CASE OF ORLIK v. UKRAINE
Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)
André Potocki;Ganna Yudkivska;Síofra O’Leary
4. The applicant was born in 1960 and lives in Oleksandrivka, Kirovograd Region. 5. On 3 February 2007 the applicant was assaulted. According to the subsequent findings of medical experts, she sustained haematomas on her jaw, shoulder and hip, a bruise under her right eye, concussion, and a displaced rib fracture. The applicant alleges that her assailants were Mr and Mrs K., her daughter’s former parents-in-law, whereas the domestic authorities found that it was only Mrs K. who had assaulted the applicant. The incident occurred in front of the applicant’s two-year-old granddaughter. 6. On 4 February 2007 the applicant lodged a complaint with the police. 7. On 5 February 2007 a forensic medical expert examined the applicant. He found that she had haematomas which he classified as “minor bodily injuries”. 8. On 14 February 2007 the Oleksandrivka District Police Department (“the Oleksandrivka police”) refused to institute criminal proceedings in connection with the incident. 9. On 22 February 2007 a forensic medical examination of the applicant was carried out. The expert found that in addition to the previously noted haematomas, the applicant had also suffered concussion and a displaced rib fracture. The expert classified the injuries as “bodily harm of medium severity”. 10. On 20 March 2007 the Oleksandrivka prosecutor overruled the decision of 14 February 2007 as premature and on 21 March 2007 instituted criminal proceedings in connection with the infliction of bodily harm of medium severity on the applicant. 11. On 20 May 2007 the investigator suspended the investigation for failure to identify the perpetrator. 12. On 29 August and 3 October 2007 the Oleksandrivka prosecutor’s office issued two decisions in which it overruled the investigator’s decision of 20 May 2007 as premature. 13. On 6 October 2007 the investigator questioned Mr and Mrs K. 14. On 1 December 2007 the investigator again suspended the investigation for failure to identify the perpetrator. 15. On 10 December 2007 the Oleksandrivka prosecutor’s office, in response to the applicant’s complaint about the progress of the investigation, asked the Kirovograd Regional Police Department to have the police officers in charge of the investigation disciplined. 16. On 21 January 2008 the Kirovograd Regional Police Department instructed the Oleksandrivka police to immediately resume the investigation. 17. On 7 April 2008 the investigator decided to ask a forensic medical expert to determine the degree of gravity of the applicant’s injuries. On 22 September 2008 the expert drew up a report generally confirming the findings of 22 February 2007. 18. On 15 May 2008 the Kirovograd Regional Police Department informed the applicant that the police officers in charge of the case had been disciplined for omissions in the investigation. 19. On 23 October 2008 the Oleksandrivka Court absolved Mrs K. from criminal liability under an amnesty law, on the grounds that she had an elderly mother who was dependent on her. On 24 February 2009 the Kirovograd Regional Court of Appeal (“the Court of Appeal”) quashed that judgment, finding no evidence that Mrs K.’s mother was dependent on her. 20. On 1 July 2009 the investigator refused to institute criminal proceedings against Mr K. 21. On 7 July 2009 the Novomyrgorod prosecutor issued a bill of indictment against Mrs K. 22. On 24 July 2009 the Oleksandrivka Court remitted the case against Mrs K. for further investigation, holding that the applicant had not been informed about the completion of the investigation until 3 July 2009 and had therefore not been given enough time to study the case file. It also held that the refusal to institute criminal proceedings against Mr K. had contravened the law. 23. On 13 November 2009 the Novomyrgorod prosecutor quashed the decision of 1 July 2009 not to institute criminal proceedings against Mr K. Subsequently the investigator again refused to institute criminal proceedings against Mr K. 24. On 21 December 2009 the new round of pre-trial investigation in the case against Mrs K. was completed and another bill of indictment was issued by the Novomyrgorod prosecutor. 25. On 29 March 2010 the Oleksandrivka Court remitted the case against Mrs K. for further investigation, holding in particular that the decision not to institute criminal proceedings against Mr K. had been premature, since his role in the incident had not been sufficiently clarified. 26. On 13 July 2010 the Novomyrgorod prosecutor quashed the decision not to institute criminal proceedings against Mr K. On 26 May 2011 the investigator again refused to institute criminal proceedings against Mr K. 27. On 20 December 2011 the Znamyanka Court convicted Mrs K. of inflicting bodily harm of medium severity on the applicant, sentencing her to restriction of liberty for two years, suspended for a one-year probationary period. The court found that the decision not to institute criminal proceedings against Mr K. in connection with the same incident had been correct. Mrs K., the prosecutor and the applicant appealed. 28. On 6 March 2012 the Court of Appeal quashed the judgment and discontinued the criminal proceedings against Mrs K. as time-barred.