FIFTH SECTION     CASE OF KOVAL AND OTHERS v. UKRAINE (Application no. 22429/05)      JUDGMENT   STRASBOURG 15 November 2012  FINAL 15/02/2013 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.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:PROCEDURE1. 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 2005.2. 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.3. 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.4. 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 FACTSI. THE CIRCUMSTANCES OF THE CASE5. 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 investigation6. 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.7. 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).8. 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.9. 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.10. 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.11. 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.12. 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.13. 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.14. 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.15. The first applicant was in hospital between 16 August and 7 September 2001.16. 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”.17. 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.18. 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.19. 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.20. 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.21. 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.22. 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.23. 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.24. 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.25. 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.26. 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.27. 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.28. 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.29. 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”.30. On 2 October 2003 these proceedings were again terminated for lack of evidence of a crime in the police officers’ actions.31. 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.32. 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.33. On 30 June 2004 the Chernigiv Regional Prosecutor’s Office quashed this decision since “the circumstances of the case had not been properly investigated”.34. 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.35. 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.36. 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.37. Subsequently the investigation was resumed. So. was questioned and said that he had not seen the applicants being beaten up.38. 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.39. 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 applicant40. 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”.41. On 19 October 2005 A. instituted defamation proceedings against the first applicant and the television company.42. 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.43. On 14 March 2006 the Chernigiv Regional Court of Appeal upheld this judgment.C. Civil proceedings on return of property44. 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 LAWA. Code of Criminal Procedure, 196045. 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, 200347. 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 LAWI. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION48. 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. Admissibility1. The first and third applicants’ complaints49. 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.50. 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).51. 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.52. 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’ submissions53. 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 2001.54. 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 Convention55.

Outcome for Article 8: violation