KULAKOV v. UKRAINE
Inadmissible
Ganna Yudkivska;Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
The applicant, Mr Oleksandr Petrovych Kulakov, is a Ukrainian national who was born in 1947 and lives in Lviv. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev, from the Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. On 28 March 1996 the applicant, leaving a shop, took a bag belonging to Mr Zh., who later turned out to be an off-duty police officer. According to the applicant he took the bag because of a misunderstanding. Having seen the applicant leaving with his bag, Mr Zh. caught up with him and asked him if the bag was heavy to carry. Receiving a negative reply from the applicant, Mr Zh. punched him once in the face. Mr Zh. later explained to the investigators that when the applicant turned to face him he got the impression that the applicant was going to hit him with a briefcase, and therefore, being in a state of agitation because of the daylight theft of his bag, he had instinctively punched him in the face. On 29 March 1996 the applicant went to the doctor who noted split skin on the applicant’s eyebrow and two bruises on his cheek. No other injuries were recorded. On 1 April 1996 the Lviv Zaliznychny District Prosecutor’s Office ordered a medical examination of the applicant. On 2 April 1996 the medical expert concluded that the applicant had split skin on his left eyebrow measuring 10 by 1 millimetres and two bruises near the left eye and on the left cheek measuring respectively 7 by 5 centimetres and 2 by 1.5 centimetres. The expert classified them as a minor injury. From 3 to 9 April 1996 the applicant was in a local hospital. On 10 April 1996 the same medical expert issued an additional opinion. He took into consideration that on 3 April 1996 the applicant was admitted to a local hospital, where he had an X-ray examination that showed a fracture of his cheekbone. The expert reported a fracture of the applicant’s cheekbone and bruises on his face and concluded that the applicant’s injury fell within the category of medium-level injury On 5 May 1996 the Rivne City Prosecutor’s Office instituted proceedings against Mr Zh. for intentional infliction of medium-level bodily harm. In January 1997 the investigator in the case ordered a further expert examination of the matter, with a view to resolving the discrepancies between the two expert opinions. The examination was conducted by a commission of experts on 23 April 1997. The commission, comprising the initial expert and two heads of the Regional Forensic and Medical Examinations Office, established on the basis of medical evidence that the applicant had suffered a fracture of the left cheekbone, bruises and concussion. The experts concluded that these injuries amounted to mediumlevel bodily harm with long-term effects on the applicant’s health. In late 1997 a further expert examination of the applicant’s injury was requested by the Central Forensic and Medical Examinations Office. Between 22 January and 20 April 1998 that office conducted complex medical examination of the same medical evidence and did not confirm the fracture of the applicant’s cheekbone. Meanwhile, the applicant obtained a number of medical opinions from specialists, who confirmed that he had a cheekbone fracture. On 18 June 1998, relying on the conclusion of the latest medical examination, the investigator decided to terminate the criminal proceedings against Mr Zh. for want of proof of crime (infliction of medium-level bodily harm) and because further prosecution (for infliction of minor bodily injury) was now time-barred. By a letter of 26 October 1998, the Head of the Central Forensic and Medical Examinations Office informed the investigator that due to conflicting conclusions on the same X-ray as to the existence or otherwise of the cheekbone fracture a further forensic examination should be conducted. By a letter of 4 February 1999, the Head of the Central Forensic and Medical Examinations Office asked the investigator for to arrange a visit by the applicant to that office. The applicant arrived in Kyiv but the examination did not take place, as the applicant refused to be hospitalised for this purpose. By a letter of 26 March 1999 the Head of the Central Forensic and Medical Examinations Office invited the applicant to have an X-ray examination in Lviv since he had not had one in Kyiv. Apparently, such examination was not carried out. On 15 June 1999 the Rivne City Prosecutor’s Office closed the criminal proceedings against Mr Zh. on the same grounds as in the decision of 18 June 1998. On 1 November 2000 Rivne City Court quashed the decision of 15 June 1999. On 28 February 2001 the Rivne City Prosecutor’s Office closed the criminal proceedings against Mr Zh. This decision was quashed by the Rivne Regional Prosecutor’s Office on 6 April 2001. On 7 April 2001 the criminal proceedings were terminated due to prosecution being time-barred. By a letter of 19 April 2001 the Prosecutor General replied to the applicant’s complaint about the termination of the criminal proceedings. He considered that the decision to terminate the proceedings was well-founded and that Mr Zh. had been acting as a private person, since he had been in plain clothes, had been off duty and had not identified himself to anyone as a police officer. On 20 June 2001 Rivne City Court rejected the applicant’s complaint against the prosecutor’s decision. The court noted in particular that the seriousness of the injuries sustained by the applicant could not be established conclusively because he had flatly refused to have an additional X-ray examination. On 3 July 1999 the applicant instituted civil proceedings in Lviv Lychakivsky District Court against medical experts and doctors in Lviv and Kyiv, seeking compensation in respect of non-pecuniary damage resulting from their unlawful actions. On 26 June 2000 the court found against the applicant, having established that the medical experts and doctors had been acting within their competence. On 18 September 2000 Lviv Regional Court upheld the decision of the first-instance court. On 27 September 2000 the Deputy President of the Supreme Court transferred to the President of Lviv Regional Court the applicant’s request for an extraordinary review of his case. This request was refused on 23 November 2000. On 6 April 2001 the Deputy President of the Supreme Court refused another request by the applicant for an extraordinary review of his case.