CASE OF YEFIMOVA AND OTHERS v. UKRAINE (European Court of Human Rights) 68748/17 and 2 others

The applicants complained of the ineffective investigation into the death of their relative.


FIFTH SECTION
CASE OF YEFIMOVA AND OTHERS v. UKRAINE
(Applications nos. 68748/17 and 2 others – see appended list)
JUDGMENT
STRASBOURG
13 January 2022

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

In the case of Yefimova and Others v. Ukraine,

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

Lətif Hüseynov, President,
Lado Chanturia,
Arnfinn Bårdsen, judges,
and Viktoriya Maradudina, Acting Deputy Section Registrar,

Having deliberated in private on 9 December 2021,

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

PROCEDURE

1. The case originated in applications 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.

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

THE FACTS

3. The list of applicants and the relevant details of the applications are set out in the appended table.

4. The applicants complained of the ineffective investigation into the death of their relative.

THE LAW

I. JOINDER OF THE APPLICATIONS

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

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

6. The applicants complained of the ineffective investigation into the death of their relative. They relied on Articles 2 and 6 § 1 and Article 13 of the Convention.

7. The Court, which is the 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.”

8. 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).

9. 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).

10. Reviewing the facts of the present case in the light of those principles, the Court considers that the investigation was marked by various shortcomings, which had undermined the ability of the investigating authorities to establish the circumstances surrounding the death of the applicants’ relative, and who, if anyone, was responsible. The specific shortcomings are indicated in the appended table.

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

12. 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. 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.

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

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

14. 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.”

15. Regard being had to the documents in its possession and to its case‑law (see, in particular, Basyuk, cited above, §§ 74-80), the Court considers it reasonable to award the sums indicated in the appended table. It rejects any additional claims for just satisfaction raised by the applicant in application no. 68748/17.

16. The Court further considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Decides to join the applications;

2. Declares the applications admissible;

3. Holds that these applications disclose a breach of Article 2 § 1 of the Convention concerning the ineffective investigation into the death of the applicants’ relative;

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 applicant’s claims for just satisfaction in application no. 68748/17.

Done in English, and notified in writing on 13 January 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Viktoriya Maradudina                               Lətif Hüseynov
Acting Deputy Registrar                               President

__________________

APPENDIX
List of applications 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)

No. Application no.

Date of introduction

Applicant’s name

Year of birth

Representative’s name and location Background to the case and domestic proceedings Key issues Amount awarded for non-pecuniary damage

(in euros)[i]

Amount awarded for costs and expenses

(in euros)[ii]

1. 68748/17

08/09/2017

 

 

 

Vira Oleksandrivna YEFIMOVA

1956

 

 

 

Vitaliy Viktorovych Savko

Dnipro

On 20/05/2012 K., the son of the first two applicants, Ms Yefimova and Mr Yefimov, and the brother of the third applicant, Ms Kyrychenko, was found hanged in his rental flat; the body was discovered by his cohabitant T. On 26/05/2012 investigating authorities refused to institute criminal proceedings due to the absence of a crime; on 17/10/2012 the Dnipropetrovsk Prosecutor’s Office set aside that decision finding that the pre-investigation inquiry had been superficial. On 19/11/2012 the investigating authorities once again refused to institute criminal proceedings. On 03/04/2013 a forensic-medical examination, performed upon a request of one of the applicants, concluded that there were discrepancies between the T.’s testimony and the expert’s conclusion as to the time and mechanism of K.’s death. On 06/06/2013 criminal proceedings on suspicion of murder were instituted. Between August 2013 and December 2020 on at least 7 occasions the criminal proceedings were terminated due to the absence of a crime, and reopened in view of the failure to conduct the necessary investigative actions (in particular, to question witnesses, conduct crime re-enactment, order additional expert examinations), failure to eliminate contradictions in the available evidence (in particular, in regard of findings of the medical forensic examinations and witnesses’ statements as to the time and mechanism of K.’s death) and inability to conduct investigative actions ordered in the previous decisions by which the proceedings had been reopened. It appears that the first applicant was granted the victim status in 2013, the second – in March 2020, and the third – in February 2015. It appears that the proceedings are still pending. decisions refusing to institute proceedings issued without the circumstances of the case having been properly examined (Oleynikova v. Ukraine, no. 38765/05, §§ 80-81, 15 December 2011, with further references),

 

repeated remittals of the case for an additional investigation owing to the insufficiency of the measures taken by the investigators (Antonov v. Ukraine, no. 28096/04, § 50, 3 November 2011),

 

no genuine attempt by the investigating authorities to carry out a thorough investigation (Lyubov Efimenko v. Ukraine, no. 75726/01, §§ 76-80, 25 November 2010; Yuriy Slyusar v. Ukraine, no. 39797/05, §§ 84-88, 17 January 2013)

12,000

jointly to the three applicants

250

to the first applicant, Ms Yefimova

2. 18441/20

13/04/2020

Oleksandr Mykolayovych YEFIMOV

1956

3. 18371/20

13/04/2020

Yuliya Oleksandrivna KYRYCHENKO

1979

[i] Plus any tax that may be chargeable to the applicants.
[ii] Plus any tax that may be chargeable to the applicants.

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