FIFTH SECTION

Application no. 53548/09 Yevgeniy Arturovich NEKHOROSHKIN against Ukraine lodged on 28 September 2009

STATEMENT OF FACTS

The applicant, Mr Yevgeniy Arturovich Nekhoroshkin , is a Ukrainian national, who was born in 1986 and lives in Simferopol , Ukraine . He is represented before the Court by his mother, Ms L. Prikhodko .

A. The circumstances of the case

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

On 10 February 2002 G., a minor at the material time, hit the applicant, who was also a minor, and broke his nose.

1. Criminal proceedings against G.

On 12 February 2002 the applicant ’ s mother complained about it to the police.

On 14 February 2002 the applicant had nose surgery and stayed in a hospital until 25 February 2002.

On 5 March 2002 G., allegedly in order to threaten the applicant and to persuade him to withdraw his complaint, came to the applicant ’ s school, had an argument with him and kicked the applicant in the testicles.

According to the applicant, he consulted a doctor who diagnosed the applicant with a left testicle injury. Later the applicant was diagnosed with post-traumatic epididymitis (inflamed testicle condition). The applicant did not submit any medical documents from his case-file including the conclusions of forensic medical examinations (see below).

On the same day the applicant ’ s mother lodged an additional complaint to the police.

On 27 May 2002 the Zheleznodorozhnyy Police Office ( Залізнодорожній районний відділ м. Сімферополя ) refused to institute criminal proceedings following the applicant ’ s mother ’ s complaints since, according to undated forensic medical examinations, the applicant had no injuries, the diagnosis of a broken nose was “unsubstantiated” and there was no causal link between the applicant ’ s post-traumatic epididymitis and the events of 5 March 2002.

According to a certificate of 30 September 2002, issued by the applicant ’ s school, in March-April 2002 the applicant consulted a school psychologist since he was harassed by G. and was depressed.

On 18 November 2002 the Zheleznodorozhnyy District Court of Simferopol (“the Zheleznodorozhnyy Court ”), following the applicant ’ s mother ’ s complaint, instituted criminal proceedings against G. for infliction of blows on the applicant. The court remitted the case to a prosecutor ’ s office.

On 29 January 2003 the same court decided that G., being a minor, should receive a warning as the crime he was accused of was not a serious one. The court noted that G. ’ s guilt was confirmed by the conclusions of forensic medical examinations and that G. had “honestly repented”.

On 8 June 2004 the Court of Appeal of the Autonomous Republic of Crimea (“the ARC”) quashed this decision and remitted the case to a first instance court. It noted that, according to the conclusions of the forensic medical examinations, the applicant had no bodily injuries. Moreover, the applicant was not questioned by the court.

On 2 July 2004 the Zheleznodorozhnyy Court remitted the case to a prosecutor ’ s office.

On 26 July 2004 the criminal proceedings against G. were terminated for the absence of the evidence of crime.

On 11 October 2004 the Simferopol Prosecutor ’ s Office quashed this decision. It was noted that a complex forensic medical examination should be carried out, the applicant ’ s medical documents should be examined, the relevant doctors should be questioned etc.

On 12 December 2005 the proceedings were again terminated. Two days later this decision was quashed by a prosecutor and the case remitted back for additional investigation.

On 10 December 2007 the Zheleznodorozhnyy Court terminated the proceedings in the case as time-barred. The applicant testified that on 10 February 2002 he had met I., Ga. , K. and G. The latter asked for money and when the applicant refused, he hit the applicant twice in the nose. This version was confirmed by the testimonies of K. The court also noted that the Bureau of Forensic Medical Examination s of the ARC submitted that “in the absence of any changes in the applicant ’ s state of health an examination of a five year old trauma is unfeasible”.

On 18 March 2008 the Court of Appeal of the ARC quashed this decision and remitted the case to a prosecutor for additional investigation.

On 28 October 2008 and 10 February 2009 the criminal proceedings were terminated for the absence of the evidence of crime.

2. Civil proceedings

In March 2003 the applicant and his mother instituted civil proceedings against G. claiming compensation for pecuniary and non-pecuniary damage.

Between 2003 and 2008 there were no hearings in the case since criminal proceedings against G. were pending.

On 3 November 2008 the Kyivskyy District Court of Simferopol rejected the applicant ’ s claim.

On 18 February 2009 the Court of Appeal of the ARC quashed this decision and remitted the case to a first instance court.

On 24 March 2010 the Kyivskyy District Court of Simferopol awarded the applicant 5,000 Ukrainian hryvnas (UAH) in compensation for non-pecuniary damage. It found that G. ’ s guilt was confirmed by the court decision of 29 January 2003.

On 17 June 2010 the Court of Appeal of the ARC quashed this decision and found against the applicant. It held that the applicant ’ s claims were unsubstantiated and that the decision of 29 January 2003 had been quashed.

The decision of 17 June 2010 was appealed in cassation.

B. Relevant domestic law

Criminal Code of Ukraine

“Article 22. Age of criminal liability

1. Persons who have reached the age of 16 years before the commission of a criminal offence shall be criminally liable.

2. Persons aged between 14 and 16 who have committed criminal offences shall be criminally liable only for ... intentional grievous bodily injury ... , [and] intentional bodily injury of medium severity....

Article 105. Discharge from punishment subject to compulsory measures of an educational nature

1. A minor who has committed a minor offence or an offence of medium severity may be discharged from punishment by a court if it is found that the punishment may be discontinued due to the minor ’ s genuine repentance and further irreproachable conduct.

2. In this case, the court may impose the following measures of an educational nature on a minor:

(1) a warning;

(2) restriction of leisure time and special requirements in respect of the minor ’ s conduct;

(3) placing the minor under the supervision of his/her parents or foster parents, or school teachers or colleagues upon their consent, or other individuals at their request;

(4) obliging a minor who has attained 15 years of age and possesses any property or money, or has any earnings, to compensate any pecuniary damage;

(5) placing the minor in a special educational and correctional institution for children and teenagers until the minor ’ s rehabilitation is complete, but for a term not exceeding three years. The conditions of the stay in and the procedure for discharge from these institutions shall be provided for by law.

3. A minor may be subjected to several compulsory correctional measures as provided for by paragraph 2 of this Article. The duration of the compulsory correctional measures provided for in subparagraphs (2) and (3) of paragraph 2 of this Article shall be determined by the court.

4. A court may also find it necessary to appoint a tutor for a minor pursuant to the procedures provided for by the law.”

COMPLAINTS

The applicant complains, citing Articles 1, 6, 8 and 13 of the Convention, about the failure of the State authorities to conduct an effective investigation into his complaints.

QUESTION TO THE PARTIES

Having regard to the procedural protection from inhuman or degrading treatment ( Muta v. Ukraine, no. 37246/06 , 31 July 2012 ), was the investigation in the present case by the domestic authorities in breach of Article 3 of the Convention?

The respondent Government is requested to submit copies of all relevant procedural documents in the applicant ’ s case including medical ones.