Communicated on 11 January 2016

FIFTH SECTION

Application no 63961/13 Nataliya Mykhaylivna ROMANOVA against Ukraine lodged on 27 September 2013

STATEMENT OF FACTS

The applicant, Ms Nataliya Mykhaylivna Romanova, is a Ukrainian national who was born in 1980 and lives in Lysychansk. She lodged the present application on behalf of her minor son, Y.R., born in 2001.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 21 May 2012 Y.K., the applicant ’ s neighbour, complained to the police that O.R. (the applicant ’ s husband and Y.R. ’ s father) had beaten and injured him on that day.

On an unspecified date the police instituted criminal proceedings against O.R. in relation to hooliganism. When questioned within the framework of those proceedings, O.R. stated that Y.K. had attacked him at the entrance to his flat and that he had merely acted in self-defence. M.P., another neighbour, had intervened on Y.K. ’ s behalf and had beaten O.R. and his eleven-year-old son Y.R. (who was attempting to protect his father) with his wooden cane.

According to the forensic expert assessments carried out in June 2012, Y.K. and O.R. were diagnosed as having abrasions, haemorrhages and other injuries which, taken as a whole, were classified as minor physical injuries not resulting in any permanent damage. The applicant ’ s son was found to have sustained a head injury, concussion and a facial haematoma, his injuries being classified as minor physical injuries resulting in some short-term damage.

On 18 June 2012 the applicant ’ s son was invited to a witness interview which related to the criminal proceedings against his father. O.K. (the applicant ’ s son ’ s former teacher) was invited to be present at the questioning. The applicant, who accompanied her son to the police station, was not allowed to be present during his questioning. Before leaving her son, she secretly turned on a voice-recording application on his mobile telephone (which remained in his pocket), to obtain a record of his interview with the police investigator. After an interview with police officer L.G., which lasted some two and a half hours and took place in the presence of O.K., the applicant ’ s son exited the office in tears and in a state of profound emotional distress.

On 3 September 2012 the applicant complained to the Lysychansk Prosecutor ’ s Office that L.G. had harassed and intimidated her son during his questioning and had pressurised him into saying that his father had started the fight on 21 May 2012. In particular, as indicated by her son ’ s personal account and the audio recording of the interview on his mobile telephone, L.G. had frequently interrupted him while he was talking about what he remembered about the fight. During his interventions, he had stated – rudely and using inappropriate language – that the boy was lying and that his statements were at odds with other material they had on file. L.G. had also advised the boy that the questioning would last until he clearly admitted that his father had started the fight and that, unless he did so, he would be reported to his school as a liar and an “ill-bred boy”. The applicant supplemented her complaint with a copy of the audio recording of the questioning made on her son ’ s mobile telephone.

On 7 February 2013 the Lysychansk Prosecutor ’ s Office instituted criminal proceedings, with a view to investigating a possible abuse of authority by L.G. during the applicant ’ s son ’ s questioning.

On 12 March 2013 the prosecutor ’ s office closed the proceedings for want of evidence that a crime had been committed. It was noted in the decision that, according to L.G. ’ s written report on the applicant ’ s son ’ s questioning, signed by the applicant ’ s son and O.K., the interview had started at 4.35 p.m. and had ended at 6.55 p.m. There was nothing in the report which indicated that L.G. might have intimidated, threatened or harassed the boy or pressurised him into modifying his statements. As regards the audio recording of the questioning made on the applicant ’ s son ’ s mobile telephone, it could not be examined as evidence, as it had been made by an unauthorised person and in breach of the procedure governing covert data collection operations. As regards other sources of evidence, in particular, the interviews with the applicant ’ s son, L.G. and O.K., they did not give rise to a suspicion that L.G. had abused his authority and had committed a crime during the applicant ’ s son ’ s questioning.

The prosecutor ’ s office ’ s decision included summaries of the statements given by the applicant ’ s son, L.G. and O.K. during their interviews in connection with the aforementioned proceedings. They indicate that the boy ’ s statements were similar to those of the applicant. L.G., for his part, acknowledged that the boy had been crying during the questioning and that he had been interrupting him as he talked, because he had the impression that the boy was lying and reciting a text which he had memorised, rather than recounting his own recollections. However, he denied making any intimidating remarks or using inappropriate language, or resorting to threats or pressure with a view to soliciting any particular statements from the applicant ’ s son. In his view, he had only reminded the boy that he should tell the truth, and had attempted to calm him down when he had burst into tears. In her interview, O.K. confirmed that the applicant ’ s son had been distressed and crying during his questioning. She also confirmed that L.G. had interrupted him on a number of occasions, had accused him of not being genuine, had informed him that his factual account was at odds with other evidence, and had warned him that his school would be notified if it turned out that he was lying. However, in her view, the boy ’ s distress might not necessarily have been caused by L.G. ’ s conduct. Having taught him, she was of the opinion that he was generally an emotionally vulnerable child, who would burst into tears easily in all kinds of situations. He might have been particularly upset during the interview, as it concerned a traumatic event in which he had been involved.

The applicant appealed to the Lysychansk City Court against the decision to close the proceedings, complaining that the investigation had failed to establish all the relevant facts. In particular, the factual accounts provided by the parties who had been questioned were inconsistent. In the applicant ’ s view, in order to establish the truth, it was necessary to analyse the audio recording of the questioning which she had submitted. Formal confrontations between L.G., O.K. and her son could also be organised.

On 22 April 2013 the Lysychansk City Court rejected the applicant ’ s appeal.

On 8 May 2013 the Lugansk Regional Court of Appeal upheld that decision. It noted, in particular, that the prosecutor ’ s office was not obliged to organise formal confrontations or take other measures with a view to establishing the facts more clearly, as it was apparent that neither the applicant ’ s son, nor any other person had suffered damage on such a scale as to warrant L.G. ’ s criminal prosecution. 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.

In December 2013 O.R. complained to the Chief of the Lugansk Regional Police that L.G. had not been impartial in investigating his case, as his family were friends with Y.K. ’ s family. In support of his complaint, he submitted several photographs which, according to him, had been copied from social networking websites. These photographs showed people having parties and picnicking together. According to O.R., the people in the photographs included L.G., his wife and the family of Y.K. ’ s niece.

On 10 January 2014 the Deputy Chief of the Investigation Office of the Lugansk Regional Police informed O.R. that an internal investigation had been carried out in response to his complaint of bias on L.G. ’ s part, and that the officer had been found innocent of any wrongdoing in connection with the conduct of the criminal proceedings against O.R. However, regard being had to O.R. ’ s complaints, the case was reassigned to a different investigator.

B. Relevant domestic law

1. The 1996 Constitution of Ukraine

The relevant provisions of the Constitution of Ukraine read:

Article 32

“No one shall be subjected to interference in his or her personal and family life, except in cases provided for by the Constitution of Ukraine.

The collection, storage, use and dissemination of confidential information about a person without his or her consent shall not be permitted, except in cases determined by law, and only in the interests of national security, economic welfare and human rights.

...”

Article 34

“Everyone is guaranteed the right to freedom of thought and speech, and to the free expression of his or her views and beliefs.

Everyone has the right to freely collect, store, use and disseminate information by oral, written or other means of his or her choice.

The exercise of these rights may be restricted by law in the interests of national security, territorial indivisibility or public order, with the purpose of preventing disturbances or crimes, protecting the health of the population, the reputation or rights of other persons, preventing the publication of information received confidentially, or supporting the authority and impartiality of justice.”

Article 62

“With regard to the commission of a criminal offence, a person shall be presumed innocent and shall not be subjected to criminal punishment until his or her guilt is proved through legal procedure and established by a court verdict of guilty.

No one is obliged to prove his or her innocence.

An accusation shall not be based on illegally obtained evidence or assumptions. All doubts with regard to the proof of a person ’ s guilt shall be interpreted in his or her favour.

...”

Article 63

“A person shall not bear responsibility for refusing to testify or explain anything about himself or herself, members of his or her family or close relatives to the degree determined by law.

...”

2. 2012 Code of Criminal Procedure of Ukraine

The relevant provisions of the aforementioned Code read:

Article 87. Inadmissibility of evidence obtained as a result of substantial breaches of human rights and freedoms

“1. Evidence which has been obtained as a result of a substantial breach of the human rights and freedoms guaranteed by the Constitution and the laws of Ukraine is inadmissible ... as is any other evidence obtained as a result of leads received by way of a substantial breach of human rights and freedoms.

...”

Article 226. Particular procedure to be followed when questioning a minor child or adolescent

“1. Questioning of a minor child or adolescent shall be carried out in the presence of his or her statutory representative [1] , or a teacher or psychologist, and, if necessary, a medical doctor.

2. Interviews with a minor child or adolescent may not last more than one hour without a break, and shall generally be limited in duration to two hours per day.

3. Persons under sixteen years of age shall have their duty to give truthful testimonies explained to them without being given a warning about criminal liability for perjury and refusals to testify.

4. Before the start of the questioning, persons listed in paragraph one of this Article shall have their duty to be present at the questioning explained to them, as well as their right to object to questions and to put [their own] questions.”

Article 227. Participation of a statutory representative, teacher, psychologist or medical doctor in investigative (inquisitorial) procedures involving the participation of a minor child or adolescent

“1. When carrying out investigative (inquisitorial) procedures which involve the participation of a minor child or adolescent, the presence of a statutory representative, teacher or psychologist, and, if necessary, a medical doctor, should be secured.

...

3. In exceptional circumstances, where participation of a statutory representative may result in damage to the interests of a witness who is a minor child or adolescent, the investigator [or] prosecutor ... may limit participation of the statutory representative in some investigative (inquisitorial) procedures, or restrict him or her from participating in the criminal proceedings, and replace him or her with another statutory representative.

3. Opinion of the Constitutional Court of Ukraine of 20 October 2011 in case no. 1-31/2011 brought by the Security Service of Ukraine concerning the official interpretation of paragraph 3 of Article 62 of the Constitution of Ukraine

“3.4. ... performance of operative and inquisitorial procedures by: civic [or other] private organisations, private individuals, or any other bodies or their subdivisions not listed in [the relevant statutory provisions] is prohibited. Such a prohibition is connected to the fact that the implementation of measures which concern operative and inquisitorial procedures by unauthorised individuals or entities at their discretion ... breaches not only provisions of law, but also personal and civic constitutional rights and freedoms.

...

When evaluating the admissibility of factual data as evidence in criminal proceedings ... it is necessary to take into account the manner of conduct (whether deliberate or accidental) of the individual or entity who obtained it, and their goals and intentions when collecting the aforementioned data. ...

Regard being had to the above ... the Constitutional Court holds as follows:

1. ... a person may not be accused of a criminal offence on the basis of factual information collected ... by means of a deliberate action (one designed to collect and record information by way of or through recourse to measures listed in the Law of Ukraine on Operative and Inquisitorial Activity) by a person not authorised to perform such an action. ...”

COMPLAINTS

The applicant complains that her minor son was subjected to unlawful psychological pressure and disproportionate emotional distress during his questioning on 18 June 2012, and that there were no effective domestic remedies for this complaint. She refers to Article 13 of the Convention and Article 3 of the UN Convention on the Rights of the Child.

QUESTIONS

1. Did the manner, in which the applicant ’ s son was interviewed on 18 June 2012, amount to a violation of his right to respect for private and family life, contrary to Article 8 of the Convention (see, for comparison, Y. v. Slovenia, no. 41107/10, §§ 101-109 and 114, ECHR 2015 (extracts))?

In particular, the parties are requested to provide the record of the applicant ’ s son ’ s questioning of 18 June 2012 and to comment on the reasons for excluding the applicant from this questioning. In addition, they are requested to provide the documents relevant to investigation of the applicant ’ s complaint, including the records of the prosecutor ’ s office ’ s interviews with the applicant ’ s son, as well as with the police officer who questioned him on 18 June 2012 and with the teacher who was present during that questioning.

2. Did the applicant have at her disposal an effective domestic remedy for her complaint concerning the manner in which the applicant ’ s son was questioned on 18 June 2012, within the meaning of Article 13 of the Convention?

[1] . Article 44, paragraph 2 , of the Code provides that the “statutory representatives” of minor s who are suspects are, by default , their parents or adoptive parents. In their absence, they may be replaced by guardians, other adult relatives or some State authorities. No specific provision defines the “ statutory representatives ” of minors who are witnesses.