ORLIK v. UKRAINE - 27454/11 (Judgment (Merits and Just Satisfaction) : Court (Fifth Section Committee)) [2016] ECHR 169 (11 February 2016)

In the case of Orlik v. Ukraine,

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

          André Potocki, President,
          Ganna Yudkivska,
          Síofra O’Leary, judges,
and Milan Blaško, Deputy Section Registrar,

Having deliberated in private on 19 January 2016,

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

PROCEDURE

1. The case originated in an application (no. 27454/11) 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 Olga Nikolayevna Orlik (“the applicant”), on 15 April 2011.

2. The applicant was represented by Mr I.P. Pogasiy, a lawyer practising in Kirovograd. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr B. Babin, of the Ministry of Justice.

3. On 1 December 2014 the application was communicated to the Government.

THE FACTS

4. The applicant was born in 1960 and lives in Oleksandrivka, Kirovograd Region.

5. On 3 February 2007 the applicant was assaulted. According to the subsequent findings of medical experts, she sustained haematomas on her jaw, shoulder and hip, a bruise under her right eye, concussion, and a displaced rib fracture. The applicant alleges that her assailants were Mr and Mrs K., her daughter’s former parents-in-law, whereas the domestic authorities found that it was only Mrs K. who had assaulted the applicant. The incident occurred in front of the applicant’s two-year-old granddaughter.

6. On 4 February 2007 the applicant lodged a complaint with the police.

7. On 5 February 2007 a forensic medical expert examined the applicant. He found that she had haematomas which he classified as “minor bodily injuries”.

8. On 14 February 2007 the Oleksandrivka District Police Department (“the Oleksandrivka police”) refused to institute criminal proceedings in connection with the incident.

9. On 22 February 2007 a forensic medical examination of the applicant was carried out. The expert found that in addition to the previously noted haematomas, the applicant had also suffered concussion and a displaced rib fracture. The expert classified the injuries as “bodily harm of medium severity”.

10. On 20 March 2007 the Oleksandrivka prosecutor overruled the decision of 14 February 2007 as premature and on 21 March 2007 instituted criminal proceedings in connection with the infliction of bodily harm of medium severity on the applicant.

11. On 20 May 2007 the investigator suspended the investigation for failure to identify the perpetrator.

12. On 29 August and 3 October 2007 the Oleksandrivka prosecutor’s office issued two decisions in which it overruled the investigator’s decision of 20 May 2007 as premature.

13. On 6 October 2007 the investigator questioned Mr and Mrs K.

14. On 1 December 2007 the investigator again suspended the investigation for failure to identify the perpetrator.

15. On 10 December 2007 the Oleksandrivka prosecutor’s office, in response to the applicant’s complaint about the progress of the investigation, asked the Kirovograd Regional Police Department to have the police officers in charge of the investigation disciplined.

16. On 21 January 2008 the Kirovograd Regional Police Department instructed the Oleksandrivka police to immediately resume the investigation.

17. On 7 April 2008 the investigator decided to ask a forensic medical expert to determine the degree of gravity of the applicant’s injuries. On 22 September 2008 the expert drew up a report generally confirming the findings of 22 February 2007.

18. On 15 May 2008 the Kirovograd Regional Police Department informed the applicant that the police officers in charge of the case had been disciplined for omissions in the investigation.

19. On 23 October 2008 the Oleksandrivka Court absolved Mrs K. from criminal liability under an amnesty law, on the grounds that she had an elderly mother who was dependent on her. On 24 February 2009 the Kirovograd Regional Court of Appeal (“the Court of Appeal”) quashed that judgment, finding no evidence that Mrs K.’s mother was dependent on her.

20. On 1 July 2009 the investigator refused to institute criminal proceedings against Mr K.

21. On 7 July 2009 the Novomyrgorod prosecutor issued a bill of indictment against Mrs K.

22. On 24 July 2009 the Oleksandrivka Court remitted the case against Mrs K. for further investigation, holding that the applicant had not been informed about the completion of the investigation until 3 July 2009 and had therefore not been given enough time to study the case file. It also held that the refusal to institute criminal proceedings against Mr K. had contravened the law.

23. On 13 November 2009 the Novomyrgorod prosecutor quashed the decision of 1 July 2009 not to institute criminal proceedings against Mr K. Subsequently the investigator again refused to institute criminal proceedings against Mr K.

24. On 21 December 2009 the new round of pre-trial investigation in the case against Mrs K. was completed and another bill of indictment was issued by the Novomyrgorod prosecutor.

25. On 29 March 2010 the Oleksandrivka Court remitted the case against Mrs K. for further investigation, holding in particular that the decision not to institute criminal proceedings against Mr K. had been premature, since his role in the incident had not been sufficiently clarified.

26. On 13 July 2010 the Novomyrgorod prosecutor quashed the decision not to institute criminal proceedings against Mr K. On 26 May 2011 the investigator again refused to institute criminal proceedings against Mr K.

27. On 20 December 2011 the Znamyanka Court convicted Mrs K. of inflicting bodily harm of medium severity on the applicant, sentencing her to restriction of liberty for two years, suspended for a one-year probationary period. The court found that the decision not to institute criminal proceedings against Mr K. in connection with the same incident had been correct. Mrs K., the prosecutor and the applicant appealed.

28. On 6 March 2012 the Court of Appeal quashed the judgment and discontinued the criminal proceedings against Mrs K. as time-barred.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

29. The applicant complained that the investigation in her case had been ineffective and the proceedings excessively lengthy. She initially invoked Articles 6 and 13 of the Convention.

30. The Court, which is master of the characterisation to be given in law to the facts of the case, finds that the above complaints fall to be examined under the procedural limb of Article 3 of the Convention (see Muta v. Ukraine, no. 37246/06, § 51, 31 July 2012, and İbrahim Demirtaş v. Turkey, no. 25018/10, §§ 19 and 20, 28 October 2014). Article 3 of the Convention reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

A. Admissibility

31. The Court notes that 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.

B. Merits

1. The parties’ submissions

32. In her reply to the observations of the Government, the applicant submitted that the investigation breached the procedural requirements of Article 3. She submitted that there had been delay in the institution of criminal proceedings: the investigator had initially refused to institute criminal proceedings and then the investigation had been repeatedly suspended. As a result of the delay, Mrs K. had been convicted belatedly. According to the applicant, the overruling of various procedural decisions by the superior prosecutor also demonstrated that the investigation had been ineffective.

33. The Government maintained that there had been no violation of Article 3. The domestic authorities had thoroughly examined the applicant’s allegations that she had been injured by Mr K. but had found, based on all the evidence in the file, that she had been attacked and injured by Mrs K. They submitted that the overruling of refusals to institute criminal proceedings and the fact that the case had been remitted for further investigation showed the authorities’ willingness to investigate the incident effectively. The authorities had responded actively to the applicant’s complaints; in particular, several police officers had been disciplined.

2. The Court’s assessment

34. The Court notes at the outset that the violent treatment to which the applicant was subjected on 3 February 2007 fell within the scope of Article 3 of the Convention (see and compare Aleksandr Nikonenko v. Ukraine, no. 54755/08, §§ 7 and 40, 14 November 2013, and İbrahim Demirtaş v. Turkey, no. 25018/10, § 31, 28 October 2014).

35. 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 M.C. v. Bulgaria, no. 39272/98, § 151, ECHR 2003-XII, and Denis Vasilyev v. Russia, no. 32704/04, § 99, 17 December 2009). The minimum standards of effectiveness laid down by the Court’s case-law include the requirements that the investigation must be independent, impartial and subject to public scrutiny, and that the competent authorities must act with exemplary diligence and promptness (see, for example, Muta, cited above, § 61).

36. The procedural requirements of Article 3 go beyond the preliminary investigation stage when the investigation leads to legal action being taken before the national courts: the proceedings as a whole, including the trial stage, must meet the requirements of Article 3. This means that the domestic judicial authorities must on no account be prepared to let the physical or psychological suffering inflicted go unpunished. This is essential for maintaining the public’s confidence in, and support for, the rule of law and for preventing any appearance of the authorities’ tolerance of or collusion in unlawful acts (see, mutatis mutandis, Okkalı v. Turkey, no. 52067/99, § 65, ECHR 2006 XII (extracts)).

37. Turning to the circumstances of the present case, the Court notes that although the applicant complained of the assault to the police the day after the incident, the investigation into it was instituted with a certain delay, more than a month and half later.

38. The pre-trial investigation was then suspended on 20 May 2007 and 1 December 2007 for failure to identify the perpetrator of the assault. Those decisions were subsequently set aside as premature, but they nonetheless delayed the investigation (see and compare Dudnyk v. Ukraine, no. 17985/04, § 36, 10 December 2009, and Koval and Others v. Ukraine, no. 22429/05, § 82, 15 November 2012).

39. The courts twice remitted the case against Mrs K. for further investigation. It is particularly notable that on one occasion, on 24 July 2009, the case was remitted for further investigation partly because the applicant’s right to study the case file on completion of the pre-trial investigation had not been respected. Moreover, between 1 July 2009 and 27 May 2011 the investigating authorities refused to institute criminal proceedings against Mr K. on three occasions, and two of those refusals were subsequently overruled. The Court reiterates that the repetition of such remittal orders and decisions not to institute proceedings discloses a serious deficiency (see Kozinets v. Ukraine, no. 75520/01, § 61, 6 December 2007).

40. In the light of the foregoing, the Court concludes that in the present case the authorities failed to conduct the investigation into the applicant’s allegations of ill-treatment expeditiously, which led to the expiry of the relevant time-limit and made it impossible to pursue prosecution in respect of one of the alleged perpetrators any further (see and compare Beganović v. Croatia, no. 46423/06, § 85, 25 June 2009; Valiulienė v. Lithuania, no. 33234/07, § 85, 26 March 2013; and Aleksandr Nikonenko, cited above, § 45).

41. The foregoing considerations are sufficient to enable the Court to conclude that the investigation of the applicant’s allegations of ill-treatment did not meet the requirements of Article 3.

42. There has therefore been a violation of the procedural limb of Article 3 of the Convention.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

43. 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.”

A. Damage

44. The applicant claimed 12,768 euros (EUR) and 1,111.04 Ukrainian hryvnias (UAH) in respect of pecuniary damage and EUR 28,000 in respect of non-pecuniary damage.

45. The Government considered that the claims were excessive and had no causal link with the alleged violations of the Convention.

46. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim.

47. The Court considers that the applicant must have suffered distress and anxiety on account of the violation it has found. Ruling on an equitable basis, it awards the applicant EUR 1,500 in respect of non-pecuniary damage.

B. Costs and expenses

48. The applicant claimed UAH 7,100 for legal expenses before the domestic courts and UAH 22,000 for those before the Court. She also claimed UAH 282.88 for postal expenses.

49. The Government considered that this claim was unsubstantiated.

50. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 510 to cover costs under all heads.

C. Default interest

51. 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 application admissible;

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

3. Holds

(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 1,500 (one thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 510 (five hundred and ten euros), 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;

4. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 11 February 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Milan Blaško André Potocki
Deputy Registrar President

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