Communicated on 1 December 2014
FIFTH SECTION
Application no. 27454/11
Olga Nikolayevna ORLIK
against Ukraine
lodged on 15 April 2011
STATEMENT OF FACTS
The applicant, Ms Olga Nikolayevna Orlik, is a Ukrainian national, who was born in 1960 and lives in Oleksandrivka. She is represented before the Court by Mr I.P. Pogasiy, a lawyer practising in Kirovograd.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant was assaulted on 3 February 2007 and, according to the subsequent findings of the domestic courts, sustained hematomas on her jaw, shoulder and hip, a bruise under her right eye, and a displaced rib fracture.
According to the applicant, the assailants were Mrs L.I.K. and Mr L.V.K., her daughter’s former parents-in-law. According to the applicant, the reason for the assault was that L.I.K. and L.V.K. were trying to take away the mobile phone which their son had given to the applicant’s daughter.
On 4 February 2007 the applicant lodged a complaint with the police concerning the events of 3 February 2007.
On 6 February 2007 a doctor of the Kirovograd Regional Hospital observed that the applicant had hematomas on her jaw.
On 12 February 2007 the applicant complained to the head of the Kirovograd Regional Justice Department that she had been assaulted by L.V.K., who, she alleged, was the head of the Oleksandrivka District Justice Department.
On 14 February 2007 Oleksandrivka District Police Department (“the Oleksandrivka Police Department”) refused to institute criminal proceedings on suspicion of disorderly conduct.
On 22 February 2007 a forensic medical expert issued a report finding that the applicant had suffered a displaced rib fracture and this injury had to be classified as bodily harm of medium severity.
On 20 March 2007 the Oleksandrivka District Prosecutor’s Office (“the Oleksandrivka Prosecutor’s Office”) quashed the decision of 14 February 2007 and on 21 March 2007 initiated criminal proceedings in connection with infliction of bodily harm of medium severity on the applicant.
On 29 August 2007 and 3 October 2007 the Oleksandrivka Prosecutor’s Office quashed two decisions of investigative authorities, of unspecified dates, to suspend the investigation of the case.
On 30 November 2007 the applicant complained to the General Prosecutor’s Office and the Kirovograd Regional Prosecutor’s Office (the “Regional Prosecutor’s Office”) about delays in the investigation, in particular that the case had been repeatedly transferred from one investigator to another, that no confrontation between L.I.K. and L.V.K. and no reconstruction of the event had been conducted.
On 1 April 2008 a police investigator refused the applicant’s request to study the case file stating that the Code of Criminal Procedure provided for victims’ right of access to the case file only after the completion of the investigation.
On 23 April 2008 the Regional Prosecutor’s Office informed the applicant, inter alia, that even though on 21 January 2008 the Oleksandrivka Prosecutor’s Office had quashed another decision, of unspecified date, to suspend the investigation, no investigative steps had been taken by the investigator in charge of the case since that time.
On 15 May 2008 a deputy head of the Department of the Ministry of the Interior in Kirovograd Region informed the applicant that officers of the district police department had been disciplined for omissions in the investigation of the criminal case.
On 5 September 2008 the Oleksandrivka Prosecutor’s Office informed the applicant that the delay in the investigation of the case was due to the need to await the conclusions of a forensic medical examination in the case.
On 15 September 2008 a police investigator refused to institute criminal proceedings against L.V.K. for lack of corpus delicti in his actions. The investigator stated that the pre-trial investigation had established that it had been L.I.K. and not L.V.K. who assaulted the applicant.
On 23 October 2008 the Oleksandrivka Court after a hearing released L.I.K. from criminal liability under an amnesty law, considering that she had a dependent mother of advanced age.
On 23 December 2008 the applicant appealed requesting that the time-limit for appeal be extended since she had not been informed about the hearing and the decision to release L.I.K. from liability until 18 December 2012.
On 29 December 2008 the Oleksandrivka Court granted the applicant’s request and renewed the time-limit.
On 24 February 2009 the Kirovograd Regional Court of Appeal (“the Court of Appeal”) quashed the Oleksandrivka Court’s judgment of 23 October 2008 finding no evidence that L.I.K.’s mother was dependent on her.
On 19 March 2009 the applicant lodged a complaint with the Regional Prosecutor’s Office seeking to quash the decision of 15 September 2008 not to prosecute L.V.K. She alleged, in particular, that L.V.K. had not been prosecuted in view of his position as the head of the Oleksandrivka District Justice Department.
On 3 April 2009 the Regional Prosecutor’s Office informed the applicant that the Oleksandrivka Prosecutor had been reprimanded for poor organization of work in the applicant’s case, disciplinary proceedings had been initiated against the investigator in charge of the case, and L.I.K.’s case had been transferred to the Novomyrgorod Police Department for further investigation.
On 18 June 2009 the Regional Prosecutor’s Office informed the applicant that the investigation was in progress and that disciplinary proceedings had been initiated against the investigator in charge of the case.
On 10 July 2009 the Novomyrgorod District Prosecutor’s Office approved an indictment in L.I.K.’s case and sent the case file to the Oleksandrivka Court.
In July 2009 the applicant lodged a request with the Oleksandrivka Court asking that the case be remitted for further investigation arguing that she had been assaulted by L.V.K., not L.I.K., and that she had not been invited to study the case file upon completion of the investigation, as required by law.
On 24 July 2009 the Oleksandrivka Court granted the applicant’s request and remitted the case against L.I.K. for further investigation, holding that the applicant had not been allowed to study the case-file and that the decision to refuse to institute criminal proceedings against L.V.K. had been drawn up in contravention of the law.
On 3 August 2009 the Oleksandrivka Prosecutor’s Office appealed.
On 27 October 2009 the Oleksandrivka Prosecutor’s Office withdrew its appeal and the Court of Appeal discontinued the appeal proceedings.
On 6 November 2009 the applicant complained to the General Prosecutor’s Office that the Oleksandrivka Prosecutor’s Office had appealed in order to delay the investigation. She further asked that the decision of 15 September 2008 to refuse to institute criminal proceedings against L.V.K. be quashed.
On 20 November 2009 pre-trial investigation was resumed.
On 17 December 2009 the applicant, while studying the case-file, requested the investigator to charge both L.V.K. and L.I.K., instead of charging L.I.K. alone. The investigator refused the request stating that there was no evidence in the case-file against L.V.K.
On 21 December 2009 the Novomyrgorod District Prosecutor approved a new indictment against L.I.K.
On 15 January 2010 the applicant lodged a request with the Oleksandrivka Court asking that the case be remitted for further investigation and the decision to refuse to institute criminal proceedings against L.V.K. be quashed.
On 29 March 2010 the Oleksandrivka Court granted the applicant’s request and remitted the case against L.I.K. for further investigation to the Novomyrgorod District Prosecutor. The court held that the decision not to institute criminal proceedings against L.V.K. had been premature since his involvement in the events had not been sufficiently investigated, that not all instructions previously given in the case were complied with and that the investigator needed to explore the possibility of prosecuting L.V.K., L.I.K. and their son on suspicion of violent robbery.
On 26 May 2010 the Court of Appeal upheld the decision of 29 March2010.
On 20 December 2011 the Znamyanka Court convicted L.I.K. of inflicting bodily harm of medium severity on the applicant, sentencing her to restriction of liberty for two years, suspended for a one-year probationary period. It awarded the applicant UAH 2,000 (approximately 189,31 euros at the time) in respect of non-pecuniary damage as well as compensation in respect of pecuniary damage and legal fees.
On 6 January 2011 the applicant appealed arguing, in particular, that the offence was committed jointly by L.I.K. and L.V.K. and for this reason the punishment to which L.I.K. had been sentenced was too lenient. She also complained that the award in respect of non-pecuniary damage was insufficient.
On 6 March 2012 the Court of Appeal rejected the applicant’s appeal, quashed the judgment and discontinued criminal proceedings against L.I.K. as time-barred.
On 27 June 2012 the Higher Civil and Criminal Specialised Court rejected the applicant’s request for leave to appeal on points of law holding that the applicant’s appeal did not indicate any error of substantive criminal law or fundamental errors of procedural law.
COMPLAINT
The applicant complains under Articles 6 and 13 of the Convention that the domestic authorities have failed to carry out an effective investigation into the circumstances of her ill-treatment.
QUESTION TO THE PARTIES
Having regard to the procedural protection from inhuman or degrading treatment, were the domestic proceedings in the present case in breach of Article 3 of the Convention?
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