FIFTH SECTION

Application no . 54755/08 Aleksandr Vasilyevich NIKONENKO against Ukraine lodged on 27 October 2008

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Aleksandr Vasilyevich Nikonenko , is a Ukrainian national who was born in 1958 and lives in Zaporizhzhya .

A. The circumstances of the case

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

On the afternoon of 21 July 2001 the applicant was beaten up by R., a private person. The incident took place at the market and it was observed by numerous witnesses.

The applicant was taken to a local hospital and diagnosed with a fractured cheekbone, an abrasion around his right eye, and torn crucial and tibial ligament s in his right knee.

On 22 November 2001 a police officer referred the applicant to a forensic examination centre to have the seriousness of his injuries assessed. The expert issued a report noting that his injuries were of medium severity.

On 1 December 2001 a police investigator opened criminal proceedings in connection with the injuries sustained by the applicant.

On 6 August 2002 the investigator brought proceedings against R. and on 6 September 2002 terminated them for lack of corpus delicti . The applicant was not given a copy of the decision taken.

Following the applicant ’ s complaint, the prosecutor quashed that decision and remitted the case for further investigation. The prosecutor found that the decision was unlawful and contradictory. He noted, in particular, that the investigator had failed to assess the statements of numerous witnesses who had observed R. beating the applicant and twisting his leg.

On 20 November 2002 and 6 February 2006 the proceedings were suspended on the ground that a perpetrator of the crime had not been identified. On unspecified dates those decisions were quashed as unfounded and the investigation resumed.

On 31 August 2006 the police admitted that the investigator in charge deserved a disciplinary penalty for the delays in the investigation of the case; however, he had been dismissed by that time.

On 10 June 2008 a local court terminated the proceedings as time-barred.

On 20 August 2008 the decision was upheld by a court of appeal.

B. Relevant domestic law

1. Code of Criminal Procedure of 28 December 1960

Article 4 of the Code provides that a court, prosecutor, investigator or body of inquiry must, to the extent that it is within their power to do so, institute criminal proceedings in every case where signs of a crime have been discovered, take all necessary measures provided by law to establish whether a crime has been committed, and identify the perpetrators and punish them.

Under Article 28 of the Code, a person who has sustained damage as a result of a crime can lodge a civil claim against an accused at any stage of criminal proceedings before the beginning of the consideration of the case on the merits by a court. A civil claimant within criminal proceedings is exempt from the court fee for lodging a civil claim.

2. Codes of Civil Procedure

Article 221 of the Code of Civil Procedure of 18 July 1963 (in force until 1 September 2005) provided, inter alia , that a court was obliged to suspend its examination of a civil case if that case could not be examined prior to the outcome of other pending criminal proceedings.

The Code of Civil Procedure of 18 March 2004 (in force since 1 September 2005) established the same obligation in its Article 201.

COMPLAINTS

1. The applicant complains under Article 3 of the Convention that the authorities failed to carry out an effective investigation into the circumstances of his ill-treatment .

2. The applicant complains under Articles 6 and 13 of the Convention that the proceedings in question were excessively lengthy and prevented h im from obtaining compensation.

QUESTIONS TO THE PARTIES

1. Has the State complied with its positive obligations under Article 3 of the Convention in the present case?

2. Was Article 6 § 1 of the Convention applicable to the present case? if so:

(a) Did the applicant have access to a civil remedy in respect of his claim for compensation on account of the alleged ill-treatment, as required by Article 6 § 1 of the Convention?

(b) Was the length of the criminal proceedings in the present case contrary to the requirements of Article 6 § 1 of the Convention?

3. Did the applicant have at his disposal effective domestic remed ies for his complaint under Article 3 , as required by Article 13 of the Convention?

The Government are invited to provide:

(a) a chronological list of pre-investigative, investigative, and judicial actions taken in respect of the applicant ’ s complaint of ill-treatment;

(b) copies of the relevant documents concerning the respective domestic proceedings (including decisions of the investigative authorities terminating and suspending criminal proceedings, as well as the decisions of the supervising authorities taken after the review of the above-mentioned decisions);

(c) copies of documents concerning the applicant ’ s civil claim for compensation on account of ill-treatment.