Last Updated on February 9, 2021 by LawEuro
. The case concerns complaints under Article 2 of the Convention regarding the ineffectiveness of the investigation into the death of the applicant’s ex-wife which was allegedly not natural.
FIFTH SECTION
CASE OF KAPLATYY v. UKRAINE
(Application no. 39997/17)
JUDGMENT
STRASBOURG
4 February 2021
This judgment is final but it may be subject to editorial revision.
In the case of Kaplatyy v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Lətif Hüseynov, President,
Lado Chanturia,
Mattias Guyomar, judges,
and Martina Keller, Deputy Section Registrar,
Having regard to:
the application (no. 39997/17) 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 Dmytro Vsevolodovych Kaplatyy (“the applicant”), on 29 May 2017;
the decision to give notice of the application to the Ukrainian Government (“the Government”);
the parties’observations;
Having deliberated in private on 14 January 2021,
Delivers the following judgment, which was adopted on that date:
1. The case concerns complaints under Article 2 of the Convention regarding the ineffectiveness of the investigation into the death of the applicant’s ex-wife which was allegedly not natural.
THE FACTS
2. The applicant was born in 1975 and lives in Kyiv.
3. The Government were represented by their Agent, Mr Ivan Lishchyna.
4. The facts of the case, as submitted by the parties, may be summarised as follows.
5. Until 2011 the applicant had been married to K. On 3 September 2013 in the afternoon K. died in her partner’s house in the village of Turka, Ivano-Frankivsk Region, where she had moved from the city of Poltava earlier in August, the same year. The following sets of proceedings ensued.
I. Proceedings initiated by the applicant in Kolomyya
6. On the same day the crime scene investigation was conducted and no signs of fighting or violent death were found. According to the death certificate, K. died of acute cardiac and pulmonary insufficiency and thromboembolia of the pulmonary artery.
7. On 4 September 2013 a criminal case was opened into K.’s death by the police of the city of Kolomyya, Ivano-Frankivsk Region (hereafter – the Kolomyya police). The case was opened for murder under Article 115 of the Criminal Code of Ukraine. It transpires from the documents available that the applicant was granted victim status in those proceedings.
8. It appears that on the same date, a forensic medical examination was ordered by the investigator.
9. On 5 September 2013 K.’s body was transferred to Poltava, where she had lived for many years before moving to Turku. On the same day she was buried in the local cemetery.
10. On 9 September 2013 the Kolomyya police terminated the proceedings for lack of a crime. The respective one-and-a-half page resolution referred to the death certificate and testimony of the ambulance doctors and K.’s partner who had been questioned on unspecified dates. In particular, the latter had stated that on 3 September he and K. had been at home together. In the evening K. had started to complain of heart pain and was losing consciousness. Knowing that in 1991 K. had undergone surgery and had a cardiac pacemaker he had called the ambulance, but by the time it arrived K. was already dead. The ambulance doctors confirmed the above statements. They also noted that they had tried to resuscitate K. but their efforts were in vain. They confirmed that they had seen no bodily injuries on K.’s body. Based on this, it was concluded that there were no signs of a crime, in particular, of murder.
11. On 10 September 2013 the applicant challenged the above resolution before the Kolomyya Inter-District prosecutor’s office. He noted that it had been adopted only on the basis of the death certificate, without waiting for the results of the forensic medical examination. He also complained that not all persons had been questioned, including him. He further alleged that K. had been murdered by her mother because of the money she had received from the sale in July 2013 of an apartment in Poltava she co-owned with the applicant. The applicant also mentioned that there were injection marks on K.’s arms which he had allegedly noted when the body was being prepared for burial and which had been disregarded by the authorities. He contended that those marks could signify that K. had been injected with something that had caused her death.
12. On 3 October 2013 the forensic expert examination ordered on 4 September 2013 was finalised by the Kolomyya Division of the Ivano‑Frankivsk Regional Bureau of Forensic Expert Examinations. According to its conclusion K. had died of acute cardiac and pulmonary insufficiency and thromboembolia of the pulmonary artery. In the framework of the examination, a blood clot which had allegedly caused death was found and histologically examined. It was also noted in the conclusion that on K.’s body there was only a light bruise on the left shoulder which had appeared 3-4 days before death. Further toxicological expert examination did not find any signs of intoxication in K.’s blood.
13. By a letter of 9 October 2013, the Kolomyya Inter-District prosecutor’s office, apparently in reply to the applicant’s complaint against the resolution of 9 September 2013, informed the applicant of the actions taken by the investigation. It also noted that as the information gathered did not reveal any signs of a crime, the proceedings were terminated. It was thus concluded that there were no grounds for any measures to be taken by the prosecutor and that the resolution was adopted lawfully. It was also noted that the forensic expert conclusion of 3 October 2013 had been joined to the case file.
14. It appears that on 8 October 2014 the investigation in the criminal case, terminated by the Kolomyya police on 9 September 2013, was reopened. No copies of the relevant documents were provided by the parties.
II. Proceedings initiated by the applicant in Poltava
15. On 20 September 2013 the applicant filed a criminal complaint with the Kyivskyy District Police Office of Poltava (hereafter – the Poltava police) submitting that K.’s death had been caused by the premeditated non‑provision of timely medical aid by her partner and her mother, who were with her at the time of her death. In particular, according to him, K.’s mother and sister had tried to persuade K. to spend the money she had received from the sale of the apartment according to their wishes. The applicant also noted that on 1 September 2013 he had received a text message (SMS) from K. reading “Dima [the applicant], I understood, mother and L. [the sister] want my death. They only need money.” The applicant further stated that he had been informed of K.’s death by her father, who in turn had been informed by K.’s sister, at around 3 p.m. while the ambulance had been called at around 5.30 p.m. The applicant also referred to some suspicious marks on K.’s body, including from injections, which were never noted and examined by the authorities. He also contended that K. had had no health problems. Based on all of the above, he requested a thorough examination of the circumstances of the case and the exhumation of the body in order to determine the real time and cause of death.
16. On 21 September 2013 a criminal case under Article 136 of the Criminal Code of Ukraine (“Failure to provide help to a person in a dangerous situation”) for failing to provide K. with medical care was opened by the Poltava police. No suspect was named. The applicant was granted victim status in those proceedings.
17. On 26 September 2013 the Poltava police ordered the exhumation and forensic medical examination of K.’s body, referring to the applicant’s version of events described in his complaint of 20 September.
18. On 8 October 2013 the exhumation of K.’s body took place.
19. On 20 November 2013 the investigator granted the request of the applicant, for some reason referred to as a “representative of the victim”, to receive “for storage” K.’s histological samples and original medical documents earlier received by the investigator from the Ivano-Frankivsk Regional Bureau of Forensic Expert Examinations. It was also noted in the respective resolution that a request was sent to the Poltava Regional Bureau of Forensic Expert Examinations to provide these materials, after the termination of their examination, to the applicant “for further examinations”. It appears that on 3 December 2013 K.’s histological samples and medical documents were transferred to the applicant.
20. On 5 December 2013, acting upon the resolution of 26 September 2013, the Poltava Regional Bureau of Forensic Expert Examinations drafted a conclusion of the examination of K.’s exhumed body. The experts established no trauma or other wounds or marks on the body except for several bruises on the arms and legs. In the text of conclusion it was also mentioned that on 18 November 2013 the experts had received K.’s histological samples and medical documents, apparently those that had been received from the Ivano-Frankivsk Regional Bureau of Forensic Expert Examinations, and on 27 November 2013 these had been returned to the investigator. It was further noted that the investigator had twice been requested to provide the experts with the materials of the criminal case into K.’s death, the original of the expert conclusion by the Kolomyya Division of the Ivano-Frankivsk Regional Bureau of Forensic Expert Examinations and K.’s medical documentation (medical history record, and so on), but these materials had never been provided. Finally, it was also noted that on 3 December 2013 a letter from the investigator had been received with the request to “return the expert examination without execution”. Based on the above, it was decided to “suspend and return” the expert examination to the investigator.
21. According to the information provided by the Government, this forensic medical examination had never been finalised due to the non‑provision to the experts of K.’s medical documents and histological samples, which were in the applicant’s possession. The Government noted that the applicant had, on numerous occasions, been contacted by the investigators by phone and requested to provide the above materials and inform them of his place of residence, but he had refused. The applicant submitted that he had never been contacted by the authorities, that his place of residence had been known to them and that he had not changed it since the events and had never been hiding from the authorities. It appears that the applicant is still in possession of the materials in question.
22. On 20 December 2013 the Kyivskyy District Court of Poltava granted the Poltava police investigator’s request to have access to the materials of the case investigated by the Kolomyya police. The request was based, inter alia, on the impossibility of finalising the additional expert examination without these documents. It is unclear whether the investigator attempted actually to obtain the documents in question.
23. On 21 February 2014 the Poltava police terminated the criminal proceedings for lack of a crime. It was noted in the resolution, inter alia, that because of lack of access to all the necessary medical materials, as the place of their storage was unknown, it had been impossible to conduct an additional forensic medical expert examination.
24. It is unclear whether the applicant challenged this resolution. However, by a letter of 22 September 2014 the Kyivskyy District prosecutor’s office of Poltava informed the applicant that on 19 September 2014 the resolution of 21 February 2014 had been quashed as the investigation was incomplete and one-sided. It was also noted that, as the events had taken place in Kolomyya, it had been decided to transfer the case to Kolomyya. No copy of the decision of 19 September 2014 was provided to the Court.
III. Joinder of the proceedings and their transfer to Kolomyya
25. As it transpires from the documents available, on 17 October 2014 the two criminal cases were joined into one and their investigation was entrusted to the Kolomyya police.
26. By a letter of 27 November 2014 the Ivano-Frankivsk Regional prosecutor’s office informed the applicant that the proceedings were pending and that the investigator had been instructed to take all necessary actions to finalise the investigation within a reasonable time.
27. On 29 June 2016 the Kolomyya police terminated the proceedings for lack of a crime. The resolution referred to the evidence gathered at the initial stages of the investigation back in 2013, such as the testimony of K.’s partner, the testimony of the ambulance doctors, as well as to the expert conclusions of 3 October and 5 December 2013. It was further noted that on 13 July 2015 a complex forensic medical examination, ordered upon the applicant’s motion, had been finalised. However, because of the absence of the medical documents and histological samples kept by the applicant the experts could not provide any replies to the investigator’s questions. Finally, it was noted in the resolution that it was impossible to conduct any further examinations as the applicant, who held the necessary medical documents and histological samples, refused to provide them. In this respect it was stated that the applicant had on numerous occasions been contacted in order to resolve the issue; however, he had refused to indicate his place of residence, or to come to Kolomyya or to send the materials in question.
28. The applicant alleges that he was not informed of this decision and found out about it only in April 2017. In support of this assertion he provided a copy of his complaint to the Kolomyya police filed on 10 April 2017 in which he requested, among other things, a copy of the resolution of 29 June 2016.
29. The applicant further submitted a copy of his complaint to the Ivano‑Frankivsk regional prosecutor’s office, filed on 28 April 2017 according to the incoming correspondence stamp. In this complaint he reiterated his version that his ex-wife had been murdered for money and that he suspected that the perpetrators were her partner and mother. He also submitted that there were evident signs of bodily harm on K.’s body which had been disregarded by the forensic experts, in particular during the first expert examination. He also complained that the additional expert examination ordered on 26 September 2014 (which was supposed to verify the conclusions of the initial one) had not been finalised and requested that the case be transferred back to Poltava. On this basis he requested that the resolution of 29 June 2016 be quashed.
30. By a letter of 3 May 2017 the Ivano-Frankivsk Regional Prosecutor’s Office instructed the Kolomyya local prosecutor’s office to examine the applicant’s complaint and inform them of the results by 22 May 2017.
31. According to the applicant, he has never received any replies to his complaint. In his view, without this reply he could not apply to the courts.
RELEVANT LEGAL FRAMEWORK
32. The relevant provisions of the Criminal Code of Procedure of 2012 read as follows:
Article 284. Termination of criminal proceedings
and the proceedings against a legal person
“…4. An investigator or a prosecutor may issue a decision to terminate criminal proceedings, which is amenable to appeal in accordance with the procedure established by this Code.
…6. A copy of the investigator’s decision to terminate the criminal proceedings shall be sent to the complainant, the victim and the prosecutor. The prosecutor has the right to quash the decision on the grounds of its unlawfulness or lack of substantiation within twenty days of receipt of the copy of the decision. The prosecutor may also quash the investigator’s decision to terminate the criminal proceedings following a complaint lodged by a complainant or a victim, if such a complaint has been lodged within ten days of receipt of a copy of the decision by the complainant or the victim. …”
Article 303. Decisions, acts or inaction of the investigator or the prosecutor, which are amenable to appeal during the pre-trial investigation, and the right to appeal
“1. During the pre-trial proceedings the following decisions, acts or inactions of the investigator or the prosecutor are amenable to appeal:
…3) the investigator’s decision to terminate the criminal proceedings – by the complainant, the victim, his or her representative or legal representative;
4) the prosecutor’s decision to terminate the criminal proceedings – by the complainant, the victim, his or her representative or legal representative, the suspect, his/her counsel or legal representative …”
Article 304. Time limits for challenging decisions, acts or omissions
of the investigator or prosecutor, its returning or refusal to open proceedings
“1. Complaints against decisions, acts or omissions of the investigator or prosecutor referred to in paragraph one of Article 303 of the present Code, may be lodged [with a court] within ten days after the decision was taken, or the act or omission committed. If a decision of the investigator or prosecutor has been drawn up as a resolution, the time limit for lodging a complaint shall be counted from the day the complainant has received its copy.
2. A complaint shall be returned if:
1) it has been lodged by a person who is not entitled thereto;
2) it is not subject to consideration by this court;
3) it has been lodged after the expiry of time limit specified in paragraph one of this Article, and the complainant does not raise the issue of renewing the time limit, or the investigating judge finds no grounds for renewing it upon the person’s application.
4. A copy of the ruling to return the complaint shall be immediately forwarded to the complainant, together with the complaint and all materials attached thereto.
5. The investigating judge or the court refuses to open proceedings only if the complaint is lodged against such decisions, acts or omissions of the investigator or prosecutor that are not subject to appeal.
6. A copy of the ruling to refuse to open the proceedings shall be immediately forwarded to the complainant, together with the complaint and all materials attached thereto.
7. A ruling to return the complaint or refuse to open proceedings may be challenged on appeal.
8. The returning of the complaint does not preclude re-applying to the investigating judge or the court as prescribed in the present Code.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
33. The applicant complained under Articles 2, 3 and 6 of the Convention of the ineffective investigation into the death of his ex-wife, K.
34. The Court reiterates that by virtue of the jura novit curia principle it is not bound by the legal grounds adduced by the applicant under the Convention and the Protocols thereto and has the power to decide on the characterisation to be given in law to the facts of a complaint by examining it under Articles or provisions of the Convention that are different from those relied upon by the applicant (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 126, 20 March 2018). In view of that, in the present case the Court finds that the complaints at issue fall to be examined under Article 2 of the Convention, which reads as follows:
“Everyone’s right to life shall be protected by law. (…)”
A. Admissibility
1. As to the applicant’s victim status
35. The Government claimed that the applicant could not be regarded as the victim of a violation of Article 2 of the Convention as he was the deceased K.’s ex-husband. In this context they noted that, according to the Court’s case law, in particular, the case of Finogenov and Others v. Russia (nos. 18299/03 and 27311/03, ECHR 2011 (extracts)), only close relatives of a deceased person or those who without being married constituted a de facto family may claim to be themselves victims of a violation of Article 2 of the Convention. As the applicant and K. were divorced back in 2011 and had not been living as a family since, he could not claim to be a victim of the alleged violation.
36. In reply the applicant stated that he was K.’s ex-husband and thus a relative and that in the respective criminal proceedings he had been officially granted victim status. His standing in the proceedings before the domestic authorities had never been questioned.
37. The Court summarised the principles governing the assessment of an applicant’s victim status in paragraphs 96-101 of its judgment in the case of Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC] (no. 47848/08, ECHR 2014). In cases where the direct victim died before the lodging of an application, in particular those raising issues under Article 2 of the Convention, the Court has already acknowledged the standing of a parent, sibling or nephew of the deceased. In the cases of Velikova v. Bulgaria (dec.) (no. 41488/98, 18 May 1999) and Finogenov and Others v. Russia (cited above, § 205), the Court has also recognised the standing of a deceased person’s partner even though their relationship existed outside marriage. Conversely, the Court did not grant victim status to a divorced partner who was not considered to have a sufficient link to her deceased ex-husband (see Trivkanović v. Croatia (dec.), no. 12986/13, §§ 50-51, 6July 2017).
38. Furthermore, when deciding the issue of standing the Court has also taken into account a person’s involvement into the domestic proceedings (see, mutatis mutandis, Alecu and Others v. Romania, nos. 56838/08 and 80 others, § 31, 27 January 2015).
39. Turning to the present case, the Court notes that the applicant and K. had been married for six years, until 2011. It appears that since that time they had not been living together, but still lived in the same city and co‑owned an apartment which they sold in July 2013. After K’s death in September 2013, it was upon the applicant’s complaint that criminal proceedings were initiated and he was granted victim status within their framework. It is unclear whether any other person, that is, blood relatives of K. (her parents or sister) or her new partner, were granted victim status in those proceedings. This is especially important in view of the applicant’s version of events that K. was killed by her mother and partner for money. Furthermore, throughout the proceedings the applicant had been very actively involved in the investigation, submitting applications and challenging the termination of the proceedings on several occasions.
40. In these specific circumstances, the Court considers that the applicant may claim to be a victim of the alleged violation of the Convention in respect of the subsequent investigation into K.’s death (compare with Trivkanović, cited above). The Court thus rejects the Government’s objection under this head.
2. Otherwise as to admissibility
41. The Government further noted that the authorities conducted a number of investigative actions in order to establish the circumstances of the case. It was concluded that K. had died of natural causes. They emphasised that, while asking for further forensic medical examinations to be conducted, the applicant had refused to provide the authorities with the histological samples and medical materials in his possession and that the authorities’ attempts to make him provide these materials (such as phone calls) had been fruitless. In this respect they noted that the applicant lacked interest in the results of the investigation and concluded that his application was therefore manifestly ill-founded.
42. The Government also stated that, as the applicant did not file any complaints against the resolution on termination of criminal proceedings of 29 June 2016, although he could have challenged it either before the prosecutor or the courts, he had failed to exhaust domestic remedies. They further noted that the applicant had also failed to comply with the six‑month rule for the submission of his application, as the six months had to be counted from 29 June 2016.
43. The applicant contended that the investigation into K.’s death had been ineffective and constituted essentially a refusal to investigate. In particular, he complained of the authorities’ inactivity and failure to take necessary measures, referring to, inter alia, the forensic medical examination ordered on 26 September 2013 which had never been finalised. He also complained that the investigating authorities had terminated the proceedings on several occasions.
44. The applicant further stated that, contrary to what was claimed by the Government, he had submitted a complaint to the prosecutor against the resolution of 29 June 2016, of which he had become aware in April 2017. At the same time, he stated that he could not appeal against it to the courts until he received a reply from the prosecutor. He thus considered that he had exhausted the domestic remedies.
45. The Court considers that the Government’s objections mentioned above are closely linked to the merits of the present complaint. Consequently, the examination of these issues should be joined to the assessment of the merits of that complaint.
B. Merits
46. The Government provided no observations on the merits of the applicant’s complaints.
47. The Court notes at the outset that the present case falls to be examined from the perspective of the State’s obligation to conduct an effective investigation under the procedural limb of Article 2 of the Convention. The relevant general principles concerning the effectiveness of the investigation were summarised in Giuliani and Gaggio v. Italy [GC] (no. 23458/02, §§ 299-305, ECHR 2011 (extracts))and Armani Da Silva v. the United Kingdom [GC] (no. 5878/08, §§ 231-37, 30 March 2016, with further references).
48. More specifically, this is not an obligation of results to be achieved but of means to be employed. The Court accepts that not every investigation is necessarily successful or comes to a conclusion coinciding with the claimant’s account of events. However, it should, in principle, be capable of leading to the establishment of the facts of the case and, if the allegations prove to be true, to the identification and punishment of those responsible (see Giuliani and Gaggio, § 301 and Armani Da Silva, § 233, both cited above).
49. Once the investigative obligation is triggered, compliance with the procedural requirement of Article 2 is assessed on the basis of several essential parameters: the adequacy of the investigative measures, the promptness of the investigation, the involvement of the deceased person’s family and the independence of the investigation. These elements are inter‑related and each of them, taken separately, does not amount to an end in itself (see Armani Da Silva, cited above, §§ 231, 235 and 237).
50. Turning to the present case, the Court notes that the proceedings into K.’s death were initiated in Kolomyya and Poltava (into murder and non‑provision of help to a person in a dangerous situation, respectively) one and eighteen days after her death. Both sets of proceedings were opened upon the applicant’s complaints and it appears that the national authorities considered those complaints well-grounded and necessitating investigation, in particular, in respect of his allegations that K. did not die of natural causes.
51. The Court further observes that, despite prompt institution, in these proceedings only a limited number of investigative activities was undertaken and very little evidence was gathered. In particular, as transpires from the resolution on termination of the proceedings of 9 September 2013 (see paragraph 10 above), the police obtained testimony only from K.’s partner and the ambulance doctors. Furthermore, although a forensic medical examination was ordered, when terminating the proceedings the police relied only on the death certificate based on which it concluded that K. had died of natural causes without waiting for the results of the forensic medical examination. The Court is also mindful that the above‑mentioned resolution was adopted on 9 September 2013, that is only six days after K.’s death, which in itself raises serious doubts as to the thoroughness of the investigation.
52. As to the proceedings before the Poltava police the Court observes that, apart from ordering the exhumation and the additional forensic medical examination of 26 September 2013, there is no information about any other investigative measures taken in this framework. The only other procedural action undertaken was the request by the investigator to have access to the materials of the case investigated by the Kolomyya police, which was granted by the court. It is, however, unclear whether the investigator actually attempted to receive the documents in question. On 21 February 2014, five months after their initiation, these proceedings were terminated for lack of evidence of a crime.
53. The Court notes that in the context of the latter set of proceedings the applicant complained that the forensic medical examination ordered on 26 September 2013 had never been finalised. According to the information provided by the Government, it had never been finalised due to the non‑provision to the experts of K.’s medical documents and histological samples, which were in the applicant’s possession. The Government noted that the applicant had been contacted on numerous occasions by the investigators by phone and requested to provide the above materials and inform them of his place of residence, but he had refused. The applicant submitted that he had never been contacted by the authorities, that his place of residence had been known to them and had not changed since the time of the events and that he had never hidden from the authorities. The applicant also acknowledged that he still has the materials in question.
54. In this context the Court observes that it is unclear why it was decided to have these materials transferred to the applicant in the first place. The resolution of 20 November 2013 (see paragraph 19 above) contains no explanation. Likewise, no explanations in that respect were provided by the parties. In any case it appears that the documents in question were the only existing originals and the histological samples were the only ones available from the initial expert examination. No other copies or samples were stored by the authorities. At the same time the Court observes that the expert conclusion of 5 December 2013 states that some medical documents and histological samples were provided to the experts (see paragraph 20 above). However, in the absence of further details the Court is unable to conclude which particular materials are mentioned.
55. The Court further observes that this expert conclusion also mentioned that the experts had requested the investigator to provide additional documents, but to no avail. The parties had likewise provided no explanations in that respect. Finally, the Court is mindful that the expert conclusion in question relies on the letter from the investigator requesting the experts to return the expertise “without execution” (see paragraph 20 above). In the absence of the relevant documents the Court cannot examine the reasons for such a request, but in the light of the above circumstances taken cumulatively it cannot but conclude that the authorities lacked diligence in dealing with such important evidence as medical documents and histological samples and failed to ensure their availability and the availability of other important materials for expert examination (see Belenko v. Russia, no. 25435/06, § 83, 18 December 2014).
56. The Court also notes that from the very early stages of both sets of proceedings the applicant had made known to the authorities his suspicion that K. had been killed for money by her mother and new partner. In his submissions he also pointed to specific facts, like the injection marks on K.’s body, the SMS he had received from his ex-wife several days before her death and the discrepancy in the alleged time of her death (see paragraphs 11 and 15 above). This does not appear be a mere fantasy on the part of the applicant but a reference to facts which could be verified. It appears, however, that this version and the facts referred to by the applicant had never been studied by the authorities in any way (see, mutatis mutandis, Kulikv. Ukraine, no. 10397/10, § 52, 19 March 2015, but compare with Yuriy Slyusar v. Ukraine, no. 39797/05, §§ 86-87, 17 January 2013).
57. The Court further observes that the terminations of both sets of proceedings were later quashed and the investigation was resumed (see paragraphs 14 and 24 above). In particular, as noted by the prosecutor in a letter to the applicant of 22 September 2014, the resolution of 21 February 2014 on termination of the proceedings before the Poltava police was quashed due to the investigation being superficial and one-sided (see paragraph 24 above). Even in the absence of a copy of the respective documents, the wording used by the prosecutor’s office clearly points to an acknowledgment of the lack of thoroughness by the domestic authorities themselves.
58. As regards the resolution of 29 June 2016 on termination of the joined proceedings, it essentially relied on the same evidence and re-stated the same conclusions as the very first resolution of 9 September 2013, concluding that K. had died of natural causes. The text of the resolution of 29 June2016 does not contain any information about the investigative actions taken in the period between October 2014 and June 2016 except for mentioning the complex forensic medical examination completed on 13 July 2015 but which, it appears, had no added value as it did not provide any conclusions referring to the lack of medical documents (see paragraph 27 above).
59. The above facts bring the Court to the issue of exhaustion of domestic remedies. The Court notes in this respect that, contrary to what was claimed by the Government, the documents available to the Court show that the applicant did complain about the termination of the proceedings to the prosecutor’s office. In particular, this is confirmed by a copy of his complaint which, according to the incoming correspondence stamp, was submitted to the Ivano-Frankivsk Regional Prosecutor’s Office on 28 April 2017 (see paragraph 29 above). In this complaint he clearly requested that the resolution of 29 June 2016 be quashed. Furthermore, as it transpires from the letter of 3 May 2017, the Ivano-Frankivsk Regional Prosecutor’s Office instructed the Kolomyya Local Prosecutor’s Office to examine the applicant’s complaint and inform it of the results by 22 May 2017 (see paragraph 30 above). While the Government claimed that the applicant had never challenged the resolution at stake in any way, they did not provide any comments on the documents from the applicant’s application mentioned above and the Court has no reasons to doubt the authenticity of these documents.
60. The Court further notes that, according to the applicant, he has not received any reply to his complaint, which precludes him from appealing further to the courts. The Court observes in this respect that the applicable legislation does not require any hierarchy to be followed when challenging the investigator’s decision to terminate proceedings – the person may choose to apply either to the prosecutor or the court, or both, and both the prosecutor and the court have the power to quash the termination of the proceedings (see paragraph 32 above). The Court is mindful that the applicant has been waiting for the prosecutor’s reply for more than 3 years now and had neither applied to the courts nor, as it appears, tried to contact the prosecutor again. The Government claimed that this demonstrated both his lack of interest in pursuing the case and his failure to exhaust domestic remedies. The Court, however, considers that this issue needs to be decided in the light of its conclusions as to the effectiveness of the investigation.
61. The Court notes that, while initially two sets of proceedings were instituted into the applicant’s complaints, both of them related to the same event, that is K.’s death, and they were later joined together. Therefore, for the purpose of the present examination they will be considered as one investigation. The Court further notes that, while by June 2016 the investigation had been pending for around 2 years and 9 months, it was already marked by several deficiencies. As described in the preceding paragraphs, the initial stages of the investigation were limited in terms of the investigative actions undertaken. Furthermore, the investigation was twice terminated and then reopened, namely due to it being superficial, and this was acknowledged by the authorities themselves. The forensic medical examination ordered on 26 September 2013 had never been finalised and, while the Government claimed that this was due to the applicant’s retention of the necessary materials, the Court cannot accept this argument as it was for the authorities to ensure the storage and availability of the histological samples and medical materials of the deceased. This is all the more so since the applicant still has those pieces of evidence and the authorities are not entirely deprived of the possibility to have access to them. It also appears that the applicant’s version of events had never been examined by the authorities, who essentially stuck to the initial conclusion that K. had died of natural causes. Finally, the applicant has never received any reply to his complaint against the resolution of 29 June 2016 submitted to the prosecutor.
62. In the light of its findings in the preceding paragraphs, the Court cannot conclude that the authorities did everything in their power to ensure comprehensive action in collecting and securing evidence and establishing the circumstances of K.’s death. Also, in the Court’s view, these deficiencies in the investigation as it stood at the time of adoption of the last resolution on termination of the proceedings in June 2016 seriously undermined the prospects of the investigation’s success, even if promptly resumed upon the applicant’s complaint. Consequently, the Government’s objection as to the non-exhaustion of domestic remedies has to be rejected (compare with Gabibullayev v. Ukraine (dec.), no. 29725/05, 11 January 2011).
63. Having regard to the above, the Court finds that there has been a violation of the procedural limb of Article 2 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
64. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
65. The applicant claimed 6,000 euros (EUR) in compensation for non‑pecuniary damage. He did not raise any other claims.
66. The Government submitted that the applicant’s claims for non‑pecuniary damage had no causal connection with the violation complained of. In any case, in their view, the applicant’s complaints were inadmissible.
67. Regard being had to the documents in its possession and to the approach taken in similar cases against Ukraine (see, in particular, Nikolay Volkogonov and Igor Volkogonov v. Ukraine [Committee], no. 40525/05, 28 November 2013, and Basyuk v. Ukraine, no. 51151/10, 5 November 2015), the Court finds it reasonable to award the applicant the amount claimed in respect of non‑pecuniary damage, plus any tax that may be chargeable.
68. Since the applicant made no claim in respect of costs and expenses incurred either domestically or before the Court, the Court is not called upon to make an award under this head.
69. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Holds that the applicant may claim to be a victim;
2. Joins the Government’s objection as to the non-exhaustion of domestic remedies to the merits of the complaint under Article 2 of the Convention and dismisses it;
3. Holds that there has been a violation of Article 2 of the Convention under its procedural limb;
4. Holds
(a) that the respondent State is to pay the applicant, within three months, EUR 6,000 (six thousand euros)plus any tax that may be chargeable, in respect of non-pecuniary damage to be converted into the currency of the respondent Stateat the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
Done in English, and notified in writing on 4 February 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Martina Keller Lətif Hüseynov
Deputy Registrar President
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