FIFTH SECTION

DECISION

Application no. 74479/14 Oleg Yuriyovych TKACHENKO against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 27 May 2021 as a Committee composed of:

Stéphanie Mourou-Vikström, President, Ganna Yudkivska, Lado Chanturia, judges and Martina Keller, Deputy Section Registrar ,

Having regard to the above application lodged on 12 November 2014,

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

1 . The applicant, Mr Oleg Yuriyovych Tkachenko, is a Ukrainian national who was born in 1985 and lives in Chernivtsi. He was represented before the Court by Mr F.G. Tkach, a lawyer practising in Chernivtsi.

2 . The Ukrainian Government (“the Government”) were represented by their Agent, Mr I. Lishchyna.

3 . The facts of the case, as submitted by the parties, may be summarised as follows.

4 . On 8 March 2012 Mr T., the applicant ’ s brother-in-law (the husband of his wife ’ s sister), assaulted the applicant in the Chemerivtsi District of the Khmelnytskyy Region, where the applicant had been visiting his wife ’ s parents. According to the applicant, Mr T. punched and kicked him in the head, attempted to strangle him and threatened to kill him. The applicant explained that he had been attempting to intervene to protect Mrs T., his wife ’ s sister, who had been assaulted by Mr T. The incident was witnessed by the applicant ’ s wife as well as his son and his nephew, who were minors.

5 . On 9 March 2012 the applicant gave a written statement of the incident to the police, complaining that he was afraid for his life. He asked to be referred to a forensic medical expert so that his and Mrs T. ’ s injuries could be documented. On the same day Mrs T. also gave a statement to the police confirming the applicant ’ s allegations.

6 . On 9 March 2012 a neuropathologist at the emergency department of the Chemerivtsi Hospital diagnosed the applicant with post ‑ traumatic encephalopathy ( закрита черепно-мозкова травма ) and concussion ( струс головного мозку ). The hospital gave the information to the Chemerivtsi district police department (“the district police”).

7 . On 10 March 2012 the applicant was examined at an emergency hospital in Chernivtsi and was diagnosed with concussion and contusion of the soft tissue of the head ( забій м ’ яких тканин голови ). The hospital informed the district police about that diagnosis.

8 . On 11 March 2012 the district police, following the information received from the hospitals, refused to institute criminal proceedings against Mr T. on suspicion of disorderly conduct, on the grounds that there was no forensic medical examination report in respect of either the applicant or Mrs T. The police found it established, however, that Mr T. had punched Mrs T. and had also punched the applicant in the head, causing him to fall . On the same day, following the applicant ’ s criminal complaint, the district police also refused to institute criminal proceedings against Mr T. in relation to threats to kill the applicant that he had allegedly made by phone on 9 March 2012, finding the applicant ’ s allegations in this respect unsubstantiated.

9 . Between March and October 2012 the police refused on at least five occasions to open criminal proceedings following the applicant ’ s criminal complaint and the information received from the hospitals. The Chemerivtsi district prosecutor ’ s office overruled those decisions, pointing to deficiencies in the investigation.

10 . On 9 July 2012 forensic medical examinations of the applicant and Mrs T. were conducted, during which no injuries were found on the applicant and Mrs T. ’ s injuries were classified as minor.

11 . On 19 November 2012 a new Code of Criminal Procedure came into force. Under that Code, an investigation had to be initiated by creating an entry in the integrated register of pre-trial investigations.

12 . On 10 December 2012 the applicant lodged a criminal complaint with the district police, setting out the incident of 8 March 2012 and asking the police to help him. He alleged that, from 9 March 2012 onwards, Mr T. had issued death threats against the applicant and his family.

13 . On 14 December 2012 the district police created an entry in the integrated register of pre-trial investigations in respect of the applicant ’ s complaint that Mr T. had threatened to kill him. The police opened a criminal case under Article 129 of the Criminal Code (see paragraph 28 below).

14 . On 11 January and 5 March 2013 the police ordered another two expert examinations to be carried out, asking the expert to establish, on the basis of the medical documentation provided by the applicant and that requested from the hospitals, the nature and type of bodily injuries inflicted on the applicant and whether he had received a concussion of the soft tissue of the head as a result of being kicked in the head with a boot.

15 . The Government submitted a letter of 13 February 2013 written by the Chief Doctor of the Chemerivtsi Hospital to the head of the district police indicating that on 9 March 2012 the applicant had undergone an urgent two-dimensional X-ray of his head. No bone pathology had been detected on those images.

16 . The applicant provided the Court with copies of medical documents dated 7 August 2012 and 17 October 2013 which stated, inter alia , that he had suffered from post-traumatic encephalopathy.

17 . On 5 March 2013 a criminal case was opened against Mr T. for infliction of minor bodily injuries to Mrs T.

18 . On 14 and 22 March 2013 a forensic medical expert produced opinions concluding that, on the basis of the medical documentation provided by the applicant and the police (including the medical records of 9 and 10 March, those of July and August 2012, and the above-mentioned letter of 13 February 2013), there was no objective data which could corroborate the diagnoses of concussion and encephalopathy. Those diagnoses were unfounded, as they had been made without any objective justification or clear neuropathological evidence. He further stated that it was unlikely that such conditions could have resulted from the injuries inflicted on 8 March 2012, since those would normally be accompanied by visible signs such as bruising, wounds or skull fractures, none of which had been observed by the neuropathologist on 9 March 2012.

19 . On 2 April 2013 Mr T. was questioned. After listening to an audio recording of a conversation with his former wife, he explained that he had had no intention of killing the applicant and regretted the words he had used in relation to Mrs T.

20 . On 25 May 2013 the district police discontinued the investigation against Mr T. in relation to the alleged death threats. It relied on the expert opinion of 14 March 2013 and on Mr T. ’ s statement.

21 . On 17 June 2013 the District Court quashed the decision of 25 May 2013, pointing out numerous omissions in the investigation, in particular the unexplained reliance on Mr T. ’ s statement and the failure to question him in detail or to reconcile his statement with those of the alleged victims.

22 . On 26 October 2013 the district police again discontinued the investigation on the same grounds as those given in its decision of 25 May 2013. The applicant appealed, arguing in particular that the police had failed to question the doctors who had examined him.

23 . On 7 March 2014 Mr T. was put on a wanted list in the framework of a criminal case on the infliction of minor bodily injuries to Mrs T.

24 . On 22 April 2014 the District Court upheld the decision of 26 October 2013. The court held that the applicant ’ s allegations that Mr T. had taken genuine measures to kill him had not been confirmed in the court hearings and that the applicant had not provided evidence in support of his complaints. The investigation of the case had been thorough given that the applicant had complained only of the threats against his life in his criminal complaint of 10 December 2012. The decision to discontinue the investigation had been legal and well-founded. The applicant appealed.

25 . On 13 May 2014 the Khmelnyskyy Regional Court of Appeal upheld the decision of the District Court. As regards the issue of the questioning of doctors, it confirmed that the refusal to question them had been appropriate, as two years had passed since the event and therefore the doctors could not have been expected to remember every person whom they had examined and his or her injuries, especially given that the doctors had not recorded those injuries in the primary medical documents. The applicant had not asked to question the doctors when the second examination report had been ordered or thereafter, he had not questioned the results of that examination and he had not undergone a forensic medical examination just after the incident of 8 March 2012, although he had had the opportunity to do so. Moreover, in his criminal complaint of 10 December 2012, the applicant had only indicated the threat to kill, which had been adequately investigated. Finally, the appellate court explained to the applicant that he still had an opportunity to ask for a criminal case to be brought against Mr T. under Article 126 of the Criminal Code of Ukraine .

26 . On 11 July 2014 the Higher Specialised Court of Ukraine, following a notice of cassation appeal by the applicant, refused to open cassation proceedings, as the appellate court ’ s decision of 13 May 2014 was not open to appeal on points of law.

27 . The relevant provisions of the Constitution of Ukraine (1996) read as follows:

Article 28

“Everyone has the right to respect for his or her dignity.

No one shall be subjected to torture, cruel, inhuman or degrading treatment or punishment that violates his or her dignity ...”

28 . The relevant provisions of the Criminal Code of Ukraine of 2001 read as follows:

Article 126. Battery and torment

“1. Intentional striking, beating or the commission of other violent acts which cause physical pain and do not result in physical injuries shall be punished by a fine ...”

Article 129. Threat of murder

“1. A threat to kill, if there was a reasonable cause to believe that this threat might be fulfilled, shall be punished by arrest ... or by restriction of liberty...”

COMPLAINt

29 . The applicant complained under Articles 3 and 13 of the Convention that the domestic authorities had failed to carry out an effective investigation into the circumstances of an assault he had suffered.

THE LAW

30 . In reply to the Government ’ s observations, the applicant additionally complained of ill-treatment of Mrs T. by Mr T. and of negative effects on the health of the applicant ’ s minor son following the incident of 8 March 2009.

31 . In the Court ’ s view, the applicant ’ s new complaints are not an elaboration on his original complaints to the Court, on which the parties had commented before the new complaints were raised. The Court considers, therefore, that it is not appropriate to take up these matters in the context of the present case (see Piryanik v. Ukraine , no. 75788/01, § 20, 19 April 2005) .

32 . The applicant ’ s complaint should be examined under Article 3 of the Convention, which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

33 . The Government submitted that Article 3 was not applicable in this case, as the minimum level of severity had not been attained. The applicant had provided no evidence in support of his allegation. In particular, the diagnosis of concussion had been refuted by two expert reports, an X-ray of the applicant ’ s head had revealed no damage, the applicant had not been hospitalised following the incident, and he had not complained of a deterioration in his state of health.

34 . In relation to the procedural limb of Article 3, the Government submitted that the applicant had not exhausted all available remedies, as he had failed to lodge a cassation appeal against the decision of the Khmelnytsk Regional Court of Appeal of 13 May 2014. Alternatively, they argued that the present application was manifestly ill-founded as there was no basis to conclude that the investigation had been ineffective: the applicant had been called to give his statements three times; the applicant ’ s wife and her sister had given statements; a doctor who had examined the applicant on 9 March 2012 had given his statements; evidence that had been submitted by the applicant had been attached to the case file and had been considered by the investigator; an expert examination had been carried out following the applicant ’ s application; the applicant had been informed about the results of the investigation; and he had had access to the material in the case file.

35 . The applicant maintained his complaint. In reply to the Government ’ s argument that there had been no deterioration in his state of health as he had not raised that issue with the police, the applicant stated that the police had not asked any questions about his health. He complained, inter alia , that the police had forged the letter of 13 February 2013 (see paragraph 15 above) and other materials from the criminal file, and that the X-ray image could not be found.

36 . The Court notes that the Government argued that the applicant had failed to exhaust all available remedies before submitting his complaint to the Court. The Court will not examine this objection because, in any event, the application is inadmissible for the reasons set out below.

37 . The Court reiterates 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, for instance, Gordiyenko v. Ukraine , no. 27620/09, § 71, 16 October 2014). Where an individual raises an arguable claim of ill-treatment contrary to Article 3, including of ill-treatment administered by private individuals, that provision gives rise to a procedural obligation to conduct an official investigation. The investigation must be capable of leading to the identification of those responsible with a view to their punishment (see Ilieva and Georgieva v. Bulgaria (dec.) no. 9548/07, § 28, 17 April 2012).

38 . However, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see Labita v. Italy [GC], no. 26772/95, §§ 119-20, ECHR 2000 ‑ IV).

39 . The Court further notes that in the previous cases where it has found that the State ’ s positive obligations under Article 3 were engaged in relations between private individuals, serious instances of ill-treatment were at issue: beating of a child 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 of children 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); 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 Å ečić v. Croatia , no. 40116/02, § 8, 11 and 51, 31 May 2007); 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).

40 . By contrast, in the present case, despite the deficiencies in the criminal investigation pointed out by the domestic authorities (see paragraphs 9 and 21 above), the Court is not persuaded that the injuries inflicted upon the applicant during a family conflict attained the minimum level of severity to fall within the scope of Article 3 of the Convention.

41 . In the light of the above considerations, the Court finds that the complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 17 June 2021 .

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Martina Keller Stéphanie Mourou-Vikström Deputy Registrar President