KIN v. UKRAINE - 46990/07 (Judgment : Article 3 - Prohibition of torture : Fourth Section Committee) [2018] ECHR 1032 (18 December 2018)

JUDGMENT STRASBOURG 18 December 2018 This judgment is final but it may be subject to editorial revision. In the case of Kin v. Ukraine, The European Court of Human Rights (Fourth Section), sitting as a Committee composed of: Paulo Pinto de Albuquerque, President, Egidijus Kūris, Iulia Antoanella Motoc, judges, and Andrea Tamietti, Deputy Section Registrar, Having deliberated in private on 27 November 2018, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 46990/07 ) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") by a Ukrainian national, Ms Vira Maksymivna Kin ("the applicant"), on 17 October 2007. . The applicant, who had been granted legal aid, was represented by Mr M. Tarakhkalo and Ms A. Salyuk, lawyers practising in Kyiv. The Ukrainian Government ("the Government") were represented by their Agent, most recently Mr I. Lishchyna. 3. On 23 August 2016 the Government were given notice of the complaints under Article 3, Article 5 § 1 and Article 8 of the Convention (in relation to the events of 29 May 2000) and of the complaint under Article 6 § 1 of the Convention (concerning the length of the criminal proceedings against the applicant). The remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. 4. The Government objected to the examination of the application by a Committee, but provided no reasons. After having considered the Government's objection, the Court rejects it (see, for similar approach, Nedilenko and others v. Ukraine [Committee], no. 43104/04 , § 5, 18 January 2018; Lada v. Ukraine [Committee], no. 32392/07 , § 4, 6 February 2018; and Geletey v. Ukraine [Committee], no. 23040/07 , § 4, 24 April 2018). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1956 and lives in Dubno. 6. The applicant was the principal of a private school in the town of Dubno, in the Rivne Region. A. Criminal proceedings against the applicant and the events of 29 May 2000 . On 30 March 2000 criminal proceedings were initiated against the applicant for failure to comply with a court decision ordering the reinstatement of a teacher at the private school. . According to the applicant, at about 9.00 a.m. on 29 May 2000 officers from Dubno police broke down the front door of the applicant's house. Inside the house, an investigator from the Dubno inter-district prosecutor's office ordered the applicant to go to his office for questioning. When the applicant refused, the investigator asked the police officers to ensure her compulsory appearance for questioning. The police officers allegedly beat the applicant, twisted her arms behind her back and forced her out of the house barefoot. They placed her in a police car and took her to the office of the investigator. At about 1 p.m. on 29 May 2000 the applicant was released. 9. On the next day, 30 May 2000, the applicant was examined by a doctor, who noted that there were injuries on her shoulders. 10. On 9 April 2001 the Dubno inter-district prosecutor's office discontinued the investigation into the applicant's criminal case, having regard to the insignificance of her offence. 11. On 2 August 2001 the Dubno Town Court quashed the decision of 9 April 2001 as unfounded and ordered that there be further investigation. 12. On 14 August 2001 the investigation was completed and the case file was referred to the Dubno Town Court for trial. 13. On 30 January 2004 and 13 March 2006 the Dubno Town Court issued judgments in the applicant's case, which were quashed as unfounded by the Rivne Regional Court of Appeal. 14. On 30 January 2007 the Dubno Town Court convicted the applicant of failure to comply with a court decision, and decided that it was appropriate to punish her with a fine. However, ultimately it released the applicant from the punishment, as the statute of limitation had expired. 15. On 17 April 2007 the Rivne Regional Court of Appeal dismissed an appeal by the applicant and upheld the judgment of 30 January 2007. . On 13 November 2007 the Supreme Court refused to examine an appeal by the applicant on points of law, on the grounds that she had failed to comply with procedural rules when submitting it. B. Domestic proceedings concerning the applicant's alleged ill-�treatment and related issues 1. Request for a criminal investigation into the events of 29 May 2000 17. On 2 June 2000 the applicant complained to the Rivne regional prosecutor's office regarding the events of 29 May 2000 (see paragraph 8 above). She was examined by a medical expert, who found that she had sustained five bruises to her shoulders and had injured her left shoulder ligaments. The expert stated that the injuries had been caused by blunt solid objects; they could have been sustained in the circumstances described by the applicant. . On 30 June 2000 the Rivne regional prosecutor's office, having conducted a pre-investigation inquiry, refused to initiate criminal proceedings against the police officers because of the absence of the constituent elements of a criminal offence. . On 20 March 2001, following a complaint by the applicant, the Prosecutor General's Office reversed the decision of 30 June 2000 as unsubstantiated, and ordered an additional inquiry. The applicant was not informed of the decision taken within the additional inquiry. In 2016 the Office of the Government Agent was informed that the file on those inquiries had been destroyed, along with other files relating to the same period, after the expiry of the statutory period for keeping such records. 2. Claim for damages in relation to the events of 29 May 2000 . On 29 May 2003 the applicant lodged a civil claim with the Dubno Town Court, seeking damages for the violation of the inviolability of her home and her unlawful arrest and ill-treatment on 29 May 2000. . On 9 July 2007 the Dubno Town Court found that on 29 May 2000 the applicant had been ill-treated and unlawfully taken from her home to the investigator's office. The court found that the authorities had acted unlawfully and that they had violated her right to the inviolability of her home, right to liberty and right to respect for human dignity. The court awarded the applicant 500 Ukrainian hryvnias (UAH - approximately 73 euros (EUR) at the relevant time) in respect of non-�pecuniary damage. 22. On 26 May 2008 the Lviv Administrative Court of Appeal upheld the judgment of 9 July 2007. 23. The applicant appealed on points of law, contesting the amount of the award. 24. On 8 May 2009 the Higher Administrative Court found that the appeal had not been prepared in a proper way. That court set a time-limit within which the applicant could rectify shortcomings in her appeal on points of law. . On 13 July 2009 the Higher Administrative Court returned the applicant's appeal without examining it on the merits, after finding that she had failed to comply with the procedural requirements for submitting appeals. II. RELEVANT DOMESTIC LAW 26. The relevant provisions of domestic law can be found in the judgment in the case of Osypenko v. Ukraine (no. 4634/04 , §§ 33-36, 9 November 2010). THE LAW I. ALLEGED VIOLATION OF ARTICLE 3, ARTICLE 5 § 1 AND ARTICLE 8 OF THE CONVENTION 27. The applicant complained that during the events of 29 May 2000: (i) she had been ill-treated and humiliated by police, in breach of Article 3; (ii) she had been unlawfully deprived of her liberty between 9.00 a.m. and 1 p.m. on that day, which constituted a violation of Article 5 § 1; and (iii) her right to respect for her home under Article 8 of the Convention had been infringed. 28. The above Articles of the Convention, in so far as relevant, provide as follows: Article 3 "No one shall be subjected to torture or to inhuman or degrading treatment or punishment." Article 5 "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: ... (b) the lawful arrest or detention of a person for non- compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law; (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ..." Article 8 "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 1. The parties' submissions 29. The Government submitted that the applicant had lost her victim status in respect of the above complaints because the domestic courts had fully and expressly acknowledged the violations of her rights and had afforded her sufficient compensation. The Government further submitted that if the applicant had considered that the award was insufficient, she should properly have raised that issue before the Higher Administrative Court. However, she had failed to do so, given that her appeal on points of law had not been examined on the merits in view of her non-compliance with procedural formalities (see paragraph 25 above). In these circumstances, the applicant had not exhausted domestic remedies. 30. The applicant argued that she had retained the status of a victim in respect of the above complaints because, apart from the violations being acknowledged, she had not been provided with adequate redress. Notably, no effective investigation into her allegations of ill-treatment had been conducted, and the compensation award had been too small to provide redress for her suffering. The applicant further contended that she could not be blamed for having failed to exhaust domestic remedies in respect of her allegations regarding the damages awarded being insufficient: despite her non-compliance with the procedural formalities, the Higher Administrative Court should have provided her with additional time to allow her to rectify all the procedural shortcomings in her appeal on points of law. 2. The Court's assessment 31. The Court reiterates that it falls first and foremost to the national authorities to redress any violation of the Convention (see, inter alia , Siliadin v. France , no. 73316/01 , § 61, ECHR 2005-VII). A decision or measure that is favourable for an applicant is not in principle sufficient to deprive him of his status as a "victim" for the purposes of Article 34 of the Convention unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for the breach of the Convention (see, inter alia , Dalban v. Romania [GC], no. 28114/95 , § 44, ECHR 1999-VI, and Siliadin , cited above, § 62). 32. The Court accepts the Government's contention that the domestic courts acknowledged in substance the violations of the Convention alleged (see paragraph 21 above). However, the question remains as to whether the authorities afforded the applicant redress to put right those violations. 33. According to the Court's case-law, redress should be appropriate and sufficient for the purpose of remedying a breach of a Convention right at national level. The Court has generally considered that this depends on the circumstances of the case, and regard should be had, in particular, to the nature of the Convention violation at stake (see Kurić and Others v. Slovenia [GC], no. 26828/06 , § 260, ECHR 2012 (extracts)). In cases of willful ill-treatment, a breach of Article 3 of the Convention cannot be remedied only by an award of compensation to the victim. This is so because, if authorities could confine their reaction to incidents of willful ill-�treatment by State agents to the mere payment of compensation, while not doing enough to prosecute and punish those responsible, it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity, and the general legal prohibition of torture and inhuman and degrading treatment, despite its fundamental importance, would be ineffective in practice (see Jeronovičs v. Latvia [GC], no. 44898/10 , § 105, ECHR 2016). 34. The Court notes that the applicant initially pursued the matter within the framework of criminal proceedings. The case file indicates that in 2000 and 2001 her allegations were examined by way of pre-investigation inquiries, without a full investigation being opened (see paragraphs 18 and 19 above). The Court has found that this preliminary investigative procedure does not comply with the principles of an effective remedy, because an inquiring officer can take only a limited number of procedural steps within that procedure, at a point where victims have no formal status and are therefore excluded from participating effectively in the procedure (see Skorokhodov v. Ukraine , no. 56697/09 , § 34, 14 November 2013, with further references). Indeed, nothing suggests that such inquiries were effective in the present case. The applicant was not even informed of the outcome of those inquiries, while the Government replied that no information could be provided on those inquiries, given that the relevant file had been destroyed after the expiry of the statutory period for keeping such records (see paragraph 19 above). The Government did not inform the Court about any further investigative procedures employed by the domestic authorities to scrutinise the applicant's allegations. In that regard, it is remarkable that the domestic courts, when subsequently dealing with the applicant's civil claim (see paragraphs 20-25 above), did not mention any results of the criminal-�law inquiries or investigations. Overall, the material available to the Court does not allow the Court to conclude that there had been any effective investigation of the alleged facts and that the State has done enough to prosecute and punish those responsible. 35. As regards the civil proceedings, the domestic courts awarded the applicant damages for the violations found (see paragraph 21 above). The applicant failed to raise before the Higher Administrative Court the question of the sufficiency of the awarded damages (see paragraph 25 above). Nothing suggests that the applicant had been unduly restricted in her access to that judicial authority. Accordingly, it is not open for the applicant to challenge at international level the sufficiency of the civil award (see, mutatis mutandis , Akopyan v. Ukraine , no. 12317/06 , § 93, 5 June 2014). However, even assuming that the amount was sufficient, the question remains as to whether or not the civil redress was provided to the applicant in an effective manner. According to the Court's case-law, redress for a Convention violation should be provided by a remedy which itself remains effective, adequate and accessible. In particular, excessive delays in an action for compensation will render the remedy ineffective, with the consequence that the applicant retains victim status (see, for example, Gäfgen v. Germany [GC], no. 22978/05 , § 127, ECHR 2010, in the context of Article 3, and Akopyan , cited above, §§ 97 and 101, in the context of Article 3, Article 5 § 1 and Article 8 of the Convention). 36. In the present case, the applicant lodged her claim for damages on 29 May 2003 (see paragraph 20 above) and the proceedings lasted until 13 July 2009 (see paragraph 25 above), in other words for more than six years. There is nothing in the file to suggest that such a long period was justified by the circumstances of the case. The Court therefore finds that the delays were excessive, with the result that civil redress was not provided in an effective manner. 37. In view of the above considerations, namely the absence of any effective criminal investigation of the applicant's allegations and the failure of the authorities to provide a civil redress in a timely manner, the Court finds that the applicant was not provided with adequate redress in relation to her complaints under Article 3, Article 5 § 1 and Article 8 of the Convention, and that she may still claim to be a victim in that regard. 38. Furthermore, having initially pursued her complaints in the framework of criminal proceedings, which turned out ineffective, and subsequently by way of an action for damages, which was examined by the domestic courts for an excessively long period of time, the applicant sufficiently aired her complaints before the domestic authorities to the point when she was no longer obliged to pursue the domestic remedies (see, mutatis mutandis , Akopyan , cited above, § 98). The Court finds, in the circumstances, that the applicant complied with the obligation to exhaust domestic remedies provided for in Article 35 § 1 of the Convention. 39. The Government's corresponding objections are therefore dismissed. 40. The Court notes that the applicant's complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. B. Merits 41. The applicant insisted that there had been violations of her rights under Article 3, Article 5 § 1 and Article 8 of the Convention. 42. The Government did not provide any comments on the merits. 43. The Court notes that the national courts found that during the events on 29 May 2000 the applicant had been ill-treated by law-enforcement officers and unlawfully taken from her home to the investigator's office. The domestic courts acknowledged that the authorities had acted unlawfully, and that they had violated the applicant's right to respect for human dignity, right to liberty and right to the inviolability of her home (see paragraph 21 above). The Court sees no reason to depart from those conclusions of the national courts. 44. There has accordingly been a violation of Article 3, Article 5 § 1 and Article 8 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 45. The applicant complained under Article 6 § 1 of the Convention that the length of the criminal proceedings against her had been excessive. 46. Article 6 § 1 of the Convention, in so far as relevant, reads as follows: Article 6 § 1 "1. In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ..." A. Admissibility 47. 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 48. The applicant contended that her case was not particularly complex and that the delays had been imputable to the State authorities. 49. The Government submitted that the applicant herself had contributed to the overall length of the proceedings. 50. The Court notes that the proceedings at stake were initiated on 30 March 2000 (see paragraph 7 above) and ended on 13 November 2007 (see paragraph 16 above), when the Supreme Court refused to examine the applicant's appeal on points of law. They thus lasted more than seven years and seven months before thee degrees of jurisdiction. 51. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities, and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96 , § 43, ECHR 2000-�VII). 52. In the leading case of Merit v. Ukraine, (no. 66561/01 , 30 March 2004), the Court found a violation in respect of issues similar to those in the present case. 53. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion as to the merits of this complaint. Having regard to its case-law on the subject, the Court considers that, in the instant case, the length of the proceedings was excessive and failed to meet the "reasonable time" requirement. 54. There has accordingly been a violation of Article 6 § 1 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 55. 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, costs and expenses 56. The applicant claimed 11,114.96 Ukrainian hryvnias (UAH - approximately 380 euros (EUR) at the relevant time) in respect of pecuniary damage, EUR 100,000 euros (EUR) in respect of non-�pecuniary damage, and EUR 3,750 in respect of legal fees. 57. The Government submitted that the claim in respect of pecuniary damage was unsubstantiated, except for the part of the claim relating to the postal expenses incurred in the proceedings before the Court. Those expenses were supported by evidence only as to the amount of UAH 1,412.09 (approximately EUR 48 at the relevant time). The Government left that part of the claim to the Court's discretion. They further submitted that the claim in respect of non-pecuniary damage was excessive and groundless. The claim for legal fees was likewise unfounded and had to be rejected. 58. The Court notes there is no substantiation of the pecuniary damage sustained as a result of the violations found, and it makes no award under that head. 59. As regards the claim in respect of non-pecuniary damage, the Court considers that the applicant must have suffered anguish and distress on account of the violation found in the present case. Ruling on an equitable basis, the Court awards the applicant EUR 11,700 in respect of non-�pecuniary damage. 60. Lastly, in respect of the claim for legal fees, the Court reiterates that according to its case-law, an applicant is entitled to the reimbursement of such 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, the Court considers it reasonable to award the sum of EUR 1,000 for legal fees of Mr M. Tarakhkalo, in addition to the legal aid granted (see paragraph 2 above). Moreover, the applicant is entitled to receive EUR 48 in respect of postal expenses. This amount is to be paid directly into the bank account of the applicant's representative, Mr M. Tarakhkalo, as requested by the applicant (see, for example, Khlaifia and Others v. Italy [GC], no. 16483/12 , § 288, 15 December 2016). B. Default interest 61. 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, UNANIMOUSLY, 1. Declares the application admissible; 2. Holds that there have been violations of Article 3, Article 5 § 1 and Article 8 of the Convention; 3. Holds that there has been a violation of Article 6 § 1 of the Convention; 4. Holds (a) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i) EUR 11,700 (eleven thousand seven hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 1,048 (one thousand forty-eight euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, this amount to be paid into the bank account of her representative, Mr M. Tarakhkalo; (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; 5. Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 18 December 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Andrea Tamietti Paulo Pinto de Albuquerque Deputy Registrar President BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII