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URL: http://www.bailii.org/eu/cases/ECHR/2011/117.html
Cite as: [2011] ECHR 117

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FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 29725/05
by Nizayutdin Dadashevich GABIBULLAYEV
against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 11 January 2011 as a Chamber composed of:

Peer Lorenzen, President,
Karel Jungwiert,
Mark Villiger,
Isabelle Berro-Lefèvre,
Mirjana Lazarova Trajkovska,
Ganna Yudkivska,
Julia Laffranque, judges,
and Claudia Westerdiek, Section Registrar,

Having regard to the above application lodged on 25 July 2005,

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

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Nizayutdin Dadashevich Gabibullayev, is a Ukrainian national who was born in 1961 and lives in Kharkiv, Ukraine. He was represented before the Court by Mr A.P. Bushchenko, a lawyer practising in Kharkiv. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev, of the Ministry of Justice of Ukraine.

The circumstances of the case

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

On 16 December 2004 a criminal case concerning tax evasion was opened against the management of a private company, V., the applicant’s employer.

On the morning of 17 December 2004 tax police officers arrested the applicant at his work and brought him to the tax police office. There the applicant was questioned as a witness. When the applicant refused to answer any questions, an unknown person came into the room and started beating the applicant. The tax police officer, U., who was present in the room, did not prevent the applicant’s beating.

The applicant was later brought to the Eastern Region Transport Prosecutor’s Office and released in the evening of the same day.

Once he was back at home, an ambulance was called for him. He was taken to hospital, where he was diagnosed with a rib fracture and a head injury. The injuries were confirmed by the note issued on 18 December 2004 by the ambulance station.

On 18 December 2004 the applicant asked the Kharkiv Regional Prosecutor’s Office to institute criminal proceedings against the tax police officers.

On 20 December 2004 a medical examination confirmed that the applicant had a rib fracture and a bruise on the right side of his forehead, and that it was possible that these injuries had been inflicted on the evening of 17 December 2004.

On 25 January 2005 the Kharkiv Regional Prosecutor’s Office refused to institute criminal proceedings following the applicant’s complaints. The prosecutor found that the applicant’s complaints were unsubstantiated. No explanation for the applicant’s injuries had been provided.

On 15 February 2005 the decision of 25 January 2005 was quashed by the Kharkiv Regional Prosecutor’s Office. The applicant was informed that his case had been transferred to the Poltava Regional Prosecutor’s Office.

Following a forensic medical examination carried out in February and March 2005, the expert found that on 20 December 2004 the rib fracture could not have been more than three weeks old and the head injury not more than three days old.

On 31 August 2005 the deputy prosecutor of the Oktyabrskyy District of Poltava refused the applicant’s request to institute criminal proceedings against the tax police officers. Officer U., when questioned, said that he had not beaten the applicant. It was further concluded that the applicant’s injuries had been inflicted before 18 December 2004, namely, “before the applicant was questioned by the tax police officers”.

On 28 November 2005 the applicant enquired about the progress of his case.

By a letter of 18 January 2006 the applicant was informed of the decision of 31 August 2005.

On 31 August 2008 the applicant was again informed of the decision of 31 August 2005.

The applicant states that he never received these letters and only learned of the decision of 31 August 2005 on 10 March 2010 from the Government’s observations.

COMPLAINTS

The applicant complained under Article 3 of the Convention that he had been tortured by the tax police officers. He further complained under Article 13 of the Convention that there had been no independent, effective investigation and that it was impossible to claim compensation for his injuries.

THE LAW

The Government submitted that the applicant had twice been informed of the decision of 31 August 2005 not to institute criminal proceedings following his complaints. He had also been informed that he could challenge this refusal before the higher prosecutor or before the court. Therefore, the applicant had an effective remedy in respect of his complaints which he did not use. The Government maintained that the applicant had failed to comply with the requirements of Article 35 § 1 of the Convention and his complaints should be declared inadmissible.

The applicant stated that he had not received the decision of 31 August 2005 until 10 March 2010. He further stated that the Government had not presented any evidence to confirm that the letters of 18 January 2006 and 31 August 2008 had been sent and, especially, delivered to him. In such circumstances the applicant had not known about the decision of 31 August 2005 and had not been able to challenge it.

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 that 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, however, the decision of 31 August 2005 was not appealed against since the applicant had allegedly not known about it.

The Court notes that the applicant’s alleged beating occurred on 17 December 2004. The applicant immediately complained about it to the relevant domestic authorities but his complaint was rejected because there was no evidence of a crime. This decision was quashed and further investigation was carried out. The applicant apparently enquired for the last time about the progress of his case in November 2005.

It is true that there is no evidence that the applicant did indeed receive the letters of 18 January 2006 and 31 August 2008 concerning the refusal to institute criminal proceedings. However, the Court has no reason to doubt the authenticity of these letters and that they were posted to the applicant. On the other hand there is no evidence that since November 2005, for more than four years, the applicant, who during all this time has been represented by the same lawyer, has ever tried to enquire about the progress of his case. Moreover, after learning of the decision of 31 August 2005 the applicant could still have requested that the time-limit for appeal against it be renewed, which he did not do.

The Court finds that it cannot be concluded from the circumstances of the case that one year after the events in question the investigation was already ineffective to the extent that the applicant was discouraged from continuing with the proceedings in his case.

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, Aleksandr Shevchenko v. Ukraine, no. 8371/02, § 27, 26 April 2007, and Trukh v. Ukraine (dec.), no. 50966/99, 14 October 2003).

The Court finds, therefore, that in the circumstances of the present case the application must be rejected for non exhaustion of domestic remedies pursuant to Article 35 § 1 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Claudia Westerdiek Peer Lorenzen Registrar President