CASE OF CHERNAYA v. UKRAINE
Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)
Erik Møse;Mārtiņš Mits;Yonko Grozev
5. On 9 June 2004, the applicant, 69 at the time, was walking in the centre of Kharkiv and was hit in the face by a pellet fired from an air gun. 6. The applicant was admitted to hospital the same day and the pellet was removed from her face. It was subsequently seized as evidence by the police. The doctors noted in the applicant’s medical file that she had a gunshot wound on the infraorbital region of her face. 7. Later that day she lodged a criminal complaint with the police. The applicant alleged that the shot had been fired from a particular flat in a building in the centre of Kharkiv. 8. From 10 to 26 June 2004 the applicant underwent outpatient medical treatment for her injury. 9. On 2 July 2004, at the request of the police, she was examined by an expert, who concluded that the applicant’s injury was of a minor degree and might have been caused by a gunshot. On 31 October 2005 the applicant underwent an additional medical examination, which confirmed the previous conclusion. 10. By decisions of 22 March and 8 December 2005 and 9 August 2006, the police refused to open criminal proceedings, stating that it was not possible to identify the offenders and that the applicant’s allegations that the shot had been fired from a particular location were unfounded. They further found that there had been no serious breach of public order in the applicant’s case and noted that the applicant could have lodged a criminal complaint directly with a court in the framework of private prosecution proceedings. Despite her repeated requests, the applicant was not given access to the police investigation file related to the incident of 9 June 2004. 11. On appeal by the applicant, those decisions were annulled by different prosecutors and the courts generally on the grounds that the police enquiry had fallenpellet, and that the case contained elements of the crime defined by Article 296 of the Criminal Code (hooliganism). In particular, on 21 August 2007 the Dzerzhynskyy District Court of Kharkiv ruled that the case should be returned to the prosecutors for further investigation. 12. No further investigation was carried out after that date. 13. By a letter of 21 August 2009, the Deputy Prosecutor of the Dzerzhynskyy District of Kharkiv informed the applicant that the investigation case file had gone missing. There is no information as to any further developments in that regard. 14. On 7 November 2009 the applicant died. Her death was unrelated to the incident of 9 June 2004.