CASE OF AZOVTSEVA v. UKRAINE (European Court of Human Rights) Application no. 64932/12

The applicant complained of the ineffective investigation into the death of her husband, who died in a road traffic accident.


FIFTH SECTION
CASE OF AZOVTSEVA v. UKRAINE
(Application no. 64932/12)
JUDGMENT
STRASBOURG
14 October 2021

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

In the case of Azovtseva v. Ukraine,

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

Stéphanie Mourou-Vikström, President,
Jovan Ilievski,
Mattias Guyomar, judges,
and Viktoriya Maradudina, Acting Deputy Section Registrar,

Having deliberated in private on 23 September 2021,

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

PROCEDURE

1. The case originated in an application against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 7 April 2013.

2. The Ukrainian Government (“the Government”) were given notice of the application.

THE FACTS

3. The applicant’s details and information relevant to the application are set out in the appended table.

4. The applicant complained of the ineffective investigation into the death of her husband, who died in a road traffic accident.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 2 § 1 of the Convention

5. The applicant complained of the ineffective investigation into the death of her husband, who died in a road traffic accident. She relied on Article 6 § 1 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:

Article 2 § 1

“1. Everyone’s right to life shall be protected by law.”

7. 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 (ibid., § 225).

8. 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).

9. In the leading cases of Basyuk v. Ukraine (no. 51151/10, 5 November 2015), Pozhyvotko v. Ukraine (no. 42752/08, 17 October 2013) and Kachurka v. Ukraine (no. 4737/06, 15 September 2011), the Court already found violations in respect of issues similar to those in the present case.

10. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Reviewing the facts of the present case in the light of these principles established in its case-law (see paragraphs 7-9 above), and also taking into account the Government’s objection as to the difficulty to obtain the full case-file from the applicant’s case, the Court considers that the documents submitted by the applicant and relating to the period of the investigation before 2014 are sufficient for it to conclude that the investigation already in the period between 2007 and 2014 was marked by various shortcomings, which had undermined the ability of the investigating authorities to establish the circumstances surrounding the death of the applicant’s husband, and who, if anyone, was responsible. The specific shortcomings are indicated in the appended table. In the light of that conclusion the Court does not need to look at the investigation after 2014. Having regard to its case-law on the subject and the materials before it, the Court considers that in the instant case the investigation failed to meet the criteria of effectiveness.

11. These complaints are therefore admissible and disclose a breach of Article 2 of the Convention under its procedural limb.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

12. 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.”

13. Regard being had to the documents in its possession and to its case‑law (see, in particular, Basyuk v. Ukraine, cited above, §§ 74-80), the Court considers it reasonable to award the sum indicated in the appended table and it rejects any additional claims for just satisfaction raised by the applicant.

14. 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. Declares the application admissible;

2. Holds that this application discloses a breach of Article 2 § 1 of the Convention concerning the ineffective investigation into the death of the applicant’s husband;

3. Holds

(a) that the respondent State is to pay the applicant, within three months, the amount 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 amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

4. Dismisses the remainder of the applicant’s claims for just satisfaction.

Done in English, and notified in writing on 14 October 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Viktoriya Maradudina                   Stéphanie Mourou-Vikström
Acting Deputy Registrar                           President

_____________

APPENDIX
Application raising complaints under Article 2 § 1 of the Convention
(ineffective investigation into death, caused by private parties or in circumstances that exclude involvement of State agents)

Application no.

Date of introduction

Applicant’s name

Year of birth

Background to the case and domestic proceedings Key issues Amount awarded for pecuniary and non-pecuniary damage and costs and expenses per applicant

(in euros)[1]

64932/12

07/04/2013

Lilya Nikolayevna AZOVTSEVA

1952

1. The circumstances of the incident:

On 02/11/2007 the applicant’s husband was hit by a car, driven by a T., on a street in the town of Stakhaniv, Luhansk Region. He died from the injuries sustained at the scene of the accident.

2. The course of the criminal investigation and its findings:

(i) on 12/11/2007 the Luhansk Regional Police Department opened a criminal investigation into reckless driving causing death.

(ii) on five occasions between 2007 and 2012 the investigation was terminated for lack of constituent elements of a crime. The investigators concluded that T. could not avoid hitting the pedestrian who behaved carelessly in the street. These decisions were quashed by the prosecutors and the domestic courts as unfounded and further investigation was ordered. On 21/05/2013 the Leninskyy District Court of Luhansk quashed the decision of 17/07/2012 by which the investigation was closed; the court reasoned that the applicant’s version of the accident had not been properly analysed (i.e. according to the report regarding the reconstruction of the scene of the accident the car had been moving on the oncoming lane and in this light it had not been established why the driver had turned left); that additional expert examinations had to be carried out in order to verify the speed of the car and other circumstances. That decision was upheld on 13/06/2013 by the Luhansk Regional Court of Appeal;

(iii) on 29/05/2014 the investigator informed the applicant that the case had been sent to the forensic expertise bureau located in Luhansk for an additional expert examination of the vehicle;

(iv) on 05/01/2015 the Ukrainian police authorities informed the applicant that the case was still in the Luhansk bureau of forensic expertise which was outside the Ukrainian authorities’ control and for that reason no further decision could be taken in the criminal case;

(v) on 02/03/2015 the applicant was informed that since October 2014 the Ukrainian authorities could not get access to the files located in Luhansk bureau of forensic expertise.

For the period between November 2007 and 2014:

lack of thoroughness and promptness which undermined the authorities’ ability to establish the circumstances of the case (Lyubov Efimenko v. Ukraine, no. 75726/01, §§ 76-80, 25 November 2010);

repeated remittals of the case for additional investigation owing to the insufficiency of the measures taken by the investigators (Basyuk v. Ukraine, no. 51151/10, § 69, 5 November 2015);

failure to check the applicant’s version of events (Yuriy Slyusar v Ukraine, no. 39797/05, §§ 86-87, 17 January 2013);

no genuine attempt by the investigating authorities to carry out a thorough investigation (Igor Shevchenko v. Ukraine, no. 22737/04, § 60, 12 January 2012; Zubkova v. Ukraine, no. 36660/08, § 40, 17 October 2013).

6,000

[1] Plus any tax that may be chargeable to the applicant.

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