CASE OF KRASNYANCHUK AND KOVALYOV v. UKRAINE

FIFTH SECTION

CASE OF KRASNYANCHUK AND KOVALYOV v. UKRAINE

(Applications nos. 40009/15 and 40118/15)

JUDGMENT
 

STRASBOURG

28 November 2024

This judgment is final but it may be subject to editorial revision.

In the case of Krasnyanchuk and Kovalyov v. Ukraine,

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

 Andreas Zünd, President,
 Kateřina Šimáčková,
 Mykola Gnatovskyy, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the applications lodged with the Court against Ukraine under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Ukrainian nationals as listed in the appended table (“the applicants”), represented by Ms Y. Zakrevska, a lawyer practising in Kyiv, on the date indicated in that table;

the decision to give notice of the applicants’ complaints under Article 3, Article 5 § 1, Article 11 and Article 13 of the Convention regarding ill‑treatment by the police and detention to the Ukrainian Government (“the Government”), represented by their Agent, Ms M. Sokorenko, and to declare the remainder of the applications inadmissible;

the parties’ observations;

Having deliberated in private on 7 November 2024,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1.  The applications concern the applicants’ complaints under Article 3, Article 5 § 1, Article 10 and Article 11 of the Convention of unlawful and arbitrary arrests and ill-treatment by the police, on the dates specified in the appended table, in the context of the public order operations undertaken to deal with the series of mass protests in Ukraine between November 2013 and February 2014, commonly referred to as “Euromaidan” and/or “Maidan” (see Shmorgunov and Others v. Ukraine, nos. 15367/14 and 13 others, §§ 9-17, 21 January 2021). Allegedly, the applicants were not provided with adequate medical assistance while in detention for the injuries they had sustained, and no effective official investigation was conducted into those complaints, contrary to the above-mentioned provisions of the Convention, taken together with Article 13.

2.  On different dates in February 2014, June 2015 and October 2018 the authorities initiated several sets of criminal proceedings which concerned, among others, the applicants’ complaints, supported by various official medical documents, of ill-treatment by the police; inadequate medical assistance in detention; and arbitrary detention and prosecution for having taken part in the Maidan protests. In 2021 one of those sets of proceedings resulted in the conviction of a commanding police officer who had ordered his subordinates to arrest and use force against Maidan protesters, including the first applicant. According to the most recent information from the parties, in 2023 the first applicant’s compensation claim in those proceedings, after having been re-examined on several occasions, was pending before the first-instance court. Other related sets of criminal proceedings are still ongoing. The authorities have not yet identified all of the police officers who had used force against the applicants, while several commanding officers have been charged with abuse of power and illegal interference with the Maidan protests.

3.  On different dates between November 2016 and May 2018 the applicants were each paid lump sums of 200,000 hryvnias (UAH – the equivalent of approximately 7,000 euros (EUR) at the material time) on account of the fact that they had been injured while participating in the Maidan protests. The payments were made under the Act on State Support for the Victim Participants in Mass Actions of Civil Protest and their Family Members of 21 February 2014 and related resolutions by the Cabinet of Ministers (see Shmorgunov and Others, cited above, §§ 214-15).

THE COURT’S ASSESSMENT

4.  Having regard to the similar subject matter of the two applications, the Court finds it appropriate to examine them jointly in a single judgment.

5.  The Government raised an objection that there had been an abuse of the right of application on account of the second applicant’s failure to inform the Court that in October 2018 a new set of criminal proceedings had been initiated regarding his arrest and ill-treatment (see paragraph 2 above).

6.  The Court notes that the material submitted by the second applicant when lodging his application with the Court in August 2015 contained sufficient information regarding the criminal proceedings that were initiated in February 2014 concerning his complaints of ill-treatment and unlawful arrest. Those proceedings, like the proceedings eventually brought in October 2018, have been ongoing. Thus, the fact that the second applicant did not inform the Court that a separate but related set of proceedings had been brought around three years after the lodging of the application cannot be construed as an intentional concealment of information from the Court, given that none of the ongoing proceedings have so far resulted in a final determination of his domestic complaints. It cannot therefore be concluded that he intended to mislead the Court or that there has been an abuse of the right of application (see G.I.E.M. S.R.L. and Others v. Italy [GC], nos. 1828/06 and 2 others, §§ 173-75, 28 June 2018, and Zličić v. Serbia, nos. 73313/17 and 20143/19, §§ 56-57, 26 January 2021). It follows that the Government’s objection must be dismissed.

7.  The applicants complained under Article 3 of ill-treatment by the police, the lack of an effective official investigation into their alleged ill‑treatment and the authorities’ failure to provide them with adequate medical assistance while in detention; under Article 5 § 1 of unlawful and arbitrary detention; and under Article 11 that they had been prevented from taking part in the protests and that they had been ill-treated, while being held in detention to that end.

8.  The Government raised objections to the admissibility of those complaints, stating that they were premature because the relevant proceedings were ongoing; that the applicants had lodged compensation claims only in some of the related sets of proceedings and had not complained to the domestic authorities about specific actions by the investigators or of any inaction on their part; and that the applicants had already been paid compensation regarding their alleged ill-treatment (see paragraph 3 above).

9.  The Court has already examined and dismissed the Government’s similar objections in comparable cases concerning other Maidan protesters (see Shmorgunov and Others, cited above, §§ 283-86, 300-303, 397-401, 405, 416, 445, 450-54, 484 and 488). Nothing in the parties’ submissions persuades the Court to reach a different conclusion in the present case. Accordingly, the Government’s above-mentioned objections should be dismissed.

10.  The Government also contended that the first applicant and his lawyer had failed to appear before the investigators and courts on certain occasions. However, the case materials contain no evidence that they had been duly summoned to the relevant pre-trial proceedings. While the first applicant acknowledged his and his lawyer’s absence from some of the court hearings, they had informed the courts in advance and had clarified their complaints and legal position in the various claims, applications and appeals that they had lodged in the course of the proceedings. Overall, the Government did not demonstrate that the first applicant’s or his lawyer’s procedural behaviour had had any concrete negative implications for the conduct of the relevant proceedings or for the ability of the investigators or courts to establish and examine the relevant circumstances (ibid., §§ 304-307).

11.  The Court further notes that both applicants, who were granted victim status in the domestic proceedings, promptly raised their present complaints before the authorities, underwent medical examinations, were questioned by the investigators, participated in various other investigative actions, and made various procedural and substantive submissions in the course of the related pre-trial and judicial proceedings.

12.  In so far as the Government argued that the applicants’ complaints under Article 11 of the Convention had to be lodged within six months starting from the dates on which they had been arrested by the police (see the appended table), the Court notes that these complaints are very closely linked to the applicants’ complaints under Articles 3 and 5 § 1 of the Convention and have been the subject of the ongoing domestic investigations since February 2014. While numerous domestic and international reports identified serious shortcomings in the initial and later stages of investigations relating to the Maidan protests, there is no sufficient basis to conclude that the applicants realised, or ought to have realised, that the investigations in their cases were ineffective ab initio (see Shmorgunov and Others, cited above, §§ 301, 302 and 488). In the circumstances, the applicants, who acted diligently by cooperating with the ongoing domestic investigations, cannot be reproached for having waited until August 2015, when the proceedings were still ongoing, before lodging their applications with the Court (see Mocanu and Others v. Romania [GC], nos. 10865/09 and 2 others, §§ 279‑83, ECHR 2014 (extracts)).

13.  In the light of the foregoing, the Government’s objections to the admissibility of the applicants’ present complaints under Article 3, Article 5 § 1 and Article 11 of the Convention should be dismissed.

14.  The Court further notes that these complaints are not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. They must therefore be declared admissible.

15.  The Court recalls that the relevant general principles have been summarised in the leading case of Shmorgunov and Others (cited above, §§ 327-36, 359-63, 459-61 and 490-94).

16.  In that case, the Court found violations of Article 3, Article 5 § 1 and Article 11 of the Convention regarding various instances of ill-treatment of Maidan protesters by the police; the authorities’ failure to react adequately to the applicants’ resulting medical problems; the ineffective official investigations conducted into their ill-treatment; their unlawful detention; and the disproportionate interferences with their right to freedom of assembly (ibid., §§ 337-58, 364-74, 377-91, 407-22, 425-33, 440-42, 463-78 and 495‑521).

17.  Having examined the material available in the present case and taking into consideration the complexity of the relevant proceedings and a certain amount of progress achieved at the domestic level (see paragraph 2 above), as noted by the Government in their observations on the merits, the Court discerns no fact or argument capable of persuading it to reach a different conclusion on the merits of the applicants’ similar complaints, which are supported by the relevant medical documents and official information from the relevant domestic proceedings.

18.  Accordingly, the Court finds that on the dates and in the circumstances set out in the appended table: (i) the applicants were ill-treated by the police and consequently there has been a violation of Article 3; (ii) the authorities failed to react adequately to the applicants’ resulting medical problems while they were in detention and there has also been a violation of Article 3 on that account; (iii) the applicants were detained in violation of Article 5 § 1; and (iv) there were disproportionate interferences with their right to freedom of peaceful assembly and there has therefore been a violation of Article 11.

19.  The Court further finds that no effective official investigation has been conducted into the applicants’ complaints of ill-treatment by the police and that there has been a violation of the procedural limb of Article 3 on that account.

20.  Having regard to its above-mentioned findings under Article 3, Article 5 § 1 and Article 11 of the Convention (see paragraphs 18-19 above), the Court considers that it has examined the main legal questions raised in the present case, and that there is no need to give a separate ruling on the admissibility and merits of the applicants’ related complaints under Article 10 of the Convention that they had been prevented from expressing their political views during the Maidan protests or under Article 13 of the Convention that no effective official investigation had been conducted into their complaints of ill-treatment and arbitrary detention (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014, and Shmorgunov and Others, cited above, §§ 522-23).

APPLICATION OF ARTICLE 41 OF THE CONVENTION

21.  The applicants claimed 20,000 euros (EUR) each in respect of non‑pecuniary damage. The second applicant also claimed EUR 6,300 for legal costs that he incurred in the domestic proceedings and those before the Court and asked for this sum to be paid directly into the bank account of his representative Ms Y. Zakrevska. Regarding the latter claim, the second applicant submitted a copy of a contract between him and the lawyer, a related timesheet and a calculation of fees based on an hourly rate of EUR 100. According to the contract, the second applicant was under an obligation to pay the lawyer’s fees only if a sum for legal costs was awarded to him by the Court and actually paid into his or his representative’s account by the respondent State.

22.  The Government contested these claims.

23.  Having regard to the awards in respect of non-pecuniary damage in Shmorgunov and Others (cited above, §§ 531-33 and the operative provisions) and taking into consideration that the applicants have already been paid approximately EUR 7,000 each by the domestic authorities owing to the fact that they had been injured by the police (see paragraph 3 above), the Court awards them EUR 9,000 each, plus any tax that may be chargeable, in respect of non-pecuniary damage and dismisses the remainder of their claims in that regard.

24.  As regards the second applicant’s claim in respect of legal costs, they are based on a contract comparable to a contingency fee agreement, and the Court has previously accepted such agreements as proof that the costs claimed were actually incurred by the applicants in certain cases, including some concerning Ukraine (compare, for instance, Ivanova and Cherkezov v. Bulgaria, no. 46577/15, § 89, 21 April 2016, and East West Alliance Limited v. Ukraine, no. 19336/04, §§ 269-70, 23 January 2014). Consequently, having regard to the documents in its possession, the Court considers it reasonable to award the second applicant EUR 6,300, covering legal costs under all heads, plus any tax that may be chargeable to him, to be paid directly into the bank account indicated by his representative Ms Y. Zakrevska.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(a)  that the respondent State is to pay, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i)  EUR 9,000 (nine thousand euros) to each applicant, plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)  EUR 6,300 (six thousand three hundred euros) to the second applicant, plus any tax that may be chargeable to him, in respect of legal costs, to be paid directly into the bank account indicated by Ms Y. Zakrevska;

(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;

Done in English, and notified in writing on 28 November 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Martina Keller Andreas Zünd
 Deputy Registrar President

APPENDIX

No.

Application no.
Case name
Introduction date

Applicant’s name
Year of birth
Place of residence

Relevant facts

1.

40009/15
Krasnyanchuk v. Ukraine
07/08/2015

Roman Vasylyovych Krasnyanchuk
1990
Kyiv

(the first applicant)

On 27 January 2014 the first applicant was arrested by the police in connection with his participation in the protest on the same date in Cherkasy. He was beaten by the police during his arrest and his questioning at the police station later on that day, as a result of which he suffered concussion, a fractured finger and haematomas on his face, head, torso and limbs. Despite his requests for an urgent medical examination and treatment, the police took him to a medical facility only around ten hours after his arrest. He was detained until 14 February 2014 on suspicion, in particular, of mass disorder pursuant to the decision of the Sosnivsky District Court of Cherkasy of 28 January 2014, which was upheld by the Cherkasy Court of Appeal on 7 February 2014. The criminal proceedings against him were terminated on 19 May 2014.

2.

40118/15
Kovalyov v. Ukraine
07/08/2015

Vadym Volodymyrovych Kovalyov
1992
Gnivan

(the second applicant)

On 20 January 2014 the second applicant was arrested by the police in connection with his participation in the protests on 19 January 2014 in Kyiv. He was beaten by the police during the arrest, as a result of which he suffered concussion and haematomas on his torso and limbs. He was detained on suspicion, in particular, of mass disorder (pursuant to the police order of 20 January 2014) until his release on 22 January 2014. During his detention, despite his requests for an urgent medical examination and treatment, the police called an ambulance for him only around twelve hours after his arrest. He had to wait around twenty-four hours to be taken to a hospital after this was advised by the ambulance doctors. The criminal proceedings against him were terminated on 31 May 2014.