Communicated on 6 January 2014

FIFTH SECTION

Application no. 47889/08 Valeryy Sergeyevich VOYKIN and others against Ukraine lodged on 11 November 2008

STATEMENT OF FACTS

The first applicant, Mr Valeriy Sergeyevich V oykin , was born in 1978. According to the most recent information of November 2012, he is serving a prison sentence in Artemivsk Pre-Trial Detention Centre. The second applicant, Ms Marina Aleksandrovna Voykina , is the wife of the first applicant. She was born in 1984. The third applicant, Ms Elleonora Nikolayevna Shupnyak , is the mother of the second applicant. She was born in 1951. The second and the third applicants live in Gorlivka . The fourth applicant, Ms Valentina Borisovna Voykina , the mother of the first applicant, was born in 1948 and died on 5 December 2010. The first applicant expressed wish to pursue his mother ’ s complaints on her behalf.

A. The circumstances of the case

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

On 5 June 2006 a local heating company initiated civil proceedings against the first and the fourth applicants for debt recovery. The domestic courts found against the applicants. On 19 May 2008 the Supreme Court refused to examine their cassation appeal on the ground that they had not paid the court fee.

At the time of the events the first applicant was a district police officer. He allegedly had some conflicts with his superiors starting from 2006.

In May 2008 he underwent knee surgery, after which he walked on crutches and received outpatient medical treatment for several months.

On 18 June 2008, late in the evening, an officer of the Kalyninskyy District Police Department, Mr M., and an official of the Kalyninskyy District Prosecutor ’ s Office, both drunk, approached the second applicant in the street, where she was walking with a friend. Mr. M grabbed her by the neck and snatched her bag from her hand shouting that he would search her. He searched the bag and body-searched the second applicant in a violent manner, strangling her and hitting her head with a mobile phone. He gave no explanations for his actions and produced no documents authorising them. The prosecution official merely witnessed the incident. After the first applicant and two other police officers had approached the scene, Mr M. left the second applicant.

Having come home, the second applicant called ambulance. She was diagnosed with multiple bruises on her neck and a situation neurosis. It was also recommended that she consult a doctor.

The second applicant called the police shortly thereafter (on the same day) and submitted a detailed account of what had happened to her. She indicated the name and the position of the perpetrator. The ambulance team also called the police. Their calls were allegedly ignored. The second applicant explained this by the fact that Mr M. was a relative of the Kalyninskyy District Prosecutor.

On 19 June 2008 the second applicant was examined by a neuropathologist who diagnosed brain concussion and bruises on her neck. The hand-written medical certificate is not legible as regards any further details. According to the second applicant, she underwent inpatient medical treatment for three weeks in an unspecified hospital.

On 28 June 2008 the Kalyninskyy Police Department issued a ruling refusing to institute criminal proceedings in respect of the second applicant ’ s complaint. It noted that she had complained to the police at 1.05 a.m. on 19 June 2008 about having been hit by an acquaintance. As further stated in the ruling, it had appeared impossible to question the second applicant, as she had never been at home when visited by the police. The second applicant contested the veracity of both statements. According to her, she clearly indicated the name and the position of Mr M. as the person who had ill-treated her. She also submitted that she had been at home all the time given the doctors ’ instruction that she was to stay in bed. Moreover, she had enquired with the police about the progress of the investigation many times.

The second applicant challenged the aforementioned ruling to the Kalyninskyy Prosecutor ’ s Office.

From 8 August to 2 September 2008 the first applicant underwent inpatient medical treatment in Gorlivka Town Hospital no. 1, as his left-knee fracture had not united. On 11 September 2008 he was additionally examined in the Regional Traumatologic Hospital. Thereafter, he was referred for an examination by a medical-social expert commission with a view to defining whether he fell into any category of disability and whether he could continue working with the law-enforcement authorities.

On 14 August 2008 the second applicant underwent a forensic medical examination (according to her, she had requested one many times starting from 19 June 2008). It concluded that she had sustained light injuries. The case file does not contain a copy of the report.

On 10 September 2008 a criminal case was opened against the first applicant on suspicion of abuse of power and forgery in his capacity as a law-enforcement official. The investigation was stayed several times (during the period to 29 June 2009 – see below) on the ground that the first applicant ’ s whereabouts were unknown to the police. During the period from October 2008 to January 2010 eight other criminal cases were opened against the first applicant on the same charges as noted above , plus on suspicion of bribe-taking.

On 12 September 2008 a group of police officers knocked at the door of the third applicant ’ s flat. They stayed for about three hours, shouting that the first applicant (against whom a criminal case had been opened on 10 September 2008 on suspicion of abuse of power in his capacity as a law-enforcement official and forgery ) was a dangerous criminal hiding there. In the absence of any document authorising the police to enter her accommodation, the third applicant did not open the door, and they left.

On 13 September 2008 the police, as well as several officials of the Kalyninskyy Prosecutor ’ s Office, returned to the flat of the third applicant, this time equipped with an electric saw. They broke inside and searched the flat, without having produced any search warrant. As noted in the search report, they were looking for unspecified “items and valuables acquired by [the first applicant] by criminal means”, as well as for the first applicant himself. Two witnesses were present. According to the third applicant, they were not independent and had been brought there by the police, who knew them personally and did not even ask their names.

During the search a package appearing to contain drugs was found . According to the third applicant, the drugs had been planted by the police.

On 13 September 2008 a judge of the Kalyninskyy District Court authorised the first applicant ’ s arrest. The case file does not contain a copy of that ruling.

The third applicant requested many times the Kalyninskyy Court to provide her with a copy of the decision authorising the search in her flat. On 9 October 2008 the president of the court replied that the search had been carried out in compliance with the Code of Criminal Procedure and that sending a copy of the respective court ruling was not envisaged by the legislation.

On 19 September 2008 the first applicant was declared wanted by the police.

On 23 September 2008 an expert established that the package discovered in the third applicant ’ s flat on 13 September 2008 contained cannabis.

In general, d uring the period from September 2008 to January 2010 nine criminal cases were opened against the first applicant on suspicion of abuse of power, forgery and bribe-taking in his capacity of a law-enforcement official.

On 2 October 2008 the Kalyninskyy Police Department refused to institute criminal proceedings in respect of that package of cannabis. It held that it had appeared impossible to question the family of the third applicant and to establish to whom the cannabis might have belonged.

On 9 October 2008 an additional forensic medical expert examination was conducted, on the basis of the medical file, with a view to establishing the injuries sustained by the second applicant on 18 June 2008. She allegedly found out about that examination only in December 2008.

On 19 November 2008 the Kalyninskyy Prosecutor ’ s Office delivered a ruling refusing to open a criminal case in respect of the second applicant ’ s complaint concerning the incident of 18 June 2008. The investigator questioned the second applicant, her friend who had been with her at the time of the events, the ambulance medical specialist, Mr M., two police officers who had witnessed the incident, as well as three residents of the building nearby. The second applicant maintained her account. Her friend confirmed it initially, but later stated that Mr M. had not been strangling the second applicant, but had simply held her not letting her leave. The medical specialist confirmed that the second applicant had had multiple bruises on her neck. Mr M. submitted that he had erroneously taken the second applicant for somebody who was under administrative police supervision. Having realised his mistake, he had apologised, but the second applicant, who was drunk, had started insulting him. Two police officers passing by had made her a remark about her brutality. They confirmed that to the investigator. The three residents of the building near the place of the incident stated that they had been at home, but had not heard or seen anything suspicious. Lastly, the investigator relied on the conclusions of the forensic medical examination of the second applicant of 14 August 2008, according to which she had sustained light bodily injuries (without further details). The additional forensic medical examination of 9 October 2008 was also mentioned as having not discovered any injuries to the second applicant ’ s head. In sum, there was no corpus delicti discerned in the actions of Mr M.

The second applicant challenged the aforementioned ruling to the Prosecutor General of Ukraine.

On 23 January 2009 the Gorlivka Prosecutor ’ s Office issued a ruling refusing to institute criminal proceedings against the officers on duty in the Kalyninskyy Police Department on 18 June 2008, following the second applicant ’ s complaint that they had not duly reacted to her telephone call.

On 20 April 2009 the Donetsk Regional Prosecutor ’ s Office quashed the rulings of the lower prosecution authorities of 19 November 2008 and 23 January 2009.

On 5 May 2009 the Kalyninskyy Prosecutor ’ s Office refused to institute criminal proceedings against Mr M., as well as against the police officer on duty on 18 June 2008, following the second applicant ’ s complaint. The case file does not contain a copy of that decision.

On 17 June 2009 the Kalyninskyy Prosecutor ’ s Office refused to institute criminal proceedings, following the complaints of the third applicant, against the judge of the Kalyninskyy Court in respect of the ruling authorising the search on 13 September 2009.

On 26 June 2009 the Regional Prosecutor ’ s Office wrote to the applicants, following their numerous enquiries, that it had upheld the rulings of the lower prosecution authorities of 5 and 13 May and 17 June 2009.

On 29 June 2009 the first appl icant was apprehended at his home. According to him, he had lived there throughout the relevant period and his address was known to his colleagues in the police and to the prosecution authorities. The first applicant submitted that not a single official summons had preceded his arrest on 29 June 2009. He further noted that he had sent numerous requests to ensure his safety to the prosecution authorities.

On 30 June 2009 the Kalyninskyy Court extended the term of the first applicant ’ s detention to ten days on the ground that the case file lacked information about his character. That ruling was not amenable to appeal.

On 3 July 2009 the same court, without waiting for the expiry of the ten days ’ period (due on 9 July 2009), remanded him in custody pending trial. It held that this measure was necessary “having regard to the seriousness and circumstances of the crimes committed and the character of [the first applicant]”, without further details.

On 21 July 2009 the Court of Appeal quashed that ruling and released the first applicant subject to an undertaking not to leave the town. It found that the first-instance court had not given reasons as to the necessity to choose the strictest preventive measure. The Court of Appeal also noted that the first applicant had a permanent place of residence and employment, that he enjoyed positive character references both at work and from the place of his residence, and that he did not have a criminal record.

On 21 February 2010 the Regional Prosecutor ’ s Office wrote to the second applicant, in reply to her enquiries, that it had upheld the decisions of the lower prosecution authorities.

The applicant s did not correspond with the Court between April 2010 and November 2012. As of April 2010, the first applicant ’ s criminal case was being examined by the first-instance court.

On 26 November 2012 the first applicant wrote to the Court that he maintained his application. His letter was accompanied by a slip from the Artemivsk Pre-Trial Detention Centre stating that he was serving a six-year sentence of imprisonment under a verdict of the Kalyninskyy Court of 9 October 2012, which had become final on 26 October 2012.

The Court has not been informed of the developments in the criminal proceedings against the first applicant.

B. Relevant domestic law and practice

The provisions of the Code of Criminal Procedure (CCP) regarding the obligation to investigate a crime are quoted in the judgment on the case of Kaverzin v. Ukraine (no. 23893/03, § 45, 15 May 2012).

The CCP provisions pertaining to search of a house or other property are summarised in the Court ’ s judgment on the case of Vasylchuk v. Ukraine, (no. 24402/07 , §§ 28-30, 13 June 2013).

Article 1176 § 2 of the Civil Code provided for compensation to be paid in respect of unlawful actions of inquiry bodies, prosecution authorities or courts in cases where the claimant had been acquitted by a court ’ s verdict, where an unlawful verdict in his respect had been set aside, or where the criminal or administrative offence case had been terminated. After the amendments of 1 December 2005, the aforementioned list was replaced by the phrase “in cases envisaged by law”.

The Law “On the Procedure for the Compensation of Damage caused to Citizens by the Unlawful Actions of Bodies in charge of Operational Enquiries, Pre-trial Investigation Authorities, Prosecutors or Courts” (“the Compensation Act”) provides entitlement to compensation, in particular, “where ... the unlawfulness of a search conducted in the framework of a criminal investigation or trial ... has been established by a guilty verdict or other judgment of a court (save for rulings on remittal of cases for additional investigation)” (Section 1-1).

COMPLAINTS

The first applicant

The first applicant complains under Article 3 of the Convention that he was subjected to “psychological torture” by the police.

He further complains under Article 5 § 1 of the Convention that h is detention from 29 June to 21 July 2009 was unlawful .

He also complains under Article 5 § 2 that he was not informed of the reasons for his arrest and the charges against him, as the decision on the institution of criminal proceedings against him had not been served on him and he had never received any summonses prior to his arrest.

Relying on Article 5 § 3, he complains that the extension of his detention to ten days on 30 June 2009 on the ground that additional information was needed was arbitrary and unjustified, given that the investigator had already had about ten months for the collection of such information since the beginning of the investigation on 10 September 2008.

The first applicant also raises a number of complaints under Article 6 about the alleged unfairness of the criminal proceedings against him.

He further refers to Article 7, alleging that his criminal prosecution was unfair.

The first applicant complains under Article 8 of the Convention and Article 1 of Protocol No. 1 that the police seized his medical file, the system block of his computer and the licence plate from his car .

Lastly, he complains that the unrelated civil proceedings initiated by the heating company against him and his mother had been unfair, that they had been deprived of access to the Supreme Court given the requirement to pay the court fee, and that the length of the proceedings in question had been unreasonable.

The second applicant

The second applicant complains under Article 3 of the Convention about her ill-treatment and body-search by the police officer Mr M. on 18 June 2008. She submits that she suffered pain and humiliation amounting to torture. She also complains that there has been no effective domestic investigation into the matter and that the offender has escaped liability.

The second applicant further complains under Article 5 that she was apprehended and body-searched without search or other warrant.

She also complains that the absence of any procedural documents regarding the events of 18 June 2008 deprived her of access to court.

Lastly, she raises a general complaint about a violation of her rights under Article 13 of the Convention.

The third applicant

The third applicant complains under Article 8 about the three-hour “siege” of her flat by the police on 12 September 2008 and about the police intrusion and search of her home on 13 September 2008.

Finally, she complains under Article 13 about the lack of effective domestic remedies in respect of the above complaint.

The fourth applicant

The fourth applicant complained under Articles 8 and 13 of the Convention about several police searches in her flat .

She also raised similar complaints as the first applicant in respect of the civil proceedings initiated by the heating company.

The first applicant as her son expressed the wish to pursue those complaints on her behalf after her death.

QUESTIONS TO THE PARTIES

1 . Was the first applicant deprived of his liberty from 29 June to 21 July 2009 in breach of Article 5 § 1 of the Convention?

2. Was the first applicant informed promptly of the reasons for his arrest and of any charge against him, as required by Article 5 § 2 of the Convention?

3 . Was the second applicant subjected to torture, inhuman or degrading treatment on 18 June 2008, in breach of Article 3 of the Convention?

4. Having regard to the procedural protection from torture, inhuman or degrading treatment or punishment (see paragraph 131 of Labita v. Italy [GC], no. 26772/95, ECHR 2000-IV), was the investigation by the domestic authorities of the incident with the second applicant in breach of Article 3 of the Convention?

5 . Did the second applicant have at her disposal an effective domestic remedy for her complaint under Article 3, as required by Article 13 of the Convention?

6 . Was the second applicant deprived of her liberty by the police officer Mr M. on 18 June 2009 in breach of Article 5 § 1 of the Convention?

7 . Has there been an interference with the third applicant ’ s right to respect for her private life and/or home, within the meaning of Article 8 § 1 of the Convention, as regards the police operation on 12 September 2008? If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2?

8 . Has there been an interference with the third applicant ’ s right to respect for her home, within the meaning of Article 8 § 1 of the Convention, as regards the search at her flat on 1 3 September 2008? If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2?

9 . Did the third applicant have at her disposal an effective domestic remedy for her complaint s under Article 8 , as required by Article 13 of the Convention?