FIFTH SECTION     CASE OF ALEKSANDR NIKONENKO v. UKRAINE (Application no. 54755/08)     JUDGMENT    STRASBOURG 14 November 2013 FINAL 14/02/2014 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.In the case of Aleksandr Nikonenko v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Mark Villiger, President, Angelika Nußberger, Boštjan M. Zupančič, Ganna Yudkivska, André Potocki, Paul Lemmens, Aleš Pejchal, judges,and Stephen Phillips, Deputy Section Registrar,Having deliberated in private on 22 October 2013,Delivers the following judgment, which was adopted on that date:PROCEDURE1. The case originated in an application (no. 54755/08) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Aleksandr Vasilyevich Nikonenko (“the applicant”), on 27 October 2008.2. The applicant, who had been granted legal aid, was represented by Mr V. Valko and Mr I. Lishchyna, lawyers practising in Zaporizhzhya and Kyiv, respectively. The Ukrainian Government (“the Government”) were represented by their Agent, Mr N. Kulchytskyy.3. The applicant alleged that the authorities had failed to carry out an effective investigation into the circumstances of his ill-treatment, that the length of the proceedings in the criminal case had been excessive and that he had no effective remedy. He relied on Articles 3, 6 and 13 of the Convention.4. On 12 January 2012 the application was communicated to the Government.THE FACTSI. THE CIRCUMSTANCES OF THE CASE5. The applicant was born in 1958 and lives in Zaporizhzhya.6. On the afternoon of 21 July 2001 the applicant was beaten up by another individual. The incident took place at the market and was observed by numerous witnesses.7. The applicant was taken to the hospital where he was diagnosed with a fractured right cheekbone and bruise to the right infraorbital region. Subsequently, he was also diagnosed with an injury to the right knee joint.A. Criminal proceedings8. On 22 November 2001 the applicant complained to the police on account of his injuries. On the same date a police officer referred the applicant to a forensic examination centre to have the seriousness of his injuries assessed.9. On 29 November 2001 a forensic medical expert completed the examination and stated that the applicant had suffered from complete ruptures of the cruciate ligament and tibial collateral ligament in his right knee; a fractured right cheekbone and a bruise on the face. The injuries were classified as being of medium severity.10. On 1 December 2001 a police investigator opened criminal proceedings in connection with the injuries sustained by the applicant.11. On 4 December 2001 the applicant was admitted to the proceedings as an aggrieved party. On the same date he was granted the status of civil claimant.12. On 7 June 2002 the investigator suspended the proceedings for the reason that the individual who had inflicted injuries on the applicant could not be identified.13. On 13 June 2002 the supervising prosecutor quashed that decision as unsubstantiated and ordered further investigation.14. On 6 August 2002 the investigator opened a criminal case against R., a private individual, noting that during an altercation between R. and the applicant on 21 June 2001 the latter had sustained injuries.15. On 6 September 2002 the investigator terminated the proceedings against R. for lack of corpus delicti.16. On 16 October 2002 the supervising prosecutor quashed that decision as unlawful, noting that the investigator had failed to properly assess the witness evidence suggesting that R. had inflicted injuries on the applicant. The prosecutor therefore ordered further investigation.17. On 20 November 2002 the investigator suspended the proceedings for the reason that the individual who had inflicted injuries on the applicant could not be identified.18. On 18 April 2005 the supervising prosecutor quashed the decision of 20 November 2002 as unfounded and ordered further investigation.19. On 6 February 2006 the proceedings were again suspended on the ground that the individual who had inflicted injuries on the applicant could not be identified.20. On 30 March 2006 the supervising prosecutor quashed that decision as unfounded and ordered further investigation.21. By letter of 31 August 2006 the police informed the applicant that the investigator deserved a disciplinary penalty for the delays in the investigation of the case; however, he had been dismissed by that time.22. On 17 October 2007 the investigator obtained from R. a written undertaking not to abscond.23. On 26 October 2007 R. was charged with the crime of inflicting medium severity injuries on the applicant. On the same date the applicant was once again granted the status of civil claimant and his civil claim was added to the file.24. On 28 May 2008 the Prosecutor of the Komunarskyy District of Zaporizhzhya approved the investigator’s decision to apply to the court for the discontinuation of the criminal proceedings against R. as time-barred.25. On 10 June 2008 the Komunarskyy District Court of Zaporizhzhya (“the District Court”) terminated the proceedings against R. as time-barred. It further noted that the civil claim was to be considered in the course of separate civil proceedings. On the same date the District Court issued a separate ruling informing the Prosecutor of the Komunarskyy District of Zaporizhzhya that the investigation had been needlessly delayed.26. On 20 August 2008 the decision to close the proceedings as time-barred was upheld by the Zaporizhzhya Court of Appeal (“the Court of Appeal”). On the same date the Court of Appeal issued a separate ruling informing the Prosecutor of the Zaporizhzhya Region that the investigation had been unnecessarily and inordinately delayed. It considered that the protraction of the investigation had occurred because of a lack of control on the part of the prosecutor.B. Civil proceedings27. In 2008 the applicant lodged a civil claim seeking compensation for pecuniary and non-pecuniary damage sustained as a result of the injuries inflicted on him on 21 July 2001.28. On 19 March 2009 the District Court partly allowed the applicant’s claim and ordered R. to pay 2,808.25[1] Ukrainian hryvnias (“UAH”) in respect of pecuniary damage and UAH 2,500[2] in respect of non-pecuniary damage. It also awarded the applicant costs and expenses. The applicant appealed, arguing that the award in respect of non-pecuniary damage was insufficient.29. On 3 June 2009 the Court of Appeal partly allowed the applicant’s appeal and increased the award in respect of non-pecuniary damage to UAH 7,000[3].II. RELEVANT DOMESTIC LAW30. The relevant provisions of the Code of Criminal Procedure of 1960 (in force at the relevant time) can be found in the judgment in the case of Kaverzin v. Ukraine (no. 23893/03, § 45, 15 May 2012).THE LAWI. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION31. The applicant complained under Article 3 of the Convention that the authorities had failed to carry out an effective investigation into the circumstances of his ill-treatment.32. Article 3 of the Convention provides as follows:Article 3 (prohibition of torture)“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”A. Admissibility33. The Government submitted that the applicant had not exhausted domestic remedies in respect of his complaint. They noted that in the separate rulings of 10 June and 20 August 2008 the domestic courts had acknowledged that the investigation of the criminal case had been ineffective and excessively lengthy. In these circumstances the applicant should have lodged a claim for damages with the domestic courts, which could have offered him appropriate civil redress for the ineffective investigation of the criminal case.34. The applicant argued that the remedy suggested by the Government had been neither effective nor accessible to him.35. The Court reiterates that it is incumbent on the Government claiming non‑exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say that it was accessible, was capable of providing redress in respect of the applicant’s complaints, and offered reasonable prospects of success (see M. v. Ukraine, no. 2452/04, § 83, 19 April 2012).36. The Court notes that the Government merely referred to the theoretical possibility of lodging a claim for damages for the ineffectiveness of the investigation but have not shown that this remedy was available in practice. In particular, the Government failed to produce any case in which the courts had ruled on such a complaint. While it is not for the Court to give a ruling on an issue of domestic law that is as yet unsettled, the absence of any case-law indicates the uncertainty of that remedy in practice (see Štrucl and others v. Slovenia, nos. 5903/10, 6003/10 and 6544/10, §127, 20 October 2011). Therefore, leaving aside the question of whether the remedy suggested by the Government could have offered adequate redress in respect of the applicant’s complaint under Article 3, the Court considers that the applicant was not required to exhaust that remedy and the Government’s related objection is dismissed.37. The Court further notes that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It is not inadmissible on any other grounds. It must therefore be declared admissible.B. Merits38. The applicant maintained that the State failed to carry out an effective investigation concerning the injuries he had sustained on 21 July 2001.39. The Government did not comment on the merits of the complaint.40.

Article of the Convention at issue: Article 3
Outcome: violation