CASE OF BRENKO AND OTHERS v. UKRAINE (European Court of Human Rights) Applications nos. 29361/18 and 2 others

INTRODUCTION. The case concerns the failure to investigate effectively the violent deaths of their sons under Article 2 of the Convention.

FIFTH SECTION
CASE OF BRENKO AND OTHERS v. UKRAINE
(Applications nos. 29361/18 and 2 others)
JUDGMENT
STRASBOURG
18 February 2021

This judgment is final but it may be subject to editorial revision.

In the case of Brenkoand Others v. Ukraine,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

Mārtiņš Mits, President,
Lətif Hüseynov,
Mattias Guyomar, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the applications (nos. 29361/18, 30200/18 and31072/18) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three Ukrainian nationals, Mr AnatoliyIvanovychBrenko, Mrs LidaAkhmedivnaZhadovets and Mrs SvitlanaMykolayivnaBrenko (“the applicants”), on the various dates indicated in the appended table;

the decision to give notice of the applications to the Ukrainian Government (“the Government”);

the parties’ observations;

Having deliberated in private on 28 January 2021,

Delivers the following judgment, which was adopted on that date:

INTRODUCTION

1. The case concerns the failure to investigate effectively the violent deaths of their sons under Article 2 of the Convention.

THE FACTS

2. The applicants were born in 1960, 1964 and 1955 respectively and live in the town of Konotop, Ukraine.

3. The Government were represented by their Agent, Mr I. Lishchyna of the Ministry of Justice.

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

5. The applicants are parents of two deceased police officers, B. and Zh. The first applicant is the father and the third applicant is the mother of the deceased B. The second applicant is the mother of the deceased Zh.

6. On 27 November 2010, at around 5.30 p.m., duty patrol officers, B. and Zh., having been briefed, inter alia, on gun security and having received two Makarov guns, had left for Shostka railway station where they were supposed to be on duty until 6 a.m. the next day. On the same day, at around 10.20 p.m., B. and Zh. were found dead at the above-mentioned railway station, near the premises of a police station. The ambulance and the police were called, and a crime investigation team arrived and examined the scene.

7. On the next day the Shostka local prosecutoropeneda criminal investigation in connection with the possible murder of the police officers, B. and Zh. (on an unspecified date, the conduct of the investigation was further entrusted to the Konotop transport prosecutor’s office – hereafter “the prosecutor’s office”). In that decision it was noted that, following an inspection, it had been established that the death of Zh. had been caused by blood loss and a bullet exit wound to his chest. The death of B. was qualified as suicide by a bullet to the head.

8. Between 28 November and 1 December 2010 a number of eyewitnesses were questioned. Some of them testified that, at the railway station at around 10 p.m., they had seen two police officers who had allegedly been heavily drunk as they had been swaying from side to side, with one holding on to the other’s shoulder. The majority of witnesses heard a popping sound and saw one police officer on the ground and the other kneeling beside him. According to some testimony, that police officer had asked someone to call the ambulance and later told everyone to go away. Some witnesses had seen the latter putting a gun to his head. All of the witnesses had then heard another popping sound, some of them heard a preliminary clicking, but nobody witnessed the shot. Afterwards, they had all seen the second police officer on the ground.

9. Between 29 November and 17 December 2010 a number a forensic expert examinations were ordered, namely:

– a post-mortem examination according to which the diameter of Zh.’s gunshot wound was 0.7 cm and the diameter of B.’s gunshot wound was 0.8 cm; Zh.’s wound channel was from top down;

– eleven cytological examinations of B.’s gun, bullets, used shells and cartridge as well as B.’s and Zh.’s fingernail scrapings;

– two toxicological examinations which revealed that Zh. had 2.3‰ alcohol in his blood and B. had 3.7‰, which corresponded to medium and severe intoxication, respectively;

– two medical forensic examinations of blood;

– four forensic examinations of B.’s and Zh.’s clothing;

– three ballistic examinations which revealed that bullet shells found at the place of the incident had been fired from B.’s gun.

10. On 22 December 2010 between 11.50 a.m. and 2 p.m.a reconstruction of events, with the participation of four witnesses to the incident, was carried out.

11. On 29 December 2010 a ballistic expert examination was conducted, and it found that the diameter of the firearms used by policemen was 0.9 cm.

12. On 11-12 January 2011 the relatives of B. and Zh. were questioned, including the first and the second applicants.

13. On 14 January 2011 forensic medical expert examinations with the participation of the witnesses to the incident were carried out to establish the mechanism of how the firearm wounds had been inflicted on B. and Zh.

14. Between 20 and 24 January 2011 B. and Zh.’s colleagues were questioned. Some of them testified that B. and Zh. had not abused alcohol. One police officer testified that B. had received a gun permit in May 2010 and had been reprimanded for abuse of alcohol in October 2010.

15. On 29-30 January 2011 staff of the railway station shops and kiosks were questioned.

16. On 16 February 2011 the prosecutor’s office re-qualified the criminal case from possible murder of the police officers to involuntary homicide of Zh. by B. It was noted that, during the incident, both of them had been under the influence of alcohol. On the same day the second applicant was granted victim status.

17. On 22 February 2011 the first and the third applicants were questioned as witnesses. They submitted that they had seen injuries other than gun wounds on their son’s body. According to them, that showed that their son had been tortured and killed by unknown third persons. According to the case file, the first and the third applicants later refused to give any other testimony unless their status as witnesses in the proceedings were changed.

18. On 25 February 2011 a forensic medical expert testified that all bruises and injuries on B.’s body could be explained as the consequences of a gunshot wound to the head.

19. On the same day the prosecutor’s office terminated the criminal proceedings relating to B.’s death. It was concluded that B., being drunk, had involuntarily shot Zh. and later committed suicide. This decision referred to the testimony of several witnesses who had confirmed their testimony during the reconstruction of events, and to the conclusions of various forensic expert examinations.

20. On 6 May 2011 the Konotop Local Court quashed the above decision, following the first applicant’s complaint, and remitted the case for a new investigation. The court noted that the first applicant had not been informed that he, as B.’s father, could have participated in a pre-trial investigation. Nobody was recognised as B.’s representative. The pre-trial investigation materials contained discrepancies as to the level of alcohol intoxication, if any, of B. and Zh. In addition, it was necessary to check the first applicant’s version about the innocence of his son. This decision was upheld by the Sumy Regional Court of Appeal on 14 June 2011.

21. On 5 July and 11 August 2011 an investigator of the prosecutor’s office rejected the first applicant’s requests to recognise him either as B.’s representative or his defender.

22. Between 26 July and 26 October 2011 some witnesses were questioned and further forensic expert examinations were ordered, in particular:

– a soil-science examination according to which soil discovered on the clothing of B. and Zh. was not from the place where their bodies had been found;

– an ambulance paramedic testified that, while it had been noted on the medical card that there had been no smell of alcohol, he could not say whether B. and Zh. had been drunk since his main task had been to establish whether they were dead. The relevant line on the medical card had to be filled in, therefore he had filled it in presuming that police officers could not be drunk. Another ambulance paramedic confirmed that testimony;

– B.’s civil partner, S., testified that B. had called her on 27 November 2010 at around 10.20 p.m. and said that they would have dinner with Zh., after the latter had terminated formalities in respect of an administrative offence committed by an unknown man. However, that information had not been confirmed by call records from B.’s cell phone. According to S., B. had been sober. Furthermore, S. submitted that in September-October 2010 B. had been approached by unidentified law-enforcement officers who had proposed that B. perform certain tasks for remuneration. B. had refused and told S. that it would be better for him to change his working place for security reasons;

– a witness D. testified that at around 9 p.m. on 27 November 2010 he had been apprehended by two police officers for being drunk in a public place. However, those police officers had been drunk themselves and had proposed that D. drink with them.

23. On 31 October 2011 the prosecutor’s office again terminated the criminal proceedings related to B.’s death.

24. On 14 December 2011 the Konotop Local Court quashed the above decision and remitted the case for a fresh investigation. The court noted that, despite instructions given previously by the courts, the first applicant, whose version of the murder of his son by unknown third persons remained unchecked, was still not involved in the proceedings. This decision was upheld by the Sumy Regional Court of Appeal on 24 January 2012.

25. Between 13 March and 26 April 2012 numerous police officers who had been on duty at Shostka railway station were questioned. In particular, they submitted that there had previously been no incidents where they had been approached by any third parties with requests to provide paid services.

26. On 26 April 2012 the prosecutor’s office again terminated the criminal proceedings related to B.’s death.

27. On 22 May 2012 the Konotop Local Court quashed the above decision and remitted the case for a fresh investigation due to the failure to comply with the previous court instructions as to the involvement of the first applicant and the checking of his version of events. The court also emphasised that the first applicant had insisted on rehabilitation of his son, so pursuant to the law the criminal investigation could not be discontinued due to his death and should be followed through. This decision was upheld by the Sumy Regional Court of Appeal on 14 June 2012.

28. On 1 August 2012 the first and the third applicants were involved as B.’s defenders.

29. On 12 December 2012 the Shostka Local Court refused the investigator’s request to terminate the criminal proceedings related to the death as falling outside its competence and returned the case to an investigator. This decision was upheld by the Sumy Regional Court of Appeal on 14 February 2013.

30. Between 29 April 2013 and 11 April 2014the prosecutor’s office, on five occasions, terminated the criminal proceedings related to B.’s death. However, all these decisions were quashed by the Konotop Local Court and the Zarichnyy District Court of Sumy for the investigator’s failure to comply with the previous court instructions, inter alia, as to the necessity to check the first applicant’s version of events by conducting relevant investigative actions (namely, a reconstruction of events in circumstances close to the events in question) and the impossibility of discontinuing the criminal investigation on non-exonerative grounds when B.’s relatives were insisting on his innocence.

31. On 26 June 2014 a bill of indictment was drawn up against B. and on 1 July 2014 the case was transferred to a court.

32. On 11 August 2016 the Shostka Local Court acquitted B. on the ground of lack of constituent elements of a crime. The court noted, interalia, that:

(i) the record of the crime scene examination of 28 November 2010 was inadmissible evidence, because the investigator had not complied with the legal procedure when drafting the aforementioned record and the latter was manifestly incomplete. In particular, two attesting witnesses mentioned in the record testified at a court hearing that they had not participated in the crime scene examination; crucial details such as the location of the bodies, pieces of clothing, bullet casings and so on were not mentioned; confiscated items were not identified and fingerprinted;

(ii) the records of the reconstructions of events of 22 December 2010 were also inadmissible evidence, because these reconstructions had been conducted between 11.50 a.m. and 2 p.m., whereas the actual incident had taken place at about 10.20 p.m., which rendered the records unreliable;

(iii) the testimony of the alleged eyewitnesses to the incident, some of them being questioned at a court hearing, and the results of the examinations conducted with their participation were unreliable evidence as they had not seen negligent handling of the gun by B. or his subsequent suicide; it was also noted that some of their testimony contradicted other available evidence;

(iv) the forensic toxicological expert examinations of 10 and 13 December 2010 corroborating the alcoholic intoxication of B. and Zh. at the time of the incident were inadmissible evidence, because biological material for these examinations had been gathered in breach of procedures (that is, no decision of the investigator had been taken in that regard; the requirements for storage of material evidence were not complied with), their results were also refuted by other valid evidence;

(v) it remained unclear what firearms had been used to shoot the policemen due to the fact that the diameter of Zh.’s gunshot wound was 0.7 cm and the diameter of B.’s gunshot wound was 0.8 cm as established by the forensic medical examination of 29 November 2010 and the fact that the diameter of the firearms used by the policemen was 0.9 cm, as confirmed by the ballistic examination of 29 December 2010;

(vi) due to the fact thatZh. was much higher than B., the latter could not have shot Zh. with a wound channel from top down as established by the forensic medical expert examination of 29 November 2010;

(vii) the place of death of B. and Zh. was not correctly established as confirmed by the soil-science expert examination of 22 September 2011;

(viii) there were discrepancies as to when the police had been informed about the incident because the police office destroyed the originals of the relevant records after the court had requested them.

33. The above verdict was upheld by the Sumy Regional Court of Appeal on 15 March 2017 and by the Higher Specialised Court of Ukraine in Civil and Criminal Matters on 14 December 2017.

34. On 21 April 2017 the pre-trial investigation into the death of B. and Zh. was reopened (on account of their possible murder) and is still ongoing.

THE LAW

I. JOINDER OF THE APPLICATIONS

35. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.

II. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

36. Relying on Article 6 of the Convention, the applicants complained that the investigation into the death of their sons had been ineffective.

37. 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 the procedural limb of Article 2 of the Convention (seeIgor 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

38. The parties did not submit any observations on the admissibility of the applicants’ complaints.

39. The Court notes that it might be questionable to what extent the first and the third applicants have victim status in the present case. In particular, only the second applicant was given victim status in the domestic proceedings, whereas the first and the third applicants were admitted to the proceedings as defenders of their son, B., who, according to the investigator’s initial version of events, had shot the second applicant’s son by handling the gun negligently and then committed suicide.

40. However, the Court considers that throughout the proceedings the first and the third applicants had insisted on their son’s innocence and should have had reasonable expectations that the death of their son would also be effectively investigated. Therefore, they also have to be regarded as victims.

41. The Court further considers that the complaints in the present case are neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. They must therefore be declared admissible.

B. Merits

1. The parties’ submissions

42. The Government submitted that there had been no violation of the Convention. They noted in particular that the investigating authorities had immediately instituted criminal investigation into the applicants’ sons’ deaths. The investigating authorities had acted comprehensively and promptly; they had done everything possible to collect evidence and investigate the circumstances of the case; and the length of the investigation had been justified by the necessity to carry out a significant number of investigative actions.

43. The applicants disagreed with the Government’s assertions. They contended that the investigating authorities had not conducted an effective investigation into the death of their sons.

2. The Court’s assessment

44. The Court observes 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 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).

45. 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).

46. 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).

47. Turning to the circumstances of the present case, the Court notes that immediately after the discovery of the applicants’ sons’ bodies a full-scale criminal investigation was launched and a considerable number of relevant investigative steps required for establishment of the circumstances of the incident were taken. However, at a later stage the domestic court established serious shortcomings in the collection of evidence. Consequently, nearly all the evidence obtained as a result of the investigative actions had been compromised. As a result, nearly seven years after the incident, the domestic court found the authorities’ version of events unsubstantiated and acquitted B. (see paragraph 32 above).

48. The Court further notes that, according to the materials provided by the parties, the applicants were questioned for the first time only in January 2011, that is a month and a half after the death of their sons. Being further questioned one month later, the first and the third applicants stated that they had seen injuries, other than gun wounds, on B.’s body and thus, according to them, he had been killed by unknown third persons. Despite these statements, and without having checked them, the investigating authorities considered that B. had been responsible for Zh.’s death and terminated the criminal proceedings related to B.’s death three days later.

49. While that decision was quashed by the domestic court, inter alia, for the failure to check the applicants’ version of events (see paragraph 20 above), the Court notes that between October 2011 and July 2014 seven similar decisions on termination of the proceedings were adopted by the investigating authorities, all of them subsequently quashed by the domestic courts, which considered that the investigation had been incomplete in that the first and third applicants’ version of events was not checked. In addition, the investigating authorities constantly failed to involve the first and third applicants in the criminal proceedings (see paragraphs 20, 24 and 27 above). Moreover, the investigating authorities completely ignored the courts’ repeated observations on the impossibility, under the domestic law, to discontinue the criminal investigation on non-exonerative grounds when B.’s relatives had been insisting on his rehabilitation.

50. In the light of the above, the Court observes that, in the present case, the failure of the investigating authorities to collect and secure the evidence in the case; the reluctance to investigate any other versions of events apart from the negligent handling of firearms and subsequent suicide by B., which resulted in hasty, repeated termination of the criminal proceedings; and disregard of the applicants’ victim rights and of the national courts’ instructions considerably undermined the authorities’ ability to establish the circumstances surrounding the deaths of the applicants’ sons, and who, if anyone, was responsible (see, for example, Oleynikova v. Ukraine, no. 38765/05, § 81-82, 15 December 2011; Yuriy Slyusar v. Ukraine, no. 39797/05, § 86-87, 17 January 2013). As a result the proceedings are still pending more than eleven years after the events in question.

51. Having regard to its well-established case-law on the subject (see Pozhyvotko v. Ukraine, no. 42752/08, 17 October 2013), the Court concludes that, in the instant case, the investigation failed to meet the requirement of effectiveness.

52. There has accordingly been a violation of Article 2 of the Convention under its procedural limb.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

53. 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.”

54. The applicants claimed between 6,000 and 10,000 euros (EUR) in respect of non-pecuniary damage, as well as costs and expenses incurred at the domestic level, including travelling and postal expenses, costs for legal aid and medication costs.

55. The Government submitted that the claims were unsubstantiated, irrelevant and excessive.

56. Regard being had to the documents in its possession and to the approach taken in similar Ukrainian cases (see Nikolay Volkogonov and Igor Volkogonov v. Ukraine [Committee], no. 40525/05, 28 November 2013 and Basyuk v. Ukraine, no. 51151/10, 5 November 2015), in respect of non‑pecuniary damage, the Court finds it reasonable to award each of the applicants in applications nos. 29361/18 and 31072/18 EUR 3,000, and the applicant in application no. 30200/18 EUR 6,000, plus any tax that may be chargeable to the applicants.

57. 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.

58. As regards costs and expenses, according to the Court’s case-law an applicant is entitled to their reimbursement only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers that there is no call to make any award.

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;

4. Holds

(a) that the respondent State is to pay, within three months, EUR 3,000 (three thousand euros) to each of the applicants in applications nos. 29361/18 and 31072/18 and EUR 6,000 (six thousand euros) to the applicant in application no. 30200/18, plus any tax that may be chargeable, in respect of non-pecuniary damage, 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 18 February 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Martina Keller                                        Mārtiņš Mits
Deputy Registrar                                     President

______________

APPENDIX
List of Cases

No. Application no. Case name Lodged on Applicant
Year of Birth
Place of Residence
Nationality
1 29361/18 Brenko v. Ukraine 05/06/2018 AnatoliyIvanovych BRENKO
1960
Konotop
Ukrainian
2 30200/18 Zhadovets v. Ukraine 13/06/2018 LidaAkhmedivna ZHADOVETS
1964
Konotop
Ukrainian
3 31072/18 Brenko v. Ukraine 05/06/2018 SvitlanaMykolayivna BRENKO
1955
Konotop
Ukrainian

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