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FIFTH SECTION

Application no. 56697/09
Dmitriy Leonidovich SKOROKHODOV
against Ukraine
lodged on 14 October 2009

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Dmitriy Leonidovich Skorokhodov, is a Ukrainian national who was born in 1981 and lives in Kharkiv.

A.  The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant was working as a shipping agent at a private company. On 28 November 2005 R., the deputy director of the company, and L., the head of security at the company, decided to question the applicant about the disappearance of cash from one of the company’s shops. In the course of the argument they beat the applicant up.

On the same day the applicant was taken to the hospital and diagnosed with a closed traumatic brain injury and other injuries on his body. The information was reported to the police.

On 2 December 2005 the applicant lodged complaints with the police and the prosecutor’s office seeking the prosecution of R. and L.

On 7 December 2005 the police refused to open an investigation in connection with the applicant’s allegations of ill-treatment after noting that the medical assessment of the applicant’s injuries had not been completed and that there was still no evidence of a crime.

On 26 December 2005 a medical expert issued a report finding that on 28 November 2005 the applicant had sustained the following injuries: a closed traumatic brain injury; bruises to his nose, eyes, lower jaw, upper lip and left ear; a cut to his right eyelid; an injury to the left side of his waist affecting the kidney; and bruising to his limbs and the left side of his groan. The expert classified the injuries as light.

On 23 January 2006 the prosecutor quashed the decision of 7 December 2005 as unfounded and ordered a further pre-investigation inquiry.

On 16 February, 2 March, 4 April and 21 May 2006 the police adopted decisions refusing to open an investigation. Those decisions were quashed by the supervising prosecutor as unfounded. On 14 June 2006, after quashing the decision of 21 May 2006, the prosecutor himself opened criminal proceedings and remitted the case to the police for investigation. The police officer who had adopted the previous decisions not to open an investigation was disciplined.

On 12 June 2007 the police closed the investigation for lack of corpus delicti.

On 28 September 2007 the supervising prosecutor quashed the decision as unfounded and remitted the case for further investigation.

During 2008 and 2010 the applicant complained to the authorities that the proceedings had been unreasonably delayed and that if the investigation continued like that the perpetrators would eventually evade punishment as the time-limit for prosecution would expire. The applicant received the reply that the investigation had been carried out properly and that most of the delay had been down to the forensic medical examination centre, which was heavily overloaded.

On 9 June 2010, in reply to the applicant’s complaint that the investigation had exceeded the time-limits provided by domestic law, the prosecutor, referring to Article 120 § 5 of the Code of Criminal Procedure, informed the applicant that the time-limits for the investigation were to be calculated from the date when a perpetrator had been identified. This had not yet been done in the present case and the rules laid down in the preceding paragraphs of that Article therefore did not apply.

The proceedings are pending.

B.  Relevant domestic law

1.  Code of Criminal Procedure of 28 December 1960

Article 4 of the Code provides that a court, prosecutor, investigator or body of inquiry must, to the extent that it is within their power to do so, institute criminal proceedings in every case where signs of a crime have been discovered, take all necessary measures provided by law to establish whether a crime has been committed, and identify the perpetrators and punish them.

Under Article 28 of the Code, a person who has sustained damage as a result of a crime can lodge a civil claim against an accused at any stage of criminal proceedings before the beginning of the consideration of the case on the merits by a court. A civil claimant within criminal proceedings is exempt from the court fee for lodging a civil claim.

Article 120, dealing with terms of pre-trial investigation, provides as follows:

“Pre-trial investigation in criminal cases shall be completed within two months. This term shall commence from the moment the criminal proceedings are initiated and run until the moment when the case is referred to the prosecutor together with an indictment or a resolution concerning the referral of the case to the court for a decision concerning the application of the measures of compulsory medical treatment, or until the proceedings are suspended or discontinued. If it is impossible to complete the investigation, this term may be extended to up to three months by the district prosecutor, city prosecutor, military prosecutor of the army, fleet, military districts (commands) or garrisons, and prosecutors of equal rank. The time it takes for the accused and his defence to familiarise themselves with the materials of the criminal case file shall not be included in the calculation of the term of pre-trial investigation.

In especially complicated cases the term of pre-trial investigation set by part 1 of this Article may be extended to up to six months by the Prosecutor of the Autonomous Republic of the Crimea, regional prosecutors, the prosecutor of Kyiv, military prosecutors of the military district (command) and navy, and prosecutors of equal rank or their deputies on the basis of a reasoned decision of the investigator.

Any further extension of the term of pre-trial investigation may only be authorised by the Prosecutor General of Ukraine or by his deputies.

Where the case has been remitted for additional investigation, or if the discontinued proceedings have been resumed, the term of additional investigation shall be established by the prosecutor supervising the investigation, and shall not exceed one month from the date when the investigation is resumed. Further extension of this term shall be authorised on general grounds.

The rules set out in this Article shall not be applicable to criminal proceedings where the person who committed the crime has not been identified. The running of the term of investigation in such cases shall commence from the date on which the person who committed the crime is identified.”

2.  Code of Civil Procedure of 18 March 2004

Article 201 of the Code provides, inter alia, that a court is obliged to suspend its examination of a civil case if that case could not be examined prior to the outcome of other pending criminal proceedings.

COMPLAINTS

1.  The applicant complains under Article 3 of the Convention that the authorities failed to carry out an effective investigation of the circumstances of his ill-treatment.

2.  The applicant complains under Articles 6 and 13 of the Convention that the proceedings in question were excessively lengthy and prevented him from obtaining compensation.

3.  The applicant complains under Article 14 of the Convention that the authorities discriminated against him on the basis of his social status by failing to carry out an appropriate investigation into his ill-treatment.

QUESTIONS TO THE PARTIES

1.  Has the State complied with its positive obligations under Article 3 of the Convention in the present case?

2.  Was Article 6 § 1 of the Convention applicable to the present case? if so:

(a)  Did the applicant have access to a civil remedy in respect of his claim for compensation on account of his alleged ill-treatment, as required by Article 6 § 1 of the Convention?

(b)  Was the length of the criminal proceedings in the present case contrary to the requirements of Article 6 § 1 of the Convention?

3.  Did the applicant have at his disposal effective domestic remedies for his complaint under Article 3, as required by Article 13 of the Convention?

The Government are invited to provide:

(a)  a chronological list of pre-investigative, investigative, and judicial actions taken in respect of the applicant’s complaint of ill-treatment;

(b)  copies of the relevant documents concerning the respective domestic proceedings (including the decisions refusing to open an investigation and closing the investigation, as well as the decisions of the supervising authorities taken after the review of the above-mentioned decisions);

(c)  copies of documents concerning the applicant’s civil claim for compensation on account of ill-treatment.