FIFTH SECTION

Application no. 27620/09 Vyacheslav Aleksandrovich GORDIYENKO against Ukraine lodged on 8 May 2009

STATEMENT OF FACTS

The applicant, Mr Vyacheslav Aleksandrovich Gordiyenko , is a Ukrainian national, who was born in 1957 and lives in Kherson .

A. The circumstances of the case

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

1. Background to the case

In 1980 the applicant sustained craniocerebral injury and underwent surgical treatment on account of a brain hematoma.

In 1993 the applicant sustained another craniocerebral injury following which he started to suffer from epileptic attacks occurring two times per week.

The applicant was designated as Category 2 (medium-level) disabled on account of his poor health.

2. Incident of 24 March 2006

At about 9.30 a.m. on 24 March 2006 the applicant and other people were standing at a trolleybus station. Suddenly, a car drove out of the road, moved onto the pavement, slightly caught the applicant, and then stopped. When the driver, T., went out of the car the applicant started arguing with him. In reply, the driver punched the applicant in the face so that the latter fell on the car. T. continued to beat him until another man interfered. When T. left the applicant wrote down the car registration plates and tried to persuade some strangers, observing the incident, to be witnesses against T.

In about forty minutes after the incident the applicant was at the Suvorivskyy District Police Department of Kherson (“the Police Department”) complaining about T. The police registered the complaint and directed the applicant to the forensic medical expert.

On 19 May 2006 the Suvorivskyy District Prosecutor ’ s Office of Kherson (“the Prosecutor ’ s Office”) opened criminal proceedings against T. under Article 296 § 1 of the Criminal Code. The case was referred to the Police Department for investigation.

On 1 June 2006 the forensic medical expert issued a report stating that the applicant suffered from a bruise to his face which had been caused by a blunt object. The injury was possibly inflicted on 24 May 2006 as described by the applicant.

Between 24 July and 3 August 2006 the applicant underwent a neurological treatment in the hospital given that after the incident of 24 March 2006 the frequency of the epileptic attacks, bringing to the loss of consciousness, increased to four or five times per week. Between 25 January and 3 February 2007 as well as between 19 and 31 December 2007 the applicant underwent further courses of treatment.

On 24 July, 19 August 2006, 19 January, 11 April 2007 the Police Department closed the criminal investigation for the lack of evidence that T. had committed the crime provided for in Article 296 § 1 of the Criminal Code. All these decisions were quashed by the Prosecutor ’ s Office as unfounded and further investigations ordered.

9 July 2007 the Police Department closed the investigation once again.

On 14 November 2007 the Prosecutor ’ s Office quashed that decision and ordered that T. ’ s actions should be classified under Article 125 § 1 of the Criminal Code.

On 17 March 2008 the investigation was completed and the case was referred to the Suvorivskyy District Court of Kherson (“the District Court”) for T. to be tried under Article 125 § 1 of the Criminal Code.

On 3 April 2008 the District Court terminated the proceedings against T. as time-barred. The applicant appealed claiming in particular that the legal classification of T. ’ s actions was wrong and that he had to be charged with a more serious crime.

On 27 May 2008 the Kharkiv Region Court of Appeal upheld the decision of 3 April 2008. The applicant appealed to the Supreme Court.

On 1 December 2008 the Supreme Court dismissed the applicant ’ s appeal as unfounded.

On 12 February 2009 the applicant instituted civil proceedings against T. seeking damages in connection with the incident of 24 March 2006.

On 16 October 2009 the District Co urt awarded the applicant 2,000 Ukrainian hryvnias [1] in respect of non-pecuniary damage. The decision has not been enforced.

3. Incident of 18 April 2008

At about 10.30 a.m. on 18 April 2008 the applicant was walking in the street near his home. Suddenly, he was attacked by a man with a knife. The applicant defended himself but received a hard blow to the head and a knife cut on the head.

On the same day he made a complaint to the Police Department.

Between 18 and 29 April 2008 the applicant was provided with the inpatient treatment at the hospital. He was diagnosed with a concussion and an injury to the head.

On 8 May 2008 the applicant made another complaint to the Police Department.

On 20 June 2008 the police refused to open an investigation in connection with the incident.

On 28 August 2008 the Kharkiv Region Prosecutor ’ s Office quashed that decision and ordered further pre-investigation enquiries. The applicant was not informed of any further decision taken in that regard.

Between 15 and 24 June 2008 the applicant underwent another course of neurological treatment at the hospital on account of his epileptic attacks which could occur several times a day. Between 24 February and 6 March 2009 the applicant underwent a similar course of treatment.

4. Incident of 20 September 2010

In the morning of 20 September 2010 the applicant entered the premises of the District Court to get a copy of a court decision in his case. Being disappointed with the manner he was served at the court ’ s registry, the applicant started to argue with an officer of the court ’ s registry in the presence of other visitors. As the argument continued, two court security agents approached the applicant and demanded that he leave the court premises. The applicant refused and specified that he was a second degree disabled person. The security agents then twisted his hands, shackled them and dragged him out of the hall punching his head and kicking his legs. Outside the court, the applicant was thrown on the pavement where he was left lying until the ambulance took him to the hospital.

On the same day the applicant was hospitalised for inpatient medical treatment. On 28 September 2009 he was released from the hospital.

On 20 October 2010 the forensic medical expert issued a report stating that the applicant suffered from concussion, cerebral hemorrhage , bruises on the upper limbs, abrasion on the left shoulder which could have been caused on 20 September 2010. The expert classified all those injuries as minor.

On 22 October 2010 the applicant complained to the Prosecutor ’ s Office on account of his ill-treatment by the court security officers.

On 8 December 2010 the Prosecutor ’ s Office notified the applicant that it was decided to refuse to open criminal investigation in connection with the applicant ’ s allegations. The applicant was not given a copy of the decision.

The applicant ’ s further complaints to the police and the prosecutor ’ s offices were refused.

B. Relevant domestic law

Criminal Code of Ukraine of 5 April 2001

Article 125 § 1 of the Code provides as follows:

“1. Intentional infliction of a minor bodily injury

shall be punishable by a fine of up to fifty times the amount of the non-taxable minimum-level income. ...”

Article 296 § 1 of the Code provides as follows:

“1. Disorderly conduct, namely serious breach of public order motivated by flagrant disrespect of the community, combined with particular impudence and exceptional cynicism,

shall be punishable by a fine of between five hundred to one thousand times the amount of the non-taxable minimum-level income or by up to six months ’ arrest, or by up to five years ’ restriction of liberty. ...”

COMPLAINTS

1. The applicant complains under Article 3, 6 and 13 of the Convention that the State has failed to ensure effective criminal proceedings in connection with the incident of 24 March 2006.

2. The applicant complains under Article 6 § 1 of the Convention that the decision of 16 October 2009, by which he was granted award in respect of non-pecuniary damage, has not been enforced.

3. The applicant complains that there has been no effective investigation of the incident of 18 April 2008.

4. The applicant complains under Article 3 of the convention that on 20 September 2010 the court security officers beaten him up and there has been no effective investigation of that incident.

QUESTIONS TO THE PARTIES

1. Having regard to the procedural protection from ill-treatment, were the domestic proceedings in respect of the incident of 24 March 2006 in breach of Article 3 of the Convention? Have the authorities investigated the possible causal link between the unlawful conduct of T. and the alleged deterioration of the applicant ’ s health after the incident?

2. Were the domestic proceedings in respect of the incident of 18 April 2008 compatible with the procedural requirements under Article 2 and 3 of the Convention?

3. With respect to the incident of 20 September 2010, has the applicant been subjected to ill-treatment, in breach of Article 3 of the Convention?

4. Having regard to the procedural protection from ill-treatment, were the domestic proceedings in respect of the incident of 20 September 2010 in breach of Article 3 of the Convention?

The Government are invited to provide copies of the documents concerning the domestic proceedings in respect of all the above incidents, including the decisions by which the authorities refused to open an investigation or terminated the investigations as well as the decisions of the supervising authorities quashing those decisions.

[1] About 160 euros as of the date of award