Aleksandr Evgenyevich GEDERIM v Ukraine - 15139/05 [2011] ECHR 2327 (13 December 2011)

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The European Court of Human Rights (Fifth Section), sitting on 6 December 2011 as a Chamber composed of:

Dean Spielmann, President,
Elisabet Fura,
Karel Jungwiert,
Boštjan M. Zupančič,
Mark Villiger,
Angelika Nußberger, judges,
Mykhaylo Buromenskiy, ad hoc judge,
and Claudia Westerdiek, Section Registrar,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having regard to the decision of the President of the Chamber to appoint Mr Mykhaylo Buromenskiy to sit in the case as an ad hoc judge (Rule 29 § 1(b)) since Mrs G. Yudkivska, the judge elected in respect of Ukraine, was unable to sit in the case (Rule 28 of the Rules of Court),

The applicant, Mr Aleksandr Evgenyevich Gederim, is a Ukrainian national who was born in 1990 and lives in Odessa. On 5 February 2010 the applicant authorised Mrs Tatyana Gederim, his mother, to represent him before the Court. The applicant’s mother in her turn was represented by Mr Andrey Kostin, a lawyer practising in Odessa, and by Mrs Larysa Goncharuk.

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

According to the applicant’s mother, on 9 November 2003 she lodged a complaint with the Suvorivsky District Police Department (Суворівський районний відділ Одеського міського управління Міністерства внутрішніх справ України в Одеській області) that a certain teenager had beaten up the applicant, a minor at that time. No copy of this complaint is available.

On 10 November 2003 the applicant tried to commit suicide by jumping from the roof of a multi-storey building. He survived, but suffered numerous serious injuries, and is now physically disabled.

According to the applicant, he was being bullied by a certain Y., who extorted money from him and beat him up.

According to the Government, the fact that the applicant had fallen from the roof was noted in a register of reported offences of the Suvorivsky District Police Department (журнал реєстрації повідомлень про злочини) and all the necessary investigations were carried out. It was decided not to institute criminal proceedings.

On 23 July 2004 the Suvorivsky District Police Department, following “an additional verification”, again decided not to institute criminal proceedings.

On 28 July 2005 this decision was quashed by a prosecutor, allegedly following a complaint by the applicant’s mother on 22 July 2005, and the case was remitted for additional investigation. On the same date the applicant’s mother was informed about it by letter. No copies of the decisions taken were attached to that letter.

By letter of 3 February 2006 the applicant’s mother was informed that on 12 December 2005 and 30 January 2006 the Suvorivsky District Prosecutor’s Office had quashed the refusals to institute criminal proceedings, taken on an unknown date and on 30 January 2006, and remitted the case for further investigation. No copies of the decisions taken were attached.

On 15 February 2006 the Suvorivsky District Police Department again refused to institute criminal proceedings for lack of evidence of a crime. On the same date the Suvorivsky District Police Department informed the applicant’s mother that “following her complaint registered on 22 July 2005, it had been decided not to institute criminal proceedings” without indicating any dates or attaching any decisions.

On 5 October 2009 the applicant’s mother, after an inquiry from this Court, requested the Suvorivsky District Prosecutor’s Office to provide her with copies of the refusals to institute criminal proceedings. In reply, she was informed that on 15 January 2009 the case file materials had been destroyed, as the period they were kept in storage had expired. No copies of the above decisions are consequently available.

After the case had been communicated to the respondent Government, on 17 April 2010 a police officer questioned the applicant. The Government state that this questioning took place on the initiative of officials of the Ministry of the Interior of Ukraine, after the Government Agent at the ECHR had, in order to prepare observations on the present case, requested the Ministry to provide all materials related to the case.

The Government submitted a photocopy of the applicant’s explanations, written by the police officer and signed by the applicant. It is mentioned there that the applicant owed Y. a certain amount of money. The applicant spent some time at a computer club, met Y. on his way back, then climbed up to the roof of a certain building, and after some time jumped down. Nobody pushed the applicant or incited him to jump from the roof.

In a letter of 9 February 2011 the applicant submitted that he had indeed been visited by two policemen, who had questioned him and his mother separately. However, the applicant states that because of his poor vision and the illegible handwriting he did not read the text written by the police officer, but signed it believing that the police officer had noted the applicant’s words correctly.

According to the applicant, at the material time he was being constantly bullied by Y. and V. They beat and humiliated him, so he decided to commit suicide.

Article 99-1 Challenging decisions on refusal to initiate criminal proceedings

“...A resolution by an investigator or body of inquiry refusing to initiate criminal proceedings can be appealed against to the relevant prosecutor and, if that ruling was issued by the prosecutor, to a higher prosecutor. An appeal shall be lodged by the person whose interests have been infringed or by his or her representative within seven days of the date of receipt of the ruling.

A resolution by an investigator or body of inquiry refusing to initiate criminal proceedings can be appealed against by the person whose interests have been infringed or by his or her representative to court under procedure prescribed by Article 236-1 of this Code...”

Article 236-1 Complaints to the court against decisions not to institute criminal proceedings

“Within seven days of notification, a decision of a body of inquiry, investigator or prosecutor not to institute criminal proceedings can be appealed against by an interested party or their representative to the district (town) court within whose area of jurisdiction the authority which took the decision falls...”

Article 236-2 Consideration by a judge of complaints against decisions not to institute criminal proceedings

“An appeal against a decision of a body of inquiry, investigator or prosecutor not to institute criminal proceedings shall be examined [by a court] sitting with a single judge within ten days of being lodged.

The judge shall request the materials on the basis of which the decision not to institute criminal proceedings was made, examine them, and inform the prosecutor and the appellant of the date on which the hearing of the appeal has been listed.

Having examined the case, the judge ... may take one of the following decisions:

1) to set aside the decision not to institute criminal proceedings and to remit the case for further preliminary inquiries...

The applicant complained that there had been no effective investigation of the incident. He further complained that he had not been provided with necessary medical assistance. The applicant cited Articles 6 and 34 of the Convention.

The Court notes that the case file materials contain such an authority form. On 5 April 2005 the applicant’s mother authorised Mrs Goncharuk to represent her in the Court. The applicant being a minor at that time, it is accepted that the applicant’s mother was acting on his behalf.

The Court further notes that on 5 February 2010 the applicant authorised his mother to represent him before this Court (see above).

They indicate that the applicant’s mother was informed about all of the decisions not to institute criminal proceedings. However, neither the applicant nor his mother has ever appealed against such decisions to the national courts. The applicant also does not state that an appeal to the court against such a decision is ineffective.

The Government lastly submit that in the light of the applicant’s statement of 17 April 2010 that nobody incited him to commit suicide, his application to this Court constitutes an abuse of the right of petition.

The applicant contends that an appeal to the court against the decision not to institute criminal proceedings would have led to the same results as a complaint to a prosecutor. The decisions not to institute criminal proceedings were quashed several times by prosecutors but after “additional” inquiries identical decisions were taken. Neither the applicant nor his mother were ever acquainted with these decisions, but received only notices informing them that such decisions had been taken and quashed.

The applicant further submits that the question of exhaustion of domestic remedies is closely linked to the effectiveness of the investigation in his case.

The applicant concludes that Ukraine violated Article 3 of the Convention by its lengthy and ineffective attempt to investigate his suicide attempt, although he had stated that he had been driven to commit suicide by others.

The Court notes that Article 3 of the Convention requires that the authorities conduct an effective official investigation into alleged ill treatment even if such treatment was inflicted by private individuals (see Ay v. Turkey, no. 30951/96, § 60, 22 March 2005; M.C. v. Bulgaria, no.39272/98, § 151, ECHR 2003 XII; and, most recently, Denis Vasilyev v. Russia, no. 32704/04, §§97-104, 17 December 2009).

Turning to the facts of the present case, the Court notes that the application was lodged one year and four months after the applicant’s attempt to commit suicide. During that period two decisions not to institute criminal proceedings were taken by the police. At the material time none of them was appealed against by the applicant or his mother. Three months after the date this application was lodged, allegedly following a complaint by the applicant’s mother, the most recent of those decisions was quashed by a prosecutor and the materials remitted for further investigation.

After two more refusals, which were subsequently quashed by prosecutors, on 15 February 2006 the applicant’s mother was informed that a new decision not to institute criminal proceedings had been taken by the police. This decision was not appealed against either. The applicant’s mother had requested for the first time to be provided with a copy of this decision only in October 2009, after an explicit request from this Court.

The Court reiterates that the parties should take steps at reasonable intervals to enquire about the state of proceedings of which they are aware (see, mutatis mutandis, Gabibullayev v. Ukraine (dec.), no. 29725/05, 11 January 2011). The applicant’s mother first requested a copy of the decision of 15 February 2006 more than three and a half years after the relevant decision was taken, which made it impossible to challenge it, as the case file materials were destroyed after they had been in storage for a certain time.

The Court notes that by February 2006 the investigation in question had already lasted two years and three months and three of the four decisions not to institute criminal proceedings had been quashed by the prosecutors. Nevertheless, the applicant did not bring his complaints before a national judicial authority.

The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges applicants to use first the remedies which are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The Court has previously found that an appeal to a court against a prosecutor’s decision not to institute criminal proceedings is an effective remedy (see Yakovenko v. Ukraine, no. 15825/06, §§ 69-73, 25 October 2007, and, mutatis mutandis, Koktysh v. Ukraine, no. 43707/07, §§ 81-82, 10 December 2009).

In the present case all the decisions not to institute proceedings including the decision of 15 February 2006 were taken not by a prosecutor but by the police. However, the national law similarly provides for the possibility of a challenging such decisions before a court.

Moreover, bringing the application before this Court at an early stage of the investigation of an alleged crime does not dispense an applicant from taking the necessary steps to exhaust effective domestic remedies at the national level, even if they are available only after lodging the complaint.

Therefore, given the applicant’s failure to appeal against the decision of 15 February 2006 before the national court, the Court concludes that the applicant did not exhaust the effective domestic remedies available to him.

The Court thus declares the applicant’s complaint of ineffective investigation inadmissible under Article 35 §§ 1 and 4 of the Convention.

In particular, the applicant cited Article 34 of the Convention in his application form of 24 May 2005 without any relevant substantiation.

It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

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You are here: BAILII >> Databases >> European Court of Human Rights >> Aleksandr Evgenyevich GEDERIM v Ukraine - 15139/05 [2011] ECHR 2327 (13 December 2011) URL: http://www.bailii.org/eu/cases/ECHR/2011/2327.html Cite as: [2011] ECHR 2327