CASE OF IRINA SMIRNOVA v. UKRAINE
Preliminary objections joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible (Article 35-3-a - Manifestly ill-founded);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation;Positive obligations);Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for home;Respect for private life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
André Potocki;Angelika Nußberger;Carlo Ranzoni;Ganna Yudkivska;Khanlar Hajiyev;Yonko Grozev
6. The applicant was born in 1940 and lives in Donetsk. 7. In the end of November 2001 the applicant was visited by two unfamiliar men, V.S. and A.N., who offered to buy half of the flat she lived in for 700 United States dollars (USD). It was a one-bedroom flat, measuring 43.3 square meters, recently privatised and acquired in equal shares by the applicant and her adult son, Y. The applicant refused to sell her half of the flat. According to her, the price offered was extraordinarily below the market value. In any event, she had no reason to sell the flat, which had been her long-established home for several decades. In response, V.S. and A.N. warned the applicant that she would regret her decision, because Y., (who was married and lived elsewhere), had offered the other half of the flat as a gift to V.S. If the applicant refused to sell her half for the price, which was offered to her, or to exchange it for a smaller flat on the outskirts of the city, V.S. would move into the flat and create intolerable living conditions for her. 8. Subsequently the applicant learned that on 18 December 2001 Y. had signed a notarised gift deed in which he transferred his title to half of the flat (which was not as divided into allocated parts of the whole) to V.S. 9. From November 2002 A.N., V.S. and their acquaintances started regularly visiting the applicant’s flat, demanding that she sell. According to the applicant, on numerous occasions they broke the locks, insulted and harassed her and caused damage to her property. Subsequently a part and then the entire of V.S.’s share in the flat was formally acquired by A.N. as a gift, whose value amounted to 5,602 Ukrainian hryvnias (UAH) according to the gift certificates. However, irrespective of this transfer, A.N. and V.S. continued to act in concordance in demanding the applicant move out and sell her share. 10. For instance, on 23 November 2002 A.N. and V.S. broke the locks on the entrance door when the applicant was away, entered the flat and, upon the applicant’s arrival, reiterated their demands that she sell her share. As the applicant protested against their presence in the flat and their overall conduct, a conflict emerged, in the course of which A.N. hit the applicant in the chest inflicting a bruise and causing soft tissue swelling. 11. On 26 November 2002 A.N., V.S. and several strangers broke into the applicant’s flat again. As they were irritated by the barking of the applicant’s dog, V.S. started kicking her and chased her out. Subsequently the applicant found her dog’s dead body in a garbage container. 12. Also on an unspecified date in November 2002 V.S. arrived in the flat after 11 p.m. (when the applicant was already asleep) and opened the balcony door, holding it open for some four hours notwithstanding the freezing temperature outside. In response to the applicant’s subsequent reprimands, he explained that he wished for her to catch a cold as she had been disagreeable. 13. On 15 December 2002, when the applicant’s daughter was visiting the applicant, V.S. arrived in the flat again. A conflict emerged, in the course of which V.S. hit the applicant on the head and stomach, inflicting concussion and blunt trauma of the abdominal wall. He also hit the applicant’s daughter on the head and other parts of the body, inflicting cerebral concussion and bruising of legs and arms. As a result of the conflict, the applicant and her daughter had to seek medical assistance for their injuries and the applicant received inpatient hospital treatment. 14. Subsequently V.S. and A.N. started installing in the flat from two to six strangers without the applicant’s consent. These tenants, mostly young males, behaved in a discourteous way. In particular, they organised loud parties; frivolously used, damaged and stole the applicant’s belongings; created insanitary conditions; carelessly used electricity, gas and appliances, frequently left the entrance door open, and ignored requests to contribute towards the maintenance charges on the flat. 15. On numerous occasions the applicant attempted to drive the tenants away or to call them to order. Her efforts resulted in conflicts, in the course of which she was harassed and intimidated. Her attempts to replace the locks on the entrance doors to prevent unauthorised entry into the flat resulted in them being broken and in the tenants, who frequently changed, moving in again, in spite of her discontent. As she was unable to withstand such living conditions and was afraid for her life and limb, the applicant effectively moved out, contending herself with odd living arrangements. However, she paid short visits to the flat regularly, to supervise the situation. 16. In the beginning of June 2003 V.S. drove his car onto the footpath, where the applicant was standing waiting for a bus, scaring and nearly hitting her. 17. On 11 July 2003 at about 9.20 a.m. V.S. again arrived in the flat, when the applicant was in it, and demanded that she surrender her share. A conflict emerged, in the course of which V.S. punched the applicant in the stomach, causing her physical pain. 18. On three further occasions (30 July 2004, 5 August and 1 December 2005) the applicant was severely beaten by V.S., twice accompanied by his acquaintance A.L. The applicant suffered physical pain and bruising. On 30 July 2005, in addition to that, she also sustained a second concussion, which necessitated inpatient treatment. 19. On various dates the applicant learned that A.N. and V.S. had also acquired ownership of shares in numerous other flats in Donetsk and that they had behaved similarly with the co-owners of these flats, inducing them to sell their shares on unfavourable terms. 20. On 16 October 2003 the Voroshylivsky district prosecutor instituted civil proceedings on the applicant’s behalf, seeking rescission of the gift deed between Y. and V.S. and the eviction of the latter on the grounds that the gift deed had been executed without the applicant’s consent. 21. On 12 November 2003 the Voroshylivsky District Court of Donetsk (hereafter “the Voroshylivsky Court”) allowed this claim, having found, in particular, that Article 113 of the Civil Code of Ukraine of 1963 did not authorise the transfer of title to a part of shared property, which had not been divided into allocated parts and that it also obliged co-owners of a shared property to seek the consent of their counterparts before carrying out transactions in it. 22. On 5 February 2004 the Donetsk Regional Court of Appeal (hereinafter “the Regional Court”) quashed this judgment following an appeal by the applicants’ opponent and dismissed the prosecutor’s claim, having found that, unlike in the case of selling part of a shared property, giving it as a gift to a third party did not require the co-owners’ consent. 23. On 10 August 2004 the Supreme Court of Ukraine dismissed the applicant’s and the prosecutor’s requests for leave to appeal in cassation against the Regional Court’s judgment. The judgment became final. 24. On 5 October 2004 the applicant instituted civil proceedings seeking the dispossession of V.S. (joined by A.N., when he acquired part of V.S.’s share and replaced by him, when he acquired the entire share), of his share in the flat, regard being had to his unlawful conduct towards her, the impossibility of joint use of the flat, and his refusal to pay his share of the maintenance costs. She further sought a judicial rescission of their right to occupy the flat and compensation for the costs she had borne on the flat with their shares. The defendants lodged a counterclaim, alleging, in particular, that the applicant had been interfering with their personal life and belongings, provoking conflicts, harassing them and creating intolerable living conditions, which made it impossible for them to fulfil their desire to settle in the flat. They sought damages from the applicant for this conduct and demanded that the flat be divided into allocated parts. 25. On 21 June 2005 the District Court allowed the applicant’s claim in part and dismissed her opponents’ counterclaim. In particular, referring to Article 365 of the new Civil Code of Ukraine of 2003, it ordered the dispossession of A.N. (by then the owner of half the flat) of his share against payment by the applicant of compensation in the amount of UAH 5,602. The court noted, in particular, that there was extensive evidence that the defendants had allowed numerous strangers to live in the flat; that the applicant had been harassed; and that the flat’s appliances and the applicant’s belongings had been misused and damaged. It further concluded that, regard being had to the flat’s size and layout, it was not possible for the co-owners to use it jointly in a harmonious manner or to have it reasonably divided into two independent halves for each of them to use separately. At the same time, A.N.’s dispossession in return for fair compensation would not put him at a substantial disadvantage, since he had another registered residence and predominantly used the disputed flat for subletting to other persons. The court next found that, since A.N. had received the flat as a gift, fair compensation would be the payment of the indicative price (UAH 5,602) declared by the parties as that share’s value in the latest gift deeds. Finally, the court found that A.N. and V.S. had no longer any right to occupy the flat and ordered partial reimbursement of the maintenance costs incurred by the applicant on the flat. 26. On 20 October 2005 the Regional Court, having reviewed the case on appeal by the applicant’s opponents, upheld the judgment with respect to the reimbursement of the costs borne on the flat by the applicant and the revocation of V.S.’s right to occupy it, as he no longer owned any share in the flat. It then quashed the ruling to dispossess A.N., having noted that, according to the expert assessment, the market value of the disputed flat had been appraised at UAH 147,756, which meant that value of half the flat had been UAH 73,878. The court further stated that the applicant’s claim for dispossession of A.N. and revocation of his right of occupancy had not been based on any legal provision. The relevant part of the judgment read as follows: “Neither the provisions of the Housing Code of Ukraine nor those of the Civil Code of Ukraine of 2003, which the applicant cites as the basis for her claims, nor the Property Law of Ukraine, envisage dispossession of the owner of his or her property and his or her eviction from a flat owned by him or her on the grounds cited by the applicant.” 27. The applicant appealed in cassation. She noted, in particular, that A.N. and V.S. had acquired shares in a number of Donetsk flats and had deliberately created intolerable living conditions for their co-owners in order to obtain the flats in their entirety on terms grossly unfavourable to the other co-owners. She further alleged that, having no other residence and being a victim of constant harassment, she had abandoned the flat and had been requesting refuge from various acquaintances. 28. On 2 December 2005 the district prosecutor also lodged a cassation appeal on the applicant’s behalf, in which he corroborated her submissions that the defendants had been harassing her, had been using the flat in bad faith and had forced the applicant, a senior lady, to leave the dwelling she had occupied for many years. He also alleged that the sum proposed by the applicant in compensation for the defendants’ share in the flat had been fair, as it had been equal to the flat’s value indicated in the gift deeds on the basis of which A.N. had received the disputed share. 29. On 11 January 2006 the Supreme Court of Ukraine rejected the applicant’s request for leave to appeal. 30. On 22 January 2006 it likewise rejected the prosecutor’s request for leave to appeal and the Regional Court’s judgment became final. 31. On numerous occasions between 2002 and 2007 the applicant complained to the Voroshylivsky district police in Donetsk (“the district police”) about various instances of verbal and physical harassment, damage to and taking of her property and attempts by V.S. and A.N. to extort her share in the flat. 32. On various dates police officers arrived in the applicant’s flat in response to her calls for help. They examined the situation, questioned the applicant and her opponents, and subsequently refused to institute criminal proceedings (in particular, 22 January, 7 February and 24 December 2002; 22 and 24 January, 22 February, 5 and 22 March, 15 July, 30 August, 18 September, 12, 16 and 24 October, 4, 15 and 19 November and 5 December 2003; 1 June, 3 and 9 August and 15 November 2004, 20 January, 23 July, 6 August, 19 November, 13 and 28 December 2005; and 4 and 31 March and 16 and 27 July 2006). In their refusals, the police noted that the prosecution of A.N., V.S. and their acquaintances was unwarranted since the relevant facts disclosed the existence of a chronic domestic conflict between lawful occupants of a flat, who attempted to engage the police in resolving their private disagreements. The hostilities took place inside the household and did not breach the public peace. Both parties had accused each other of provoking conflict and it was not evident, which party had in fact assaulted the other and which had acted out of selfdefence. In any event, during these conflicts the applicant had sustained no serious damage to her health and had not presented any evidence that her belongings had in fact been taken or damaged by the accused individuals. It was not possible to exclude that she had falsified the disappearance of her belongings in order to compromise the unwanted tenants. The police further recommended that the applicant resolve the dispute concerning the use of the flat in civil proceedings and assured her that “pre-emptive conversations” had been had with the purported offenders to foster respectful conduct on their part. On several occasions the police had issued official warnings to them, advising them of the impermissibility of antisocial behaviour. 33. On 30 January 2003 the prosecutor’s office quashed a decision not to institute criminal proceedings in connection with the injuries caused to the applicant on 15 December 2002. On several occasions the applicant enquired about the status of these proceedings and received no reply. In 2006 the applicant was informed that the investigation had been suspended. 34. On 19 October 2005 the head of the district police instructed his officers to place the applicant’s flat on the police register for frequent visits with a view to preventing any offences and infringements of applicable law. He noted, in particular, that the investigations had confirmed the applicant’s allegations concerning A.N.’s and V.S.’s disruptive conduct. In particular, it had been established that they had been allowing numerous tenants to live in the co-owned flat, who had brought it into a decrepit and insanitary state. The persons who had been occupying the flat had also taken the applicant’s personal belongings without her authorisation and had used her furniture, equipment and appliances in a careless manner, as a result of which these objects were deteriorating. Moreover, these persons had interfered with the applicant’s ability to access the flat by changing the locks and thus effectively precluding her from living there. He also acknowledged that numerous pre-emptive conversations and warnings given by the police had not brought about any improvements. 35. On several other occasions (in particular, 28 February 2006, 4 September 2006, 19 February 2007 and 6 March 2007) the Ministry of the Interior in Donetsk acknowledged, in response to the applicant’s further complaints, that her allegations concerning A.N.’s and his associates’ interference with her home had some basis. They further assured the applicant that her address had been placed on the police register for frequent visits. 36. On 18 July 2006 the applicant lodged a private criminal complaint against V.S., A.N. and A.L. with the Voroshylivsky Court. Relying on Articles 125 and 126 of the Criminal Code of Ukraine, she alleged that the defendants had systematically beaten and verbally harassed her. In this respect the applicant referred to the incidents of 23 November and 15 December 2002, 30 July 2004 and 5 August 2005 (see paragraphs 10, 13 and 18 above). She also submitted that, in her view, these incidents had to be approached not as isolated instances of ill-treatment, but as episodes of systematic and premeditated criminal conduct by an organised criminal association functioning with a view to extorting flats from Donetsk residents. She submitted that the same individuals had engaged in similar conduct visà-vis a number of other co-owners of properties in the city. Accordingly, she requested the District Court’s assistance in transmitting her complaints to the public law-enforcement authorities with a view to instituting criminal proceedings concerning extortion and coercion. 37. On various dates five other residents of Donetsk joined the proceedings, alleging that the same defendants had acquired shares in their flats and had been pressurising and terrorising them with a view to extorting the remaining shares. 38. On 19 December 2006 Judge M. of the Voroshylivsky Court decided that the applicant’s and other complainants’ allegations disclosed an appearance that serious crimes, warranting institution of public criminal proceedings, had been committed. Accordingly, the judge instituted criminal proceedings on suspicion of fraud, extortion, coercion, circumvention of the law and several other crimes, and transferred the case to the Donetsk regional prosecutor for investigation. 39. On 24 January 2007 the prosecutor’s office appealed against this decision, alleging that applicable law did not authorise judges to institute public criminal proceedings in the above circumstances. 40. On 27 March 2007 the Regional Court upheld the prosecutor’s office’s appeal and returned the case to the Voroshylivsky Court to be examined by another judge with respect to the complaints which could be addressed in private prosecution proceedings. 41. Subsequently (23 August 2007) Judge P. of the Voroshylivsky Court returned the applicant’s and other complainants’ submissions without examination. She found that the injured parties had failed to comply with the rules on territorial jurisdiction and with other unspecified procedural requirements. 42. On 26 July 2007 the regional police instituted criminal proceedings in respect of a complaint about extortion lodged by a certain A.C., who had allegedly been forced to abandon her flat on account of the intolerable living conditions created by the co-owners of her flat. 43. On 15 August 2007 the police joined the applicant’s complaints concerning extortion to the aforementioned criminal proceedings. 44. On the same date A.N., V.S. and A.L. were arrested and placed in custody. 45. On various further dates complaints by eleven other individuals relating to the same persons’ misconduct were joined to the proceedings. 46. On 29 December 2007 deputy head of the regional prosecutor’s office signed the bill of indictment in respect of A.N., V.S. and A.L. charging them, in particular, under Article 189 § 4 of the Criminal Code, with extorting property in an organised group and transferring the case to the Kyivskiy District Court of Donetsk (hereafter “the Kyivskiy Court”) for trial. 47. On various dates in 2008 the defendants were released from custody pending trial. 48. On 24 May 2011 the Kyivskiy Court acquitted all the defendants of the charges under Article 189 of the Criminal Code. It noted, in particular, as follows: “... The court comes to a conclusion that the basis of the present criminal proceedings is the existence of a private-law dispute between the defendants and the injured parties concerning the use of shared property, which the injured parties demand to resolve by way of criminal proceedings in view of their extremely antagonistic relationship with the defendants.” 49. On 27 February 2012 the Regional Court quashed this verdict on appeal by the prosecution and the injured parties and remitted the case for retrial. 50. On 17 April 2012 the defendants were rearrested and placed in custody. 51. On 12 October 2012 the Kyivskiy Court found that all the defendants were guilty of extortion under Article 189 § 4 and sentenced them to eleven, ten and eight years’ imprisonment respectively. It also ordered the confiscation of all their personal property. The court found, in particular, that the case-file contained sufficient evidence that the episodes of the applicant’s harassment (listed in paragraphs 10, 12-13 and 1618 above) had indeed taken place. It also awarded the applicant UAH 35,273.47 in pecuniary and UAH 30,000 in non-pecuniary damage to be paid jointly and separately by the defendants. 52. On 6 March 2013, following an appeal by the defendants, the Regional Court upheld this verdict on appeal concerning all points, except one episode unrelated to the applicant’s case. 53. On 18 September 2014 the Higher Specialised Civil and Criminal Court rejected the cassation appeals lodged by A.N. and V.S.