In the case of Muta v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as
a Chamber composed of:
Dean Spielmann, President,
Mark Villiger,
Karel Jungwiert,
Boštjan M. Zupančič,
Ann Power-Forde,
Ganna Yudkivska,
André Potocki, judges,
and Stephen Phillips, Deputy Section Registrar,
Having deliberated in private on 10 July 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
37246/06) 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, Mr Ivan Viktorovich Muta (“the
applicant”), on 30 August 2006.
The applicant, who had been granted legal aid,
was represented by Ms N.O. Bordunova, a lawyer practising in Kyiv, Ukraine. The Ukrainian Government (“the Government”) were represented by their Agent, Mrs V. Lutkovska,
of the Ministry of Justice of Ukraine.
The applicant alleged, in particular, that the
investigation into his complaints of ill-treatment by a private individual, K.,
had been ineffective.
On 17 January 2011 the application was
communicated to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1988 and lives in the
village of Aleksandrovka, Ukraine.
A. Events of 14 June 2000
On 14 June 2000 the applicant, who was 11 years
old, was playing football with his friends. Two 15 year-old boys took their
ball. The applicant tried to get the ball back and he and his friends started
to throw chestnuts at the other boys. One of the boys, K., threw a stone in
retaliation, which hit the applicant in the left eye. As a result the applicant
was diagnosed with concussion. Subsequently, he became blind in his left eye.
B. Criminal proceedings against K.
On 20 June 2000 Sverdlovsk District Hospital, which the applicant attended after the incident, informed the Sverdlovskiy police
office (Свердловський
МВ УМВС
України в
Луганській
області) that the applicant had
been injured by a third person.
The Government submitted that on the same date
the applicant’s father had complained to the police office about the injuries
received by his son. However, according to the Government, on the same date the
applicant’s father requested all investigations to be discontinued because he
“had no complaints and refused to give any written explanations or to have a
forensic medical examination”. The Government submitted a copy of a written
statement allegedly signed by the applicant’s father. The applicant stated that
his father had never made such a statement.
On 24 June 2000 the police refused to institute
criminal proceedings on account of lack of evidence of a crime.
On 10 July 2000 the applicant’s father requested
the police office to institute criminal proceedings against K.
On 13 July 2000 the police rejected his request on
account of lack of evidence of a crime.
On 21 August 2000 the Sverdlovsk prosecutor (прокурор
м. Свердловськ)
quashed the decision of 24 June 2000 and remitted the case to the police for
additional checks.
On 29 August 2000 the Sverdlovsk Department of
Forensic Medical Examinations (Свердловське
відділення
судмедекспертизи)
concluded that the applicant had sustained bodily injuries of medium severity,
but that it would only be possible to finally establish the seriousness of the
injuries in six months’ time.
On 30 October 2000 criminal proceedings were
instituted against K. for intentional infliction of bodily injuries of medium
severity.
On 31 October 2000 the applicant’s father was
recognised as a victim and a civil claimant in the case since the applicant was
a minor at the time.
Between 9 November 2000 and 5 June 2001 the
criminal proceedings were suspended “since it was impossible to identify the aggressor”.
On 18 January 2001 the Lugansk Regional Bureau
of Forensic Medical Examinations (Луганське
обласне бюро
судово-медичних
експертиз) reached
the conclusion that the applicant had sustained bodily injuries of medium
severity.
On 5 June 2001 the criminal proceedings were
resumed.
On 20 June 2001 K.’s actions were reclassified
as “unintentional infliction of grievous bodily harm”. This crime was not
punishable under criminal law if the aggressor had not reached the age of
majority (16 years).
On 25 June 2001 the criminal proceedings against
K. were terminated and the case was transferred to the court for compulsory
measures of an educational nature (примусові
заходи
виховного
характеру) to be
applied to K.
On 14 August 2001 the Sverdlovskiy Town Court
ordered a forensic medical examination of the applicant.
On 13 December 2001 the Lugansk Regional Bureau
of Forensic Medical Examinations classified the injury as grievous bodily harm.
On 27 February 2002 the Sverdlovskiy Town Court ordered
a reconstruction of the events with the participation of all the persons involved,
their representatives and a forensic expert. The reconstruction was carried out
in March 2002.
On 29 July 2002 the Sverdlovsk prosecutor
informed the applicant’s father that disciplinary proceedings had been
instituted against the investigating officer for protracting the investigation.
On 18 November 2002 the Sverdlovskiy Town Court
remitted the case for additional investigation. The applicant appealed and
requested that K.’s actions be redefined as intentional infliction of grievous
bodily harm.
On 28 January 2003 the Lugansk Regional Court of
Appeal upheld the decision of 18 November 2002.
On 20 March 2003 K.’s actions were again
qualified as unintentional infliction of grievous bodily harm and the case was remitted
to the Sverdlovskiy Town Court for the ordering of compulsory measures of an
educational nature in respect of K.
On 30 January 2004 the court remitted the case
for additional investigation since K. was no longer a minor and so the court
could not order compulsory measures of an educational nature in respect of him.
On 30 March 2004 the Lugansk Regional Court of
Appeal remitted the case for fresh consideration.
On 13 July 2004 the Sverdlovskiy Town Court
again remitted the case for additional investigation. It noted that it was
unclear whether the applicant had received injuries of medium severity or
grievous bodily injuries, and whether K. had intentionally inflicted such injuries.
On 21 September 2004 the Lugansk Regional Court
of Appeal upheld that decision.
On 25 October 2004 the investigating officer at the
Sverdlovsk police department (слідчий
Свердловського
МВ УМВС
України в
Луганській
області) refused to institute
criminal proceedings against K. for intentional infliction of grievous bodily
harm on the applicant. On the next day he remitted the case against K. in
respect of unintentional infliction of bodily harm to the court to be closed,
as the time-limit for prosecution had expired.
On 3 November 2004 the Sverdlovskiy Town Court
quashed the decision of 25 October 2004.
On 7 December 2004 the Lugansk Regional Court of
Appeal changed the decision of 3 November 2004 and remitted the case for
additional investigation.
In January 2005 the case was transferred for
investigation to the Krasnodon investigation authorities (слідчий
відділ
Краснодонського
МВ УМВС України
в Луганській
області).
On 11 April 2005 K. was charged with intentional
infliction of grievous bodily harm and the case was transferred to the Krasnodonskiy Local Court.
On 14 October 2005, at K.’s request, the court
ordered an additional forensic medical examination.
On 19 December 2005 the Donetsk Regional Bureau
of Forensic Medical Examinations (Донецьке
обласне бюро
судово-медичної
експертизи) reached
the conclusion that the applicant had sustained bodily injuries of medium
severity.
On 3 April 2006 the court rejected the applicant
father’s request for a third forensic examination to be carried out to
reconcile the contradictory conclusions of the previous examinations of 2001
and 2005.
On 26 May 2006 the court rejected a similar
request by the prosecutor.
On 3 July 2006 the court finally decided to
allow the applicant’s father’s request and ordered an additional forensic
medical examination to be carried out in Kyiv.
On 8 August 2006 the Main Bureau of Forensic
Medical Examinations (Головне
бюро судово-медичної
експертизи)
informed the court that such an examination would not be possible before 2008.
On 27 November 2006 the applicant was recognised
as falling into the third category of disability (the mildest).
On 4 July 2008 a commission of four experts
concluded that the applicant had sustained grievous bodily harm: an injury to
his left eye and concussion.
On 9 October 2008 the Krasnodonskiy Local Court imposed
on K. a suspended sentence of three years’ imprisonment, with a one-year
probation period, for infliction of grievous bodily harm. At the court hearing
K. pleaded guilty.
On 23 December 2008 the Lugansk Regional Court of
Appeal terminated the proceedings in the case as the time-limit for prosecution
had expired.
On the same date the court adopted a special
ruling informing the Lugansk Regional Council of Judges that the proceedings in
the case had taken too long.
C. Civil proceedings
In September 2009 the applicant and his father instituted
civil proceedings for damages. They claimed 23,399 Ukrainian hryvnas (UAH) in
compensation for pecuniary damage, and UAH 700,000 in compensation for
non-pecuniary damage.
On 26 April 2011 the Sverdlovskiy Town Court of the
Lugansk Region awarded the applicant UAH 15,000 (at the material time the
equivalent of 1,270.65 euros (EUR)), to be paid by K., in respect of
non-pecuniary damage. The court also awarded the applicant’s father UAH
15,067.16 in respect of pecuniary and non-pecuniary damage.
On 19 September and 20 October 2011 the Lugansk
Regional Court of Appeal and the Higher Specialised Civil and Criminal Court of
Ukraine, respectively, upheld this decision.
II. RELEVANT DOMESTIC LAW
A. Criminal Code of Ukraine
(in force before 1 September 2001)
“Article 10. Responsibility of minors
1. Persons who have reached the age of 16 years before the
commission of a criminal offence shall be criminally liable.
2. Persons aged between 14 and 16 who have committed
criminal offences shall be criminally liable only for ... intentional infliction
of bodily injuries resulting in damage to health ....
Article 101. Intentional grievous bodily injury
1. Intentional grievous bodily injury, that is, wilful bodily
injury which endangers life at the time of infliction, or results in the loss
of any organ or its functions, or causes mental illness or any other health
disorder together with a persisting loss of not less than one-third of working
capability, or the interruption of pregnancy, or permanent facial disfigurement, shall
be punishable by imprisonment for a term of two to eight years.
...
Article 102. Intentional bodily injury of medium severity
Intentional bodily injury of medium severity, that is,
wilful bodily injury which does not endanger life and does not result in the
consequences listed in Article 101 of this Code, but which causes the lasting dysfunction
of a body organ, or another lasting health disorder, shall be punishable by
imprisonment for a term of up to four years or correctional labour for up to
two years ...
Article 105. Negligent grievous bodily injury or
negligent bodily injury of medium severity
Negligent grievous bodily injury or negligent bodily
injury of medium severity, -
shall be punishable by imprisonment for one year, or by correctional
labour for one year.
B. Criminal Code of Ukraine (in force from 1 September
2001)
“Article 22. Age of criminal liability
1. Persons who have reached the age of 16 years before the
commission of a criminal offence shall be criminally liable.
2. Persons aged between 14 and 16 who have committed
criminal offences shall be criminally liable only for ... intentional grievous
bodily injury ..., [and] intentional bodily injury of medium severity ....
Article 105. Discharge from punishment subject to
compulsory measures of an educational nature
1. A minor who has committed a minor offence or an offence
of medium severity may be discharged from punishment by a court if it is found
that the punishment may be discontinued due to the minor’s genuine repentance
and further irreproachable conduct.
2. In this case, the court may impose the following
measures of an educational nature on a minor:
(1) a warning;
(2) restriction of leisure time and special requirements in
respect of the minor’s conduct;
(3) placing the minor under the supervision of his/her
parents or foster parents, or school teachers or colleagues upon their consent,
or other individuals at their request;
(4) obliging a minor who has attained 15 years of age and
possesses any property or money, or has any earnings, to compensate any
pecuniary damage;
(5) placing the minor in a special educational and
correctional institution for children and teenagers until the minor’s rehabilitation
is complete, but for a term not exceeding three years. The conditions of the stay
in and the procedure for discharge from these institutions shall be provided
for by law.
3. A minor may be subjected to several compulsory
correctional measures as provided for by paragraph 2 of this Article. The
duration of the compulsory correctional measures provided for in subparagraphs
(2) and (3) of paragraph 2 of this Article shall be determined by the court.
4. A court may also find it necessary to appoint a tutor
for a minor pursuant to the procedures provided for by the law.
Article 106. Discharge from criminal liability and
punishment after expiry of the limitation periods
1. Discharge from criminal liability and punishment after
expiry of the limitation periods shall be applied to persons having committed
criminal offences when under 18 years of age, pursuant to Articles 49 and 80 of
this Code and subject to the provisions of this Article.
2. The following limitation periods shall be established
in respect of the persons described in paragraph 1 of this Article:
...
(3) seven years - for a serious offence ....”
THE LAW
I. ALLEGED VIOLATION OF
ARTICLE 3 OF THE CONVENTION
The applicant complains that the investigation
in his case was ineffective, and that the proceedings were excessively lengthy.
He invokes Articles 3, 6 and 13 of the Convention.
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 solely under the procedural limb of Article 3 of the Convention, which
reads as follows:
Article 3
“No one shall be subjected to torture or to inhuman or
degrading treatment or punishment.”
A. Admissibility
The Government did not submit any observations
on the admissibility of this complaint.
The Court notes that this complaint 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
The Government submitted that the investigation in
the present case had included the questioning of eighteen witnesses, the questioning
of the victim on four occasions, and the questioning of K. on seven occasions.
There had been four forensic medical examinations and one forensic ballistic
examination. Since all the persons involved were minors, the investigation had required
particular diligence and caution.
The Government further reiterated that the applicant’s
father had initially not wanted to have K. prosecuted, and had later been given
the opportunity to participate fully in the investigation.
Thus, the Government stated, the State
authorities had taken all possible measures to secure the evidence in the case,
which had required particular diligence, and had secured the applicant’s right
to participate in the investigation. As a result the guilty person had been identified
and his actions had been correctly classified. The State had therefore complied
with its obligations under Article 3 of the Convention in the present case.
In reply, the applicant argued that the questioning
of witnesses and the forensic examinations should not, in the circumstances of
the case, have taken more than half a year. Instead the proceedings in the case
had lasted for eight years. The applicant believed that the State authorities
had intentionally protracted the proceedings so that K. would be spared responsibility.
The Court notes at the outset that as a result of the violent
actions of a private individual, K., the applicant sustained grievous bodily
harm, lost the sight in his left eye and became disabled. Thus, the treatment
to which he was subjected reached the threshold of severity necessary to fall
within the scope of Article 3 of the Convention (see, a contrario, Tonchev
v. Bulgaria, no. 18527/02, § 38-40, 19
November 2009).
The Court further reiterates that its case-law
is consistent and clear on the point that Article 3 of the Convention requires that
the authorities conduct an effective official investigation into alleged
ill-treatment even if such treatment has been inflicted by private individuals
(see Ay v. Turkey, no. 30951/96, § 60, 22 March
2005, and M.C. v. Bulgaria, no. 39272/98, § 151, ECHR 2003‑XII
and, most recently, Biser Kostov v. Bulgaria, no. 32662/06, 10 January 2012).
In particular, Article 3 requires States to put
in place effective criminal-law provisions to deter the commission of offences
against personal integrity, backed up by law-enforcement machinery for the
prevention, suppression and punishment of breaches of such provisions. On the
other hand, it goes without saying that the obligation on the State under
Article 1 of the Convention cannot be interpreted as requiring the State to
guarantee through its legal system that inhuman or degrading treatment is never
inflicted by one individual on another or that, if it is, criminal proceedings
should necessarily lead to a particular sanction. In order that a State may be
held responsible it must in the view of the Court be shown that the domestic
legal system, and in particular the criminal law applicable in the
circumstances of the case, fails to provide practical and effective protection
of the rights guaranteed by Article 3 (see Beganović v. Croatia, no. 46423/06, § 71, 25 June 2009,
with further references).
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, mutatis
mutandis, Menesheva v. Russia, no. 59261/00, § 67, ECHR 2006-III).
The procedural requirements of Article 3 go
beyond the preliminary investigation stage when, as in this case, 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 the prohibition enshrined in 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)).
In the present case, the Court notes that the criminal
proceedings in the case against the applicant’s assailant lasted for eight and
a half years - from 20 June 2000, when the police were informed about the
incident, until 23 December 2008, when the court terminated the proceedings in
the case as the time-limit for prosecution had expired.
The Court notes that the case before the
national authorities does not appear to have been complicated. The circumstances
of the case were clear and the incident was limited to only one episode and involved
a small number of witnesses. It took the national authorities, however, more
than eight years to investigate the case. The case was several times referred for
additional investigation, in particular, for failure to determine the main issues
in the case (the degree of severity of the injuries inflicted and K.’s intent
to inflict them) after four years of investigation and court proceedings (see
paragraph 30 above). By the time the final decision in the applicant’s case was
taken, a criminal prosecution of K. had become time-barred.
The Court further notes that the proceedings
included significant periods of inactivity. In particular, the proceedings were
stayed for unknown reasons for half a year (see paragraph 16 above) and it took
the national authorities more than two years to perform the final forensic
medical examination in the applicant’s case (see paragraphs 42 and 44 above).
The protracted character of the investigation and court proceedings was
recognised by the national authorities themselves (see paragraphs 24 and 47 above).
In the light of the foregoing, the Court
concludes that in the present case the authorities failed to conduct an
effective investigation into the applicant’s allegations of ill-treatment,
which led to the expiry of the relevant deadline and made it impossible to pursue
prosecution any further. Accordingly, there has been a violation of Article 3
of the Convention under its procedural limb.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The applicant also complained that the
proceedings in the criminal case against K. had been unfair. He invoked
Articles 6 and 14 of the Convention.
Having carefully examined the applicant’s
submissions in the light of all the material in its possession, and in so far
as the matters complained of are within its competence, the Court finds that
they do not disclose any appearance of a violation of the rights and freedoms
set out in the Convention.
It follows that this part of the application
must be declared inadmissible as being manifestly ill-founded, pursuant to
Article 35 §§ 3 (a) and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
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
The applicant claimed 75,000 euros (EUR) in
respect of non-pecuniary damage.
The Government stated that the applicant’s
claims were unsubstantiated.
The Court, deciding on an equitable basis, awards
the applicant EUR 7,500 in respect of non-pecuniary damage.
B. Costs and expenses
The applicant did not claim any costs and expenses.
C. Default interest
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 complaint under Article 3 of
the Convention concerning ineffective investigation admissible and the
remainder of the application inadmissible;
2. Holds that there has been a violation of
Article 3 of the Convention under its procedural limb;
3. Holds
(a) that the respondent State is to pay the applicant,
within three months of the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention, EUR 7,500
(seven thousand five hundred euros), to be converted into Ukrainian hryvnas at
the rate applicable on the date of settlement, plus any tax that may be
chargeable, in respect of non-pecuniary damage;
(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;
4. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 31 July 2012,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Dean
Spielmann Deputy Registrar President
