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:

PROCEDURE

1 . 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 Mr s 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 FACTS

I. THE CIRCUMSTANCES OF THE CASE

5 . 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

6 . 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 h ospital 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 Chernig iv 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 seiz ing 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 applicant

40 . 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 property

44 . 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

45 . 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 d etention of a suspect shall not last f or 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

47 . 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

48 . 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

49 . 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 , 2 4 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 ’ submissions

53 . 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.

(b) Admissibility of the second applicant ’ s complaint under the substantive limb of Article 3 of the Convention

55 . 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.

57 . 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 bringin g 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 c an not be reproached for waiting too long before lodging her complaint before this Court since it appears that her complaint w as closely intertwined with complaints of the other applicants and all complaints were investigated by the national bodies together (see paragraphs 23 and 28) .

58 . 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

60 . 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.

61 . 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.

62 . The Court notes that the second applica n t ’ 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

63 . 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.

64 . 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.

65 . 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.

67 . 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 applican ts 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 ) .

68 . 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.

69 . T he 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.

(b) The second applicant

71 . 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.

72 . 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.

74 . 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.

75 . 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.

76 . 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 th reatened 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.

77 . 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.

2. Alleged violation of the procedural limb of Article 3 of the Convention

(a) The first and third applicants

79 . The applicants reiterated that the investigation which followed their complaints had not been effective.

80 . 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.

81 . 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 p unishment 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 ).

83 . 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 preventi o n 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 ).

84 . All of the above elements are sufficient to enable the Court to conclude that there has been a violation of t he 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

85 . 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.

86 . 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.

87 . The Court reiterates its previous conclusions ( see paragraph s 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.

88 . 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

89 . 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

90 . 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 decision s 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.

91 . 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”

92 . 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.

93 . 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.

94 . 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).

95 . 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).

96 . 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

97 . 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.

98 . 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 u nder a different procedure (see paragraph 90).

99 . 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).

100 . 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.

101 . 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.

102 . 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 ).

103 . 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

104 . 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

105 . 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

106 . The applicants maintained that their neighbours had seen the police officers entering their apartment.

107 . The Government submitted that there was no evidence that the police officers had entered the applicants ’ apartment.

108 . 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.

109 . 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.

111 . 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.

112 . 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 ).

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

114 . 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

115 . The Government submitted that the third applicant had failed to appeal on points of law against the decis ion 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.

116 . 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.

117 . 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

118 . 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.

119 . 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.

120 . 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

122 . 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.

124 . 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.

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.

129 . 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

130 . 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.

131 . The Court, h aving 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.

132 . It follows that this part of the application must be declared inadmissible as manifestly ill-fou nded, pursuant to Article 35 §§ 3 (a) a nd 4 of the Convention .

VI . APPLICATION OF ARTICLE 41 OF THE CONVENTION

133 . 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

134 . 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 [1] 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 .

135 . 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.

136 . The Court considers that the applicant s 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.

137 . 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.

138 . As to the pecuniary damage incurred, the Court awards the first applicant EUR 284.

B. Costs and expenses

139 . The applicants also claimed EUR 6,860 for costs and expenses related to their legal representation .

140 . The Government considered that the expenses claimed by the applicants were not reasonable.

141 . 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 t he proceedings before the Court .

C. Default interest

142 . 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 complaint s 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;

(ii i ) 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.

[1] Around EUR 456.18