Last Updated on March 11, 2021 by LawEuro
INTRODUCTION. The present applications concern the ineffective investigation into the deaths of the applicants’ relatives, who died in road traffic accidents, under Article 2 of the Convention.
FIFTH SECTION
CASE OF OSADCHA AND OTHERS v. UKRAINE
(Applications nos. 55896/10 and 6 other applications)
JUDGMENT
STRASBOURG
11 March 2021
This judgment is final but it may be subject to editorial revision.
In the case of Osadchaand Others v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Mārtiņš Mits, President,
Lɘtif Hüseynov,
Mattias Guyomar, judges,
and Martina Keller, Deputy Section Registrar,
Having regard to:
the applications nos. 55896/10, 62237/13, 76514/13, 42644/16, 70352/16, 38653/18 and 47765/18 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 of the applications to the Ukrainian Government (“the Government”);
the parties’ submissions;
Having deliberated in private on 11 February 2021,
Delivers the following judgment, which was adopted on that date:
1. The present applications concern the ineffective investigation into the deaths of the applicants’ relatives, who died in road traffic accidents, under Article 2 of the Convention.
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 deaths of their relatives were ineffective. They 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. In the application no. 62237/13 the Government informed the Court that they were not in a position to submit observations on the case as it was impossible for them to obtain copies of the case files held by courts located in the Autonomous Republic of Crimea. The Court notes that initially the Government did not provide observations or any explanations for not doing so within the time-limit fixed by the Court. Later the Government, in their comments on the applicant’s claims for just satisfaction, informed the Court that they had no opportunity to submit their position in this case, given that all relevant documents had remained on the territory of Crimea and had not been accessible for the Ukrainian Government. The Court further notes that the criminal proceedings in relation to the death of the applicant’s husband had already ended on 5 April 2013 by the final decision of the Sevastopol City Court of Appeal and the key procedural documents as regards the criminal proceedings in question, as provided by the applicant, were sent to the Government in attachment to the letter giving notice of the application to the Government. Given that the Government did not provide any explanations as to why they could not submit their observations based on these documents, the Court considers that it can proceed with the examination of the case on the basis of the documents as submitted by the applicant.
8. The Government submitted no observations as to the admissibility of the remaining applications.
9. The Court notes that the applicants’ complaints are not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. Itfurther notes that they are not inadmissible on any other grounds. Theymust therefore be declared admissible.
B. Merits
1. The parties’ submissions
10. The Government submitted that there had been no violation of the Convention. They noted in particular that the investigating authorities had instituted criminal investigations into the applicants’ relatives’ deaths in a timely manner. The competent investigating authorities had acted diligently and promptly; they had done everything possible to investigate the circumstances of the cases; and the length of the investigations had been justified by the necessity to carry out a significant number of investigative actions.
11. In applications nos. 55896/10, 42644/16 and 70352/16 the applicants did not accept the Government’s assertions that effective investigations had been carried out. They contended that the investigating authorities had not acted promptly and had not secured evidence of the incidents. The applicants also argued that the investigations had not been structured and had been marked by tactical shortcomings, which had undermined any possibility of identifying those responsible or establishing their relatives’ cause of death.
2. The Court’s assessment
12. The Court notes at the outset that the present applications 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 the investigation were summarised in Nicolae VirgiliuTănase v. Romania [GC] (no. 41720/13, §§ 157-171, 25 June 2019).
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 Nicolae VirgiliuTănase v. Romania, ibid., §§ 165-171).
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 Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 71, ECHR 2002-II).
13. 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 and, 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.
14. 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 Court has already found a violation in respect of issues similar to those in the present applications (seeAntonov v. Ukraine, no. 28096/04,§§ 36-41, 3 November 2011; Igor Shevchenko v. Ukraine, cited above, §§ 56-60, 12 January 2012; and Basyuk v. Ukraine, no. 51151/10, §§ 56-71, 5 November 2015).
15. For these reasons the Court finds it established that, in the instant case, 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. REMAINING COMPLAINTS
16. The applicant in application no. 55896/10 also complained that she had been discriminated against by the investigating authorities on the ground of her poor financial situation, referring to Article 14 of the Convention.
17. The Court has examined the application and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, this complaint either does not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or does not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto. It follows that this part of application no. 55896/10 must be rejected in accordance with Article 35 § 4 of the Convention.
IV. 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 table. 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. Declaresthe complaint under Article 14 of the Convention in application no. 55896/10 inadmissible and the remainder of the application 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 deaths of the applicants’ relatives;
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 11 March 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Martina Keller Mārtiņš Mits
Deputy Registrar President
__________
Appendix
| 1. Application no. 55896/10 by MsValentynaOleksiyivnaOsadcha Ukrainian national born in 1959 and residing in the village of Verbky, Ukraine Lodged on 14 September 2010 |
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| A. Complaint under Article 2: procedural limb | |||||
| The background to the Case and Domestic Proceedings | Key Issues | ||||
| 1. The circumstances of the incident: On 14/11/2004 the applicant’s daughter, I., was walking down the road not far from a bus station with two other girls,S. and T., when they were hit by a car. The police officers witnessed the road traffic accident. They allegedly did not see the actual crash, but heard the sound of the crash and witnessed that I. was lying on the ground and the other two girls, with visible injuries, were next to the car. They also witnessed that two men, N. and P., were standing next to the car. I. died two days later as a result of the injuries sustained. 2. The course of the investigation and its findings: (i) 14/11/2004 and 20/11/2004 – two examinations of the scene of the accident were performed; (ii) 23/11/2004 – criminal proceedings were instituted; (iii) 27/12/2004 – the investigator held that the statements of T. (one of the accident victims), that P. had been driving the car at the time of the accident, had not been correct, since T.’s perception had not been objective, because of the injuries that she had sustained. At the same time, the investigator noted that according to the statements of P. and N. it was N., who was driving the car; (iv) 17/02/2005 – the police officer was disciplined (namely, when conducting an additional examination of the scene he did not take into account the weather conditions at the time of the accident, and so on); (v) 18/03/2005 – according to the results of the internal enquiry there had been substantive contradictions between the witness statements as to who was driving the car at the moment of the accident; (vi) 11/07/2006 – the notice of indictment was issued to N., who stated that he was driving the car; (vii) 28/03/2007 – P. pleaded guilty to driving the car and causing the traffic accident. N. denied his initial statements, explaining that he had made those at P.’s request; (viii) 5/04/2007 – the Pavlograd Local Court of Dnipro Region remitted the case for additional investigation with the aim of identifying the perpetrator of the accident; (ix) 6/06/2007 – P. was charged with breach of road traffic rules, causing death; (x) on several occasions the criminal proceedings were terminated and subsequently these decisions were quashed by the courts or prosecutors as unsubstantiated and premature and further investigation was ordered; (xi) 4/11/2009 – the Pavlograd District Court of Dnipro Region found P. guilty of breach of road traffic rules that caused the death of a person; P. was dispensed from criminal liability on the basis of the Amnesty Law of 31/05/2005. P. pleaded guilty. On an unspecified date the applicant lodged a civil claim within the criminal proceedings, seeking non-pecuniary damages; the court left her civil claim without consideration (upheld on appeal and by the final decision of the Supreme Court of Ukraine of 12/04/2010). |
Insufficient measures were taken during the preliminary stage of the investigation; notably, despite the fact that there were numerous witnesses to the accident, including police officers, the investigating authorities were not able to reconcile the witnesses’ testimony for more than 2 years. An examination of the accident scene, conducted on 20/11/2004, was marked by a number of procedural shortcomings, which were subsequently acknowledged by the investigating authorities. Later, the investigator indicted the wrong person, and only after the actual perpetrator pleaded guilty did the criminal investigation start against the latter. It follows that, from the very beginning, the investigation had not been comprehensive and thorough, which had resulted in wrong conclusions being reached in the case. The investigation lacked thoroughness in that it was marked by numerous referrals for additional investigation caused, inter alia, by the investigator’s failure to follow the instructions of the supervisory authorities. As a result, the proceedings lasted for more than 5 years (see, among other authorities, Basyuk v. Ukraine, no 51151/10, § 67, 5 November 2015). | ||||
| B. Just satisfaction | |||||
| Parties’ submissions | Court’s award | ||||
| Applicant: Non-pecuniary damage: EUR 50,000 Costs and expenses: EUR 15 in respect of correspondence fees for sending the application form and the postal expenses; Supporting documents: bills for postal expenses; Government: Claims exorbitant and poorly substantiated |
Non-pecuniary damage: EUR 6,000 Costs and expenses: EUR 15 Plus, any tax chargeable to the applicant on above amounts |
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| 2. Application no. 62237/13 by MsZinaidaIosifovnaLysenko Ukrainian national born in 1943 and residing in Sevastopol Lodged on 18 September 2013 |
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| A. Complaint under Article 2: procedural limb | |||||
| The background to the Case and Domestic Proceedings | Key Issues | ||||
| 1. The circumstances of the incident: 2/12/2004 – the applicant’s husband died as a result of a traffic accident in which he was hit by a car driven by P. The accident took place in the vicinity of a bus station. 2. The course of the criminal investigation and its findings: (i) 2/12/2004 – the police examined the place of the accident and questioned P.; (ii) 10/12/2004 – conclusion of an expert examination of the vehicle: P. had had no technical opportunity to avoid the accident; (iii) 11/12/2004 – refusal to institute criminal proceedings concerning the accident; (iv) 6/10/2005 – the prosecutor quashed the latter decision as premature and unsubstantiated and remitted the case for further investigation; (v) 12/01/2006 – the criminal proceedings were instituted; (vi) 8/02/2006 – the applicant was recognised as an aggrieved party; (vii) between October 2006 and November 2009, the investigators discontinued the proceedings on numerous occasions, but these decisions were quashed by prosecutors and additional investigation was ordered; (viii) 20/03/2007 – the applicant was informed that disciplinary proceedings had been instituted against the investigator, because of his failure properly to investigate her case; (ix) 6/06/2011 – the investigator terminated the criminal proceedings for lack of a crime (he relied upon, inter alia: the statements of a certain V. (the bus routing manager); the results of the examination of 18/08/2007 no. 91, whereby it was concluded that if the traces on the road were made by P.’s car, P. had breached traffic rules); (x) 27/09/2011 – the Leninskyy District Court of Sevastopol quashed that decision and ordered to renew the investigation (the reasons, given by the court: not all witnesses were questioned and some of them had not been identified; the investigator in his decision had relied upon the statements of V. (the bus routing manager), whereas the case file had contained the record of questioning of a certain F. (the bus routing manager) and not V.; and no analysis had been made of the conclusion of the expert examination of 18/08/2007 no. 91; (xi) 19/11/2012 – the investigator again terminated the criminal proceedings, because of the lack of constituent elements of a crime. This decision contained no references to any new investigative actions in comparison with the decision of 6/06/2011 and referred to the statements of the same witnesses, including the statements of V. It further cited the conclusions of the examination of 18/08/2007 no. 91, without having provided any analysis of its findings. The applicant challenged this decision before the domestic court, claiming thatit had been identical to the one of 6/06/2011. (xii) 22/03/2013 – the Leninskyy District Court of Sevastopol upheld the decision of 19/11/2012 (the court’s reasoning was limited to one paragraph in which it stated that the investigating authorities had taken all necessary measures; and the shortcomings mentioned by the applicant could not have an impact on adoption of the final decision in the case). The applicant lodged an appeal, raising the same arguments as before the first-instance court; (xiii) 5/04/2013 – the Sevastopol City Court of Appeal, by its final ruling, upheld the decision of the first-instance court and reiterated reasons provided in its decision. |
(i) The substantial delays in commencing the inquiries into the applicant’s husband’s death and the decisions to refuse to institute proceedings were taken without the circumstances of the case having been properly examined, given that the prosecutor quashed the decision about the refusal to institute the criminal proceedings as premature and unsubstantiated (see, among other authorities, Antonov v. Ukraine, no. 28096/04, § 50, 3 November 2011); (ii) The case was remitted several times for additional investigation as a result of the insufficiency of the measures taken by the investigators (see, among other authorities, Chumak v. Ukraine [Committee], no. 60790/12, § 27, 19 May 2016); (iii) The investigation lasted for more than 7 years. Whereas the criminal proceedings ended with the final court’s decision, however, the court upheld the termination of the proceedings without any analysis of the applicant’s argument that the decision of 19/11/2012 had been identical to the one of 6/06/2011; and that the investigator terminated the criminal proceedings on 19/11/2012 without having complied with the instructions given by the court’s decision of 27/09/2011. Those facts suggest that there had been no genuine attempt on the part of the investigating authorities to carry out a thorough investigation of the accident (see among other authorities, Sergiyenk v Ukraine, no. 47690/07, § 52, 19 April 2012; Zubkova v. Ukraine, no. 36660/08, §§ 40-41, 17 October 2013; Reus and Others v. Ukraine [Committee], no. 40587/07, § 27, 16 October 2014; Shulga v. Ukraine [Committee], no. 40298/06,§§ 45-46, 12 November 2015). |
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| B. Just satisfaction | |||||
| Parties’ submissions | Court’s award | ||||
| Applicant: Non-pecuniary damage: EUR 20,000 Costs and expenses: EUR 906 for representation before the domestic authorities and before the Court; postal expenses and payment of domestic courts’ fees; Supporting documents: agreement for representation, bills and vouchers; Government: Claims exorbitant and poorly substantiated. |
Non-pecuniary damage: EUR 6,000 Costs and expenses: EUR 341 First, the applicant was not represented before the Court; thus, the costs incurred by her for representation before the Court could not be reimbursed to her. Second, it appears from the documents presented by the applicant that she actually incurred EUR 341 for representation before the domestic authorities. Plus any tax chargeable to the applicant on above amounts |
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| 3. Application no. 76514/13 by MrBorysMykytovychBezkorovaynyy Ukrainian national born in 1956 and residing in the village of Korop, Ukraine Lodged on 20 November 2013 |
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| A. Complaint under Article 2: procedural limb | |||||
| The background to the Case and Domestic Proceedings | Key Issues | ||||
| 1. The circumstances of the accident: (i) 23/09/2004 at 3.45 a.m. – a certain P.,while riding a motorcycle (without the appropriate licence) with the applicant’s son, B., onboard, lost control and fell on the road. As a result of the accident B. sustained grave bodily injuries and died in hospital. According to P. a truck had been passing the motorcycle and the hot air coming from it had caused the motorcycle to fall; then B. had been hit by the trailer of the same truck after he had fallen from the motorcycle. In addition, according to the applicant, since B.’s body had been found on the roadside and B. could not move after being hit by the truck, unknown persons had carried him and left him on the roadside. 2. The course of the criminal investigation and its findings: (i) 24/09/2004 – criminal proceedings were instituted; (ii) 28/09/2004 – the applicant was given victim status; (iii) 19/10/2004 – the forensic-expert examination of B.’s body: the injuries on his body had been caused because he had been hit by a truck; (iv) 10/12/2004 – the committee forensic-expert examination reiterated the conclusion of the above examination; (v) 15/09/2005 – the criminal proceedings were suspended until the investigator questioned possible witnesses to the accident (inhabitants of nearby houses) in order to identify the driver and truck; (vi) 17/11/2005 – the proceedings were resumed; (vii) 5/02/2008 – the forensic medical-expert examination; and 10/04/2008 – the comprehensive medical examination and examination of the vehicle; (viii) 30/06/2010 – the indictment against P. on account of breach of traffic rules that caused B.’s death (according to the indictment B. had died from the injuries that he had sustained as a result of falling from the motorcycle) – was sent to the court for consideration; (ix) 27/12/2010 – the Koriukivskyy District Court of Chernigiv Region remitted the case for additional investigation (reasons given by the court: the version of events suggested by P. had not been properly investigated; no decision had been taken in respect of the unidentified persons who had carried B. to the roadside and had left him, on account of leaving him in danger; the signatures of witnesses on the record of the scene of the accident had been forged); (x) 30/11/2012 – the Menskyy District Court of Chernigiv Region found P. guilty of a breach of road traffic rules that had caused B.’s death. That judgment was upheld by the decision of theChernigiv Regional Court of Appeal of 20/05/2013; (xi) 27/08/2013 – the Higher Specialised Civil and Criminal Court of Ukraine quashed the decision of the lower courts and remitted the case for additional investigation (reasons given by the court: Witness signatures on the record of the scene of the accident had been forged; the investigation had not established the circumstances of the traffic accident – the speed of the motorcycle; what vehicle and in what mode had passed the motorcycle; the version of events suggested by P. had not been investigated, and so on); (xii) 24/03/2016 –the forensic-medical examination concluded that B. had been injured by the wheels of a truck; (xiii) 30/09/2016 – the criminal investigation against P. was terminated because there had been no causal link between the breach of road traffic rules by him and the death of B.; (xiv) according to the most recent information from the Government, as of 7/04/2017 the investigation was ongoing. |
Overall length of investigation and lack of thoroughness that resulted in the failure to establish the circumstances of the accident. The investigation into the accident continued for more than 13 years; in particular, the preliminary investigation lasted for 5 years and 9 months. However, as a result the domestic courts on two occasions remitted the case for additional investigation for the failure to take all necessary investigative measures. Moreover, it appears that for a considerable period of time (around 5 years) the investigating authorities did not take sufficient investigative measures, except for two expert examinations. The case was still pending at the pre-trial stage and establishing the truth was practically impossible, which had compromised the effectiveness of the investigation (seeamong other authorities, Prelutsky v. Ukraine, no. 40429/08, § 44, 26 February 2015; andBasyuk v. Ukraine, no. 51151/10, § 69, 5 November 2015). | ||||
| B. Just satisfaction | |||||
| Parties’ submissions | Court’s award | ||||
| Applicant: Non-pecuniary damage: EUR 6,000 Government: Claims exorbitant and poorly substantiated |
Non-pecuniary damage: EUR 6,000 |
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| 4. Application no. 42644/16 by MsMariyaYosypivnaShevchuk Ukrainian national born in 1953 and residing in the town of Chervonograd, Ukraine represented by MsAnna LeonidivnaYushchenko Lodged on 11 July 2016 |
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| A. Complaint under Article 2: procedural limb | ||
| The background to the Case and Domestic Proceedings | Key Issues | |
| 1. The circumstances of the accident: (i) 4/10/2008 at 6.30 a.m. – the applicant’s mother, S., while crossing the road with her cow, was hit by a car, driven by a certain B. and as a result she sustained multiple injuries. According to B. he had been driving at a speed of 40 km/h; in heavy fog and the road had been slippery; once he had seen the cow in his way he had used the emergency brake; when he stopped the car, he had seen the cow and the women had been lying on the road nearby; (ii) 31/12/2008 – S. died as a result of the injuries sustained. 2. The course of the criminal investigation and its findings: (i) 13/10/2008 – the investigator refused to institute the criminal investigation into the accident, because of the circumstances of the accident. B. had had no technical capability to avoid the collision with the cow and he had been following road traffic rules; (ii) 12/11/2008 – the Sokalskyy District Court of Lviv Region found B. guilty of an administrative offence (namely, he had exceeded the speed limit and as a result he had struck an animal); B. pleaded guilty; the court ordered him to pay an administrative fine of 17 Ukrainian hryvnia (UAH) (less than 2 euros (EUR) at the material time); (iii) 21/05/2009 – the criminal proceedings were instituted after several refusals to institute criminal proceedings. The reasons given for such refusals were that it had been established that the car struck the cow and that S. could have been dragged along the ground by the cow. These decisions were quashed and the case was remitted for additional investigation (namely, on 12/02/2009 – the prosecutor instructed the investigator to question additionally the medical expert in order to establish in what way the bodily injuries of S. had been caused, by the collision with the car or by falling down on the road; on 10/04/2009 – to question additionally the police officers in order to establish whether B.’s vehicle had hit S., and so on); (iv) 22/07/2009 – letter of the Lviv Regional Prosecutor’s Office: the investigators had been disciplined, because of “inadequate organisation of the record of materials of pre-investigative enquiries” that caused the delays in forensic-expert examination of S.’s body; (v) on at least four occasions the criminal proceedings were terminated and subsequently those decisions were quashed by the courts or prosecutors as unsubstantiated and premature, and further investigation was ordered (on 21/12/2009 – because doubts had remained about whether B.’s vehicle had hit S. In the subsequent decisions of 31/12/2013, of 4/12/2015 and of 30/12/2016 the same grounds for quashing the termination of the criminal proceedings were reiterated); (vi) 4/12/2015 – the Radekhivskyy District Court of Lviv Region noted, inter alia, that the judgment of 12/11/2008, whereby B.’s guilt of breach of road traffic rules had been established, had not been taken into account by the investigator; (vii) 13/03/2017 – the investigator noted that it had been impossible to conduct the investigative experiments because of the refusal of witnesses, given that they had not remembered the details of the accident due to the significant lapse of time since the accident; (viii) 2/11/2017 – the investigator was disciplined because of his failure properly to discharge his duties; (ix) according to the most recent information from the Government, as at 27/03/2018 the investigation was ongoing. |
(i) The substantial delays in commencing the full-scale investigation into the applicant’s mother’s death and the decisions to refuse to institute proceedings were taken without the circumstances of the cases having been properly examined(see among other authorities, Antonov v. Ukraine, no. 28096/04, § 50, 3 November 2011); (ii) Overall length of investigation/lack of thoroughness that resulted in the failure to establish the circumstances of the incident. The investigation was criticised by the national authorities themselves for lack of efficiency. For more than 10 years it had been impossible to reconcile 2 versions of the events leading to the injuries and death of S., because the investigating authorities had repeatedly failed to comply with instructions of the supervisory authorities. This undermined the authorities’ ability to establish the circumstances of the accident, and who, if anyone, was responsible(see among other authorities, Prynda v. Ukraine, no. 10904/05, § 56, 31 July 2012;Basyuk v. Ukraine, no. 51151/10, § 69, 5 November 2015; Shulga v. Ukraine [Committee], no. 40298/06, § 46, 12 November 2015; Chumak v. Ukraine [Committee], no. 60790/12, § 27, 19 May 2016). |
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| B. Just satisfaction | ||
| Parties’ submissions | Court’s award | |
| Applicant: Non-pecuniary damage: EUR 7,000 Costs and expenses: EUR 1,275 for legal representation before the Court; Supporting documents: agreement for legal representation, bills and vouchers; Government: Claims exorbitant and poorly substantiated |
Non-pecuniary damage: EUR 6,000 Costs and expenses: EUR 850 Plus any tax chargeable to the applicant on above amounts |
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| 5. Application no. 70352/16 by MsLyubovOleksandrivnaKolch Ukrainian national born in 1960 and residing in the village of VelykiKalenychi, Ukraine Lodged on 16 November 2016 |
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| A. Complaint under Article 2: procedural limb | ||
| The Background to the Case and Domestic Proceedings | Key Issues | |
| 1. The circumstances of the accident: (i) 19/12/2010 at 5.30 a.m. – I. was driving a car and ran over the applicant’s son, O., who was lying on the road. I. did not stop as, according to his testimony given later, he had thought that it was a deer and he had had no possibility to avoid collision. He eventually stopped at a petrol station, having driven around 70 km, and there he was approached by the police. In the meantime O. was discovered on the road by S., who tried to avoid running him over, eventually stopped and called the police. As a result of the injuries sustained, O. died. 2. The course of the criminal investigation and its findings: (i) 28/12/2010 – an investigator refused to institute a criminal investigation into the accident, because both I. and S. had complied with the traffic rules and had no technical capability to avoid collision with O. The latter had grossly violated traffic rules by not making himself visible for a driver and by lying on the road. By the same decision the investigator refused to institute the criminal proceedings against I. on account of leaving a person in danger, because in the circumstances I. had not known, and could not have known, that he had run over a person; (ii) 26/06/2013 – following the applicant’s request of 10/01/2013, an investigating judge of the Bilotserkivskyy District Court of Kyiv Region renewed a time-limit for the applicant as she had learned about the decision of 28/12/2010 only in November 2012, quashed that decision and ordered further pre-investigative inquiry, since no forensic medical examination of O.’s body nor a forensic expert examination of the vehicle had been conducted; (iii) 15/08/2013 – the criminal proceedings were instituted against I. and S. on account of breach of traffic rules that caused a person’s death; and against I. on account of leaving a person in danger; (iv) 19/11/2014 – the Kyiv Regional prosecutor’s office informed the applicant that the materials of the pre-investigative inquiry had been lost; (v) 28/11/2014 – conclusion of a forensic medical-expert examination: O., at the time of the accident, had been drunk and had died from numerous injuries, possibly sustained in the traffic accident; (vi) between December 2014 and April 2018 the proceedings were terminated and resumed on several occasions. On two occasions the applicant, when challenging the termination of the criminal proceedings, asked to renew her time-limit for lodging her claim, because she had received the impugned decisions with delay. An investigating judge of the Bilotserkivskyy District Court of Kyiv Region (on 16/06/2015 and on 28/04/2017 accordingly) renewed the applicant’s time-limit for lodging her claim, quashed the decisions (of 25/04/2015 and 26/05/2016) about termination of the proceedings and remitted the case for additional investigation (reasons, given in the court’s decision: of 16/06/2015 – following the applicant’s petition about involvement of her representative in the criminal proceedings, the investigator had neither involved the representative, nor had he provided a reasoned refusal of her petition; the investigator based his decision on the results of the pre-investigative inquiry, but the latter procedure is not provided by the national legislation; and he referred to the statements of O.’s brother and of the drivers (I. and S.), but they had been questioned only withinthe pre-investigative inquiry, not in the course of the criminal proceedings and, thus, their statements could not be used as admissible evidence; 28/04/2017 – the investigator had not assessed the statements of the drivers; and he had not specified to which expert examination he had referred in his decision); (vii) 23/04/2018 – the Bilotserkivskyy local prosecutor’s office set aside the last decision about the termination of the criminal proceedings and remitted the case for additional investigation, because not all the necessary measures had been taken in order to establish the circumstances of the accident; (viii) according to the most recent information from the applicant, as at 5/06/2018 the investigation was ongoing. |
(i) The substantial delay in commencing the full-scale investigation into the applicant’s son’s death and the decisions to refuse to institute proceedings were taken without the circumstances of the cases having been properly examined (see, among other authorities, Antonov v. Ukraine, no. 28096/04, § 50, 3 November 2011); (ii) The investigation lacked thoroughness in that, despite the fact that the possible perpetrators of the accident were known to the investigating authorities from the very beginning, and the only remaining questions were whether the drivers had breached the traffic rules and whether I. could have known that he had hit a person, they were not questioned after the criminal proceedings were instituted and their statements were inadmissible; the necessary forensic expert examinations were not conducted. In addition, the investigating authorities at one point lost the materials of the pre-investigative inquiry. The investigation has been pending for more than 9 years (including for 2 years and 7 months in the form of a pre-investigative inquiry) and the circumstances of the accident were not established, which compromised the effectiveness of the investigation (see, among other authorities, Igor Shevchenko v. Ukraine, no. 22737/04, § 60, 12 January 2012; Reus and Others v. Ukraine [Committee],no. 40587/07, § 27, 16 October 2014; Chumak v. Ukraine [Committee], no. 60790/12, § 27, 19 May 2016); (iii) The applicant’s rights as a victim were not properly safeguarded, which was also recognised by the domestic court. The applicant was either not informed or there were substantial delays in sending her some of the key procedural decisions taken by the investigator. While she requested the involvement of her representative in the investigation, the investigator failed to respond to her request (see, mutatis mutandis, Prynda v. Ukraine, no. 10904/05, § 56, 31 July 2012). |
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| B. Just satisfaction | ||
| Parties’ submissions | Court’s award | |
| Applicant: Non-pecuniary damage: EUR 10,000 Government: Claims exorbitant and poorly substantiated |
Non-pecuniary damage: EUR 6,000 |
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| 6. Application no. 38653/18 by MrAllaValeriyivna Gorelik Ukrainian national born in 1964 and residing in Dnipro represented by MrSergiyOleksandrovychKulbach Lodged on 30 July 2018 and 7. Application no. 47765/18 by MrTigievVadykMykolayovych Ukrainian national born in 1961 and residing in Dnipro represented by MrSergiyOleksandrovychKulbach Lodged on 24 September 2018 |
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| A. Complaint under Article 2: procedural limb | ||
| The background to the Case and Domestic Proceedings | Key Issues | |
| 1. The circumstances of the incident: (i) 18/10/2009 at around 3 a.m. – the applicants’ daughter R., together with other persons, was returning from a party when she and two other persons were hit by a car driven by a certain A. R. died immediately from the injuries sustained. 2. The course of the criminal investigation and its findings: (i) 18/10/2009 – the police instituted criminal proceedings on account of a breach of road traffic rules that caused the death of a person; (ii) 30/09/2010 – A. was charged with breach of road traffic rules that caused the death of a person; (iii) 9/12/2011 – the Solonianskyy Local Court of Dnipro Region remitted the case for additional investigation for the following reasons: the reconstruction of the events was conducted during daytime, whereas the incident had taken place at night; and a much smaller car was used, which was decisive for the establishment of the circumstances of the incident; according to the expert examination an unknown pedestrian was involved in the incident, who had breached the road rules and caused the traffic accident; however, this pedestrian was never identified; in spite of allegations of the representative of a victim that R.’ s gold accessories were missing and that he had seen injuries on her body which were not typical injuries from being hit by a car, other possible avenues as to the cause of R.’s death were not explored by the investigating authorities; (iv) 30/08/2013 – the criminal proceedings against A. were discontinued, since it was not possible to establish her guilt; (v) 11/01/2014 – the Dnipro Regional Prosecutor’s Office set aside the latter decision (reasons given by the prosecutor: the police officers who arrived immediately after the incident were not questioned; the medical staff of the hospital where R.’s body was placed were not questioned; it was necessary to conduct cross-examination of the witnesses to the incident and repeated technical examination of the vehicle, and so on); (vi) 15/12/2016 – the indictment against A. was sent to the court; (v) 30/10/2017 – the applicants lodged civil claims within criminal proceedings, each seeking from A. compensation for non‑pecuniary damage in the amount of UAH 2,500,000 (around EUR 79,400 at the material time); (vi) 21/02/2020 – the Zhovtnevyy District Court of Dnipro found A. guilty and sentenced her to six years’ imprisonment; the court allowed the applicants’ civil claims and awarded each of them UAH 2,500,000 (around EUR 79,400 at the material time); (vii) 22/04/2020 – the Dnipro Regional Court of Appeal set aside the latter judgment and terminated the criminal proceedings against A. owing to the expiry of the limitation period for criminal liability. There is no information in the case-file about whether the applicants lodged an appeal on points of law against the above decision of an appellate court. |
Investigation lacked thoroughness characterised by numerous shortcomings in collection of evidence, as a consequence the proceedings were pending for more than 10 years and were terminated because the limitation period for criminal liability expired (see among other authorities, Antonov v. Ukraine, no. 28096/04, § 50, 3 November 2011; Prynda v. Ukraine, no. 10904/05, § 56, 31 July 2012; Chumak v. Ukraine [Committee], no. 60790/12, § 27, 19 May 2016). | |
| B. Just satisfaction | ||
| Parties’ submissions | Court’s award | |
| Applicants: Non-pecuniary damage: EUR 12,000 each |
Non-pecuniary damage: EUR 3,000 each |
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