Communicated on 3 June 2019
FIFTH SECTION
Application no. 42244/17
Vyacheslav Eduardovych KHIMIKUS
against Ukraine
lodged on 8 June 2017
STATEMENT OF FACTS
The applicant, Mr Vyacheslav Eduardovych Khimikus, is a Ukrainian national, who was born in 1978 and lives in Dibrova. He is represented before the Court by Ms M. Parinova, a lawyer practising in Kyiv.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 31 December 2016 at around 5 p.m. on a road near Khlepcha village the applicant, as a result of a verbal conflict with People’s Deputy P. (“the deputy”), hit the latter on the head with a glass bottle causing minor bodily harm. Using his Glock pistol, the deputy shot the applicant’s left thigh, causing a fracture of the applicant’s left thigh bone and leading to three operations. The medical forensic examination carried out following a request by the applicant’s representative’s qualified the injuries as grievous.
1. Criminal case no. 12016110140003023
On 31 December 2016, on the basis of a criminal complaint lodged by the deputy against the applicant and Mr O., a criminal case was opened into:
“... the events that occurred on 31 December 2016 near Khlepcha Village of Vasylkivsk district in Kyiv Region, involving Khimikus V.E. and [the deputy] under the elements of the criminal offence provided in paragraph 2 of Article 296 of the Criminal Code of Ukraine [disorderly acts committed in group]”
The applicant had witness status.
On 3 January the applicant lodged an application with the Kyiv regional prosecutor’s office seeking to be recognised as a victim in the above criminal case.
On 12 January 2017 the Kyiv regional prosecutor’s office issued a decision refusing to recognise the applicant as a victim. The applicant’s representative appealed to the Pecherskyy District Court of Kyiv.
On 18 January 2017 the applicant’s representative asked the Kyiv regional prosecutor’s office to carry out an investigative re-enactment, involving, inter alia, the applicant.
On 21 February 2017 the Pecherskyy District Court of Kyiv annulled the prosecutor’s decision of 12 January 2017.
On 9 March 2017 the deputy participated in the re-enactment.
On 4 April 2017 the deputy asked the Prosecutor General’s Office to carry out another re-enactment.
On 5 April 2017 the deputy participated in the second re-enactment.
2. Criminal case no. 4201710000000254
On 3 January 2017 the applicant lodged with the Prosecutor General’s Office a criminal complaint seeking to have criminal proceedings instituted against the deputy on charges of attempted murder.
On 2 February 2017 the applicant lodged with the Kyiv regional prosecutor’s office a criminal complaint, seeking to have criminal proceedings instituted against the deputy in respect of shooting him in the thigh.
On 9 February 2017 the Pecherskyy District Court of Kyiv ordered the Kyiv regional prosecutor’s office to create an entry in the integrated register of pre-trial investigations in respect of the events set out in the applicant’s criminal complaint of 2 February 2017 and to start a pre-trial investigation.
On 27 April 2017 a criminal case was opened against the deputy.
3. Joined criminal case no. 12016110140003023
On 18 July 2017 the Prosecutor General’s Office joined the two criminal cases.
On 26 July 2017 the Prosecutor General’s Office closed the joined criminal case for lack of corpus delicti. The applicant’s representative appealed against this decision to the Pecherskyy District Court of Kyiv.
On 13 December 2017 the Pecherskyy District Court of Kyiv annulled the decision of 26 July 2017 and ordered additional investigation. The court found, inter alia, that the decision contained “mutually exclusive conclusions”, that is to say that, on the one hand, the deputy’s defence had been justified and that, on the other hand, it had not been proven that the applicant had committed a crime that would have justified the deputy’s defence. In addition, the court found that the investigation had been incomplete and that the applicant’s procedural rights had been violated. In particular, the applicant, despite being a victim in the criminal case, had not been involved in the re-enactment and his numerous requests to have investigative and procedural actions carried out had been left without consideration.
On 12 March 2018 the Prosecutor General’s Office issued a decision refusing to recognise the applicant as a victim in the criminal case.
On 26 March 2018 the applicant’s representative appealed against the decision of 12 March 2018 to the Pecherskyy District Court of Kyiv.
4. Administrative-offence proceedings against the applicant
On 31 July 2017 the Deputy Prosecutor General transferred a copy of criminal case no. 12016110140003023 to the head of the national police, asking that administrative-offence proceedings be opened against the applicant.
On 12 August 2017 a police officer of the Vasylkivsk police force drew up an administrative-offence record in respect of the events of 31 December 2016, charging the applicant under Article 173 § 1 of the Code of Administrative Offences (minor disorderly acts) with “uttering obscenities at [the deputy] in a public place, and thus breaching public order and disturbing peace of citizens”.
5. Criminal case no. 42017000000000190
On 1 January 2017 a spokesperson for the national police in Kyiv Region (the “spokesperson”) stated the following in a phone interview with a Ukrainian news channel:
“A conflict occurred; two men tried to attack [the] deputy and threatened him with bodily harm. Then the deputy was forced to take his registered gun and shoot once in the air, but this did not stop one of the attackers, who hit him on the head with a glass bottle; when the deputy fell to the ground, he was able to wound that attacker. By the way, I would like to say about that attacker: as we have found out, he has already had problems with the law for this very reason, that he has inflicted bodily harm and criminal proceedings [in this connection] have been opened against him.”
On 2 January 2017, Mr G., another deputy, who, at the relevant time, was a special adviser [радник] to the Minister of the Interior, stated in a phone interview with the same news channel the following:
“A citizen [the applicant] approached him [the deputy] and continued to threaten him, after which [the deputy] took his gun and fired a warning shot into the air, but as a reply, he was hit with a glass bottle ... only after this, when [the deputy] fell, did he fire in the leg ... in order to stop the hooligan, who was breaching public order and could have continued to inflict harm ... [C]oncerning the personality of the person who attacked [the deputy] – that person had been held liable for beating up his own wife. Well, if that person could beat up his own wife, you can imagine what the reaction he had to the remark [made to him] ... Sometimes, a man with a bottle, who hits another man on the head, ... commits an offence.”
On 3 January 2017 the applicant lodged with the Prosecutor General’s Office a criminal complaint seeking to have criminal proceedings opened against the spokesperson and Deputy G. He complained that, in the above mentioned interview, they had negatively characterised him and confirmed Deputy P.’s version of the events of 31 January 2016.
On 26 January 2017 a criminal case was opened into interference with the activities of a police officer.
On 28 February 2017 the Kyiv prosecutor’s office closed the criminal case for lack of corpus delicti.
On 2 August 2017 the Dniprovskyy District Court of Kyiv annulled the above decision and ordered additional investigation.
6. Access to case-file material
On 7 September 2017 the Pecherskyy District Court of Kyiv ordered the Prosecutor General’s Office to provide the applicant’s representative with the case-file material in criminal case no. 12016110140003023 for studying.
This decision has not been executed.
B. Relevant domestic law
The relevant provisions of the Code of Criminal Procedure 2012 read as follows:
Article 55. Victim
“1. A victim in the criminal proceedings may be a physical person who sustained as a result of a criminal offence psychological, physical or pecuniary damage, or a legal person which sustained pecuniary damage.
2. The rights and obligations of a victim shall arise from the moment of submission of a criminal complaint in respect of a criminal offence having been inflicted upon him or her, or an application to be engaged in the proceedings as a victim.
...
5. If it is evident and there are sufficient reasons to believe that a criminal complaint, a notification of a criminal offence or an application to be engaged in the proceedings as a victim has been submitted by a person, who did not suffer any damage, indicated in paragraph 1 of this Article, an investigator or a prosecutor shall render a reasoned decision not to recognise [him or her] as a victim, which may be appealed against to an investigating judge.”
Article 56. The victim’s rights
“1. During the criminal proceedings the victim shall have the right to:
...
4) submit ... applications.
...
11) ... study the material of a criminal investigation, which directly concerns the criminal offence inflicted on him or her, in the event of closure of the proceedings.
...
2. During pre-trial proceedings, the victim shall have the right to:
1) have his or her criminal complaint accepted and registered immediately, to be recognised as a victim;
2) obtain from a competent body with which he or she has lodged a criminal complaint a document confirming its lodging and registering;
3) produce evidence in support of his or her complaint;
4) take part in investigative actions (including search) and other procedural actions and in the course of which to ask questions, submit his or her comments and objections with regard to the conduct of a procedural action, to have such comments and objections put on the record of the procedural action concerned, as well as to review the records of the investigative actions (including search) and other procedural actions conducted with his or her participation;
5) after the completion of the pre-trial investigation, obtain copies of material which directly relates to a criminal offence which has been committed against him or her.
...”
Article 214. Opening of a pre-trial investigation
“1. An investigator or a prosecutor shall immediately, and not later than twenty-four hours after submission of an allegation or notification that a criminal offence has been committed, or having discovered themselves from any source indications that a criminal offence has been committed, be required to enter such information in the integrated register of pre-trial investigations and shall open an investigation ...
2. The pre-trial investigation shall begin as soon as data have been entered in the integrated register of pre-trial investigations ...”
COMPLAINTS
The applicant complains under Articles 2, 6, 8 and 13 of the Convention that the domestic authorities failed to conduct an effective investigation in connection with the incident of 31 December 2016. The applicant also complains in substance that in January 2017 two high-ranking officials made statements in interviews that breached his right to the presumption of innocence, as guaranteed under Article 6 § 2 of the Convention.
QUESTIONS TO THE PARTIES
1. Did the domestic authorities have an automatic obligation under Articles 2 and/or 3 of the Convention to institute an investigation of their own motion into the applicant’s wounding by gunshot?
2. Did the domestic authorities conduct an effective official investigation into the injuries inflicted on the applicant, as required by Articles 2 and 3 of the Convention (see, for instance, Gordiyenko v. Ukraine, no. 27620/09, 16 October 2014; Dornean v. the Republic of Moldova, no. 27810/07, 29 May 2018; and Sergey Shevchenko v. Ukraine, no. 32478/02, § 65, 4 April 2006)? In particular, was the applicant given the opportunity to participate effectively in the investigation?
3. As for the complaint under article 6 § 2 of the Convention, have the domestic remedies been exhausted, if there were any, and was the applicant “charged with a criminal offence” within the meaning of that provision at the time that the impugned statements were made?
In the affirmative, was the presumption of innocence, as guaranteed by Article 6 § 2 of the Convention, breached in the present case?
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