Last Updated on April 22, 2021 by LawEuro
The present case concerns the ineffective investigations into the deaths of the applicants’ relatives, who died under suspicious circumstances or of serious injuries, and in the absence of any evidence that State agents were involved.
FIFTH SECTION
CASE OF PRYGUNOV AND OTHERS v. UKRAINE
(Applications nos. 31557/07 and 6 others – see appended list)
JUDGMENT
STRASBOURG
22 April 2021
This judgment is final but it may be subject to editorial revision.
In the case of Prygunov and 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. 31557/07, 61637/11, 12450/13, 19294/13, 20087/13, 81809/17 and 9273/18) 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’ observations in applications;
Having deliberated in private on 25 March 2021,
Delivers the following judgment, which was adopted on that date:
1. The present case concerns the ineffective investigations into the deaths of the applicants’ relatives, who died under suspicious circumstances or of serious injuries, and in the absence of 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 deaths of their relatives, who died under suspicious circumstances or of serious injuries, without there being evidence that State agents were involved, had been 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 application no. 12450/13, the Government submitted that the applicant had not exhausted the available domestic remedies as she had not challenged the decision of the investigative authorities of 9 April 2012 refusing to institute criminal proceedings into the circumstances of the death of her brother. They also argued that the decisions refusing to institute criminal proceedings had previously been successfully challenged by the applicant, thus, the remedy at the applicant’s disposal had been effective.
8. The applicant disagreed. She maintained that the domestic investigation into the death of her brother could not be regarded as effective, and that this therefore exempted her from the obligation to pursue the remedy proposed by the Government.
9. The Court considers that the Government’s objection as to the exhaustion of domestic remedies raises issues which are closely linked to the question of the effectiveness of the investigation. It is therefore closely linked to the merits of her complaint under the procedural limb of Article 2 of the Convention. In these circumstances, the Court joins the Government’s objection to the merits of the applicant’s complaint.
10. In application no. 31557/07, the Government submitted that the applicant’s complaints under Article 2 of the Convention are 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 the circumstances of the case and the persons responsible for the murder; the perpetrators had been convicted and sentenced to imprisonment, and the applicant had been awarded with compensation for damages sustained as a result of the crime. The Government also stressed that the criminal case had been remitted only once 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 questioned.
11. The applicant did not provide any comments.
12. The Government submitted no observations as to the admissibility of the remaining applications.
13. The Court further notes that the applicants’ complaints 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
14. The Government submitted that there had been no violation of the Convention. They noted in particular that the investigating authorities had either immediately instituted criminal investigations into the applicants’ relatives’ deaths or had taken all investigative steps in order to conclude that an investigation was not necessary. 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.
15. In applications 12450/13, 19294/13, 20087/13 and 9273/18, 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
16. The Court notes at the outset that the present case falls to be examined from the perspective of the State’s obligation to conduct an effective investigation under the procedural limb of Article 2 of the Convention. The relevant general principles concerning the effectiveness of the investigation were summarized in Mustafa Tunç and Fecire Tunç 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 Mustafa Tunç and Fecire Tunçv. Turkey [GC], ibid., § 225).
17. 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).
18. Reviewing the facts of the present case 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, if they were instituted at all. 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.
19. 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 case lasted from 1 year to more than 11 years. In this regard the Court notes that a substantial delay in the identification of the cause of a deathcan 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 case (see Prilutskiy v. Ukraine, no. 40429/08, §§ 43-44, 26 February 2015; Pozhyvotko v. Ukraine, no. 42752/08, §§ 37-41, 17 October 2013; Kachurka v. Ukraine, no. 4737/06, §§ 48-56, 15 September 2011;Oleynikova v. Ukraine, no. 38765/05, §§ 67-81, 15 December 2011).
20. For these reasons the Court finds it established that, in the instant case, the investigations failed to meet the criteria of effectiveness. The Court therefore dismisses the Government’s objection as to the exhaustion of domestic remedies in application no. 12450/13, previously joined to the merits (see paragraph 9 above), as the Court considers that the applicant cannot be reproached for not seeking the repeated reopening of an investigation which is found to be ineffective (see, for example, Karpylenko v. Ukraine, no. 15509/12, § 100, 11 February 2016), and finds that there has been a violation of Article 2 of the Convention under its procedural limb in the instant case.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
21. 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.”
22. 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.
23. 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. Decides to join to the merits the Government’s objection as to the exhaustion of domestic remedies in respect of the complaint raised in application no. 12450/13, and dismisses it after having examined the merits of that complaint;
3. Declares the applications admissible;
4. 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;
5. 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;
6. Dismisses the remainder of the applicants’ claim for just satisfaction.
Done in English, and notified in writing on 22 April 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Martina Keller Lətif Hüseynov
Deputy Registrar President
__________
Appendix
List of applications:
| 1. Application no. 31557/07
by Mr Anatoliy Ivanovich Prygunov Ukrainian national born in 1950 and residing in Kharkiv represented by Mr A.A. Kristenko, a lawyer practising in the same city Lodged on 9 July 2007 |
|
| A. Complaint under Article 2: procedural limb | |
| The Background to the Case and Domestic Proceedings | Key Issues |
| 1. The circumstances of the death
On 6 August 2001 the applicant’s son R. was beaten in a fight involving S., O., P., Y. and other individuals, and on 18 August 2001 he died from the resulting injuries.
2. The course of the investigation and its findings: (i) 14/08/2001 – criminal proceedings were instituted into bodily harm to the applicant’s son; on 18/08/2001 the case was re-qualified to grievous bodily harm that caused the victim’s death; (ii) 31/08/2001 – the applicant was recognised as an aggrieved party; on 08/09/2001 he was granted a status of civil claimant and on 17/09/2001 he lodged a civil claim within the criminal proceedings, seeking damages; (iii) between 2001 and 2004 – five forensic medical examinations of the body of the applicant’s son were conducted, which contained divergences regarding the exact cause of death; (iv) 31/03/2005 – the investigative authorities refused to open the proceedings against P. and S. into intentional grievous bodily harm that caused death; (v) 22/04/2005 – the investigative authorities informed the applicant that according to the results of the internal inquiry, his son’s medical file was issued to an unknown person in breach of internal regulations and then lost, and that the investigating officers in charge of his case were disciplined for protracting the investigation; (vi) 26/04/2005 – the indictment acts against O. and Y. were sent to the first-instance court; (vii) 15/08/2005 – the Prosecutor General’s Office of Ukraine acknowledged the delays in the investigation, namely the failure to complete the necessary steps in the investigation in a timely manner; (viii) 10/11/2005 – the Kharkiv Regional Court of Appeal acting as a first-instance court remitted the case for additional investigation and allowed the applicant’s motion to consider criminal liability of other participants in the fight, in particular, P. and S. The decision was upheld by the Supreme Court of Ukraine on 31/01/2006; (ix) 06/04/2006 – the investigator refused to institute criminal proceedings against P. and S. since no evidence was found regarding their involvement in the beating of the applicant’s son; the decisions were set aside by the Kyivskyy Local Court of Kharkiv on 01/06/2006 due to the incompleteness of the investigation; (x) 2-3/06/2006 – the investigator additionally questioned some of the eyewitnesses to the incident, who could not provide any additional testimony because of the considerable lapse of time since the events in question; (xi) 06/06/2006 – the investigator again refused to institute criminal proceedings against P. and S. on the same grounds; (xii) 23/06/2006 – the Kharkiv Regional Prosecutor’s Office acknowledged that the initial interrogation of witnesses was conducted perfunctorily, since the witnesses’ testimony did not provide sufficient explanation as to how bodily injuries were inflicted; it was established that Y., O. and P. changed their initial statements and testified that only Y. and O. were involved in the beating; other possible witnesses to the incident were not found; (xiii) 27/06/2006 – the indictment acts against O. and Y. were submitted to the court; (xiv) 08/07/2008 – the Supreme Court of Ukraine upheld the judgment of the Kharkiv Regional Court of Appeal of 28/12/2007 finding Y. and O. guilty of infliction of grievous bodily injuries, which caused the applicant’s son’s death, and sentenced them to five years’ imprisonment. The court also awarded the applicant UAH 10,401 (at the material time around EUR 1,447) in compensation for pecuniary damages and UAH 150,000 (at the material time around EUR 20,719) for non-pecuniary damages to be jointly paid by Y. and O. |
(i) The investigation was marked by an unusually high number of repeated forensic medical examinations, which suggests the absence of a comprehensive approach to the collection of evidence during the pre-trial investigation phase (see, for example, Basyuk v. Ukraine, no. 51151/10, § 68, 5 November 2015; Sergiyenko v. Ukraine, no. 47690/07, § 52, 19 April 2012);
(ii) Lack of thoroughness and promptness that undermined the authorities’ ability to establish the circumstances of the case. Notably, failure to secure evidence in a timely manner compromised the effectiveness of the investigation. More than four years after the proceedings were opened, the Court of Appeal remitted the case for additional investigation, considering that the facts had not been established properly and that further investigative measures were required (see,for example,Prilutskiy v. Ukraine, no. 40429/08, § 44, 26 February 2015; Pozhyvotko v. Ukraine, no. 42752/08, § 40, 17 October 2013; Antonov v. Ukraine, no. 28096/04, §§ 50-51, 3 November 2011).
|
| B. Just satisfaction | |
| Parties’ submissions | Court’s award |
| Applicant:
Non-pecuniary damage: EUR 9,000
Costs and expenses: EUR 3,000 for legal representation before the domestic authorities and the Court;
Supporting documents: agreement for legal representation, report of completion;
Government: Claims exorbitant and poorly substantiated; no evidence that the expenses were actually and necessary incurred. |
Non-pecuniary damage:
EUR 6,000
Costs and expenses: EUR 850
Plus any tax chargeable to applicant on above amounts |
| 2. Application no. 61637/11
by Ms Kateryna Mykhaylivna Kharchenko Ukrainian national born in 1940 and residing in the town of Globyne, Ukraine represented by Ms O.P. Abramova, a lawyer practising in the city of Poltava, Ukraine and by Mr Petro Platonovych Kharchenko Ukrainian national born in 1940 and residing in the town of Globyne, Ukraine represented by Ms O.P. Abramova, a lawyer practising in the city of Poltava, Ukraine Lodged on 27 September 2011 |
|
| A. Complaint under Article 2: procedural limb | |
| The Background to the Case and Domestic Proceedings | Key Issues |
| 1. The circumstances of the death
On 1 March 2004 the applicants’ son S. had a fight with M., P., and K. in the front garden of their common acquaintance’s house. After the fight he was dragged to the fence of a building nearby, where he died from injuries sustained.
2. The course of the investigation and its findings: (i) 02/03/2004 – criminal proceedings on account of intentional infliction of moderate bodily harm were instituted; on 05/03/2004 the case was requalified as murder; (ii) 12/03/2004 – the applicants were recognised as an aggrieved party; (iii) 12/07/2004 – the casefile with an indictment act against M. submitted to the Globyne Local Court of Poltava Region; (iv) between July 2004 and June 2010 the case was returned to the prosecutor or remitted for additional investigation on four occasions, mainly due to the failure of the investigative authorities to establish if other persons were involved in the crime and their respective roles; (v) 21/08/2010 – casefile with an indictment act against M. and P. submitted to the Globyne Local Court of Poltava Region; (vi) 18/03/2011 – the court terminated the proceedings against M. and P. due to expiration of time-limits for criminal liability; the judgment upheld by the Poltava Regional Court of Appeal on 26/05/2011 and by the Higher Specialised Court of Ukraine for Civil and Criminal Cases on 28/02/2012; (vii) 28/03/2011 – casefile with an indictment act against K. submitted to the Globyne Local Court of Poltava Region; (viii) 05/12/2011 – the court terminated the proceedings against K. due to expiration of time-limits for criminal liability; the judgment upheld by the Poltava Regional Court of Appeal on 01/03/2012 |
Several remittals of the case for additional investigation as a result of the insufficiency of the measures taken by the inquiring officers compromised the effectiveness of the investigation and as a consequence the proceedings lasted for 8 years and were terminated because the limitation period for criminal liability had expired (see, for example, Prilutskiy v. Ukraine, no. 40429/08, § 44, 26 February 2015; Kachurka v. Ukraine, no. 4737/06, § 50, 15 September 2011).
|
| B. Just satisfaction | |
| Parties’ submissions | Court’s award |
| Applicant:
Non-pecuniary damage: EUR 40,000 (EUR 20,000 to each applicant)
Pecuniary damage: UAH 206,956 the amounts of pecuniary and non-pecuniary damages awarded to the applicants by the decision of the domestic court, which remains unenforced;
Supporting documents: copies of the decisions allowing the applicants’ civil claim.
Government: Claims exorbitant and poorly substantiated; no causal link between the alleged violation and the pecuniary damage. |
Non-pecuniary damage:
EUR 3,000 to each applicant
Pecuniary damage: No award
|
| 3. Application no. 12450/13
by Ms Valentyna Volodymyrivna Peresunko Ukrainian national born in 1979 and residing in Paris represented by Mr V.V. Enedi, a lawyer practising in the village of Keretsky, Ukraine Lodged on 11 February 2013 |
|
| A. Complaint under Article 2: procedural limb | |
| The Background to the Case and Domestic Proceedings | Key Issues |
| 1. The circumstances of the death
On 5-6 March 2011 the applicant’s brother P. spent time in the company of his acquaintances drinking alcohol. On 6 March 2011 at home he fell into coma and was taken to a hospital, where he did not regain consciousness and died on 17 March 2011 due to ethylene glycol poisoning.
2. The course of the investigation and its findings: (i) between April and December 2011 – the investigating authorities conducted a pre-investigation inquiry and on four occasions refused to institute criminal proceedings due to absence of a crime; the decisions not to institute criminal proceedings were set aside due to shortcomings; in particular, the investigative authorities failed to find and question possible witnesses of the events of 5-6 March 2011 to establish how the applicant ingested the ethylene glycol and to reconcile the divergences between the witness statements and medical documents. (ii) 09/04/2012 – refusal to institute criminal proceedings due to absence of evidence of a crime; the investigator reasoned that persons who had interacted with P. on the day of his poisoning could not explain where he could have ingested the poison, no divergences in their explanations were discovered, and it was impossible to obtain any new information due to the considerable lapse of time since the events in question; according to the applicant, she was informed about this decision only upon her lawyer’s request for information of 06/11/2012. |
The circumstances of the applicant’s brother’s death were examined exclusively by way of pre-investigation inquiries. The Court has held that 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 her effective participation in the procedure was excluded. It is notable that during that period of time the authorities supervising the quality of the pre-investigation inquiries regularly found that the inquiries had not been thorough and ordered the case to be remitted for further inquiries to be made. Such remittals have been a recurring problem in the cases against Ukraine. As a result, the circumstances of the applicant’s brother’s death were not established and the investigative authorities concluded that it was impossible to find new evidence due to lapse of time(see, for example, Strogan v. Ukraine, no. 30198/11, § 53, 6 October 2016, Oleynikova v. Ukraine, no. 38765/05, § 80-81, 15 December 2011). |
| B. Just satisfaction | |
| Parties’ submissions | Court’s award |
| Applicant:
Non-pecuniary damage: EUR 100,000
Costs and expenses: UAH 50,000 for legal representation before the domestic authorities and the Court;
Supporting documents: agreements for legal representation, report of completion, report on performed work, contract price schedule;
Government: Claims exorbitant and poorly substantiated; no evidence that the expenses were actually and necessary incurred. |
Non-pecuniary damage:
EUR 6,000
Costs and expenses: EUR 850
Plus any tax chargeable to applicant on above amounts |
| 4. Application no. 19294/13
by Mr Petr Kornilovich Stefanishin Ukrainian national born in 1941 and residing in Ternopil represented by Mr M.O. Tarakhkalo, a lawyer practising in Kyiv Lodged on 01 March 2013 |
|
| A. Complaint under Article 2: procedural limb | |
| The Background to the Case and Domestic Proceedings | Key Issues |
| 1. The circumstances of the death
On 1 October 2004 the applicant’s son S. had a conflict with his acquaintance B. in the course of which he suffered a head injury and died in the hospital on 12 October 2004.
2. The course of the investigation and its findings: (i) 09/11/2004 – the investigating authorities after a pre-investigation inquiry decided not to institute criminal proceedings by the police due to absence of the evidence of a crime; on 14/01/2005 the Ternopil Prosecutor’s Office set aside the above decision and opened criminal proceedings into alleged intentional grievous bodily harm that caused the victim’s death; (ii) 31/01/2005 – the applicant was recognised as an aggrieved party; (iii) 20/06/2005 – a preventive measure was chosen for B. in the form of an obligation not to abscond; (iv) 24/06/2005 – conclusion of an internal inquiry: the investigators unlawfully refused to open the proceedings on 09/11/2004 and afterwards failed to properly discharge their duties; (v) 03/08/2005 – B. was indicted on charges of alleged intentional grievous bodily harm that caused the victim’s death; (vi) October 2005 – the applicant informed the authorities about B.’s plans to leave Ukraine; on 19/10/2005 the investigative authorities send a request to the State Border Guard Service of Ukraine to apprehend B. if he attempted to cross a border; on 20/10/2005 they requested and received information from a travel agency as to B. buying tickets to go abroad; (vii) 21/10/2005 – B. and his family left Ukraine and went to Chicago, USA; (viii)23/12/2005 – the proceedings were suspended due to the fact that B.’s whereabouts had not been established; 04/03/2006 – the decision was quashed due to failure of the investigative authorities to take all actions in order to establish B.’s whereabouts and change his preventive measure; (ix) 30/03/2006 – the investigator requested the court to change B.’s preventive measure to detention on remand; on 04/04/2006 the Ternopil Local Court allowed B.’s arrest for the purpose of bringing him before the court; (x) 07/06/2006, 20/11/2006, 28/05/2007 – the investigative authorities submitted information about B. to Interpol. On 04/07/2008 Interpol informed the investigative authorities that B. was lawfully residing in Chicago, USA. The law-enforcement agencies of the USA were examining the documents to establish further measures to be taken; (xi) between November 2006 and February 2010 – three internal inquiries were concluded, establishing that the investigative authorities failed to take all necessary actions to prevent B. from leaving Ukraine; in particular, they failed to instruct the State Border Guard Service to prohibit him crossing the border, and the investigative authorities failed to properly investigate the case and lost S.’s medical documents; (xii) 18/05/2010 – the investigative authorities were informed by the USA’s authorities that B. had lawfully obtained his visa and had been lawfully residing in the USA. The possibility of his deportation could be considered only in case of his conviction in absentia in Ukraine. (xiii) between March 2010 and December 2011 – the criminal proceedings were suspended on three occasions due to the fact that B.’s whereabouts had not been established; the decisions were quashed due to failure of the investigative authorities to take all investigative actions; (xiv) 29/09/2011 the Ternopil Local Court ordered B.’s detention on remand; (xv) in 2012 the proceedings were suspended due to the fact that B.’s whereabouts had not been established; (xvi) according to the most recent information from the applicant, as of 22/07/2015 the investigation was ongoing. |
(i) The circumstances of the applicant’s son’s death were examined by way of pre-investigation inquiries for three months. The Court has held that 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 her effective participation in the procedure was excluded (see, for example, Strogan v. Ukraine, no. 30198/11, § 53, 6 October 2016).
(ii) Insufficient measures were taken during the preliminary stage of investigation; notably, the domestic authorities themselves acknowledged that they failed to take all necessary actions to prevent B. from leaving Ukraine. Furthermore, only after almost 7 months after B.’s disappearance the investigative authorities submitted relevant documents to Interpol. Through the course of the proceedings on numerous occasions the internal inquiries discovered shortcomings, and the decisions to suspend the proceedings were quashed due to incompleteness of the investigation. As a result, the proceedings have been pending for more than 10 years. In should be noted that the mere fact that the suspect or defendant is in hiding does not remove the State’s responsibility to ensure the effectiveness of the domestic proceedings, including appropriate search measures (see, for example, Merkulova v. Ukraine, no. 21454/04, § 58, 3 March 2011, Muravskaya v. Ukraine, no. 249/03, §§ 47-50, 13 November 2008). |
| B. Just satisfaction | |
| Parties’ submissions | Court’s award |
| Applicant:
Non-pecuniary damage: EUR 50,000
Costs and expenses: EUR 5,532.8 for legal representation before the Court; Other relevant information: applicant was granted legal aid (EUR 850)
Supporting documents: agreement for legal representation, reports of completion;
Government: Claims exorbitant and poorly substantiated; the amount of costs and expenses is excessive. |
Non-pecuniary damage:
EUR 6,000
Costs and expenses: No award
|
| 5. Application no. 20087/13
by Ms Olga Mykolayivna Perebyynis Ukrainian national born in 1964 and residing in the village of Vyrishalne, Ukraine Lodged on 2 March 2013 |
|
| A. Complaint under Article 2: procedural limb | |
| The Background to the Case and Domestic Proceedings | Key Issues |
| 1. The circumstances of the death
On 16 January 2005 the applicant’s husband P. suffered grievous bodily harm during a conflict with a group of young people, including N. and Z. On the same day he died in the hospital from head trauma.
2. The course of the investigation and its findings: (i) 16/01/2005 – criminal proceedings into alleged intentional grievous bodily harm were instituted, on 31/01/2005 requalified as unintentional murder; (ii) 20/01/2005 – the applicant was recognised as an aggrieved party; (iii) 26/01/2005 – a forensic medical examination as regards P.’s injuries conducted; (iv) 28/02/2005 – casefile with an indictment act against N. submitted to the Lokhvytsya Local Court of Poltava Region; on 10/06/2005 N. was found guilty and the applicant’s civil claim allowed in part; (v) 15/02/2006 – the Poltava Regional Court of Appeal quashed the verdict and remitted the case for additional investigation, reasoning that the investigative authorities failed to establish the causal link between N.’s and Z.’s actions and P.’s death; (vi) between April 2006 and July 2013 – six additional forensic medical examinations as regards P.’s injuries were conducted and the case was remitted for the additional investigation by the courts on five occasions, mainly due to the failure of the investigative authorities to establish all the circumstances of the case and to reconcile the divergences in the witnesses’ statements and conclusions of forensic medical examinations; (xxiii) according to the most recent information from the applicant, on 28/11/2016 the Gadyach Local Court of Poltava Region terminated the proceedings against N. due to expiration of time-limits for criminal responsibility. |
(i) The investigation was marked by an unusually high number of repeated forensic medical examinations, which suggests the absence of a comprehensive approach to the collection of evidence during the pre-trial investigation phase (see, for example, Basyuk v. Ukraine, no. 51151/10, § 68, 5 November 2015; Sergiyenko v. Ukraine, no. 47690/07, § 52, 19 April 2012);
(ii) Several remittals of the case for additional investigation as a result of the insufficiency of the measures taken by the inquiring officers compromised the effectiveness of the investigation and as a consequence the proceedings lasted for more than 11 years and were terminated because the limitation period for criminal liability had expired (see, for example, Prilutskiy v. Ukraine, no. 40429/08, § 44, 26 February 2015; Kachurka v. Ukraine, no. 4737/06, § 50, 15 September 2011).
|
| B. Just satisfaction | |
| Parties’ submissions | Court’s award |
| Applicant:
Without specifying the sum, the applicant requests the court to allow her just satisfaction claims.
Government: The applicant failed to specifically claim just satisfaction |
Non-pecuniary damage:
EUR 6,000 |
| 6. Application no. 81809/17
by Ms Lyudmyla Mykolayivna Yeremenko Ukrainian national born in 1967 and residing in Kryvyy Rig represented by Mr A. V. Pustyntsev, a lawyer practising in Dnipro Lodged on 24 November 2017 |
|
| A. Complaint under Article 2: procedural limb | |
| The Background to the Case and Domestic Proceedings | Key Issues |
| 1. The circumstances of the death
On 6 December 2011 the body of the applicant’s son Y. was discovered on the roof over the entrance of the apartment building where he lived with his mother.
2. The course of the investigation and its findings: (i) 07/12/2011 – conclusion of a forensic medical examination: Y. died due to multiple injuries, sustained from falling from a height; no other injuries were discovered; (ii) between December 2011 and March 2012 – the investigative authorities refused to institute criminal proceedings on three occasions due to lack of evidence of a crime; the decisions were set aside by the Inguletskyy district prosecutor’s office of Kryvyy Rig (in particular, on 01/03/2012 – because the investigator failed to conduct all investigative actions ordered by the prosecutor); (iii) 28/11/2012 – criminal proceedings were instituted into alleged incitement to commit suicide; (iv) 21/03/2013 – conclusion of a forensic medical examination: Y. died due to multiple injuries, sustained from falling from a height; no other injuries were discovered; (v) 24/12/2013 – criminal proceedings terminated due toabsence of a criminal offence, reopened on 28/02/2014 by the Dnipropetrovsk Regional Court of Appeal due to failure to establish all circumstances of the case, such as if Y. had motives to commit suicide and from which height he jumped; (vi) 15/07/2014 – criminal proceedings into alleged murder were instituted and on 29/08/2014 were merged together with the criminal proceedings into alleged incitement to commit suicide; (vii) 03/09/2014– conclusion of a forensic medical examination confirming the results of a previous examination; (viii) between December 2014 and July 2017 – on two occasions the criminal proceedings were terminated due toabsence of a criminal offence and reopened due to failure to establish all circumstances of the case, such as from which height and from which exact balcony Y. fell, if he was intoxicated, if the noises reported by some witnesses were connected to his death; (ix) according to the most recent information from the Government, as of 13/07/2018 the investigation was ongoing. |
(i) The circumstances of the applicant’s son’s death were examined by way of pre-investigation inquiries for almost a year. The Court has held that 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 her effective participation in the procedure was excluded. It is notable that during that period of time the supervising authorities found that the inquiries had not been thorough and ordered the case to be remitted for further inquiries to be made. Such remittals have been a recurring problem in the cases against Ukraine(see, for example, Strogan v. Ukraine, no. 30198/11, § 53, 6 October 2016, Oleynikova v. Ukraine, no. 38765/05, §§ 80-81, 15 December 2011);
(ii) The proceedings lasted for more than 6 years and 7 months. In the present case the Government have not provided sufficient justification for the duration of the proceedings, all the more so because the domestic authorities themselves admitted insufficiency of the measures taken when quashing the decisions refusing to institute or terminating the criminal proceedings (see, for example, Merkulova v. Ukraine, no. 21454/04, §§ 50-51 and 61, 3 March 2011; Kachurka v. Ukraine, no. 4737/06, § 50, 15 September 2011). |
| B. Just satisfaction | |
| Parties’ submissions | Court’s award |
| Applicant:
No claim for damages or costs/expenses was lodged within established time-limit after communication of application to Government |
No award |
| 7. Application no. 9273/18
by Ms Galyna Pavlivna Rasputana Ukrainian national born in 1950 and residing in Odesa represented by Mr V. Yu. Malyar, a lawyer practising in Odesa Lodged on 14 February 2018 |
|
| A. Complaint under Article 2: procedural limb | |
| The Background to the Case and Domestic Proceedings | Key Issues |
| 1. The circumstances of the death
On 11/02/2010 the applicant’s son R. spent an evening in a bar drinking alcohol in the company of his acquaintance B. and an unknown individual. The next morning R’s body was discovered near the bar in the snow, his mobile phone and wallet were missing.
2. The course of the investigation and its findings: (i) 13/02/2010 – medical certificate on death, according to which R. died of hypothermia; (ii) February 2010 – the pre-investigation inquiry established that on the night of his death, R. and B. were drinking alcohol bought by the unknown man. At some point R. went outside, and 10 minutes later the unknown man followed him. The latter returned in 5 minutes, and R. did not return. 15 minutes later the bar closed, and B. and the unknown man left the bar. (iii) between February 2010 and August 2010 – the investigative authorities conducted a pre-investigation inquiry and on four occasions refused to institute criminal proceedings due to lack of evidence of a crime; the decisions were set aside by the Ovidiopol District Prosecutor’s Office (in particular, on 21/04/2010 – because the investigator failed to find and question persons that spent the evening with R. and to establish the origin of injuries to his body and how he had ended up half-naked in the snow); (iv) May 2010 – B.’s former employer testified that the latter had moved to the Russian Federation; (v) 16/06/2010 – conclusion of a forensic medical examination: R. died due to hypothermia; minor abrasions on his body were not connected to the cause of his death and were possibly caused by falling down; R. was in a state of a strong alcohol intoxication; (vi) 17/09/2010 – criminal proceedings into hooliganism and theft were instituted by the Ovidiopol District Prosecutor’s Office; (vii) 23/09/2010 – the Odesa Regional Court of Appeal allowed to receive information from the mobile operator concerning the applicant’s mobile phone, according to which the last phone call was made to the emergency ambulance number 103, the phone was not in use afterwards; (viii) 01/10/2010 – the applicant was recognised as an aggrieved party; (ix) 26/09/2013 – criminal proceedings into murder were instituted and merged together with the criminal proceedings into theft; (x) between October 2013 and July 2016 – on two occasions the criminal proceedings were terminated due toabsence of a crime, and reopened (in particular, on 14/07/2016 – due to failure of the investigator to conduct all investigative actions ordered by the prosecutor); (xi) 30/09/2017 – criminal proceedings terminated due to absence of evidence of a crime. It appears that B. was never questioned after the proceedings were opened and the identity of the unknown man was never established. |
(i) The circumstances of the applicant’s son’s death were examined by way of pre-investigation inquiries for seven months. The Court has held that 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 her effective participation in the procedure was excluded. It is notable that during that period of time the supervising authorities found that the inquiries had not been thorough and ordered the case to be remitted for further inquiries to be made. Such remittals have been a recurring problem in the cases against Ukraine(see, for example, Strogan v. Ukraine, no. 30198/11, § 53, 6 October 2016, Oleynikova v. Ukraine, no. 38765/05, §§ 80-81, 15 December 2011);
(ii) The proceedings lasted for more than 7 years and 7 months. In the present case the Government have not provided sufficient justification for the duration of the proceedings, all the more so since the investigation was characterised by repeated discontinuations and reopenings as a result of the insufficiency of the measures taken by the inquiring officers(see, for example, Merkulova v. Ukraine, no. 21454/04, §§ 50-51 and 61, 3 March 2011; Kachurka v. Ukraine, no. 4737/06, § 50, 15 September 2011).
|
| B. Just satisfaction | |
| Parties submissions | Court’s award |
| Applicant:
Non-pecuniary damage: EUR 80,000
Pecuniary damage: EUR 43,200 of loss of the applicant’s son’s earnings.
Government: Claims exorbitant and poorly substantiated; since the authorities were not liable for the applicant’s son’s death, no direct causal link between the alleged violation and the pecuniary damage. |
Non-pecuniary damage:
EUR 6,000
Pecuniary damage: No award |
Leave a Reply