FIFTH SECTION

DECISION

Application no. 63961/13 Nataliya Mykhaylivna ROMANOVA against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 8 December 2022 as a Committee composed of:

Arnfinn Bårdsen , President , Kateřina Šimáčková, Mykola Gnatovskyy , judges , and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 63961/13) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 27 September 2013 by an Ukrainian national, Ms Nataliya Mykhaylivna Romanova, who was born in 1980 and lives in Lysychansk (“the applicant”) who was represented by Mr Y.I. Kardash , residing in Lysychansk;

the decision to give notice of the application to the Ukrainian Government (“the Government”), represented by their Agent, Mr Ivan Lyshchyna, of the Ministry of Justice;

the decision to adjourn the case;

the observations submitted by the respondent Government and the observations in reply submitted by the applicant;

the comments submitted by the Forum for Human Rights (FORUM), an International human rights NGO, based in Prague, the Czech Republic, who was granted leave to intervene by the President of the Section;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The application concerns the applicant’s complaint that her son was subject to psychological pressure during his questioning by a police officer, and that there were no effective domestic remedies in respect of that complaint. She relied on Article 13 of the Convention and Article 3 of the United Nations (UN) Convention on the Rights of the Child.

2. The applicant was married to R. and they had a son, Y. , who was born in 2000. The family lived in an apartment block in Lysychansk.

3. On 21 May 2012 R. had a fight with his neighbour K. in the presence of Y. On an unspecified date the police instituted criminal proceedings against R. for hooliganism. The investigation was led by investigator G.

4. The applicant and R. asked investigator G. to question their son Y. as a witness. G. agreed.

5 . On 18 June 2012, the applicant, R. and Y. arrived at the police station. They brought Ko., Y.’s teacher, whom the applicant had asked to be present during Y.’s questioning by G.

6. At the entrance hall of the police station the applicant, Y. and Ko. were met by G., who said that he would question Y. without his mother being present. The applicant secretly activated an audio-recording application on her mobile phone and put the phone into her son’s pocket. G. then walked with Y. and Ko. to his office. G. and Ko. were not aware that Y. had an audio-recording device on him.

7. The applicant provided the Court with the audio-recording of the interview which she had obtained in the manner described above.

8. G. questioned Y. for about three hours and Y. was crying most of this time.

9. G. repeatedly said that he did not believe Y. because his statements were inconsistent and differed from those of other witnesses present at the scene, including Y.’s father. On one occasion G. said that Y. should not “pull the wool over his eyes”, and that Y. was “blowing smoke” instead of telling him what had really happened. The investigator also said that he would continue questioning Y. “until night-time”, because G. had to know the truth. On one occasion G. said: “Nobody is beating you; nobody is yelling at you. Do not cry, you are a grown boy. I have a daughter the same age as you. She does not cry when I talk to her”. On another occasion G. said: “I can see that you are worse than a girl; you start crying right away”.

10 . On several occasions Ko. intervened and said that, in her opinion, Y.’s statements sounded more plausible than those of other witnesses. On one occasion Ko. said to G.: “Can’t you see that all those [other eyewitnesses] are against this family?” G. replied: “They are giving statements against this family”. Ko. also asked Y. questions concerning the issues which were of interest to G.

11. After the questioning was over, the applicant took the mobile phone from her son’s pocket and listened to the audio-recording of the questioning.

12. On 3 September 2012 the applicant complained to the Lysychansk Prosecutor’s Office that G. had harassed and intimidated her son during his questioning and had pressured him into giving false statements, in particular, G. wanted Y. to say that he had seen that his father had started the fight with K. The applicant supplemented her complaint with a copy of the audio ‑ recording of the questioning.

13. On 7 February 2013 the Lysychansk Prosecutor’s Office instituted criminal proceedings with a view to investigating a possible abuse of authority by G. during the questioning of Y. In the course of the investigation the prosecutors questioned G., Y., and Ko. They also questioned B., a police officer who shared the office with G. and had been present during a part of the questioning.

14. On 12 March 2013 the prosecutor’s office closed the proceedings for lack of evidence that a crime had been committed.

15. On 22 April 2013 the Lysychansk City Court rejected the applicant’s appeal against the decision of 12 March 2013.

16. On 8 May 2013 the Luhansk Regional Court of Appeal upheld that decision. It noted, in particular, that Y. had not suffered damage on such a scale as to warrant the criminal prosecution of G. As regards the audio-recording, it had been made by an unauthorised person, illicitly and in breach of the procedure prescribed by the applicable law. It was therefore devoid of evidential value.

17. On 20 August 2012 an indictment was filed against R. and the criminal case was sent to the Lysychansk City Court for consideration. That court remitted the case to the police for further investigation on several occasions.

18. On 15 May 2014 the case was sent to the investigative department of the Luhansk Regional Police Station in connection with the complaint which the applicant had lodged against G.

19. On 24 October 2014 the Ministry of Internal Affairs of Ukraine disbanded the Luhansk Regional Police Office because the territory where it was located was no longer under the control of the Ukrainian authorities.

20. It is unknown what happened in the criminal case against R. thereafter.

21. The applicant complains that her son Y. had been subjected to unlawful psychological pressure and disproportionate emotional distress during his questioning, and that there were no effective domestic remedies in respect of that complaint. She relied on Article 13 of the Convention and Article 3 of the United Nations (UN) Convention on the Rights of the Child.

22 . On 10 October 2020 Y. informed the Court that he had reached the age of majority and requested that it correspond with him instead of his mother, who had acted before the Court on his behalf.

THE COURT’S ASSESSMENT

23. Being the master of the characterisation to be given in law to the facts of the case (see Bouyid v. Belgium [GC], no. 23380/09, § 55, ECHR 2015), the Court finds it appropriate to examine the applicant’s complaint that Y. was subject to unlawful psychological pressure under Article 8 of the Convention. The complaint concerning the lack of effective domestic remedy falls to be examined under Article 13 of the Convention.

24. The Government submitted that the applicant could not be considered a victim of the situation complained of and that her application was thus incompatible ratione personae with the provisions of the Convention. They also argued that, even assuming that the applicant had standing in the present case, she had not instituted civil proceedings against G., and for that reason she had not exhausted the domestic remedies available to her. In the alternative, the Government stated, referring to the findings of the domestic authorities, that the applicant’s claims were manifestly ill-founded. Referring to the letter of Y. (see paragraph 22 above), they added that he could not be considered an applicant in the present case, because his mother indicated herself as the applicant in the application form. Alternatively, they stated that Y. was not precluded from raising his complaints regarding his questioning on his own behalf earlier. As he did so only on 10 October 2020, his complaints must be rejected as falling outside the six-month time-limit.

25. The third party pointed out that the main legal issue raised by the application was whether the questioning of Y. was compatible with the basic principles of child-friendly justice, including taking into consideration the best interests of the child, providing for reasonable accommodation and minimising the risk of secondary victimisation. The third party also provided an overview of the international standards relating to child-friendly justice, including the UN Guidelines on Justice in Matters Involving Child Victims and Witnesses of Crime; the UN model law on Justice in Matters involving Child Victims and Witnesses of Crime; General comment No. 12 of the UN Committee on the Rights of the Child; the Concluding Observations on Ukraine of the UN Committee on the Rights of the Child (21 April 2011, CRC/C/UKR/CO/3-4, § 87); the Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice; and Directive 2012/29/EU of the European Parliament and the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime. The third party also referred to the legislation of Slovakia, the Czech Republic and Poland concerning child-friendly justice.

26. The Court notes that the Government’s objections regarding the applicant’s lack of locus standi should be dismissed having regard to the Court’s case-law on the matter (see, mutatis mutandis , Blyudik v. Russia , no. 46401/08, §§ 41-44, 25 June 2019).

27. The Court has previously held, in various contexts, that the concept of private life includes a person’s physical and psychological integrity (see for example, Pranjić-M-Lukić v. Bosnia and Herzegovina , no. 4938/16, § 63, 2 June 2020). The Court reiterates that it has previously found that under certain circumstances, the questioning of a person who has witnessed a crime can reach the threshold of severity necessary for Article 8 to apply and can constitute a violation of that provision. For example, in Y. v. Slovenia (no. 41107/10, ECHR 2015 (extracts)), the Court found that the form and the content of the questions, comments and “offensive insinuations” made during the questioning of a victim of a sexual assault had been aimed at intimidating and humiliating her rather than establishing the facts of the case and ensuring the right of the accused to mount a defence.

28. The Court reiterates that, for an issue to arise under Article 8 of the Convention, the impugned situation affecting an applicant’s private life must reach a certain threshold of severity or seriousness. Whether or not that level of seriousness was attained will depend on the circumstances of a particular case. Once a measure is found to have seriously affected the applicant’s private life, that conclusion means that the complaint is compatible ratione materiae with the Convention and an issue relating to the right to respect for private life arises. Indeed, the question of applicability of Article 8 and the existence of an interference with the right to respect for private life are often inextricably linked (see, mutatis mutandis , Denisov v. Ukraine [GC], no. 76639/11, § 92 ‑ 93 and 110-114, 25 September 2018). On the other hand, if the requisite level of seriousness is not attained, the complaint will be declared inadmissible as incompatible ratione materiae with the Convention.

29. The Court will thus proceed of its own motion to determine whether in the present case the impugned situation affecting Y.’s private life attained the requisite level of seriousness under Article 8 of the Convention (see, for instance, Demir and Baykara v. Turkey [GC], no. 34503/97, § 58, ECHR 2008).

30. In the Court’s view, the facts of the present case differ significantly from those in Y. v Slovenia (cited above). To begin with, in the present case, Y. was questioned by the investigator at the request of his own parents. During the questioning Y. was accompanied by his teacher, who had been designated by Y.’s mother (see paragraphs 5 and 10 above). The investigator’s questions were apparently aimed at finding out whether Y. was telling him what he had actually heard and seen during the events in question. Because Y.’s statements partly contradicted those of other witnesses, it was reasonable for the investigator to assume that Y. was intentionally or unintentionally dissimulating the truth. The colloquial language which the investigator used on several occasions was clearly not offensive enough to reach the level of severity necessary for Article 8 to apply. The Court does not consider that the fact that Y. was crying during the questioning is in itself sufficient to conclude that the necessary level of severity was reached. In this context the Court recalls that Y. was questioned about a traumatic event during which both he and his father had suffered bodily injuries and also by the fact that Y. was giving statements in the framework of criminal proceedings against his father and those statements could potentially have been used by the authorities against his father.

31. In view of the above, the Court considers that the situation in question did not attain the requisite level of seriousness for Article 8 to apply.

32. As regards the complaint under Article 13 of the Convention, the Court reiterates that Article 13 has no independent existence; it merely complements the other substantive clauses of the Convention and its Protocols (see Zavoloka v. Latvia , no. 58447/00, § 35 (a), 7 July 2009). It can only be applied in combination with, or in the light of, one or more Articles of the Convention or the Protocols thereto of which a violation has been alleged. To rely on Article 13 the applicant must also have an arguable claim under another Convention provision. Since in the present case the applicant’s complaint under Article 8 is incompatible ratione materiae with the provisions of the Convention, the complaint under Article 13 must be declared inadmissible as manifestly ill-founded.

33. In view of the above findings, the Court does not consider it necessary to examine the remainder of the objections raised by the Government.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 12 January 2023.

Martina Keller Arnfinn BÃ¥rdsen Deputy Registrar President