FIFTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 12944/02
by Oleksandr Petrovych KULAKOV
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 16 November 2010 as a Chamber composed of:
Peer Lorenzen, President,
Renate Jaeger,
Rait Maruste,
Isabelle Berro-Lefèvre,
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva,
Ganna Yudkivska, judges,
and Claudia Westerdiek, Registrar,
Having regard to the above application lodged on 3 April 2001,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Oleksandr Petrovych Kulakov, is a Ukrainian national who was born in 1947 and lives in Lviv. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev, from the Ministry of Justice.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. The criminal proceedings against Mr Zh.
On 28 March 1996 the applicant, leaving a shop, took a bag belonging to Mr Zh., who later turned out to be an off-duty police officer. According to the applicant he took the bag because of a misunderstanding. Having seen the applicant leaving with his bag, Mr Zh. caught up with him and asked him if the bag was heavy to carry. Receiving a negative reply from the applicant, Mr Zh. punched him once in the face. Mr Zh. later explained to the investigators that when the applicant turned to face him he got the impression that the applicant was going to hit him with a briefcase, and therefore, being in a state of agitation because of the daylight theft of his bag, he had instinctively punched him in the face.
On 29 March 1996 the applicant went to the doctor who noted split skin on the applicant’s eyebrow and two bruises on his cheek. No other injuries were recorded.
On 1 April 1996 the Lviv Zaliznychny District Prosecutor’s Office ordered a medical examination of the applicant.
On 2 April 1996 the medical expert concluded that the applicant had split skin on his left eyebrow measuring 10 by 1 millimetres and two bruises near the left eye and on the left cheek measuring respectively 7 by 5 centimetres and 2 by 1.5 centimetres. The expert classified them as a minor injury.
From 3 to 9 April 1996 the applicant was in a local hospital.
On 10 April 1996 the same medical expert issued an additional opinion. He took into consideration that on 3 April 1996 the applicant was admitted to a local hospital, where he had an X-ray examination that showed a fracture of his cheekbone. The expert reported a fracture of the applicant’s cheekbone and bruises on his face and concluded that the applicant’s injury fell within the category of medium-level injury
On 5 May 1996 the Rivne City Prosecutor’s Office instituted proceedings against Mr Zh. for intentional infliction of medium-level bodily harm.
In January 1997 the investigator in the case ordered a further expert examination of the matter, with a view to resolving the discrepancies between the two expert opinions. The examination was conducted by a commission of experts on 23 April 1997. The commission, comprising the initial expert and two heads of the Regional Forensic and Medical Examinations Office, established on the basis of medical evidence that the applicant had suffered a fracture of the left cheekbone, bruises and concussion. The experts concluded that these injuries amounted to medium‑level bodily harm with long-term effects on the applicant’s health.
In late 1997 a further expert examination of the applicant’s injury was requested by the Central Forensic and Medical Examinations Office. Between 22 January and 20 April 1998 that office conducted complex medical examination of the same medical evidence and did not confirm the fracture of the applicant’s cheekbone.
Meanwhile, the applicant obtained a number of medical opinions from specialists, who confirmed that he had a cheekbone fracture.
On 18 June 1998, relying on the conclusion of the latest medical examination, the investigator decided to terminate the criminal proceedings against Mr Zh. for want of proof of crime (infliction of medium-level bodily harm) and because further prosecution (for infliction of minor bodily injury) was now time-barred.
By a letter of 26 October 1998, the Head of the Central Forensic and Medical Examinations Office informed the investigator that due to conflicting conclusions on the same X-ray as to the existence or otherwise of the cheekbone fracture a further forensic examination should be conducted.
By a letter of 4 February 1999, the Head of the Central Forensic and Medical Examinations Office asked the investigator for to arrange a visit by the applicant to that office. The applicant arrived in Kyiv but the examination did not take place, as the applicant refused to be hospitalised for this purpose.
By a letter of 26 March 1999 the Head of the Central Forensic and Medical Examinations Office invited the applicant to have an X-ray examination in Lviv since he had not had one in Kyiv. Apparently, such examination was not carried out.
On 15 June 1999 the Rivne City Prosecutor’s Office closed the criminal proceedings against Mr Zh. on the same grounds as in the decision of 18 June 1998.
On 1 November 2000 Rivne City Court quashed the decision of 15 June 1999.
On 28 February 2001 the Rivne City Prosecutor’s Office closed the criminal proceedings against Mr Zh. This decision was quashed by the Rivne Regional Prosecutor’s Office on 6 April 2001.
On 7 April 2001 the criminal proceedings were terminated due to prosecution being time-barred.
By a letter of 19 April 2001 the Prosecutor General replied to the applicant’s complaint about the termination of the criminal proceedings. He considered that the decision to terminate the proceedings was well-founded and that Mr Zh. had been acting as a private person, since he had been in plain clothes, had been off duty and had not identified himself to anyone as a police officer.
On 20 June 2001 Rivne City Court rejected the applicant’s complaint against the prosecutor’s decision. The court noted in particular that the seriousness of the injuries sustained by the applicant could not be established conclusively because he had flatly refused to have an additional X-ray examination.
2. The civil proceedings against the medical experts
On 3 July 1999 the applicant instituted civil proceedings in Lviv Lychakivsky District Court against medical experts and doctors in Lviv and Kyiv, seeking compensation in respect of non-pecuniary damage resulting from their unlawful actions.
On 26 June 2000 the court found against the applicant, having established that the medical experts and doctors had been acting within their competence.
On 18 September 2000 Lviv Regional Court upheld the decision of the first-instance court.
On 27 September 2000 the Deputy President of the Supreme Court transferred to the President of Lviv Regional Court the applicant’s request for an extraordinary review of his case. This request was refused on 23 November 2000.
On 6 April 2001 the Deputy President of the Supreme Court refused another request by the applicant for an extraordinary review of his case.
COMPLAINTS
The applicant complained under Articles 6 and 13 of the Convention that the criminal investigation against Mr Zh. was ineffective and that the criminal and civil proceedings in his case were unfair. Under Article 6 § 3 he further complained that his representative was not allowed to take part in the examination of his cassation appeal in the civil proceedings against the medical experts.
THE LAW
1. The applicant complained that the domestic authorities had failed to investigate satisfactorily the infliction of the medium-level bodily harm on him by Mr Zh., the off-duty police officer. He invoked Articles 6 and 13 of the Convention. In substance his complaint could also be understood to raise an issue under Article 3 of the Convention.
The provisions of those Articles read insofar as relevant as follows:
Article 3
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
Article 6
“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law...
....
3. Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
(b) to have adequate time and facilities for the preparation of his defence;
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him...”
Article 13
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
The Government observed that the events complained about took place partly prior to entry of the Convention into force, therefore the Court’s competence ratione temporis was limited to the events that took place after 11 September 1997.
The applicant did not make any observations on this point.
The Court reiterates that the procedural obligations, which have been implied in varying contexts under the Convention, were found to evolve into a separate and autonomous duty of the State. Therefore, it is competent to examine the procedural aspect of Article 3, given the detachability of procedural obligations (see, mutatis mutandis, Šilih v. Slovenia [GC], no. 71463/01, §§ 153-163, 9 April 2009). Furthermore, the Court may take into account the events that took place prior to the entry of the Convention into force for a State concerned, if it is required, for example, to access the reasonableness of the length of proceedings (see Milošević v. the former Yugoslav Republic of Macedonia, no. 15056/02, § 21, 20 April 2006) or to see whether the domestic proceedings instituted within the Court’s competence ratione temporis were essentially the same as the ones that had been conducted prior to entry of the Convention into force (see Ponomarenko v. Ukraine, no. 13156/02, § 26, 14 June 2007). The Court considers that in the present case the first question for decision is the applicability of Article 3, in respect of which the question arises as to whether the State has procedural obligations under the said provision concerning the criminal proceedings against Mr Zh. On this point it observes that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 of the Convention. The assessment of this level depends on all the circumstances of the case. Factors such as the nature and context of the treatment, the manner and method of its execution, its duration, its physical and mental effects and, in some instances, the sex, age and state of health of the victim must all be taken into account (see, among many other authorities, Costello‑Roberts v. the United Kingdom, 25 March 1993, § 30, Series A no. 247‑C).
In the instant case the Court observes that the assault upon the applicant was not very violent and took place as a result of a private, spontaneous conflict and in circumstances under which the applicant’s behaviour, intentionally or not, had been perceived as provocative and threatening. The assault consisted of one punch in the face, causing split skin on his left eyebrow measuring 10 by 1 millimetres, two bruises near the left eye and on the left cheek measuring respectively 7 by 5 centimetres and 2 by 1.5 centimetres, and concussion. As to the applicant’s allegations of a more serious injury, it has not been conclusively established that this injury occurred, and the applicant himself contributed to the uncertainty by refusing to have an additional medical examination.
Previous cases in which the Court has found that the State’s positive obligations under Article 3 were engaged concerned far more serious instances of ill‑treatment: beating with a garden cane applied with considerable force on more than one occasion (see A. v. the United Kingdom, 23 September 1998, § 21, Reports of Judgments and Decisions 1998‑VI); very serious neglect and abuse for a number of years (see Z and Others v. the United Kingdom [GC], no. 29392/95, §§ 11‑36, 40 and 74, ECHR 2001‑V); consistent sexual abuse over a period of years (see D.P. and J.C. v. the United Kingdom, no. 38719/97, §§ 66-74, 10 October 2002); extremely serious sexual and physical abuse over a long period of time (see E. and Others v. the United Kingdom, no. 33218/96, §§ 43 and 89, 26 November 2002); multiple rape (see M.C. v. Bulgaria, no. 39272/98, §§ 16‑21, 30 and 153, ECHR 2003‑XII); beating all over the body with wooden planks, leading to multiple rib fractures (see Šečić v. Croatia, no. 40116/02, § 8, 11 and 51, ECHR 2007‑VI); and anal fissure caused by several attackers in highly intimidating circumstances (see Nikolay Dimitrov v. Bulgaria, no. 72663/01, §§ 9 and 70, 27 September 2007). By contrast, in the present case the Court is not persuaded that the treatment to which the applicant was subjected attained a minimum level of severity to fall within the scope of Article 3.
Therefore, the Court concludes that Article 3 is not applicable in the present case.
Furthermore, as to the applicant’s complaint under Article 6 of the Convention, the Court reiterates that the Convention does not confer any right of “private revenge”. Thus, the right to have third parties prosecuted or sentenced for a criminal offence cannot be asserted independently. Nevertheless, an issue may arise regarding the victim’s exercise of the right to bring civil proceedings in domestic law, even if only to secure symbolic reparation or to protect a civil right such as the right to a “good reputation” (see Perez v. France [GC], no. 47287/99, § 70, ECHR 2004-...). However, the Court notes that in the present case the applicant did not lodge any civil claim for compensation against Mr Zh., although such venue was open to the applicant even if further criminal proceedings were time-barred. The Court finds therefore that there is no element of a civil claim in this aspect of the case, which accordingly must be rejected as being incompatible ratione materiae with the provisions of the Convention, pursuant to Article 35 §§ 3 and 4 of the Convention.
As to the applicant’s complaint under Article 13 of the Convention, in the absence of any arguable claim found in this part of the application, the Court considers that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
2. The applicant also complained that the civil proceedings instituted against the medical experts were unfair, and about the refusal to allow his lawyer to participate in the proceedings before the regional court. He referred to Article 6 §§ 1 and 3 and Article 13 of the Convention, cited above.
The Court notes that the final domestic decision in those proceedings was given by Lviv Regional Court on 18 September 2000, which was more than six months before the date on which the application was submitted to the Court – 3 April 2001. The applicant’s requests for extraordinary review lodged with the regional and Supreme courts cannot be taken into account, as this procedure is not a remedy within the meaning of Article 35 § 1 of the Convention (see, mutatis mutandis, (see Kucherenko v. Ukraine (dec.), no. 41974/98, 4 May 1999). It follows therefore that these complaints have been lodged out of time and must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court by a majority
Declares the application inadmissible.
Claudia WesterdiekPeer Lorenzen Registrar President
Full & Egal Universal Law Academy