken the
glasses of one of the police officers and that the second applicant had sworn
at him. O. did not mention that he had fought with anybody.
On 20 September 2001 the Head of the Chernigiv Regional Department of
Internal Affairs ordered that police officers G., D. and F. be dismissed. It
was found that: (i) the conflict between R., O. and the third applicant was of
a civil-law nature, and R. was not the owner of the drill; (ii) police officers
D. and F. submitted reports about use of force against the third applicant and,
according to findings of the internal investigation, their actions were
considered lawful. G. did not submit any report; (iii) D., F. and G. were not
equipped “properly” when leaving to check R.’s complaints of threatening
behaviour with a firearm. It was concluded that the events in question happened
because of “lack of discipline and legal knowledge”. As a result D., F. and G.
were to be dismissed for “personal misconduct and an unsatisfactory level of
professionalism”. Police officers T. and S. received a warning.
On 20 September 2001 a decision was adopted not to institute criminal
proceedings. On 31 October 2001 this decision was quashed by the Chernigiv City
Prosecutor.
On 9 November 2001 the Chernigiv City Prosecutor instituted criminal
proceedings for abuse of power following infliction of bodily injuries on the
first and third applicants.
Between 15 and 28 December 2001 the second applicant was in Chernigiv Regional Hospital. She was diagnosed with “after-effects of a repeated head injury
(last injury August 2001)”. A medical certificate issued on an unknown date
stated that in August 2001 the applicant had received a head injury.
On 29 December 2002 the Chernigiv City Prosecutor’s Office terminated
criminal proceedings for absence of evidence of a crime. The first and third
applicants were questioned, as was G. The latter testified that the first
applicant had opened the door and together with the third applicant had tried
to hit the police officers and to grab G.’s gun, so force had been used on the
applicants and the third applicant had been handcuffed. Other police officers
confirmed G.’s statements. According to this decision, the first applicant
refused to have confrontations with the police officers. It was also noted that
the second applicant had no visible injuries.
On 15 January 2003 the decision of 29 December 2002 was quashed and the case
remitted for further investigation as “not all necessary investigative actions
had been taken”.
On 2 October 2003 these proceedings were again terminated for lack of
evidence of a crime in the police officers’ actions.
On 22 December 2003 the decision of 2 October 2003 was quashed by the Chernigiv
Regional Prosecutor’s Office and the case sent for additional investigation. It
was noted, inter alia, that R. had allegedly paid 300 Ukrainian hryvnias
(UAH) to G. as “financial assistance to cover petrol cost” and that this
information had not been checked.
On 19 March 2004 the criminal proceedings were again terminated. The
investigation officer of the Chernigiv City Prosecutor’s Office found that the
electric drill was jointly owned by the third applicant, R. and O. Since the
third applicant had refused to give it back and the first applicant had
threatened them with a gun, R. and O. had gone to the police station and lodged
a complaint. According to O., the police officers showed the first applicant
their identity documents but the latter refused to let them in, tried to grab
G.’s gun and started a fight. The second applicant arrived and started
shouting. Following the noise, the neighbours came and the police officers
asked them to call for reinforcements. All this happened on the staircase in
front of the applicants’ apartment. R., who, according to O., stayed in the
car, confirmed O.’s statements. Police officers G., D. and F. also confirmed
this version of events. D. also submitted that the first applicant had fallen
down the stairs in the police station. Police officers M., Sy., Gr., S. and T.
stated that nobody had beaten the applicants. S. and T. testified that on
14 August 2001 on G.’s orders they had visited the first applicant’s
apartment where he had given them a gas pistol and a drill. They also said they
had seen the first applicant fall down the stairs. The applicants’ neighbours
stated that they did not see the beginning of the fight so they could not say
who had started it. It was finally concluded that the first and third
applicants had been taken to the police station because they were suspected of
unlawful possession of firearms.
On 30 June 2004 the Chernigiv Regional Prosecutor’s Office quashed this
decision since “the circumstances of the case had not been properly
investigated”.
On 30 November 2004 the Chernigiv City Prosecutor’s Office again terminated
the criminal proceedings. This decision was identical to that of 19 March 2004
but contained an additional paragraph which stated a further investigation had
not revealed any evidence of a crime.
On 1 March 2005 the Desnyanskiy District Court (Chernigiv) quashed this
decision and remitted the case for further investigation. The court found that
the investigating authorities had failed to comply with the prosecutor’s
decision of 22 December 2003. In particular, the legal grounds for the police
entering the applicants’ apartment and seizing the drill and the gas gun had
not been checked. Also, one of the police officers, So., should be questioned
since, according to the first applicant, he had seen the first applicant being
beaten up.
On 19 May 2005 the investigation in the applicants’ case was suspended. It
was noted in particular that although the applicants’ neighbours had seen the
fight between the applicants and the police officers, nobody had witnessed the
beginning of this fight and they could not say who had initiated it or why. It
was also stated that the first applicant had fallen down the stairs in the
police station.
Subsequently the investigation was resumed. So. was questioned and said that
he had not seen the applicants being beaten up.
In the conclusion of 14 June 2005 certified by the Head of the Chernigiv
Regional Police Department (начальник
Управління
Міністерства
внутрішніх
справ
України в
Чернігівській
області) it was noted that police officers G., D. and F. had not been
dismissed, because the dismissal order had been lost.
On 14 December 2009 a decision to stay the investigation was adopted since
“it was impossible to identify the perpetrator”. There is no evidence that any
procedural actions have been taken in the applicants’ case since that time.
B. Defamation proceedings against the first applicant
On 27 September 2005 the first applicant was
interviewed by a television company. He said that he had been beaten up by
police officers at the police station and called police officer A. “his
torturer”.
On 19 October 2005 A. instituted defamation
proceedings against the first applicant and the television company.
On 30 December 2005 the Desnyanskiy Court found against A. It held that there
was enough information to suspect that the first applicant had indeed been
ill-treated, but that his statements were value judgments and not established
facts.
On 14 March 2006 the Chernigiv Regional Court of Appeal upheld this judgment.
C. Civil proceedings on return of property
In March 2008 the third applicant instituted
proceedings in the Desnyanskyy Court against R. and Chernigiv City Police
Office (Чернігівський
міський
відділ УМВС
України в
Чернігівській
області)
for the return of the electric drill. The drill was currently in the possession
of R., who was its co-owner. On 10 November 2008 the court rejected this claim since
the drill was not solely the third applicant’s property but was jointly owned
by a team of construction workers. The third applicant and R. had previously
been members of this team. On 6 February 2009 the Court of Appeal upheld this
decision. On 5 June 2009 the Supreme Court of Ukraine rejected the third
applicant’s request for leave to appeal on points of law as unsubstantiated.
II. RELEVANT DOMESTIC LAW
A. Code of Criminal Procedure, 1960
The relevant provisions of the Code read as
follows:
Article 106. Arrest of a suspect by a body of inquiry
“A body of inquiry shall be entitled to arrest a person
suspected of a criminal offence for which a penalty in the form of deprivation
of liberty may be imposed only on one of the following grounds:
1. if the person is discovered whilst or immediately
after committing an offence;
2. if eyewitnesses, including victims, directly identify
this person as the one who committed the offence;
3. if clear traces of the offence are found either on
the body of the suspect, or on his clothing, or with him, or in his home.
If there is other information giving ground to suspect a person
of a criminal offence, a body of inquiry may arrest such a person if the latter
attempts to flee, or does not have a permanent place of residence, or the
identity of that person has not been established.
For each case of a suspect’s arrest, the body of inquiry shall
be required to draw up an arrest warrant (протокол
затримання)
outlining the grounds, the motives, the day, time, year and month, the place of
arrest, the explanations of the person detained and the time when it was
recorded that the suspect had been informed of his right to have a meeting with
defence counsel with effect from the moment of his arrest, in accordance with
the procedure provided for in paragraph 2 of Article 21 of the present Code.
The arrest warrant shall be signed by the person who drew it up and by the
detainee.
A copy of the arrest warrant with a list of the arrested person’s
rights and obligations shall immediately be handed to the detainee and sent to
the prosecutor. At the request of the prosecutor, the material which served as
a ground for the arrest may also be sent to him...
Within seventy-two hours of the arrest, the body of inquiry shall:
(1) release the detainee if the suspicion that he
committed the crime has not been confirmed, if the term of the preliminary detention
established by law has expired or if the arrest has been effected in violation
of the requirements of paragraphs 1 and 2 of the present Article;
(2) release the detainee and select a non-custodial
preventive measure;
(3) bring the detainee before a judge with a request
to impose a custodial preventive measure on him or her...
Preliminary detention of a suspect shall not last for more than
seventy-two hours...”
46. The
procedure for search and seizure is set out in Chapter 16 of the Code of
Criminal Procedure. In accordance with Article 178 of the Code seizure is
ordered by a reasoned decision of an investigation officer. Unless urgent, the
seizure is to be performed during the day.
B. Civil Code of Ukraine, 2003
According to Articles 356 - 358 of the Code, two
and more individuals may jointly own a property. They have equal parts in this
property unless determined otherwise by law or by their agreement. The owners
may also determine the way the property is used.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE
CONVENTION
The first, second and third applicants complained that they had been beaten
up in the evening of 14 August 2001 when the police had arrived at their
apartment. The first and third applicants further complained that they had been
beaten up at the police station and that in their view this amounted to
torture. The first, second and third applicants also complained that there had
been no effective investigation following their complaints about these events,
as required by 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. Admissibility
1. The first and third applicants’ complaints
The Government stated that the first and third
applicants’ complaints under the substantive limb of Article 3 of the
Convention were premature, since proceedings at the national level had not been
terminated.
The applicants submitted that these issues fell
to be considered together with the merits of their complaints (see Oleksiy
Mykhaylovych Zakharkin v. Ukraine, no. 1727/04, §§ 48-51, 24 June 2010).
The Court notes that the Government’s objection
is closely linked to the merits of the first and third applicants’ complaint
under the procedural limb of Article 3 of the Convention. In these
circumstances, it joins the objection to the merits of the applicants’ complaint.
The Court further notes that the first and third
applicants’ complaints under Article 3 of the Convention are not manifestly
ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It also
notes that they are not inadmissible on any other grounds. They must therefore
be declared admissible.
2. The second applicant’s complaints
(a) The parties’ submissions
The Government noted that, according to the
second applicant, she had been kicked and hit by a private individual, O. The
national law provides that in the event of infliction of light bodily injuries by
private individual criminal proceedings are to be instituted exclusively by a
court following a complaint by the victim (Article 27 of the Criminal Procedure
Code). Therefore, in the Government’s view the second applicant did not exhaust
available effective domestic remedies, since she did not lodge her complaint
with a national court in accordance with the above provision. The Government
also pointed out that according to the forensic medical conclusion of 17 August
2001 the second applicant had no injuries at all. The Government further
submitted that there was no evidence that the second applicant’s stay in
hospital between 22 August and 6 September 2001 had been necessitated by the
events of 14 August 2001.
. The second applicant stated in reply
that five people, including three police officers and two civilians, had
attacked her and her family. In her view the fact that it was O., a private
individual, who inflicted bodily injuries on her does not exempt the State from
liability under Article 3 of the Convention. The second applicant believed that
this person had acted with the support and assistance of the police officers
(see Riera Blume and Others v. Spain, no. 37680/97, ECHR 1999-VII).
The second applicant further noted that in
order to assert that her case was a matter for a private prosecution, the
authorities had had to establish that the attack on her had not been carried
out during a police operation, that it had not been organised by police
officers or encouraged by them, and had had to establish the roles of all participants
and the aim of the attack. The second applicant contended that, since the
involvement of State agents could not be excluded prima facie, the arguments of
the Government were closely related to the merits of her complaints.
(b) Admissibility of the second applicant’s complaint
under the substantive limb of Article 3 of the Convention
. The Court notes at the outset that,
although the forensic medical examination of 17 August 2001 did not reveal any
visible injuries on the second applicant, five days later the second applicant
was diagnosed as having a closed craniocerebral injury and had to spend
nearly two weeks in hospital. Therefore, it can be concluded that the second
applicant had been subjected to ill-treatment which reached a threshold of
severity sufficient to place it within the scope of Article 3 of the
Convention.
The Court further notes that both parties agreed that the second applicant had
not been directly ill-treated by State agents. According to the second
applicant, she received two blows from a private individual, O. However, O.
went to the second applicant’s apartment together with the police officers and
actively participated in the fight. Given that the police officers, R. and O.
came to the applicants’ apartment together as one group and the police officers
did not stop O. and did not prevent him from participating in the fight, the
Court observes that the complaint brought by the second applicant under the
substantive limb of Article 3 of the Convention cannot be rejected as
incompatible ratione personae with the provisions of the Convention
within the meaning of Article 35 § 3 (a).
. The Court further notes that the
second applicant’s complaint about being ill-treated had not been clearly
answered after it had been lodged with the national authorities in August 2001.
However, she has lodged her complaint before this Court only four years later.
In this respect the Court reiterates that even in continuing situations there
might arise a time, having regard to the purpose of legal certainty enshrined
in the six-month rule and considerations of the practical and effective
functioning of the Convention mechanism, when it could reasonably be expected
that an applicant should not wait any longer in bringing an application to
Strasbourg (see, mutatis mutandis, Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90,
16072/90 and 16073/90, § 161, ECHR 2009).
However, in the circumstances of the present case the Court considers that the second
applicant cannot be reproached for waiting too long before lodging her
complaint before this Court since it appears that her complaint was closely
intertwined with complaints of the other applicants and all complaints were investigated
by the national bodies together (see paragraphs 23 and 28).
. The Court notes that this complaint
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.
(c) Admissibility of the second applicant’s complaint
under the procedural limb of Article 3 of the Convention
. The Court reiterates that Article
3 of the Convention requires that the authorities conduct an effective official
investigation of alleged ill-treatment, even if such treatment has been
inflicted by private individuals (see Ay v. Turkey,
no. 30951/96, § 60, 22 March 2005, and M.C. v. Bulgaria, no.
39272/98, § 151, ECHR 2003-XII, and, most recently, Biser Kostov v.
Bulgaria, no. 32662/06, 10
January 2012). It is at the respondent State’s discretion to organise
its criminal prosecution system as it chooses, so long as it complies with the
requirements of effective investigation set up in the Court’s case-law on the
procedural limb of Article 3 of the Convention.
. In the present case the second
applicant complained to the prosecutor’s office that she had been beaten up by
a private individual, O., and it does not appear that this complaint was prima
facie unsubstantiated. Although on 17 August 2001 (three days after the
incident) the forensic medical expert found that the applicant had had no
visible injuries, five days later the applicant was diagnosed with a closed
craniocerebral injury and had to go into hospital.
The Court further notes that there is no
evidence that the second applicant’s complaint has been properly answered by
the national authorities. In particular, the second applicant has never been
informed that she should have lodged her complaint not with the prosecutor’s
office but with the court. There is also no evidence that the second applicant’s
injuries were light, as suggested by the Government. In view of the above, the
Court cannot conclude that the applicant chose the wrong national remedy and
should have lodged her complaint with a national court as proposed by the
Government. It therefore dismisses the Government’s objection.
The Court notes that the second applicant’s
complaint under the procedural limb of Article 3 of the Convention 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. Alleged violation of the substantive limb of
Article 3 of the Convention
(a) The first and third applicants
The applicants submitted that they had received
serious injuries. The first applicant had concussion, a broken rib, bruises and
abrasions on his head. The third applicant had multiple bruises. They
reiterated that all of these injuries had been received because of excessive
use of force and further beating in the police station.
The Government reiterated that the criminal
proceedings in connection with the first and third applicants’ complaints were
still pending, so they had not submitted any observations on the merits of the
applicants’ complaints, as that would infringe the principle of independence
and impartiality of the investigation authorities.
The Court notes that on the day after the events
in question, the first applicant was examined by a forensic medical expert and
it was concluded that he had medium-level bodily injuries. He was hospitalised
the next day. The third applicant was examined on 17 August 2001 and was found
to have suffered light bodily injuries. The Court
considers that these injuries were sufficiently serious to fall within the
ambit of Article 3 of the Convention. It remains to be considered whether the State authorities
should be held responsible under Article 3 for having inflicted those
injuries.
The Court notes that there is no evidence, and
it is not contested by the Government, that the first and third applicants had
any injuries before the visit from the police officers. According to the first
and third applicants, their injuries were inflicted by the excessive use of
force by the police officers and later in the police station.
As to the use of force at the time the
applicants were apprehended, the Court notes that the applicants’ and the
officials’ versions of events differ significantly (see, for example,
paragraphs 9 and 32). Analysing the available evidence, the Court is unable to
conclude which version corresponds to reality. In particular, as there were no
witnesses to the beginning of the fight between the applicants and the police
officers (see paragraph 36), it is unclear whether the applicants were aware
that they were being visited by the police, whether the police used force in
response to the applicants’ aggressive behaviour and/or refusal to comply with
lawful requests, if any, and if so whether such use of force was proportionate
(see, mutatis mutandis, Berliński v. Poland, nos. 27715/95
and 30209/96, § 62, 20 June 2002).
The Court, however, notes that even in matters
concerning the lawful application of force to counter resistance, State agents
are responsible for planning their interventions reasonably, in order to
minimise potential injuries (see Fyodorov and Fyodorova v. Ukraine, no. 39229/03, § 65, 7 July 2011,
with further references). Although the police officers could have had
reasonable suspicions that the first applicant was dangerous, since he had
allegedly threatened R. with a gun (see, mutatis mutandis, R.L. and
M.-J.D. v. France, no. 44568/98, § 70, 19 May 2004), the Court does not
lose sight of the fact that following the events in question, it was ordered
that police officers G., D. and F. be dismissed for “personal misconduct and
unsatisfactory level of professionalism” (see paragraph 24). In particular, it
appears that while going to the apartment of a potentially dangerous person
possibly equipped with a firearm, they did not have any clear strategy. This
seems to have led to the adverse consequences.
The Court further notes that despite the use of
force against the first and third applicants by the police at the time they
were apprehended, no medical examination was conducted immediately upon their
arrival at the police station (see Sylenok and Tekhnoservis-Plus v. Ukraine, no. 20988/02, § 69, 9 December 2010, and Korobov v. Ukraine, no. 39598/03, § 70, 21 July 2011). Given that
the domestic authorities failed to establish the exact circumstances in which
the first and third applicants received their injuries (quite serious ones in
the case of the first applicant), the Court finds it possible that some
of the applicants’ injuries had been inflicted in the police station.
In view of the above, and analysing the
circumstances of the case in their entirety, the Court considers that the
Government have not established that the use of force against the first and
third applicants was lawful and absolutely necessary, and that the applicants’
injuries were wholly caused otherwise than by ill-treatment while in police
custody. Accordingly, it concludes that the first and third applicants were
subjected to inhuman treatment in violation of the substantive limb of Article
3 of the Convention (see Sylenok and Tekhnoservis-Plus, cited above, § 70).
(b) The second applicant
The second applicant submitted that she had
suffered from closed craniocerebral injury and had to stay in a hospital.
According to her, the fact that her injuries had been caused by the events of
14 August 2001 is confirmed by testimonies of other witnesses including her
son.
The Government submitted that the second
applicant’s statements were corroborated only by her own testimonies and
contradicted by the testimonies of O. and of the third applicant, who stated
that O. had only pushed the second applicant (see paragraph 22). Also,
according to the forensic medical conclusion of 17 August 2001 the second
applicant had no visible injuries.
The Court reiterates that the obligation of the High Contracting Parties
under Article 1 of the Convention to secure to everyone within their
jurisdiction the rights and freedoms defined in the Convention, taken together
with Article 3, requires States to take measures designed to ensure that
individuals within their jurisdiction are not subjected to ill-treatment, including
ill-treatment administered by private individuals (see M.C. v. Bulgaria,
cited above, § 149). These measures should provide effective protection and
include reasonable steps to prevent ill-treatment of which the authorities had
or ought to have had knowledge (see, Z and Others v. theUnited Kingdom [GC], no. 29392/95, § 73, ECHR 2001-V). The scope of
the positive obligation must be interpreted in a way which does not impose an
impossible or disproportionate burden on the authorities (see, mutatis mutandis,
Keenan v. the United Kingdom, no. 27229/95, § 90, ECHR 2001-III).
Moreover, the test under Article 3 does not require it to be shown that “but
for” the failing or omission of the public authority ill-treatment would
not have happened. A failure to take reasonably available measures which could
have had a real prospect of altering the outcome or mitigating the harm is
sufficient to engage the responsibility of the State (E. and Others v. the United Kingdom, no. 33218/96, § 99, 26 November 2002).
In the present case, the second applicant alleged that she had been hit on
the head and kicked in the stomach by O., a private person, while she had tried
to separate him and her son, who had been fighting in the presence of the police
officers. O. rejected these allegations.
Although it follows from the medical documents, submitted by the second
applicant, that she had suffered some injuries before 14 August 2001 (see
paragraph 27), after the events in question the second applicant sought medical
assistance and it appears that her injuries coincide with her description of
the events. Therefore, the Court concludes that she might have suffered from
the use of force on behalf of O. on 14 August 2001.
It is not for the Court to speculate what was the reason for O. to come to
the applicants’ apartment together with the police officers. Although the
official purpose of the police officers’ visit was to check upon R.’s complaint
that the first applicant had threatened him with a gun and, O. has
possibly accompanied them in order to show who exactly had threatened him, it
is also probable that he had arrived in order to recuperate the drill having
the police officers as “reinforcement” and thus the group was ready to use
force in case the applicants resist.
The Court has already noted that it was unclear which party had started the
fight. However, even assuming that the police officers, who slightly outnumbered
the applicants, were responding to an attack, they nevertheless did not prevent
O. from resorting to violence, given that they knew about the previous conflict
between O. and the applicants.
Given that the national authorities had recognised the police officers’
unprofessionalism (see paragraph 24), that O. had acted together with the
police officers and the latter tolerated his violent actions, the Court
concludes that the State agents bear responsibility for the injuries received
by the second applicant. There has been, therefore, a violation of the
substantive limb of Article 3 of the Convention in respect of the second
applicant.
2. Alleged violation of the procedural limb of Article
3 of the Convention
(a) The first and third applicants
The applicants reiterated that the investigation
which followed their complaints had not been effective.
The Government submitted that the investigation
of the first and third applicants’ complaints had started immediately. A large
number and variety of procedural steps had been taken, including seventy-nine
interviews, seven forensic medical examinations, fourteen confrontations, three
reconstructions of events, and so on. Some additions to the length of the
investigation were also caused by the absence of the third applicant and
witnesses. The Government finally contended that it would be premature to
express any opinion on the effectiveness of the investigation while it was still
continuing.
The Court reiterates that where an individual
raises an arguable claim that he has been seriously ill-treated by State
authorities in breach of Article 3, that provision, read
in conjunction with the State’s general duty under Article 1 of the Convention,
requires by implication that there should be an effective official
investigation. As with an investigation subject to Article 2 of the
Convention, such an investigation should be capable of leading to the identification
and punishment of those responsible (see Assenov
and Others v. Bulgaria, 28
October 1998, § 102, Reports of Judgments and Decisions 1998-VIII,
p. 3290, and Labita v. Italy [GC], no. 26772/95, ECHR 2000-IV).
The Court notes that in the present case it was
established as early as August 2001 that the police officers had used force on
the first and third applicants. However, eight years later and after numerous
remittals and suspensions the criminal proceedings instituted following the
applicants’ complaints were again suspended since “it was impossible to
identify the perpetrator”. Moreover, these proceedings were marked by numerous
shortcomings, which were emphasised by the domestic authorities (see paragraphs
29, 31 and 35).
The Court also reiterates that the domestic
judicial authorities must on no account be prepared to let the infliction of physical
or psychological suffering go unpunished. This is essential so that the public’s
confidence in, and support for, the rule of law can be maintained, and for the prevention
of any appearance of the authorities’ tolerance of or collusion in unlawful
acts (see Okkalı v. Turkey, no. 52067/99, § 65, ECHR 2006 XII
(extracts)). In this context the Court also notes that not even the
decisions to dismiss three of the police officers were implemented. This
situation, in the Court’s view, certifies that virtually total impunity for
torture or ill-treatment is afforded to the law-enforcement agencies (see Savin
v. Ukraine, no. 34725/08, § 71, 16 February 2012).
All of the above elements are sufficient to
enable the Court to conclude that there has been a violation of the procedural
limb of Article 3 of the Convention in respect of the first and third
applicants. Accordingly, it dismisses the Government’s objection (see paragraph
49).
(b) The second applicant
The second applicant submitted that she had
lodged her complaint with the prosecutor’s office promptly, and that it had
been supported by extracts from her medical notes, but no investigation had
ever been started in connection with this complaint.
The Government stated that the second applicant
had not lodged her complaint with the appropriate authorities, and that her
complaints were in any case unsubstantiated.
The Court reiterates its previous conclusions (see
paragraphs 60-61) and notes that the second applicant’s complaint that she had
been beaten up by O. had never been explicitly answered. Although there was
some investigation into her complaints (see paragraphs 23 and 28), there has
been never a proper decision in this respect.
In these circumstances the Court concludes that
there has been a violation of the procedural limb of Article 3 of the
Convention in respect of the second applicant.
II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION
The first and third applicants complained that
since their arrest had been aimed at forcing them to fulfil a contractual
obligation (namely to return the electric drill) it had amounted to a violation
of Article 1 of Protocol No. 4.
The Court considers that this complaint can be understood as a
complaint about the grounds for the first and third applicants’ arrest, and it
should therefore be considered under Article 5 § 1 of the Convention which, in
so far as relevant, reads as follows:
“1. Everyone has the right to liberty and security
of person. No one shall be deprived of his liberty save in the following cases
and in accordance with a procedure prescribed by law...”
A. Admissibility
The Government submitted that the first and
third applicants had failed to exhaust effective domestic remedies in respect
of this complaint. They could have complained to the court about their
allegedly unlawful deprivation of liberty under Article 55 of the Constitution
of Ukraine, under Article 248-1 of the Civil Procedure Code (before 1 September
2005) and under Article 2 of the Code of Administrative Justice (after 1
September 2005). The Government provided copies of court decisions in two
successful cases where compensation had been awarded for unlawful arrest and
detention. Such awards were based on previous findings of the national courts
that the claimants’ arrests and subsequent detention had been unlawful. No
copies of these earlier decisions were provided.
The applicants submitted in reply that the
Government “had not mentioned any decisions of the national courts in which
unlawful detention had been established by the national courts” under any of
the provisions cited by the Government. The applicants relied on the Court’s
conclusions in the case of Kaboulov v. Ukraine (no. 41015/04, § 90, 19 November 2009):
“the
Government have referred to Article 55 of the Constitution... They stated that
any action taken during the extradition proceedings could be appealed against
to the domestic courts, under Article 55 of the Constitution. They provided no
relevant case-law of the domestic courts to prove their contention”
. The applicants further stated that
they had not been able to raise their complaints before a national court under
Article 2 of the Code of Administrative Justice, since it had come into force
only in 2005 and its Article 99 set up a limitation period of one year from the
date of an alleged violation. Thus, the applicants believed that the correct
way of establishing the fact of unlawful detention in their case was to
institute criminal proceedings concerning the unlawful detention.
. The Court notes that the court
decisions provided by the Government concern an award of compensation following
an unlawful detention by the police. The unlawfulness of that detention was
established by previous court decisions referred to by the courts in the
compensation proceedings. The Court was not provided with copies of the earlier
decisions, and thus it is impossible to establish to what extent the
circumstances in the claimants’ cases were similar to the applicants’
situation, and whether the procedure used by the claimants in these two cases
was also opened to the applicants.
. The Court further notes that the
applicants’ complaints under the criminal procedure, that the police officers
abused their power when apprehending the applicants, were not unsubstantiated.
In particular, criminal proceedings were instituted following the applicants’
complaints, and there was no final decision rejecting their complaints.
Although there is no evidence that the applicants lodged or expected to lodge a
civil claim, this opportunity would have been available to them if the police
officers had been charged with a crime (see Kositsina v. Ukraine (dec.),
no. 35157/02, 15 January 2008).
Therefore, the Court does not consider that the
applicants can be criticised for not making use of a remedy which, as alleged
by the Government, would have been directed to essentially the same end as the
ones that they did in fact use and which would not have had a better prospect
of success (see Iatridis v. Greece [GC], no. 31107/96, § 47, ECHR
1999-II, and, more recently, Mileva and Others v. Bulgaria, nos.
43449/02 and 21475/04, §§ 77 and 82, 25 November 2010).
The Court notes that this complaint 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
The applicants stated that the sole reason for
their arrest was to force them to return the electric drill, and thus it was
not covered by any of the permissible grounds for detention under Article 5 § 1
of the Convention.
The Government reiterated that the investigation
of the applicants’ complaints in this respect was still pending and that the
applicants should have lodged their complaints with the court under a different
procedure (see paragraph 90).
The Court notes that Article 5 of the Convention
guarantees the fundamental right to liberty and security. That right is of
primary importance in a “democratic society” within the meaning of the
Convention (see De Wilde, Ooms and Versyp v. Belgium, 18 June 1971, §
65, Series A no. 12, and Winterwerp v. the Netherlands, 24 October
1979, § 37, Series A no. 33). The list of exceptions set out in Article 5
§ 1 is an exhaustive one (see Labita, cited
above, § 170, and Quinn v.
France, 22 March 1995, § 42, Series A no. 311) and only a narrow
interpretation of those exceptions is consistent with the aim of that
provision, namely to ensure that no one is arbitrarily deprived of his or her
liberty (see Engel and Others v. the
Netherlands, 8 June 1976, § 58, Series A no. 22, and Amuur v. France, 25 June 1996, § 42,
Reports 1996-III).
The Court notes that in the present case the
proceedings in connection with the first and third applicants’ complaints that
they had been unlawfully arrested and detained in the police station for
several hours are still pending. However, given that these proceedings have
already been pending for more than ten years and that they have been stayed for
the last two years, it is highly improbable that after such a considerable
lapse of time they will end up with any satisfactory result.
The Court further notes that during this
investigation the State authorities had advanced a reasonable suspicion of
unlawful possession of firearms as a reason for the applicants’ arrest.
However, at the time of the first and third applicants’ arrest there was no
criminal case pending on this matter and there is no evidence that their
detention has ever been properly documented.
The Court would state that the absence of an
arrest record must in itself be considered a serious failing, as it has been
the Court’s constant view that unrecorded detention of an individual is a complete
negation of the fundamentally important guarantees contained in Article 5 of
the Convention and discloses a grave violation of that provision. The absence
of a record of such matters as the date, time and location of detention, the
name of the detainee, the reasons for the detention and the name of the person
effecting it must be seen as incompatible with the requirement of lawfulness
and with the very purpose of Article 5 of the Convention (see Lopatin and
Medvedskiy v. Ukraine, nos. 2278/03 and 6222/03, § 84, 20 May 2010, with further references).
In the absence of any records on the first and
third applicants’ arrest which might clarify its reasons and prove its
lawfulness, the Court concludes that this arrest was unlawful in breach of
Article 5 § 1 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 8 OF THE
CONVENTION
The applicants complained that police officers had on
two occasions unlawfully entered their apartment and had not protected their
home from interference by third parties. They relied on Article 8 of the
Convention, which, in so far as relevant, reads as follows:
“1. Everyone has the right to respect for his
private and family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in accordance with
the law and is necessary in a democratic society in the interests of national
security, public safety or the economic well-being of the country, for the
prevention of disorder or crime, for the protection of health or morals, or for
the protection of the rights and freedoms of others.”
A. Admissibility
The Court notes that this complaint 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
The applicants maintained that their neighbours
had seen the police officers entering their apartment.
The Government submitted that there was no
evidence that the police officers had entered the applicants’ apartment.
The Court notes that, according to the
applicants, police officers twice unlawfully entered their apartment - first,
around 7 p.m. on 14 August 2001 and second, several hours later when the first
applicant was brought home by the police.
As for the first occasion, the Court notes that
it cannot conclude from the available evidence that the police officers were
able to enter the applicants’ apartment, as it appears that shortly after the
first applicant opened the door the fight broke out on the staircase between
the first and the third applicants and the police officers, and later the
police departed.
As for the police officers returning to the
applicants’ apartment together with the first applicant to collect the drill
and the gas gun, the Court considers that such actions constituted an
interference with the applicants’ right to respect for their home.
The Court notes that in the present case it is
impossible to establish from the available evidence what the legal basis was
for the seizure of the items in question and consequently for the police
entering the applicants’ apartment since no decision in this respect has been
submitted by the parties. Even assuming that the seizure of the gas gun was
aimed at preventing a crime or concerned the seizure of evidence, which is
regulated by the Criminal Procedure Code and could be considered a legitimate
aim, no decision was taken in this respect, either before or after the seizure.
In any event, the Court reiterates that where
States consider it necessary to resort to measures such as searches of
residential premises and seizures in order to obtain evidence of offences it
will assess whether the reasons adduced to justify such measures were relevant
and sufficient and whether the proportionality principle has been adhered to.
The Court will also explore the availability of effective safeguards against
abuse or arbitrariness under domestic law, and will check how those safeguards
operated in the specific case under examination. Elements to be taken into
consideration in this regard include, but are not limited to, the manner and
circumstances in which the order was issued, in particular further evidence
available at that time, as well as the content and scope of the order, having
particular regard to the safeguards taken in order to keep the impact of the
measure within reasonable limits (see Buck v. Germany, no. 41604/98, § 45,
ECHR 2005-IV).
In view of this, and further noting that
criminal proceedings were instituted against the police officers for possible
abuse of power and that there were other circumstances surrounding the events
in question, such as the use of force against the first and third applicants
and their intimidation, the Court considers that no safeguards against abuse
and arbitrariness were available for the applicants. The Court therefore
regards the interference with the applicants’ right to respect for their home
as disproportionate to the aim pursued.
It follows that there has been a violation of Article 8 of the
Convention in respect of all four applicants.
IV. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL
NO. 1 TO THE CONVENTION
The first and third applicants further
complained that the police had seized an electric drill and a gas gun. They relied
on Article 1 of Protocol No. 1, which reads as follows:
“Every natural or legal person is entitled to the peaceful
enjoyment of his possessions. No one shall be deprived of his possessions
except in the public interest and subject to the conditions provided for by law
and by the general principles of international law.
The preceding provisions shall not, however, in any way impair
the right of a State to enforce such laws as it deems necessary to control the
use of property in accordance with the general interest or to secure the
payment of taxes or other contributions or penalties.”
A. Admissibility
1. Parties’ submissions
The Government submitted that the third
applicant had failed to appeal on points of law against the decision of the
Court of Appeal of 6 February 2009, and thus had failed to exhaust
effective domestic remedies in connection with his complaint. The Government
further submitted that the gas gun was returned to the first applicant and he
did not raise his complaint before any relevant State authority.
The first applicant submitted in reply that the
gas gun had been returned to him, however, he had been unable to use it for a
long time. He also asserted that the only way to establish the unlawfulness of
the seizure was to initiate criminal proceedings against the police officers,
which he did.
The third applicant submitted that he had
appealed against the decision of the Chernigiv Regional Court of Appeal of 6
February 2009 (see paragraph 43).
2. Seizure of a gas gun
The Court notes that the first applicant had
complained about the allegedly unlawful seizure of the gun and the criminal
proceedings on the abuse of power following these events are still pending.
There is no evidence that the applicant had a possibility to institute
successful civil proceedings while the criminal case was still pending.
The Court, however, notes that, although there
are no decisions which authorise the seizure of the gun, it appears that it was
seized because the applicant’s licence for its keeping had expired.
Furthermore, the gas gun was returned to the first applicant and he did not
adduce any evidence that he had suffered any damage because of the seizure of
this item. Therefore, there is no indication that this control of the use of
the first applicant’s property breached in any way Article 1 of Protocol No. 1
to the Convention.
The Court considers that this complaint must be
rejected as manifestly ill-founded under Article 35 §§ 3 (a) and 4 of the
Convention.
3. Seizure of the electric drill
121. As regards seizure of the
electric drill, the Court notes that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 (a) of the Convention.
Moreover, the Court considers that, although the drill was apparently not owned
solely by the third applicant and its monetary value is unknown, a dispute
about its keeping provoked events which resulted in serious violations of
Convention provisions. Therefore, the Court cannot conclude that the third
applicant did not suffer a significant disadvantage because of its seizure
(Article 35 § 3 (b)).
The Court further notes that it is not inadmissible on any other grounds. It
must therefore be declared admissible.
B. Merits
123. The
third applicant stated that his father had been forced to return the drill and
that the police officers had had no legal ground to seize the drill regardless
whether he had possessed it lawfully or not. Therefore, the interference with
his right to peaceful enjoyment of property was not justified.
The Government noted that the applicants had
voluntarily returned the drill. Moreover, the courts had later rejected the
third applicant’s claim for return of the drill.
125. The
Court recalls that the first and most important requirement of Article 1 of
Protocol No. 1 is that any interference by a public authority with the peaceful
enjoyment of possessions should be lawful (see Iatridis v. Greece
[GC], cited above, § 58). The requirement of lawfulness, within the meaning of
the Convention, demands compliance with the relevant provisions of domestic law
and compatibility with the rule of law, which includes freedom from
arbitrariness (see Hentrich v. France, judgment of 22 September
1994, Series A no. 296-A, § 42 and Kushoglu v. Bulgaria, no. 48191/99,
§§ 49-62, 10 May 2007).
The Court notes that in the present case the
police officers arrived at the applicants’ house and in the presence of two
witnesses seized an electric drill that was jointly owned by the third
applicant and his former colleagues. The preceding events show that the
applicants did not give the drill voluntarily but rather complied with an order
being intimidated by the police officers’ actions.
Although the third applicant was not the sole
owner of the drill, in the absence of any civil court decision on the matter,
it is unclear what were the legal grounds for its seizure.
128. Having
regard to the above findings under Article 8 of the Convention and to the
conclusions of the national authorities that the police had acted outside its
competence since the conflict between R., O. and the third applicant was of a
civil-law nature (see paragraph 24), and in the absence of any decisions
authorising the seizure, the Court finds that such seizure was unlawful.
It concludes that that there has been a
violation of Article 1 of Protocol No. 1 to the Convention.
V. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
Lastly, the first and third applicants
complained of a violation of Article 18 of the Convention in conjunction with
Articles 3, 5 and 8 of the Convention and Article 1 of Protocol No. 1.
The Court, having carefully considered the remainder
of the applicant’s submissions in the light of all the material in its
possession, finds that, in so far as the matters complained of are within its competence,
they do not disclose any appearance of a violation of the rights and freedoms
set out in the Convention.
It follows that this part of the application
must be declared inadmissible as manifestly ill-founded, pursuant to Article 35
§§ 3 (a) and 4 of the Convention.
VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of
the Convention provides:
“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.”
A. Damage
The first, second, third and fourth applicants
claimed 25,000 euros (EUR), EUR 10,000, EUR 25,000 and EUR 8,000 respectively,
in compensation for non-pecuniary damage, and UAH 5,197.14
in respect of pecuniary damage, which consists of UAH 2,761.33 in medical
expenses incurred by the first applicant in 2001-07, inflation index linked for
the respective years.
The Government maintained that there was no
violation of the second applicant’s rights under Article 3 of the Convention
and no violation of the first and third applicants’ rights under Article 1 of
Protocol No. 1, therefore these claims were to be rejected. As regards the
remainder of the applicants’ just satisfaction claims the Government submitted
that such claims were premature as the investigation at the national level was
still pending and the issues of compensation might be resolved by means of
national proceedings.
The Court considers that the applicants must
have sustained non-pecuniary damage and, deciding on an equitable basis, awards
them in this respect: EUR 12,000 EUR to the first applicant; EUR 6,000 to the
second applicant and EUR 12,000 to the third applicant.
The Court further considers that the finding of
a violation of Article 8 of the Convention constitutes in itself
sufficient just satisfaction for the fourth applicant.
As to the pecuniary damage incurred, the Court
awards the first applicant EUR 284.
B. Costs and expenses
The applicants also claimed EUR 6,860 for costs
and expenses related to their legal representation.
The Government considered that the expenses
claimed by the applicants were not reasonable.
According to the Court’s case-law, an applicant
is entitled to the reimbursement of costs and expenses only in so far as it has
been shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to the
documents in its possession and the above criteria and to the fact that the
applicants were awarded legal aid, the Court considers it reasonable to award
the sum of EUR 4,500 for the proceedings before the Court.
C. Default interest
The Court considers it appropriate that the
default interest rate should be based on the marginal lending rate of the
European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT
1. Declares unanimously the complaints of the
first, second and third applicants under Article 3 of the Convention, the
complaints of the first and third applicants under Article 5 of the Convention,
and the third applicant’s complaint under Article 1 of Protocol No. 1 to the
Convention admissible;
2. Declares by a majority the applicants’
complaint under Article 8 of the Convention admissible;
3. Declares unanimously the remainder
of the application inadmissible;
4. Holds unanimously that there has been a
violation of the substantive limb of Article 3 of the Convention in respect of
the first, second and third applicants;
5. Holds unanimously that there has been a
violation of the procedural limb of Article 3 of the Convention in respect of
the first, second and third applicants;
6. Holds unanimously that there has been a
violation of Article 5 § 1 of the Convention in respect of the first and third
applicants;
7. Holds by six votes to one that there has
been a violation of Article 8 of the Convention;
8. Holds unanimously that there has been a
violation of Article 1 of Protocol No. 1 to the Convention in respect of the
third applicant;
9. Holds unanimously
(a) that the respondent State is to pay the applicants,
within three months of the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention, the following amounts, to be
converted into the national currency of the respondent State at the rate
applicable on the date of settlement:
(i) to Mr Mikhail Petrovich Koval - EUR 284 (two
hundred and eighty-four euros), plus any tax that may be chargeable, in respect
of pecuniary damage;
(ii) to Mr Mikhail Petrovich Koval - EUR 12,000 (twelve
thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary
damage;
(iii) to Mrs Anna Petrovna Koval - EUR 6,000 (six
thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary
damage;
(iv) to Mr Dmitriy Mikhaylovich Brik - EUR 12,000 (twelve
thousand euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage;
(v) EUR 4,500 (four thousand five hundred euros),
plus any tax that may be chargeable to the applicants, in respect of costs and
expenses;
(b) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the above
amounts at a rate equal to the marginal lending rate of the European Central
Bank during the default period plus three percentage points;
10. Holds
unanimously that the finding of a violation of Article 8 of the Convention constitutes
in itself sufficient just satisfaction for any non-pecuniary damage sustained
by the fourth applicant;
11. Dismisses unanimously the remainder of
the applicants’ claim for just satisfaction.
Done in English, and notified in writing on 15 November
2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Dean
Spielmann
Registrar President
In accordance with Article 45 § 2 of the Convention and
Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Paul Lemmens is
annexed to this judgment.
D.S.
C.W.
PARTLY DISSENTING OPINION OF JUDGE LEMMENS
I agree with my colleagues on the main aspects of this case. I
respectfully disagree, however, on the issue of the alleged violation of
Article 8 of the Convention.
The applicants complained of interference with their right to
respect for their home, on two occasions. The majority decided that this
complaint was admissible and well-founded in so far as it related to the second
incident.
I consider that the whole complaint based on Article 8 should
have been declared inadmissible.
As for the first alleged interference, on 14 August 2001 at
around 7 p.m., the majority rightly found that there was not enough evidence to
conclude that the police officers G., D. and F. had actually entered the
apartment (§ 109). I agree with that finding, and would add that since
there is no evidence of any interference, this part of the complaint is
inadmissible.
As for the second alleged interference, on 14 August 2001 at
around 11 p.m. by police officers S. and T., the majority held that the
return of these officers to the applicants’ apartment, together with the first
applicant, in order to collect the drill and the gas gun constituted
interference with the applicants’ right to respect for their home (§ 110). It
is on this point that I disagree. The police officers came to “seize” the drill
and the gas gun, but they did not search the apartment. It is true that they
threatened to search the apartment if the first applicant did not hand over the
two items, but in my opinion this in itself is not sufficient to conclude that
there was actual interference with the applicants’ right to respect for their
home. I do not find any sufficiently convincing elements to conclude that the
police officers entered the applicants’ apartment or that they interfered in
any other way with the inviolability of their home. Since there is in my
opinion not sufficient evidence to conclude that there was any interference, I
would declare this part of the complaint inadmissible too, and a fortiori
conclude that there has been no violation of Article 8 of the Convention.
