Communicated on 10 March 2016

FIFTH SECTION

Application no. 74479/14 Oleg Yuriyovych TKACHENKO against Ukraine lodged on 12 November 2014

STATEMENT OF FACTS

The applicant, Mr Oleg Yuriyovych Tkachenko , is a Ukrainian national, who was born in 1985 and lives in Chernivtsi.

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

On 8 March 2012 the applicant was assaulted by Mr T. in the Chemerivtsi District of the Khmelnytskyy Region, where the applicant was visiting some relatives. According to the applicant, Mr T. punched and kicked him in the head, attempted to strangle him and threatened to kill him. According to the applicant, this occurred when he attempted to intervene to protect Mrs T., who had been assaulted by Mr T., her former husband. Among others, the incident was witnessed by the applicant ’ s wife and son, who was a minor.

On 9 March 2012 the applicant gave a statement to the police detailing his allegations. He asked to be referred to a forensic medical expert so that his injuries could be documented.

On the same day Mrs T. also gave a statement to the police, confirming the applicant ’ s allegations.

On 9 March 2012 a neuropathologist at the emergency department of a local hospital in Chemerivtsi diagnosed the applicant with contusion of the soft tissues of the head, concussion ( струс головного мозку ) and post ‑ traumatic encephalopathy. The hospital informed the Chemerivtsi district police department (“the district police”) about this.

On 10 March 2012 the applicant was examined at an emergency department in Chernivtsi where he lived, and was diagnosed with concussion. The hospital informed the district police about this diagnosis.

On 11 March 2012 the district police 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 the district police also refused to institute criminal proceedings against Mr T. in relation to the alleged threats to kill, finding the applicant ’ s allegations in this respect unsubstantiated.

On 22 March 2012 the Chemerivtsi district prosecutor ’ s office (“the DPO”) overruled the decision of 11 March 2012.

Between 29 March and 1 October 2012 the Chemerivtsi police refused to institute criminal proceedings against Mr T. on at least five occasions. The DPO overruled those decisions as premature.

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

On 19 November 2012 the new 2012 Code of Criminal Procedure came into force. Under the new Code, an investigation is commenced by creating an entry in the integrated register of pre-trial investigations.

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.

On 30 January 2013 the district police discontinued the investigation against Mr T. On 21 February 2013 the Chemerivtsi District Court quashed that decision.

On 14 and 22 March 2013 forensic medical experts produced opinions concluding, on the basis of the medical documentation of 9 and 10 March and 9 and 10 July 2012, that there was no objective data which would corroborate the diagnoses of concussion and encephalopathy, and that it was unlikely that such conditions could have resulted from the injuries inflicted on 8 March 2012, since they would normally be accompanied by visible signs such as bruising, which had not been observed on the applicant.

Questioned in the course of the investigation, Mr T. stated that he had had a verbal confrontation with the applicant which had turned into a pushing match. He denied having threatened the applicant.

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

On 17 June 2013 the Chemerivtsi District Court (“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 reconcile his statement with those of the alleged victims.

On 26 October 2013 the district police again discontinued the investigation, giving grounds identical to those 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.

On 22 April 2014 the District Court upheld the decision of 26 October 2013. The court held that the application to question the doctors who had examined the applicant was unjustified, since more than two years had passed since the event and the doctors were unlikely to remember his case.

On 13 May 2013 the Khmelnyskyy Regional Court of Appeal upheld the ruling of the District Court.

COMPLAINT

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

QUESTIONS TO THE PARTIES

1. Was the treatment the applicant allegedly suffered on 8 March 2012 sufficiently serious to fall within the ambit of Article 3 of the Convention? In particular, what injuries did he sustain on 8 March 2012? What was the basis for the diagnosis of concussion given to the applicant on 9 and 10 March 2012? According to the relevant protocols, guidelines and practice followed by medical professionals in Ukraine, what symptoms and subjective and objective indications can lead to a diagnosis of concussion?

2. Having regard to the procedural protection from torture, inhuman or degrading treatment (see paragraph 131 of Labita v. Italy [GC], no. 26772/95, ECHR 2000-IV), was the investigation in the present case by the domestic authorities in breach of Article 3 of the Convention?