Last Updated on February 9, 2021 by LawEuro
. The present cases concern the ineffective investigation into the violent deaths of the applicants’ relatives without, however, any evidence that State agents were involved.
FIFTH SECTION
CASE OF GOROPATSKIY AND OTHERS v. UKRAINE
(Applications nos. 63243/13 and 5 others)
JUDGMENT
STRASBOURG
4 February 2021
This judgment is final but it may be subject to editorial revision.
In the case of Goropatskiyand Others 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 applications nos. 63243/13, 76040/13, 37806/15, 23618/16, 55825/16 and 21113/17 against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table;
the decision to give notice 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 present cases concern the ineffective investigation into the violent deaths of the applicants’ relatives without, however, any evidence that State agents were involved.
THE FACTS
2. The applicants’ details and the relevant facts are set out in the appended tables.
3. The Government were represented by their Agent, Mr I. Lishchyna.
THE LAW
I. JOINDER OF THE APPLICATIONS
4. In accordance with Rule 42 § 1 of the Rules of Court, the Court decides to join the applications and consider them in a single judgment, given that they raise similar issues under the Convention.
II. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
5. The applicants complained that the investigations into the violent deaths of their relatives were ineffective. The applicants relied on Articles 2, 6 § 1 and 13 of the Convention.
6. The Court, which is master of the characterisation to be given in law to the facts of the case, finds that the complaints at issue fall to be examined under Article 2 of the Convention (see Igor Shevchenko v. Ukraine, no. 22737/04, § 38, 12 January 2012). This provision, in so far as relevant, reads as follows:
“1. Everyone’s right to life shall be protected by law.”
A. Admissibility
7. As to application no. 23618/16 the Government considered that the applicant’s complaints under Article 2 of the Convention were manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. In particular, the Government stated that the investigating authorities, within a reasonable period of time, established both the cause of the applicant’s mother’s death and the person responsible for the murder; the latter had been convicted and sentenced to imprisonment and the applicant had been awarded compensation for damages sustained as a result of the crime committed against her mother. The Government also stressed that the criminal case was never remitted for additional investigation for any deficiencies and shortcomings; there were no signs that the applicant had not been involved in the criminal proceedings or that the independence of the investigation was called into question.
8. The applicant disagreed and maintained that the application was admissible. In particular, the applicant alleged that the Government’s statements in this regard were based on incorrect facts and that there had been no effective investigation into the death of her mother.
9. The Government submitted no observations as to the admissibility of the remaining applications.
10. The Court considers that the applications are not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.
B. Merits
1. The parties’ submissions
11. The Government submitted that there had been no violation of Article 2 of the Convention. Namely, the Government stated that the investigating authorities had launched pre-investigative inquiries or criminal investigations into the applicants’ relatives’ deaths in a timely manner; they had acted diligently and promptly; the investigating authorities had done everything possible to investigate the circumstances of the cases; the length of the investigations had been objectively justified by the necessity to carry out a significant number of investigative actions; the length of the investigations did not cause evidence to deteriorate or perish which affected the results of the criminal proceedings; and the applicants were involved in the proceedings and independence of the investigation was not called in question by them.
12. The applicants did not accept the Government’s assertions and confirmed their complaints under Article 2 of the Convention. They contended that the investigating authorities had not conducted effective investigations into the deaths of their relatives.
2. The Court’s assessment
13. The Court notes at the outset that the present cases fall 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 an investigation within the meaning of Article 2 of the Convention were summarised in Mustafa Tunç and FecireTunç v. Turkey [GC], no. 24014/05, §§ 169-82, 14 April 2015).
In particular, 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 MustafaTunç and FecireTunçv. Turkey [GC], ibid., § 225).
14. Moreover, 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 Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 71, ECHR 2002-II).
15. Reviewing the facts of the present cases in the light of those principles, the Court considers that the investigations were marked by substantial shortcomings in their preliminary stages. From the information available, it does not appear that structured investigations took place after criminal proceedings were instituted. The investigations were characterised by repeated discontinuations and re-openings as a result of the insufficiency of the measures taken by the inquiring officers, and were marked by the progressive deterioration of evidence (see the appended tables for individual details).
16. From the documents before the Court it appears that the failure of the investigating authorities to complete the necessary steps in a timely manner undermined their ability to establish the circumstances surrounding the deaths of the applicants’ relatives, and who, if anyone, was responsible (see the appended tables for individual details). The proceedings in the present cases lasted from more than 6 years to more than 12 years. In this regard the Court notes that a substantial delay in the identification of the cause of a death can in and of itself undermine public confidence in the maintenance of the rule of law and raise an issue under Article 2 of the Convention, unless it is justified by objective circumstances. The Court has already found a violation in respect of issues similar to those in the present cases (seeLyubovEfimenko v. Ukraine, no. 75726/01, §§ 76-80, 25 November 2010; Pozhyvotko v. Ukraine, no. 42752/08, §§ 37-42, 17 October 2013; Zorina and Others v. Ukraine [Committee], no. 20295/07 and 3 others, §§ 13-22, 14 February 2019).
17. For these reasons the Court finds it established that, in the instant cases, the investigations failed to meet the criteria of effectiveness. These complaints therefore disclose a breach of the procedural limb of Article 2 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
18. 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.”
19. Regard being had to the documents in its possession and to its case‑law, the Court considers it reasonable to award the applicants the sums indicated in the appended tables. It dismisses the remainder of the applicants’ claims for just satisfaction.
20. 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. Decides to join the applications;
2. Declares the applications admissible;
3. Holds that there has been a violation of Article 2 of the Convention under its procedural limb in respect of the complaints concerning the ineffective investigations into the applicants’ relatives’ deaths;
4. Holds
(a) that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at 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 amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
5. Dismisses the remainder of the applicants’ claims for just satisfaction.
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
|
1. Application no. 63243/13 by MrAnatoliySergiyovychGoropatskyy Ukrainian national born in 1949 and residing in the town of BilaTserkva, Ukraine Lodged on 18 August 2013 |
|
| A. Complaint under Article 2: procedural limb | |
| The background to the Case and Domestic Proceedings | Key Issues |
| 1. The circumstances of the incident:
03/01/2008 – the applicant’s parents died in a fire in their apartment. The next day, medical expert examinations of their bodies were ordered and, according to the findings, the death of the applicant’s mother was caused by acute carbon monoxide intoxication and the death of his father was caused by burning shock; no bodily injuries, except burns, were found.
2. The course of the investigation and its findings: (i) 03/01/2008 – the Bilotserkivskyy Police Station of Kyiv Region launched a pre-investigative inquiry into the deaths of the applicant’s parents. (ii) Between 11/01/2008 and 13/11/2008 – four refusals to institute a criminal investigation due to the lack of a crime. All those decisions were set aside by the BilaTserkvaProsecutor’s Office of Kyiv Region and by the Bilotserkivskyy Local Court of Kyiv Region as premature and unsubstantiated, in particular, because of the failure to establish the cause of the fire, the circumstances of the deaths of the applicant’s parents and to check his version that his parents had been robbed and then murdered by their neighbours, who had concealed the crime by committing arson. (iii) 30/07/2009 – institution of criminal proceedings on account of arson which had caused the deaths of the applicant’s parents. (iv) 09/12/2009 – transfer of the case to the Kyiv Regional Police Department for further investigation. (v) 17/12/2009 – suspension of the criminal proceedings (no reasons submitted by the parties). This decision was set aside by the Kyiv Regional Prosecutor’s Office after less than a month. (vi) 12/11/2010 – termination of the criminal proceedings. This decision was quashed by the Shevchenkivskyy District Court of Kyiv being upheld by the Court of Appeal of Kyiv because of the failure to exhume the applicant’s parents’ bodies, to conduct a forensic medical expert examination in order to establish the circumstances of their deaths, to take samples of the fire debris and to carry out its expert examination, to establish the origins of the fire and its circumstances. (vii) Between 31/03/2015 and 30/06/2015 – two terminations of the criminal proceedings. These decisions were quashed by the Kyiv Regional Prosecutor’s Office. (viii) 05/09/2015 – institution of criminal proceedings on account of the murder of the applicant’s parents by unknown persons and its joinder with the criminal proceedings on account of arson. (ix) 02/06/2017 – the case was transferred back to the Bilotserkivskyy Police Station of Kyiv Region. (x) 19/05/2019 – termination of the criminal proceedings. This decision was quashed by the Bilotserkivskyy Local Court of Kyiv Region as premature due to the failure to establish the origins of the fire and the circumstances of the deaths of the applicant’s parents. (xi) As it appears from the available case file materials, the criminal investigation is currently pending. |
(i) For nearly one year and a half the circumstances of the deaths of the applicant’s parents were examined exclusively by way of pre-investigative inquiry. Such investigative procedures do not comply with the principles of an effective remedy because the inquiring officer could only take a limited number of steps and the victim had no formal status, meaning his or her effective participation in the procedure was ruled out (see, mutatis mutandis, Strogan v. Ukraine, no. 30198/11, § 53, 6 October 2016). Furthermore, the decisions to refuse institution of criminal proceedings were taken on four occasions without the circumstances of the case having been properly examined, given that the prosecutor’s office and the court quashed these decisions as premature and unsubstantiated. As a result, a full-scale investigation into the applicant’s parents’ deaths was commenced with a substantial delay (see, among other authorities, Antonov v. Ukraine, no. 28096/04, § 50, 3 November 2011).
(ii) Once opened, the investigation lacked thoroughness in that it was characterised by repeated transfers of the case, discontinuations and re-openings of the proceedings as a result of the insufficiency of the measures taken by the inquiring officers, and it was marked by the progressive deterioration of evidence, in particular, because of the failure to exhume the applicant’s parents’ bodies for their subsequent medical expert examination and to take samples of the fire debris from the applicant’s parents’ apartment for expert examination. The repetition of remittal orders discloses a serious deficiency in criminal proceedings (see, mutatis mutandis, Zubkova v. Ukraine, no. 36660/08, § 40, 17 October 2013).
(iii) Consequently, the proceedings have been pending for more than twelve years and seven months and the circumstances of the deaths of the applicant’s parents, including the origins of the fire and its circumstances, remain unestablished, which compromised the effectiveness of the investigation (see, for example, Chumak v. Ukraine [Committee], no. 60790/12, § 27, 19 May 2016). |
| B. Just satisfaction | |
| Parties’ submissions | Court’s award |
| Applicant:
Non-pecuniary damage: 606,386 euros (EUR) Pecuniary damage: EUR 62,808
Government: Claims exorbitant and unsubstantiated |
Non-pecuniary damage:
EUR 6,000
Plus any tax chargeable to the applicant on above amount |
|
2. Application no. 76040/13 by MrAndriy PylypovychPoprotskyy Ukrainian national born in 1951 and residing in the village of Chervona Sloboda, Ukraine Lodged on 18 November 2013 |
|
| A. Complaint under Article 2: procedural limb | |
| The background to the Case and Domestic Proceedings | Key Issues |
| 1. The circumstances of the incident:
01/10/2004 – at around 00.24 a.m. the applicant’s son, a police officer, was found dead under a bridge in a park in the city of Cherkasy. The same day an on-site inspection and a medical expert examination of the applicant’s son’s body was carried out and, according to its results, it was established that he had died as a result of injuries which could have been sustained by falling off the bridge.
2. The course of the criminal investigation and its findings: (i) 01/10/2004 – the Sosnivskyy District Prosecutor’s Office of Cherkasy launcheda pre-investigative inquiry into the death of the applicant’s son. (ii) Between 25/10/2004 and 25/12/2004 – two refusals to institute a criminal investigation due to the lack of a crime. Both decisions were set aside by the Prosecutor’s Office of Cherkasy Region as premature and unsubstantiated. (iii) 05/01/2005 – institution of criminal proceedings by the Prosecutor’s Office of Cherkasy Region on account of incitement of the applicant’s son to commit suicide and transfer of the case to the Sosnivskyy District Prosecutor’s Office of Cherkasy for investigation. (iv) 12/05/2005 – a post-mortem psychological expert report stated that the applicant’s son’s decision to commit suicide could have been influenced by his individual psychological peculiarities. (v) 30/06/2005 – termination of the criminal proceedings. This decision was quashed by the Prosecutor’s Office of Cherkasy Region. (vi) 29/08/2005 – transfer of the case to the Prydniprovskyy District Prosecutor’s Office of Cherkasy for further investigation. (vii) Between 14/04/2006 and 20/12/2010 – seven terminations of criminal proceedings. All those decisions were set aside as premature by the Prydniprovskyy District Court of Cherkasy, by the Court of Appeal of Cherkasy Region and by the Prydniprovskyy District Prosecutor’s Office of Cherkasy because of the failure to conduct the necessary investigative acts, to assess duly the evidence and to check properly the applicant’s statements about incitement of his son to suicide. (viii) 10/12/2012 – transfer of the case to the Prosecutor’s Office of Cherkasy for further investigation. (ix) 26/12/2012 – termination of the criminal proceedings. This decision was quashed by the Prydniprovskyy District Court of Cherkasy because of the failure to provide the applicant with an opportunity to challenge an investigator’s decision on refusal to grant his request as to investigative steps to be taken. The applicant further challenged the above investigator’s decision but the Prydniprovskyy District Court of Cherkasy dismissed his complaint. (x) 23/04/2013 – termination of the criminal proceedings owing to the lack of a crime; it was established that the applicant’s son had committed suicide without any incitement to do so. This decision was upheld by the Prydniprovskyy District Court of Cherkasy and by the Court of Appeal of Cherkasy Region. (xi) 10/09/2013 – the Higher Specialised Court of Ukraine in Civil and Criminal Matters refused to open cassation proceedings upon the applicant’s complaint against the above courts’ decisions. |
(i) For more than three months the circumstances of the death of the applicant’s son were examined exclusively by way of pre-investigative inquiry. Such investigative procedures do not comply with the principles of an effective remedy because the inquiring officer could only take a limited number of steps and the victim had no formal status, meaning his or her effective participation in the procedure was ruled out (see, mutatis mutandis, Skorokhodov v. Ukraine, no. 56697/09, § 34, 14 November 2013). Furthermore, the decisions to refuse institution of criminal proceedings were taken on two occasions without the circumstances of the case having been properly examined, given that the prosecutor’s office quashed these decisions as premature and unsubstantiated. As a result, a full‑scale investigation into the applicant’s son’s death was commenced with a substantial delay (see, for example, Prilutskiy v. Ukraine, no. 40429/08, § 44, 26 February 2015).
(ii) Once opened, the investigation lacked thoroughness in that it was marked by numerous transfers of the case between investigative authorities, referrals of the proceedings for additional investigation caused, inter alia, by the investigator’s failure to take the necessary investigative steps, to assess duly the available evidence and to check properly the applicant’s statements about incitement of his son to commit suicide.As a result the proceedings lasted for almost nine years (see, among other authorities, Basyuk v. Ukraine, no. 51151/10, § 67, 5 November 2015).
(iii) Despite the fact that the investigation into the death of the applicant’s son was finally discontinued with a conclusion that he had committed suicide, it lasted an excessively long time and was marked by substantial shortcomings (see, mutatis mutandis, Sergiyenko v. Ukraine, no. 47690/07, §§ 51-53, 19 April 2012). |
| B. Just satisfaction | |
| Parties’ submissions | Court’s award |
| Applicant:
Non-pecuniary damage: EUR 300,000 Costs and expenses: EUR 3,000 in respect of legal fees Supporting documents: agreement for legal aid
Government: Claims exorbitant and unsubstantiated |
Non-pecuniary damage:
EUR 6,000
Costs and expenses: No award as the applicant was not formally represented in the proceedings before the Court
Plus any tax chargeable to the applicant on above amounts |
|
3. Application no. 37806/15 by MsLyudmylaMykhaylivnaRudakova Ukrainian national born in 1956 and residing in the town of Berdyansk, Ukraine Lodged on 22 July 2015 |
|
| A. Complaint under Article 2: procedural limb | |
| The background to the Case and Domestic Proceedings | Key Issues |
| 1. The circumstances of the incident
09/06/2011 – the applicant’s son was found dead at a private apartment. In the course of an on-site inspection it was discovered that his body had been hanged with a flat-iron power cable. There were no other bodily injuries found, except the singular unclosed oblique ligature mark on the upper third of the neck. Besides, there were no signs of break-in or anything having been stolen from the apartment. According to the results of the forensic medical expert examination conducted on the next day, it was found that the applicant’s son had hanged himself.
2. The course of the criminal investigation and its findings (i) 09/06/2011 – the Berdyansk Police Station of Zaporizhzhya Region initiated a pre-investigative inquiry into the death of the applicant’s son. No signs of fighting or violence, no traces of blood inside the apartment were revealed; instead it was established that the applicant’s son had been suffering from depression, abusing alcohol, talking about suicide and had subsequently hanged himself. (ii) Between 17/06/2011 and 16/11/2012 – eight refusals to institute a criminal investigation due to the lack of a crime. All those decisions were set aside by the Berdyansk Prosecutor’s Office of Zaporizhzhya Region and by the Berdyansk Local Court of Zaporizhzhya Region because of incompleteness of the pre‑investigative inquiry, necessity to carry out a number of pre-investigative acts and failure to comply with the instructions given by the prosecutor’s office as to the steps to be taken. (iii) 24/04/2013 – institution of criminal proceedings on account of murder of the applicant’s son. (iv) Between 31/07/2013 and 26/01/2018 – four terminations of the criminal proceedings due to the lack of a crime. All those decisions were quashed as premature by the prosecutor’s office and by the court because of the failure to establish the identity of persons to whom the applicant’s son had rented the apartment earlier and with whom he had been talking before the incident, to conduct the investigative acts pursuant to the instructions of the prosecutor’s office, to assess duly the available evidence and to address properly the applicant’s requests as to the investigative steps to be taken. (v) As it appears from the available case file materials, the criminal investigation is still ongoing. |
(i) For almost two years the circumstances of the death of the applicant’s son were examined exclusively by way of pre-investigative inquiry. Such investigative procedures do not comply with the principles of an effective remedy because the inquiring officer could only take a limited number of steps and the victim had no formal status, meaning his or her effective participation in the procedure was ruled out (see, mutatis mutandis, Strogan v. Ukraine, no. 30198/11, § 53, 6 October 2016). Furthermore, the decisions to refuse institution of criminal proceedings were taken on eight occasions without the circumstances of the case having been properly examined, given that the prosecutor’s office and the court repeatedly quashed these decisions as premature and unsubstantiated. As a result, a full-scale investigation into the applicant’s son’s death was commenced with a substantial delay (see, for example, Dernovyy and Dernova v. Ukraine [Committee], no. 20142/10, § 25, 2 June 2016).
(ii) Overall length of investigation and lack of thoroughness resulted in the failure to establish the circumstances of the incident, namely, the failure to establish the identity of persons to whom the applicant’s son had rented the apartment earlier and with whom he had been talking before the incident. In particular, the investigation of the incident continued for more than nine years and, after several referrals of the proceedings for additional investigation because of the investigator’s failure to follow the instructions of the supervisory authorities, is still pending at the pre-trial stage. Failure to collect evidence in a timely manner, and several remittals of the case for additional investigation as a result of insufficiency of the measures taken by the inquiring officers, rendered the establishing of truth practically impossible, which had compromised the effectiveness of the investigation (see,for example,Chumak v. Ukraine [Committee], no. 60790/12, § 27, 19 May 2016). |
| B. Just satisfaction | |
| Parties’ submissions | Court’s award |
| Applicant:
Non-pecuniary damage: EUR 6,000
Government: Claims unsubstantiated |
Non-pecuniary damage:
EUR 6,000 as claimed
Plus any tax chargeable to the applicant on above amounts |
|
4. Application no. 23618/16 by MsInga ArturivnaAvetisova Ukrainian national born in 1991 and residing in the city of Odesa, Ukraine represented by MrDmytro ViktorovychYagunov, a lawyer practising in the same city Lodged on 20 April 2016 |
|
| A. Complaint under Article 2: procedural limb | |
| The background to the Case and Domestic Proceedings | Key Issues |
| 1. The circumstances of the incident
03/05/2010 – the applicant’s mother disappeared. On 07/06/2010, the applicant notified the Prymorskyy District Police Station of Odesa about the disappearance of her mother. In particular, the applicant noted that the last time she had seen her mother was with her acquaintance, U.
2. The course of the criminal investigation and its findings (i) 07/06/2010 – the police initiated certain search measures, namely, the applicant’s mother was declared missing; the hospitals, markets, bars and restaurants of Odesa were checked; her neighbours and acquaintances, including U., were questioned. (ii) Between 15/06/2010 and 08/02/2011 – three refusals to institute a criminal investigation into the disappearance of the applicant’s mother. All those decisions were set aside as premature by the Prymorskyy DistrictProsecutor’s Office of Odesa because of insufficiency of the search measures taken by the police. (iii) 06/11/2012 – the dead body of the applicant’s mother was found, buried in a plot of land outside Odesa (as it appears from the case file materials, it was found by accident). The same day the Prosecutor’s Office of Odesa Region instituted criminal proceedings for murder. The next day U. confessed that she had killed the applicant’s mother. In particular, U. explained that she and the victim had been drinking alcohol together when they had quarrelled, so she had hit the victim on the head with a stool and killed her. (iv) 05/02/2013 – a bill of indictment was drawn up against U. and it was transmitted to the Prymorskyy District Court of Odesa for consideration on the merits. (v) 15/06/2016 – U. was convicted for the above-mentioned crime and sentenced to 9 years’ imprisonment; the applicant was awarded UAH 9,683 in respect of pecuniary damage and UAH 100,000 in respect of non-pecuniary damage. (vi) 29/12/2016 – the Court of Appeal of Odesa Region partly changed the above verdict: U. was sentenced to 8 years, 3 months and 14 days’ imprisonment. |
(i) The facts of the present case suggest that after the applicant notified the police of the disappearance of her mother, insufficient search measures were taken and this was expressly acknowledged by the prosecutor’s office while overruling three decisions to refuse institution of criminal proceedings as premature. Only after the dead body of the applicant’s mother was found, was a full-scale criminal investigation into the murder commenced. It follows that from the very beginning the investigation into the disappearance of the applicant’s mother failed to meet a requirement of promptness and reasonable expedition (see, for example, Yuriy Slyusar v. Ukraine, no. 39797/05, §§ 79-82, 17 January 2013).
(ii) Despite the fact that, after U. had confessed to the murder of the applicant’s mother, a sufficiently thorough investigation was conducted, substantial shortcomings at its preliminary stage had led to the proceedings lasting for more than sixyears and six months (see, mutatis mutandis, Sergiyenko v. Ukraine, no. 47690/07, §§ 51-53, 19 April 2012). |
| B. Just satisfaction | |
| Parties’ submissions | Court’s award |
| Applicant:
Non-pecuniary damage: EUR 80,000 Pecuniary damage: EUR 50,000 Costs and expenses: EUR 10,000 in respect of legal fees and EUR 800 in respect of postal expenses Supporting documents: agreements for legal aid
Government: Claims exorbitant and unsubstantiated |
Non-pecuniary damage:
EUR 6,000
Costs and expenses: No award in the absence of evidence that any payments were due and made
Plus any tax chargeable to the applicant on above amounts |
|
5. Application no. 55825/16 by MsLyubovAndriyivnaBalutskaand MrIvan MykhaylovychBalutskyy Ukrainian nationals born in 1962 and 1957 respectively and residing in the town of Chervonograd, Ukraine represented by MrMykhayloYosypovychBordyuk, a lawyer practising in the same town Lodged on 13 September 2016 |
|
| A. Complaint under Article 2: procedural limb | |
| The Background to the Case and Domestic Proceedings | Key Issues |
| 1. The circumstances of the incident
11/07/2011 – at around 11 a.m., the applicants’ son was found dead on the street outside a deserted hostel. In the course of an on-site inspection no signs of the death of the applicants’ son through violence were established, no fighting or violence inside the aforementioned building; his death had been caused by falling from a height.
2. The course of the criminal investigation and its findings (i) 12/07/2011 – the Chervonohrad Police Station of Lviv Region initiated a pre-investigative inquiry. The inquiry established that the applicants’ son had committed suicide. (ii) Between 20/07/2011 and 17/08/2012 – eleven refusals to institute a criminal investigation into the death of the applicants’ son due to the lack of a crime. All those decisions were set aside by the Chervonohrad Prosecutor’s Office of Lviv Region and by the Chervonohrad Local Court of Lviv Region because of incompleteness of the pre‑investigative inquiry and the necessity to carry out a number of investigative acts that, according to the court, were possible only after institution of criminal proceedings. (iii) 04/01/2013 and 04/04/2014 – institution of the criminal proceedings on account of incitement of the applicants’ son to commit suicide and on account of murder of the applicants’ son by his classmate, G. (iv) Between 25/04/2013 and 29/06/2017 – nine terminations of the criminal proceedings due to the lack of constituent elements of a crime. All these decisions were quashed by the Chervonohrad Local Court of Lviv Region, by the Chervonohrad Prosecutor’s Office of Lviv Region and by the Court of Appeal of Lviv Region due to the following: – necessity to establish the identity of persons who, from time to time, had been at the hostel, to question residents of neighbouring buildings, to establish persons who could have drunk alcohol with the applicants’ son before the incident and where the latter could have bought alcoholic drinks, due to the fact of presence of alcohol in his blood and one witness’s testimony about a shop receipt into his pocket, to verify G.’s alibi and relationships of the applicants’ son with other classmates, to eliminate contradictions in the witnesses’ testimony as to contacts between the applicants’ son and G. before the incident, to check cell phone calls as to contacts between G. and the applicants’ son, to establish where the applicants’ son’s keys and cell phone sim-card had disappeared, to carry out a post-mortem forensic expert psychiatric and psychological examination and a complex forensic expert physical and technical examination; – non-compliance with the instructions as to verification of G.’s alibi, check of G.’s cell calls, establishment of whether the applicants’ son had bought and drunk alcohol before the incident and where his keys and cell phone sim-card had disappeared to, elimination of contradictions in the witnesses’ testimony as to contacts between the applicants’ son and G. before the incident, conduct of a complex forensic expert physical and technical examination; – failure to establish reasons and circumstances of the death of the applicants’ son, in particular, why and how he had come to the hostel, from what height he had fallen, the trajectory of the fall, the mechanism of the injuries sustained by him. (v) As it appears from the available case file materials, presently the case remains at the pre-trial investigation stage. |
(i) For almost one year and a half the circumstances of the death of the applicants’ son were examined exclusively by way of pre‑investigative inquiry. Such investigative procedures do not comply with the principles of an effective remedy because the inquiring officer could only take a limited number of steps and the victim had no formal status, meaning his or her effective participation in the procedure was ruled out (see, mutatis mutandis, Strogan v. Ukraine, no. 30198/11, § 53, 6 October 2016). Furthermore, the decisions to refuse institution of criminal proceedings were taken on more than a dozen occasions without the circumstances of the case having been properly examined, given that the prosecutor’s office and the court quashed these decisions as premature. In particular, the court specifically stressed that the conduct of a number of necessary investigative acts was possible only after opening the criminal investigation. As a result, a full‑scale investigation into the applicants’ son’s death was commenced with a substantial delay (see, among other authorities, Antonov v. Ukraine, no. 28096/04, § 50, 3 November 2011).
(ii) The investigation lacked thoroughness in that the investigator on nine occasions delivered decisions to terminate the criminal proceedings. However, all those decisions were overruled and the case was remitted for additional investigation due to insufficiency of the investigative measures and the investigator’s failure to comply with the instructions of the superior authorities. Consequently, the proceedings have been pending for more than nine years and the majority of the circumstances of the incident remain unestablished, namely, why and how the applicants’ son had come to the hostel, from what height he had fallen, the trajectory of the fall, the mechanism of the injuries sustained by him. All the above compromised the effectiveness of the investigation (see, for example, Chumak v. Ukraine [Committee], no. 60790/12, § 27, 19 May 2016). |
| B. Just satisfaction | |
| Parties’ submissions | Court’s award |
| Applicants:
Non-pecuniary damage: EUR 40,000 jointly, including: Pecuniary damage: EUR 2,500 Costs and expenses: EUR 37 in respect of correspondence with the Court Supporting documents: postal receipts
Government: Claims exorbitant and unsubstantiated |
Non-pecuniary damage:
EUR 6,000 jointly
Costs and expenses: EUR 37
Plus any tax chargeable to the applicant on above amounts |
|
6. Application no. 21113/17 by MsTetyana VolodymyrivnaDyadychkina Ukrainian national born in 1954 and residing in the city of Lutsk, Ukraine represented by MrVitaliyAndriyovychYelov, a lawyer practising in the same city Lodged on 11 March 2017 |
|
| A. Complaint under Article 2: procedural limb | |
| The Background to the Case and Domestic Proceedings | Key Issues |
| 1. The circumstances of the incident
03/08/2014 – at 2.55 a.m., the applicant’s son was transported to Rozhyshchenska Central District Hospital with a sword-cut wound to the right hip. The same day, at 3 p.m., he died in hospital. It was later concluded by a forensic medical expert that the applicant’s son’s death was caused by a cut/stab wound to the right hip with damage to the deep femoral vein.
2. The course of the criminal investigation and its findings (i) 03/08/2014 – the Rozhyshchenskyy Police Station of Volyn Region instituted criminal proceedings on account of infliction of grave bodily injury to the applicant’s son resulting in his death. Immediately after this event, numerous witnesses were questioned who explained that they had seen a fight between the applicant’s son and his friends on one side and third persons on the other side; during this fight the applicant’s son had injured three persons with a knife. (ii) 15/08/2014 – requalification of the criminal proceedings to murder of the applicant’s son in excess of self-defence. The same day Ye. was notified that he was suspected in connection with the aforementioned crime as, allegedly, during the fight Ye., trying to stop the applicant’s son unlawful actions and to knock the knife from his hand, had underestimated his strength, which had caused a knife wound to the applicant’s son’s hip. At the same time, according to the forensic medical expert conclusion of 10/11/2014, the applicant’s son could have caused the injury himself. (iii) 14/11/2014 – termination of the criminal proceedings against Ye. due to the lack of constituent elements of a crime. That decision was quashed by the Rozhyshchenskyy District Court of Volyn Region as premature because of the failure to establish the circumstances under which the applicant’s son had sustained bodily injuries and the necessity to carry out a number of investigative acts (questioning of witnesses, investigative experiments, a complex forensic medical expert examination). (iv) 08/04/2015 – institution of criminal proceedings on account of murder of the applicant’s son and its joinder with the previous proceedings. Pursuant to the forensic medical expert conclusion of 30/06/2015, the applicant’s son could have inflicted an injury to himself with his right hand during the fight. (v) 30/07/2015 – termination of the criminal proceedings against Ye. due to the lack of constituent elements of a crime. This decision was quashed by the court because of the failure to comply with the previous court’s instructions as to the investigative steps to be taken. (vi) 24/05/2016 – the court withdrew a police investigator from the investigation of the above proceedings for its protraction and the failure to follow the court’s instructions. (vii) As it appears from the available case file materials, the pre-trial criminal investigation is still pending. |
The investigation lacked thoroughness in that it was marked by several referrals of the proceedings for additional investigation caused, inter alia, by insufficiency of the investigative steps taken and the investigator’s failure to comply with the instructions of the supervisory authorities; for these reasons the investigator was also withdrawn from the investigation. In addition, the proceedings have been pending for more than six years and the investigating authorities have not established whether, during the fight, the applicant’s son had been fatally injured by his own hand or by a third person. This undermined the authorities’ ability to establish the circumstances of the incident, and who, if anyone, was responsible (see, for example, Prynda v. Ukraine, no. 10904/05, § 56, 31 July 2012). |
| B. Just satisfaction | |
| Parties’ submissions | Court’s award |
| Applicant:
Non-pecuniary damage: EUR 10,000 Costs and expenses: EUR 131 for legal fees at domestic level and EUR 5 for correspondence with the Court Supporting documents: agreement for legal aid, bills and invoices
Government: Claims exorbitant and poorly substantiated |
Non-pecuniary damage:
EUR 6,000
Costs and expenses: EUR 131 in respect of legal fees EUR 5 in respect of postal expenses
Plus any tax chargeable to the applicant on above amounts |
Leave a Reply