CASE OF MYTSYK AND KRAVCHUK v. UKRAINE

FIFTH SECTION

CASE OF MYTSYK AND KRAVCHUK v. UKRAINE

(Application no. 51984/17)

JUDGMENT
 

STRASBOURG

16 May 2024

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

In the case of Mytsyk and Kravchuk v. Ukraine,

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

 Carlo Ranzoni, President,
 Mattias Guyomar,
 Mykola Gnatovskyy, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 51984/17) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 4 July 2017 by two Ukrainian nationals, Mr Oleg Volodymyrovych Mytsyk and Mr Petro Ivanovych Kravchuk (“the applicants”), who were born in 1968 and 1986 respectively, live in Lviv, and who were represented by Mr M. Tarakhkalo and Ms O. Chilutyan, lawyers practising in Kyiv;

the decision to give notice of the application to the Ukrainian Government (“the Government”), represented by their Agent, Ms Marharyta Sokorenko;

the parties’ observations;

Having deliberated in private on 11 April 2024,

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

SUBJECT MATTER OF THE CASE

1.  The applicants, who are practising advocates, complained under Article 3 of the Convention that they had been ill-treated by law-enforcement officials when trying to attend a search at their client’s home and that there had been no effective investigation into the matter. They also complained that that incident had given rise to a violation of Article 8 of the Convention.

2.  On 26 May 2015 the applicants signed an agreement with Ms K., under which they were to provide legal assistance to her husband during ongoing criminal proceedings against him concerning bribe-taking. Once in possession of that document they arrived at their client’s home to attend the search, which had already started. However, they had been denied access to the home and taken outside the premises contrary to their will. According to the applicants, this had been done in a brutal and violent manner. They alleged that the law-enforcement officials had grabbed them by their forearms and had dragged them towards the exit, which included their being dragged down a steep set of stairs. When the applicants had tried to resist they had allegedly been hit in the elbows and hands. According to the Government, no physical force had been applied to the applicants.

3.  The applicants submitted to the Court a video of the events that one of them had recorded. Although of poor quality, it showed a heated discussion, during which a plain-clothes investigator repeatedly prompted the applicants to leave on the grounds that the search had started before their arrival and that he did not know who they were or how they had entered the premises. The applicants’ repeated statements that they were lawyers seeking to provide legal assistance to the person concerned, as well as their reference to the signed legal assistance agreement, were apparently ignored. The applicants could be heard asking some people present to take their hands off them and the latter can be heard saying that they will take the applicants out of the premises by force and threatening to put them in an armlock.

4.  The next day the applicants complained about the incident to the prosecution authorities. The first applicant also attended a local hospital for medical assistance on account of bruises on both his elbows and abrasions on his right wrist and left elbow.

5.  On 28 May 2015 an investigation was launched in connection with the following criminal offences: abuse of power by a law-enforcement official accompanied by violence; obstruction, by a public official, of a defence counsel’s lawful activities in providing legal assistance; and deliberate infliction of low or medium-gravity injuries on a defence counsel in the context of his or her activities related to the provision of legal assistance.

6.  On 3 June 2015 a forensic medical expert examined the first applicant and documented numerous fading bruises and two linear abrasions on his arms and wrists. The expert also referred to a certificate from a local hospital of 27 May 2015 indicating that on that date the first applicant had sought medical assistance on account of bruises and abrasions on his arms and wrists. According to the expert’s findings, the bruises had been “inflicted by blunt objects with a limited surface area, possibly fingers or hands clinched in a fist” and the abrasions – “by pointed objects, possibly fingernails”. The expert assessed the injuries as minor and found that the first applicant might have sustained them on 26 May 2015.

7.  On 4 June 2015 the same kind of examination was carried out in respect of the second applicant, whose injuries consisted of a small yellow bruise on each forearm. The expert stated that they might have been inflicted by fingers, possibly on 26 May 2015.

8.  The investigator who had been leading the search and who was questioned as a witness during the subsequent investigation submitted that the applicants, being unauthorised persons, had been removed from the search scene by three agents of the State Security Service (“the SBU”), who had been there to ensure order. He also noted that, following the search, Mr K. had been taken to the police station, where the applicants had started representing him once they had presented the requisite documents.

9.  The investigator dealing with the applicants’ complaint addressed numerous enquiries to the SBU to find out the identities of the agents concerned and seeking their questioning as witnesses. The SBU consistently replied was that that information was confidential and also refused to undertake any internal investigation into the matter.

10.  The criminal investigation was discontinued and resumed on at least six occasions, and apparently remains pending. As established by the Shevchenkivskyi District Court of Lviv in its rulings of 17 June and 2 December 2016, 30 June 2017, 2 February, 12 June and 26 September 2018, as well as 9 August 2019, which were delivered in response to the applicants’ complaints, not a single investigative measure had been carried out between August 2015 and August 2019. During that period, however, the investigation had been discontinued on at least three occasions for a lack of evidence in support of the applicants’ allegation of ill-treatment.

11.  It is not clear whether any investigative measures have been undertaken thereafter: when quashing, on 5 March 2021 and 8 April 2022, the investigator’s decisions of 9 October 2020 and 20 July 2021 to discontinue the investigation, the Lychakivskyi District Court of Lviv attached weight to the applicants’ arguments about the ineffectiveness of the investigation, given the investigator’s failure to attend the hearings, to respond to the judge’s enquiries or to provide any case-file materials.

THE COURT’S ASSESSMENT

12.  The applicants complained under Article 3 of the Convention that they had been ill-treated by law-enforcement officials and that there had been no effective investigation into the matter.

13.  The Government argued that the applicants had not exhausted the available domestic remedies, given that the investigation remained pending and that they had the opportunity to lodge a civil claim for damages.

14.  The Court considers that the issue of exhaustion of domestic remedies is closely linked to the substance of the applicants’ complaint concerning the alleged lack of an effective investigation and must therefore be joined to the merits of that complaint. The Court further notes that this complaint is neither manifestly ill‑founded within the meaning of Article 35 §§ 3 (a) of the Convention nor inadmissible on any other grounds. It must therefore be declared admissible.

(a)   Complaint under the procedural limb of Article 3

15.  It is a well-established principle of the Court’s case-law that, where an individual raises an arguable claim that he or she has suffered treatment infringing Article 3 at the hands of the police or other similar agents of the State, that provision requires by implication that there should be an effective official investigation. Such investigation should be capable of leading to the identification and punishment of those responsible, as well as comply with the requirements of promptness, thoroughness, independence and public scrutiny (see, for example, El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, §§ 182-85, ECHR 2012).

16.  Turning to the present case, the Court notes that the applicants’ allegation of ill-treatment at the domestic level was corroborated, at least in the part concerning the origin and the timing of their injuries, by forensic medical evidence (see paragraphs 6 and 7 above). Their claim was therefore arguable for the purpose of triggering the State’s procedural obligation to carry out an effective domestic investigation into the matter.

17.  However, the following undisputed deficiencies and delays indicate that the investigation undertaken fell foul of the required standard of effectiveness.

18.  The Court notes, in particular, that, while the direct involvement of SBU agents in the incident with the applicants was undisputed and the available video recording suggested possible violent intentions by persons appearing to be those agents, the SBU refused to either cooperate with the prosecution authorities and to undertake any investigation of its own into the matter (see paragraphs 3 and 9 above). Under such circumstances, the investigation could hardly be expected to have led to the accurate establishment of the facts or the identification and – if appropriate – punishment of those responsible.

19.  Furthermore, the Court observes that the investigation was at an impasse for at least four years, with not a single investigative measure having been carried out between August 2015 and August 2019 (see paragraph 10 above). Nor is there any information as to whether any such measures were taken thereafter. To date – that is to say more than seven years after it was opened – the investigation has not produced any conclusive findings. Such a prohibitive delay, for which no explanation has been provided, is in itself incompatible with the State’s obligations under Article 3 of the Convention (see, for example, Mikeladze and Others v. Georgia, no. 54217/16, § 68, 16 November 2021).

20.  The Court therefore dismisses the Government’s objection as to the exhaustion of domestic remedies that it previously joined to the merits (see paragraph 14 above) and finds that there has been a violation of Article 3 of the Convention under its procedural limb.

(b)   Complaint under the substantive limb of Article 3

21.  The Court reiterates that allegations of ill-treatment must be supported by appropriate evidence. To assess this evidence, the Court adopts the standard of proof “beyond reasonable doubt”, but adds that such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Ireland v. the United Kingdom, 18 January 1978, § 161, Series A no. 25, and Gäfgen v. Germany [GC], no. 22978/05, § 92, ECHR 2010).

22.  Whereas the Court has found that the applicants’ allegations were such as to oblige the authorities to launch an official investigation (see paragraph 16 above), it considers, having regard to the parties’ submissions and all the material in its possession, that the evidence before it does not enable it to find beyond reasonable doubt that the applicants were subjected to treatment contrary to Article 3, as has been alleged (see Sládková v. the Czech Republic, no. 15741/15, § 88, 10 November 2022).

23.  The Court emphasises, however, that this inability derives at least in part from the failure of the domestic authorities to carry out an effective investigation at the relevant time (ibid., § 89, with further case-law references).

24.  In view of the foregoing, there has been no violation of Article 3 of the Convention under its substantive limb.

25.  The applicants submitted that they had been obstructed in the performance of their professional duties on account of their removal from the search scene on 26 May 2015. In their view, that amounted to a breach of their right to respect for their private life under Article 8 of the Convention.

26.  In substantiating their allegation of that the measure employed against them had been arbitrary, the applicants pointed out that there had been a whole range of steps provided for by law that the investigator could have resorted to if he had considered that they had acted in breach of any procedural rules or professional ethics – from seeking the initiation of disciplinary proceedings against the applicants to their arrest and the bringing of criminal charges if appropriate. However, no such measures had ever been taken.

27.  The Government contested that complaint as unsubstantiated. They submitted that the applicants had arrived after the search had started and that they had failed to duly present their documents to the investigator. Accordingly, in the Government’s opinion, the investigator had had no other option than to have the applicants removed as unauthorised persons.

28.  The Court will first examine whether Article 8 is applicable to the present case, and, accordingly, whether it has jurisdiction ratione materiae to examine the relevant complaint on the merits.

29.  In its recent judgment in Angerjärv and Greinoman v. Estonia (nos. 16358/18 and 34964/18, §§ 119-23, 4 October 2022), in which the applicants complained under Article 8 of the Convention about their removal, as legal counsel, from court proceedings, the Court found it appropriate to follow the consequence-based approach to the applicability of Article 8 laid down in Denisov v. Ukraine ([GC], no. 76639/11, § 115, 25 September 2018), given that the alleged interference with the applicants’ rights consisted in an unfavourable measure employed in the context of their professional life. A similar approach should be followed in the present case.

30.  The Court notes that the applicants failed to show that the impugned measure had had any negative consequences for their professional activities. As they themselves pointed out, no disciplinary or criminal proceedings had been initiated against them (see paragraph 26 above). Nor did they allege any reputational or financial losses. Furthermore, although they were prevented from attending the specific investigative measure in issue, the applicants were able to represent their client shortly thereafter (see paragraph 8 above).

31.  In the light of the foregoing, the Court finds that the negative effects, if any, which the impugned measure might have had on the applicants’ private lives (in particular as regards their “inner circle” and their opportunities to establish and develop relationships with others) did not cross the threshold of seriousness for an issue to be raised under Article 8 of the Convention (compare Angerjärv and Greinoman, cited above, § 127).

32.  It follows that this Article is not applicable and that the applicants’ complaint must be dismissed as incompatible ratione materiae with the provisions of the Convention pursuant to Article 35 §§ 3 (a) and 4.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

33.  The applicants claimed 50,000 euros (EUR) each in respect of non-pecuniary damage and EUR 3,750 jointly in respect of costs and expenses incurred before the Court, the latter to be paid directly into Mr Tarakhkalo’s bank account. They submitted in that connection contracts for legal representation signed in June 2017, at an hourly rate of EUR 150, and a timesheet recording twenty-five hours of legal work. Under the contracts, the applicants were obliged to pay for the work done if and when the Court made a relevant award.

34.  The Government contested those claims.

35.  The Court considers it appropriate to award each applicant EUR 1,800 in respect of non-pecuniary damage, plus any tax that may be chargeable.

36.  Furthermore, having regard to the documents in its possession and to its case‑law, the Court considers it reasonable to award EUR 800 for costs and expenses, plus any tax that may be chargeable to the applicants. At the applicants’ request, the amount awarded under this head should be paid directly into the bank account of Mr M. Tarakhkalo (see, for example, Khlaifia and Others v. Italy [GC], no. 16483/12, § 288, 15 December 2016).

37.  The Court further considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(a)  that the respondent State is to pay the applicants, 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 1,800 (one thousand eight hundred euros) to each applicant, plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)  EUR 800 (eight hundred euros) to the applicants jointly, plus any tax that may be chargeable to them, in respect of costs and expenses, to be paid directly into the account of their representative, Mr M. Tarakhkalo;

(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 16 May 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Martina Keller Carlo Ranzoni
 Deputy Registrar President