FIFTH SECTION

CASE OF IGNATKINA v. UKRAINE

(Application no. 70758/12)

JUDGMENT

STRASBOURG

21 May 2015

This judgment is final. It may be subject to editorial revision.

In the case of Ignatkina v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
	Vincent A. De Gaetano, President,
	Ganna Yudkivska,
	André Potocki, judges,
and Milan Blasko, Deputy Section Registrar,
Having deliberated in private on 21 April 2015,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 70758/12) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Ms Lyudmila Ustinovna Ignatkina (“the applicant”), on 21 October 2012.
2.  The applicant was represented by Ms N. Malyuk, a lawyer practising in Dnipropetrovsk. The Ukrainian Government (“the Government”) were represented by their Agent, Ms Olga Davydchuk.
3.  On 10 August 2013 notice of the application was given to the Government.
THE FACTS
4.  On 17 December 1999 the applicant brought a criminal complaint to the Zhovtnevyy District Police Office of Dnipropetrovsk (“the District Police”) that on 16 December 1999 Z. had beaten her on the street near his office and inside his office.
5.  The District Police, having questioned Z., who had denied that he had beaten the applicant, refused to institute criminal investigation into the applicant’s criminal complaint on 22 December 1999.
6.  On 18 January and 1 February 2000 the applicant renewed her criminal complaint.
7.  On 22 March 2000 the District Police ordered a forensic medical examination of the applicant. The examination revealed that she suffered from head injury, concussion, haemorrhage in the right temporal area, post-traumatic right-side cocleite, haemorrhage on the left and right thighs and the right leg’s shin. The medical experts concluded that these injuries could have been inflicted on her by Z. on 16 December 1999.
8.  On 5 April 2000 an investigator of the District Police instituted criminal investigation into the infliction of the bodily injuries on the applicant.
9.  On 20, 24 and 29 April, 5 and 10 May 2000 respectively, the investigator questioned: i) Zub., Kyb. and Nos. who had been in Z.’s office on 16 December 1999; ii) St. and Krav. who had been near the office on that date. St. stated that he had seen Z. having beaten the applicant while Krav. stated that she had seen the applicant having been punched by an unknown man on 16 December 1999.
10.  On 9 August 2000 the second medical examination of the applicant confirmed findings of the previous examination.
11.  On 14 February 2001 the Dnipropetrovsk Prosecutor’s Office informed the District Police that the investigation into the applicant’s beating was ineffective and urged the police to accelerate it.
12.  In 2001-2003 the District Police repeatedly questioned the applicant and persons whom it had already questioned earlier. During the same period of time it issued several decisions to suspend the investigation which were all quashed as being unfounded by the higher police department, prosecutors or by a court.
13.  On 24 June 2003 the medical examination of the applicant ordered by the District Police revealed that she suffered from closed head injury, concussion, post-traumatic encephalopathy, hearing deterioration and circle vestibular disorder. According to the medical report, these health problems could have been caused by the beating on 16 December 1999.
14.  On 17 August 2003 the District Police completed the pre-trial investigation and sent the case to the Zhovtnevyy District Court of Dnipropetrovsk (“the District Court”) for trial. The pre-trial investigation included the examination of thirteen witnesses, four confrontations between the persons involved in the case, one examination of the crime scene and four reconstructions of events.
15.  On 6 October 2003 the applicant lodged a civil claim in the criminal proceedings seeking Z. to pay her UAH 5,000 (EUR 787) in compensation for non-pecuniary damage and UAH 5,346.7 (EUR 842) to compensate her for pecuniary damage.
16.  On 10 November 2003 the District Court found itself unable to rule on Z.’s guilt based on the material in the case-file and sent the case to the Prosecutor’s Office for additional investigation. The prosecutor referred the case to the District Police instructing it to carry out specified investigative measures.
17.  On 11 December 2003 the applicant requested the District Police to order forensic medical examination of her health condition. On 16 December 2003 her request was granted.
18.  On 26 December 2003 the Ministry of the Interior informed the applicant that police officer A. of the District Police had been disciplined for having committed a number of procedural violations while investigating her case.
19.  On 10 January 2004 the medical examination of the applicant confirmed the conclusions of the previous examinations.
20.  On 19 January 2004 the applicant requested another forensic medical examination but she was refused it.
21.  On 10 March 2004 the State authorities issued Z. with a passport for travelling abroad.
22.  On 9 April 2004 the District Police completed the pre-trial investigation and sent the case to the District Court for trial.
23.  On 13 April 2004 the applicant requested the police to carry out additional investigative measures, but this request was refused on the ground that the measures in question had already been performed earlier.
24.  On 11 May 2004 the District Court received the criminal case. On 17 May 2004 it decided that further investigation was needed and remitted the case to the District Police.
25.  On 1 June 2004 Z. left the country to live on a permanent basis in Germany.
26.  On 10 August 2004 investigator A. from the District Police established that Z. had absconded and placed him on a list of wanted persons. The proceedings were suspended until establishing Z.’s whereabouts.
27.  On 29 December 2004 the Ministry of the Interior informed the applicant that Z. had been able to leave Ukraine because the District Police had failed to inform migration authorities that Z. was an accused in a criminal case. On 3 February 2005 the Prosecutor’s Office instituted criminal proceedings against State employees who had unlawfully issued Z. with the passport for travelling abroad.
28.  In 2005 Ukrainian authorities informed German authorities that Z. had left the country to live in Germany and requested that his whereabouts be established.
29.  On 15 May 2005 the Dnipropetrovsk Regional Police Department informed the District Police that the investigation into the applicant’s beating was ineffective. The District Police was ordered to carry out a number of additional investigative actions.
30.  In 2005-2008 the District Police questioned the applicant, St., Zub., Kyb., Nos. and Krav. and ordered forensic medical examination of the applicant which established that the injuries inflicted on 16 December 1999 led to her deafness.
31.  On 17 January 2008 the Ministry of the Interior informed the applicant that Z.’s whereabouts had been known to the police since 2006, but due to negligence of the District Police his extradition had not been sought.
32.  On 26 May 2008 the District Police terminated the criminal proceedings against Z.
33.  On 24 June 2008 a prosecutor quashed the above decision as unfounded and sent the case back to the police.
34.  On 21 August 2008 the District Police suspended the proceedings against Z. until “establishment of his whereabouts”.
35.  On 29 October 2008 the Dnipropetrovsk Regional Prosecutor’s Office quashed that decision noting that the District Police had been aware of Z.’s place of residence, but for unknown reasons had not sought his extradition.
36.  On an unspecified date the same office informed the applicant that a district court had ordered Z.’s detention pending trial and that his extradition had not yet been sought because Sh. and V., officers of the District Police, had failed to prepare documents necessary for extradition.
37.  On 27 October 2009 the General Prosecutor’s Office of Ukraine requested German authorities to extradite Z.
38.  On 25 December 2009 forensic medical experts examined the applicant and established that due to the beating she lost 50 % of her working capacity. From December 1999 she had been periodically not fit for work and from 2004 onwards – permanently not fit for work.
39.  On 22 June 2010 Z. was extradited to Ukraine. On 2 July 2010 he gave undertaking not to abscond.
40.  On 21 January 2011 the pre-trial investigation into the applicant’s beating on 16 December 1999 was completed and the case was sent to the District Court for trial.
41.  On 31 January 2011 the applicant modified her civil claim seeking to be paid UAH 400,000 (EUR 36,226) in compensation for non-pecuniary damage.
42.  On 16 February 2011 the trial was postponed until 4 March 2011 because of the applicant’s request concerning recording of the hearings.
43.  On 27 January, 6, 14, 23 February and 6 March 2012 the court adjourned the hearings due to the applicant’s absence.
44.  On 4 April 2012 the applicant again modified her civil claim seeking to be paid UAH 550,000 (EUR 50,686) in compensation for non-pecuniary damage.
45.  In a judgment of 14 May 2012 the District Court convicted Z. of having inflicted serious bodily injuries on the applicant and sentenced him to three years’ imprisonment. It also ordered Z. to pay the applicant UAH 50,000 (EUR 4,745) and UAH 5,346.7 (EUR 5,346) respectively, in compensation for non-pecuniary and pecuniary damage.
46.  On 19 July 2012 the Dnipropetrovsk Regional Court of Appeal quashed the first instance judgment and remitted the criminal case for additional investigation to the Prosecutor’s Office. The court noted, in particular, that the District Police had failed to assess all the relevant facts of the case and that the length of the pre-trial investigation was excessive.
47.  On 7 November 2012 the Prosecutor’s Office noted that the District Police had committed serious violations of procedural law while investigating the applicant’s beating. The prosecutor ordered the head of the District Police to conduct an internal investigation into this matter and punish those who were responsible.
48.  On 8 November 2012 the head of the District Police disciplinarily punished investigators Sh. and T. for the excessive length of the investigation and numerous procedural violations.
49.  On 14 November 2012 the pre-trial investigation was again completed.
50.  On 19 November 2012 the District Court received the criminal case against Z. for consideration on the merits.
51.  On 12 December 2012 it terminated the criminal proceedings against Z. as time-barred. On 31 January 2013 the Dnipropetrovsk Regional Court of Appeal upheld this judgment.
52.  On 5 September 2013 the Higher Specialized Court quashed the lower court’s judgments and remitted the case to the District Court for a fresh consideration. It noted that the prosecution was not time-barred and the case had to be examined on its merits.
53.  On 17 September 2013 the District Court received the criminal case.
54.  On 17 October 2013 it discovered that Z. had absconded, placed him on the list of wanted persons and suspended the proceedings until establishing his whereabouts.
55.  The proceedings have remained suspended.
THE LAW
Article I.	I.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
56.  The applicant complained that the investigation into her beating was lengthy and ineffective. She invoked in this respect Articles 3 and 13 of the Convention. The Court which is master of characterization to be given in law to the facts of the case considers that this complaint falls to be examined solely under the procedural limb of Article 3 of the Convention which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
Section 1.01	A.  Admissibility
57.  The Government stated that the applicant had failed to exhaust domestic remedies because she had not instituted civil proceedings for compensation against the State authorities responsible for the excessive length and ineffectiveness of the investigation.
58.  The applicant maintained her complaint.
59.  The Court notes that Article 35 of the Convention requires that the complaints made before it should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law and that any procedural methods that might prevent a breach of the Convention should have been used. Normally recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged. The existence of the remedies in question must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness.
60.  It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say that it was accessible, was capable of providing redress in respect of the applicant’s complaints, and offered reasonable prospects of success. However, once this burden of proof has been satisfied it falls to the applicant to establish that the remedy advanced by the Government had in fact been used or was for some reason inadequate and ineffective in the particular circumstances of the case, or that there existed special circumstances absolving him or her from the requirement (see Mikhalkova and Others v. Ukraine, no. 10919/05, §§ 28‑29, 13 January 2011).
61.  Turning to the facts of the present case, the Court observes that while the Government suggested that a civil claim in respect of ineffectiveness of the investigation was an effective remedy in the applicant’s case, they have not, however, explained how, in the event of success, recourse to this remedy would have facilitated: i) the establishment of the facts surrounding the infliction of the bodily injuries on the applicant; and ii) punishment of the offender. Likewise, the Government did not provide any evidence that there existed any relevant domestic judicial practice. Regard being had to the above, the Court considers that the applicant was exempted from pursuing the remedy referred to by the Government (see Mikhalkova and Others v. Ukraine, cited above, § 30).
62.  The Court notes that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
Section 1.02	B.  Merits
63.  The parties did not comment on the merits of the case.
64.  The Court reiterates that Article 3 of the Convention requires that the authorities conduct an effective official investigation of alleged ill‑treatment, even if such treatment has been inflicted by private individuals (see Koval and Others v. Ukraine, no. 22429/05, § 59, 15 November 2012, with further reference).
65.  The parties did not dispute that the investigation into the applicant’s beating was ineffective and too lengthy. This was also acknowledged by the domestic authorities (see paragraphs 11, 29, 31, 46-48). The Court notes that although the applicant complained to the police about her beating the next day after the incident, the investigation into it was instituted only some three months later. The Court further notes that in 2001-2003 the District Police adopted several decisions to suspend the investigation which were quashed as unfounded. Due to the District Police’s negligence, Z. left for Germany and stayed there for about five years and eight months (2004‑2010) which resulted in an unnecessary protraction of the criminal proceedings. Furthermore, the courts remitted the case for additional investigation three times and once for a fresh consideration by a lower court. The Court recalls that the repetition of such remittal orders within one set of proceedings discloses a serious deficiency in the judicial system (see Wierciszewska v. Poland, no. 41431/98, §§ 46, 25 November 2003). In the light of the above the Court considers that the investigation was ineffective and its length was unjustified.
66.  There was a violation of Article 3 of the Convention under its procedural limb.
Article II.	II.  ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
67.  The applicant complained that the criminal proceedings against Z. were too lengthy. She relied on Article 6 § 1 of the Convention which reads as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”
Section 2.01	A.  Admissibility
68.  The Court reiterates that the right to institute criminal proceedings and to secure the conviction of a third party is not a right which is included among the rights and freedoms guaranteed by the Convention (see, for example, Perez v. France [GC], no. 47287/99, § 70, ECHR 2004-I). Article 6 § 1 may nevertheless apply to those proceedings where the civil limb remains so closely linked to the criminal limb that the outcome of the criminal proceedings may be decisive for the civil claims (see, for example, Calvelli and Ciglio v. Italy, no. 32967/96, § 62, 17 January 2002).
69.  The Court notes that the applicant lodged her civil claim against Z. in the course of the criminal trial of the latter and sought compensation for her injuries being the subject of that trial. The Court is satisfied that the criminal proceedings were decisive for the applicant’s civil right for compensation and they, accordingly, fall within the ambit of Article 6 of the Convention.
70.  The Court finds that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that it is not inadmissible for any other grounds. It must therefore be declared admissible.
Section 2.02	B.  Merits
71.  The applicant maintained her complaints.
72.  The Government noted that the delays in the proceedings attributable to the authorities were justified by the interest of justice. In particular, it was necessary to question thirteen witnesses and conduct a number of medical examinations and crime scene reconstructions. They further noted that the proceedings remained suspended for five years and eight months because Z. had absconded. Moreover, the applicant had contributed to the length of the proceedings by submitting petitions and her failure to attend the hearings on 27 January, 6, 14, 23 February and 6 March 2012.
73.  The Court notes that the period to be taken into consideration started on 6 October 2003, when the applicant lodged her civil claim, and has not yet ended. It has thus lasted for more than eleven years.
74.  It recalls that the “reasonable” length of proceedings must be assessed in accordance with the circumstances of the case and the following criteria: the complexity of the case, the behaviour of the applicant and that of the competent authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).
75.  In cases concerning liability for acts that resulted in grave damage to health the authorities are under a duty to exercise special diligence and conduct the proceedings with particular expedition (see, mutatis mutandis, Silva Pontes v. Portugal, 23 March 1994, § 39, Series A no. 286‑A and Dodov v. Bulgaria, no. 59548/00, § 109, 17 January 2008). Thus what was at stake for the applicant called for a particularly expeditious decision on her claim.
76.  The Court notes that the criminal proceedings in the present case concerned one count of beating which took place in the presence of two eyewitnesses (see paragraph 9 above). Although the investigation indeed necessitated medical examinations, questioning of witnesses and several crime scene reconstructions, the Court does not consider that the case was of any particular complexity.
77.  The Court observes that the applicant indeed contributed to the length of the proceedings by lodging petitions and failing to appear at some court hearings (see paragraphs 15, 17, 20, 23, 41-44 above). However, the main responsibility for the protraction of the proceedings lies with the authorities (see paragraph 65 above).
78.  It concludes that, having regard to the circumstances of the instant case, there was an unreasonable delay in disposing of the criminal case against Z. for which the Government did not provide any acceptable justification.
79.  There has accordingly been a violation of Article 6 § 1 of the Convention.
Article III.	III.  OTHER COMPLAINTS
80.  The applicant complained under Article 1 of Protocol No. 1 that she was not compensated for her beating. Even assuming that an issue under the Convention or its Protocols is susceptible of arising, the Court notes that the proceedings for compensation are still pending before the national court. Therefore this part of the application is premature and must be rejected under 35 §§ 1 and 4 of the Convention.
Article IV.	IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
81.  Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
Section 4.01	A.  Damage
82.  The applicant claimed EUR 1,000,000 in respect of non-pecuniary damage.
83.  The Government disputed that claim.
84.  The Court finds that the applicant must have suffered non-pecuniary damage as a result of the violations of her Convention rights in her case. Having regard to the particular circumstances of the case and ruling on an equitable basis, the Court awards the applicant EUR 16,000 for non-pecuniary damage.
Section 4.02	B.  Costs and expenses
85.  The applicant lodged no claim for costs and expenses. The Court thus sees no call to make an award under this head.
Section 4.03	C.  Default interest
86.  The Court 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,
1.  Declares the complaints under Articles 3 and 6 § 1 of the Convention admissible and the remainder of the application inadmissible;

2.  Holds that there has been a violation of the procedural limb of Article 3 of the Convention;

3.  Holds that there has been a violation of the “reasonable time” requirement of Article 6 § 1 of the Convention;

4.  Holds
(a)  that the respondent State is to pay the applicant, within three months, EUR 16,000 (sixteen thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted in the currency of the respondent State at the rate applicable at the date of settlement;
(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5.  Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 21 May 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Milan Blaško	Vincent A. De Gaetano
	Deputy Registrar	President