CASE OF BOGUTA AND TERESHCHENKO v. UKRAINE (European Court of Human Rights) 13094/19 and 37726/19

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


FIFTH SECTION
CASE OF BOGUTA AND TERESHCHENKO v. UKRAINE
(Applications nos. 13094/19 and 37726/19)
JUDGMENT
STRASBOURG
13 January 2022

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

In the case of Boguta and Tereshchenko 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 relatives.

THE LAW

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.

ALLEGED VIOLATION OF ARTICLE 2 § 1 of the Convention

6. The applicants complained of the ineffective investigation into the death of their relatives. They relied on Articles 2, 6 § 1 and 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 summarised 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 interrelated 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’ relatives, 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 § 1 of the Convention under its procedural limb.

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.

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’ 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.

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

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

(in euros)[i]

1. 13094/19

28/02/2019

Volodymyr Gavrylovych BOGUTA

1953

1. The circumstances of the death

On 13/01/2007 the applicant’s son B. was found dead on the ground floor of unfinished 18-floor building in the town of Truskavets, wherein he had been on vacation with his wife and friends.

2. The course of the investigation and its findings

On 13/01/2007 an on-site inspection and a medical expert examination of the applicant’s son’s body were carried out. According to the results of the medical examination, he had died because of multiple injuries caused by a fall from height; no signs of the death through violence were established.

Between January 2007 and May 2007, the Truskavets Town Prosecutor’s Office delivered three decisions refusing to institute criminal proceedings. These decisions were set aside by the prosecutor of Truskavets and by the Prosecutor’s Office of the Lviv Region as premature.

Pursuant to the medical expert examination on 18/06/2007, there were injuries on the son’s body atypical to those caused by a fall from height (these conclusions had been repeatedly confirmed on 26/11/2009 and on 09/11/2012).

On 26/01/2008 criminal investigation was opened on account of the possible intentional murder of the applicant’s son, and the case was transmitted to the Truskavets Town police.

On 26/03/2008 a police investigator closed the investigation due to the lack of evidence of a crime (according to the investigator’s version of events, the applicant’s son had died as a result of an accident). That decision was quashed by the prosecutor of Truskavets on 05/04/2008.

On 26/10/2009 the case was transferred to the police of the Lviv Region for further investigation.

Between October 2011 and October 2013, the police investigator terminated criminal proceedings on four occasions. Those decisions were set aside by the Truskavets Town Prosecutor’s Office, the Prosecutor’s Office of the Lviv Region and the Galytskyy District Court of Lviv. It was noted in the relevant decisions that the investigating authorities had failed to address properly the discrepancies between the witnesses’ statements and the irregularities in the conclusions of the medical experts, and to take necessary investigative steps ordered by the prosecutor’s office and the court.

On 12/03/2015 the case was transmitted to the police of the Ternopil Region for further investigation.

On 16/03/2020 the police investigator closed the investigation due to the lack of evidence of a crime. This decision was quashed by the Ternopil City Court of the Ternopil Region on 14/08/2020 as ill-reasoned.

As it appears from the available case file materials, the investigation is ongoing.

insufficient measures during the preliminary stage of the investigation (Kachurka v. Ukraine, no. 4737/06, § 52, 15 September 2011),

repeated remittals of the case for an additional investigation owing to the insufficiency of the measures taken by the investigators (Antonov v. Ukraine, cited above, § 50),

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),

lack of thoroughness and promptness which undermined the authorities’ ability to establish the circumstances of the case (Igor Shevchenko v. Ukraine, no. 22737/04, § 60, 12 January 2012; Zubkova v. Ukraine, no. 36660/08, § 40, 17 October 2013),

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),

investigation criticised by the national authorities themselves for the lack of efficiency (Prynda v. Ukraine, no. 10904/05, § 56, 31 July 2012; Pozhyvotko v. Ukraine, no. 42752/08, § 40, 17 October 2013),

unusually high number of repeated forensic examinations (Basyuk v. Ukraine, no. 51151/10, § 68, 5 November 2015),

extended pre-investigation inquiries (Yukhymovych v. Ukraine, no. 11464/12, § 67, 17 December 2020)

6,000
2. 37726/19

07/07/2019

Yuliya Borysivna TERESHCHENKO

1966

1. The circumstances of the death

On 25/06/2016 the applicant’s daughter U. was found dead near the multi-apartment building in Kharkiv, where her acquaintance Ye. was living.

2. The course of the investigation and its findings

On 25/06/2016 a criminal investigation on account of possible intentional murder was launched. According to the applicant, Ye., who had several convictions, was involved in the murder of her daughter.

The medical expert examination on 27/06/2016 discovered minor injuries on the daughter’s head, bruises and cuts on the left forearm and traces of an injection on the right arm; it was indicated in the expert conclusion that the death of the applicant’s daughter had been caused by cardiomyopathy and blood circulation disorder against the background of the medium alcohol intoxication.

Between June and March 2017, the police investigator delivered three decisions closing the investigation due to the lack of a crime (according to the investigator, the applicant’s daughter’s death was from a natural cause). Those decisions were set aside by the Kominternivskyy District Prosecutor’s Office of Kharkiv and the Kominternivskyy District Court of Kharkiv. It was noted in the relevant decisions that the investigating authorities had failed to question persons who had seen the applicant’s daughter before her death (including Ye.), to assess properly the available evidence (namely, to investigate the origin of the injuries found on the body) and to follow the instructions of the prosecutor’s office and the court as to the investigative steps to be taken.

On 13/03/2017 and on 11/10/2018 the Kominternivskyy District Court of Kharkiv ordered the police investigators to step out because of the unjustified protraction of the investigation.

As it appears from the available case file materials, the investigation is still pending.

repeated remittals of the case for an additional investigation owing to the insufficiency of the measures taken by the investigators (Antonov v. Ukraine, cited above, § 50),

 

lack of thoroughness and promptness which undermined the authorities’ ability to establish the circumstances of the case (Igor Shevchenko v. Ukraine, no. 22737/04, § 60, 12 January 2012; Zubkova v. Ukraine, no. 36660/08, § 40, 17 October 2013),

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),

failure to check different versions of events (Yuriy Slyusar v. Ukraine, cited above, §§ 86-87)

investigation criticised by the national authorities themselves for the lack of efficiency (Prynda v. Ukraine, no. 10904/05, § 56, 31 July 2012; Pozhyvotko v. Ukraine, no. 42752/08, § 40, 17 October 2013)

6,000

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

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