FIFTH SECTION
CASE OF NYCHYPORENKO AND DEMIDOVA v. UKRAINE
(Applications nos. 8278/21 and 41605/23)
JUDGMENT
STRASBOURG
12 December 2024
This judgment is final but it may be subject to editorial revision.
In the case of Nychyporenko and Demidova v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Diana Sârcu, President,
Kateřina Šimáčková,
Mykola Gnatovskyy, judges,
and Viktoriya Maradudina, Acting Deputy Section Registrar,
Having deliberated in private on 21 November 2024,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in applications against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table.
2. The Ukrainian Government (“the Government”) were given notice of the applications.
THE FACTS
3. The list of applicants and the relevant details of the applications are set out in the appended table.
4. The applicants complained of the ineffective investigation into ill‑treatment inflicted by private parties. In application no. 8278/21, the applicant also raised other complaints under the provisions of the Convention.
THE LAW
JOINDER OF THE APPLICATIONS5. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.
ALLEGED VIOLATION OF ARTICLE 3 of the Convention6. The applicants complained principally of the ineffective investigation into ill-treatment inflicted by private parties. They relied, expressly or in substance, on Article 3 of the Convention.
7. The Court notes at the outset that the treatment in question fell within the scope of Article 3 of the Convention. 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, mutatis mutandis, Menesheva v. Russia, no. 59261/00, § 67, ECHR 2006-III).
8. 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)).
9. Reviewing the facts of the present cases in the light of those principles, the Court considers that the authorities, who were empowered to open and conduct a criminal investigation, did not make a genuine attempt to take a prompt and thorough examination of the matter, establish the facts and, if necessary, bring those responsible to account. The specific shortcomings are indicated in the appended table.
10. In the leading case of Muta v. Ukraine (no. 37246/06, 31 July 2012) the Court already found violations in respect of issues similar to those in the present cases.
11. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that the investigations failed to meet the criteria of effectiveness.
12. These complaints are therefore admissible and disclose a breach of Article 3 of the Convention under its procedural limb.
OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW13. In application no. 8278/21, the applicant submitted other complaints which also raised issues under Article 6 of the Convention, given the relevant well-established case-law of the Court (see appended table). These complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor are they inadmissible on any other ground. Accordingly, they must be declared admissible. Having examined all the material before it, the Court concludes that they also disclose violations of the Convention in the light of its findings in the case set out in the appended table.
REMAINING COMPLAINTS14. In application no. 41605/23, the applicant in addition complained under Articles 6 and 13 of the Convention about the length of the proceedings in her case.
15. In view of the above findings under Article 3 of the Convention, the Court considers that there is no need to deal separately with the applicant’s complaints under Articles 6 and 13 of the Convention (for similar approach see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014; Valyuzhenich v. Russia, no. 10597/13, § 27, 26 March 2019).
APPLICATION OF ARTICLE 41 OF THE CONVENTION16. Regard being had to the documents in its possession and to its case‑law (see, in particular, Pobokin v. Ukraine [Committee], no. 30726/14, 6 April 2023), the Court considers it reasonable to award the sums indicated in the appended table.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
Decides to join the applications;Declares the complaints concerning the ineffective investigation into ill‑treatment inflicted by private parties and the other complaints under the well-established case-law of the Court, as set out in the appended table, admissible, and finds that there is no need to examine separately the remainder of application no. 41605/23;Holds that these complaints disclose a breach of Article 3 of the Convention concerning the ineffective investigation into ill-treatment inflicted by private parties;Holds that there has been a violation of the Convention as regards the other complaints raised under the well-established case-law of the Court (see appended table); Holds(a) that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into 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 amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
Done in English, and notified in writing on 12 December 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Viktoriya Maradudina Diana Sârcu
Acting Deputy Registrar President
APPENDIX
List of applications raising complaints under Article 3 of the Convention
(ineffective investigation into ill-treatment inflicted by private parties or in circumstances that exclude involvement of State agents)
No.
Application no.
Date of introduction
Applicant’s name
Year of birth
Background to the case and domestic proceedings
Key issues
Other complaints under well-established case-law
Amount awarded for non-pecuniary damage per applicant
(in euros)[1]
8278/21
25/01/2021
Kateryna Petrivna NYCHYPORENKO
1984
On 30/06/2018 the applicant was beaten with a stick by Kh., who entered her home. The applicant sustained brain concussion. Following her complaint on 01/07/2018, criminal proceedings were initiated. On 19/10/2018 the local prosecutor’s office acknowledged the inadequacy of the investigation and issued instructions to the investigator. On 05/12/2018, 17/01/2019, 07/05/2019 and 14/06/2019 the court found unlawful the investigator’s failure to consider the applicant’s submissions lodged within the criminal proceedings. During briefings held at the prosecutor’s office on 20/02/2019 and 07/06/2019, it was reiterated that the criminal case lacked thorough investigation, and the investigator was directed to expedite the process. On 03/07/2019 the investigator decided to terminate the proceedings due to the expiration of the time-limit for investigation. This decision was overturned on 26/09/2019 by the court due to insufficient reasoning. On 06/11/2019 the proceedings were again terminated with reference to the time-limits for investigation. The court quashed that decision on 10/01/2020, citing the failure to carry out necessary investigative actions. Another decision to terminate the criminal proceedings on 24/01/2020 was once again overturned by the Kyiv Court of Appeal on 27/05/2020 due to insufficient reasoning. The proceedings are formally pending, although the case file materials, stored in the Makariv police department in the Kyiv region, were destroyed on 18-19/03/2022 as a result of hostilities with the Russian army.
On 04/03/2020 the applicant lodged a civil claim against Kh., seeking compensation for pecuniary and non-pecuniary damage resulting from an assault by Kh. The applicant also asked the court to request the criminal casefile and to question her mother, who had witnessed the attack. However, on 07/09/2020 the first-instance court dismissed the motion due to the applicant’s failure to indicate any facts that could be substantiated by witness testimony. The defendant did not submit any observations to the claim. On 30/09/2020 the applicant provided the court with a copy of her mother’s testimony obtained during the investigation. On 23/10/2020 the first-instance court dismissed the claim due to insufficient evidence. The applicant lodged an appeal, once again requesting the court to interview her mother. On 24/11/2020 the appellate court dismissed the motion, concluding that the evidence contained in the casefile was sufficient to rule on the claim. On 12/01/2021 in its final decision, the appellate court upheld the first-instance court’s ruling, briefly concluding that the applicant had failed to present sufficient evidence to establish Kh.’s offending and guilty behaviour. No detailed explanation accompanied that conclusion. Both courts decided to consider the case through written proceedings.
On 12/02/2021 the Makariv Local Court of the Kyiv region partially allowed the applicant’s claim against the police department, awarding her 1,722 Ukrainian hryvnas (UAH) and UAH 2,000 in compensation for pecuniary and non-pecuniary damage, respectively, caused by the ineffective investigation. This decision was not appealed against and on 25/03/2021 became final.
Failure to secure the applicant’s right to participate effectively in the investigation (Chernega and Others v. Ukraine, no. 74768/10,
§ 165-166, 18 June 2019, with further references),
failure to take the necessary steps to investigate the case thoroughly (Skorokhodov v. Ukraine, no. 56697/09, §§ 34-35, 14 November 2013),
groundless decisions to close or suspend the case (Aleksandr Nikonenko v. Ukraine, no. 54755/08, § 45,
14 November 2013),
shortcomings recognised by the national authorities themselves (Muta v. Ukraine, no. 37246/06, § 65, 31 July 2012)
Art. 6 (1) - lack of fair hearing - Deficient reasoning of the court decisions in the applicant’s civil case, in particular, in view of the courts’ refusal to accept the applicant’s eyewitness evidence (see Benderskiy v. Ukraine,
no. 22750/02, §§ 42-47, 15 November 2007; Pronina v. Ukraine,
no. 63566/00, § 25,
18 July 2006; and Bogatova v. Ukraine, no. 5231/04, §§ 18 and 19, 7 October 2010).
3,900
41605/23
07/11/2023
Svitlana Volodymyrivna DEMIDOVA
1967
According to the applicant, on 22/07/2006 she was assaulted by her neighbour O. and sustained bodily injuries (bruises and scratches).
On 20/12/2006 the applicant filed a criminal complaint against O. Following several refusals of a local court to initiate criminal proceedings and quashing of these decisions by an appellate court as unsubstantiated, the jurisdiction of the case had been changed to a different local court, which eventually initiated criminal proceedings against O. on 15/07/2009.
On 23/12/2011 O. was exempted from criminal liability due to amnesty and the criminal proceedings against him were closed.
On 12/04/2012 the appellate court quashed that decision for incomplete consideration of the case and remitted it for fresh trial by the first-instance court.
On 20/07/2012 O. was exempted from criminal liability due to the expiration of the limitation period and the criminal proceedings against him were closed. On 06/11/2012 the appellate court quashed that decision and remitted the case for fresh trial by the first-instance court.
In 05/07/2013 and 22/09/2014 a forensic medical examination established that the applicant’s bodily injuries were light.
On 28/11/2014 O. was exempted from criminal liability due to amnesty and the criminal proceedings against him were terminated. On 27/07/2015 the appellate court quashed this decision for incomplete consideration of the case and remitted it for fresh trial by the first-instance court.
On 04/04/2016 O. was exempted from criminal liability due to the expiration of the limitation period and the criminal proceedings against him were terminated; on 16/05/2017 the appellate court quashed that decision due to procedural shortcomings and remitted the case for fresh trial by the first-instance court.
On 28/07/2020 O. was convicted of inflicting bodily injuries, sentenced to a fine, and exempted from punishment due to the expiry of the statutory limitation period. The applicant’s civil claim was allowed, and O. was obliged to pay her damages of UAH 9,000 (EUR 225). On 17/01/2022 the appellate court and on 11/08/2022 the Supreme Court upheld that decision.
From the submitted materials it does not follow that any investigative actions except for forensic medical examinations were conducted.
The applicant claims that a copy of the Supreme Court’s decision was not delivered to her, while her ability to get it herself was impaired by wartime conditions and her evacuation from the Kharkiv region, which is near the frontline, to Germany. On 27/06/2023 she returned to Ukraine, and on 05/07/2023 she authorised a lawyer to represent her. On 18/07/2023 her lawyer got access to the case file.
Repeated groundless refusal to institute criminal proceedings / to register the complaint in the Unified Register of Pre-trial Investigations (Skorokhodov v. Ukraine, no. 56697/09, § 34,
14 November 2013);
failure to take the necessary steps to investigate the case thoroughly (Skorokhodov v. Ukraine, no. 56697/09, §§ 34-35, 14 November 2013); Muta v. Ukraine, no. 37246/06, § 65, 31 July 2012);
overall protracted character of the investigation and court proceedings (Muta v. Ukraine, no. 37246/06,
§ 65, 31 July 2012)
3,000
[1] Plus any tax that may be chargeable to the applicants.