CASE OF L.S. v. UKRAINE

FIFTH SECTION

CASE OF L.S. v. UKRAINE

(Application no. 82213/17)

JUDGMENT
 

STRASBOURG

21 November 2024

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

In the case of L.S. v. Ukraine,

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

 Lado Chanturia, President,
 Mykola Gnatovskyy,
 Úna Ní Raifeartaigh, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 82213/17) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 26 November 2017 by a Ukrainian national, L.S. (“the applicant”), who was born in 1940, lives in Nikopol, and was represented by Mr S.Y. Syrotenko, a lawyer practising in Kharkiv;

the decision to give notice of the complaint concerning the lack of an effective investigation into the applicant’s ill-treatment to the Ukrainian Government (“the Government”), represented by their Agent, Ms Marharyta Sokorenko, and to declare the remainder of the application inadmissible;

the decision not to disclose the applicant’s name;

the parties’ observations;

Having deliberated in private on 24 October 2024,

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

SUBJECT MATTER OF THE CASE

1.  The application concerns the lack of an effective investigation into the ill-treatment of the applicant, a seventy-three-year-old woman at the relevant time, inflicted in the context of a family dispute. The ill-treatment allegedly took place in a flat belonging to her former daughter-in-law and her son. She complained under Articles 3 and 13 of the Convention.

2.  It appears from the case file that in 2006 the applicant’s then daughter‑in-law, D.O., moved out of the flat. In 2010 D.O. and the applicant’s son, S.A., divorced without dividing their matrimonial property. In November 2011 the applicant moved into the flat and has continued living there with S.A. ever since.

3.  According to the applicant, on 17 May 2014 D.O. and S.D., her grandson, brought some furniture into their room and changed the door to their room by installing a metal door with a lock. On the same day, from 4 p.m. to 6.30 p.m. and during the night of 18-19 May 2014, D.O. shut the applicant inside her room by dragging over a piano and leaving it in front of the door with the aim of forcing her to move out of the flat. During the above‑mentioned period of time, the applicant had no access to water, food or toilet facilities.

4.  On the morning of 19 May 2014, D.O. and S.D. inflicted injuries to the applicant’s head and upper body and pushed her out of the flat. When the applicant tried to resist by holding a door handle, S.D. kicked the applicant in her stomach while wearing shoes. The applicant found herself in the communal hallway in home clothes and barefoot. Following the neighbours’ call, an ambulance arrived. The police came and took the applicant’s statement but did not intervene. The applicant attempted to enter the flat, but S.D. grabbed her hand and leg and pushed her, causing her to fall down near the lift and bump her head. Still on the same day the applicant’s other son, S.S., lodged a criminal complaint with the police.

5.  On the night of 19-20 May 2014 the applicant was examined by a hospital doctor, and on 20 May 2014 she was examined by a forensic medical doctor on her own initiative. The latter established that she had multiple bruises and abrasions on her head, upper body and limbs.

6.  Still on 20 May 2014 a police officer reported to the head of the local police department and asked for instructions in relation to a telephone call from the hospital informing him about the applicant’s injuries, namely a closed blunt trauma to her chest and an abrasion on her left shoulder blade.

7.  On the same day the police initiated a criminal investigation into the ill-treatment of the applicant under Article 125 (infliction of minor bodily injuries) of the Criminal Code of Ukraine.

8.  On 13 and 19 June 2014 the applicant wrote to the police asking them to order a forensic medical examination of her injuries.

9.  On 20 June 2014 a police inspector ordered that a forensic medical examination be carried out. According to the medical forensic report dated 11 July 2014, the applicant had sustained fourteen bruises on her face and upper body, including the area of her left cheekbone, the right cheek, various areas of the upper part of her left shoulder and the interior and posterior parts of her right shoulder, the posterior part of her chest between the right shoulder blade and ribs five to seven, and the inner part of her left hip. He characterised the injuries as minor.

10.  On 8 October 2014 the police questioned the applicant as a victim.

11.  On 29 April 2015 the police closed the criminal proceedings for lack of corpus delicti. On 29 July 2015 the prosecutor’s office quashed that decision, instructing the police to question the applicant’s neighbours P. and Z., as well as the ambulance doctors who had attended the emergency call on 19 May 2014.

12.  On 17 September 2015 the police again closed the criminal proceedings for lack of corpus delicti. On 5 May 2016 that decision was quashed by the prosecutor’s office as unlawful. On the same day investigator L. was replaced by investigator V.

13.  On 14 September 2016 investigator V. closed the criminal proceedings. On 30 November 2016 that decision was quashed by a prosecutor, who reiterated the instructions concerning the questioning of the neighbours and the ambulance doctors. On 4 May and 23 August 2017 the prosecutor repeated his instructions.

14.  On 31 August 2017 the prosecutor’s office asked the police to bring disciplinary actions against investigators G. and L. for their lack of effectiveness in investigating the criminal case.

15.  On 11 May 2018 the prosecutor’s office asked the head of the local police department to remove investigator K. from the investigation owing to her ineffectiveness.

16.  On 17 May 2018 a prosecutor instructed investigator P. to take procedural actions in the criminal case.

17.  On 22 May 2018 the prosecutor’s office wrote to the head of the local police department stating that the investigation in the criminal case had been ineffective, asking the police to bring disciplinary actions against investigator K.

18.  On 5 August 2019 the prosecutor’s office found that the investigation in the criminal case had been inadequate.

19.  On 15 August 2019 the prosecutor’s office wrote to the head of the local police department stating that the investigation in the criminal case had been ineffective and seeking disciplinary action against investigator P.

20.  On 20 March 2020 investigator P. closed the criminal case. On 4 June 2020 the Leninskyi District Court of Dnipropetrovsk quashed that decision.

21.  On 13 May 2021 investigator R. took charge of the case and on 10 June 2021 she closed the criminal proceedings. On 23 December 2021 the Leninskyi District Court of Dnipropetrovsk quashed that decision.

22.  On 11 March 2022 investigator R. closed the criminal proceedings for lack of corpus delicti. On 10 August 2023 the prosecutor’s office quashed that decision as premature and unsubstantiated.

23.  On 10 August and 10 October 2023 a prosecutor reiterated his instructions to the police in relation to the procedural actions to be taken.

24.  On 29 August 2023 an investigator ordered (i) that the applicant’s sons be questioned; (ii) that the whereabouts of witnesses P., Z., Zh., K.V. and K.S. be established; (iii) that information about the title to the flat be established; and (iv) that the ambulance doctors who had been on duty on 19 May 2014 and had attended the emergency call be identified.

25.  The pre-trial investigation is still pending.

THE COURT’S ASSESSMENT

ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

26.  The applicant complained under Articles 6 and 13 of the Convention that the investigation into her ill-treatment had been ineffective.

27.  The Court considers that the applicant’s complaint falls to be examined solely under Article 3 of the Convention (see, mutatis mutandis, Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 126, 20 March 2018).

28.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

29.  The Government submitted that the applicant’s injuries did not fall within the minimum level of severity necessary for Article 3 of the Convention to come into play.

30.  In a previous case the Court found that repeated and premeditated verbal attacks together with incidents of physical violence against a vulnerable person reached the threshold of severity for the purposes of Article 3 of the Convention (see Irina Smirnova v. Ukraine, no. 1870/05, § 73, 13 October 2016). In the present case, the applicant, a seventy‑three‑year-old woman at the time of the events, sustained fourteen bruises on her head and upper body (see paragraph 9 above) that were inflicted by two much younger individuals with the aim of forcefully evicting her from her home. The Court finds that these circumstances are sufficient to conclude that the applicant, being a vulnerable elderly person, suffered ill‑treatment that attained the minimum level of severity under Article 3 of the Convention.

31.  The general principles concerning the lack of an effective investigation into ill-treatment inflicted by private individuals have been summarised in Muta v. Ukraine (no. 37246/06, §§ 59-62, 31 July 2012).

32.  The Court observes that the police opened the criminal proceedings the day after the date on which the applicant’s son had lodged his criminal complaint (see paragraph 7 above). However, it took one month for them to order a medical forensic examination (see paragraph 9 above). Furthermore, it cannot escape the Court’s attention that the criminal case was successively allocated to various investigators who, having taken no procedural steps, decided to close the criminal proceedings. However, these decisions were subsequently quashed either by the prosecutor’s office or by the Leninskyi District Court of Dnipropetrovsk (see paragraphs 11-13, 20-22 above). The Court accepts that the prosecutor’s office repeatedly found the investigation to be ineffective (see paragraphs 14-15 and 17-18 above), but no effective measures were taken to remedy the situation. Moreover, although the prosecutor ordered the police to question the neighbours or ambulance doctors in 2015 and 2016, the investigator did not order the questioning of those witnesses until 2023 (see paragraphs 11, 13 and 24 above). It is questionable however whether, after that considerable lapse of time, the witnesses would have remembered the events of 17-19 May 2014 and thus contribute to the effective investigation. In the light of these facts and considerations and noting that the investigation, having lasted to date for more than ten years, is still ongoing, the Court considers that the authorities did not make a genuine attempt to take a prompt and thorough examination of the matter, establish the facts and, if necessary, bring those responsible to account. It therefore considers that in the instant case the investigation into the ill-treatment of the applicant failed to meet the criteria of effectiveness.

33.  There has accordingly been a violation of the procedural limb of Article 3 of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

34.  The applicant claimed 7,500 euros (EUR) in respect of non-pecuniary damage and EUR 70 in respect of postal expenses.

35.  The Government submitted that the above-mentioned claims were excessive and unsubstantiated.

36.  The Court awards the applicant EUR 4,500 in respect of non‑pecuniary damage, plus any tax that may be chargeable.

37.  Having regard to the documents in its possession, the Court considers it reasonable to award EUR 29.58 for postal expenses, plus any tax that may be chargeable to the applicant.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(a)  that the respondent State is to pay the applicant, 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 4,500 (four thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)  EUR 29.58 (twenty-nine euros and fifty-eight cents), plus any tax that may be chargeable to the applicant, 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;

Done in English, and notified in writing on 21 November 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Martina Keller Lado Chanturia
 Deputy Registrar President