Last Updated on May 11, 2019 by LawEuro
Communicated on 14 November 2018
FOURTH SECTION
Application no. 66975/10
Mykhaylo Kostyantynovych REPEY
against Ukraine
lodged on 6 November 2010
STATEMENT OF FACTS
The applicant, Mr MykhayloKostyantynovychRepey, is a Ukrainian national, who was born in 1940 and lives in Zhmerynka.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Disappearance of the applicant’s son
The applicant’s son (R.) was born in 1975. He suffered from schizophrenia.
On 21 November 2004 R. left home and never returned.
On 23 November 2004 the applicant lodged a request with the police to establish the whereabouts of R. The applicant alleged that R. had a specific mental condition and there had been a risk to his life. Subsequently, the applicant submitted further requests but, allegedly, the authorities had not taken any search measures.
On 9 January 2005 R.’s dead body was found by hunters in the forest. The forensic assessment established that R. had frozen to death between 22 and 26 December 2004.
2. Disciplinary and criminal proceedings
In 2005 disciplinary proceedings were conducted against local police officers responsible for searching R.: six police officers were disciplined, including the head of the police office who was dismissed.
In 2005 a criminal investigation was opened in which the applicant introduced his civil claim for damages. Police officer M., who had been directly responsible for the search of the applicant’s son, was charged with three crimes: abuse of office, neglect of official duty and forgery of documents.
On 22 December 2009 the investigator decided to drop the charge of abuse of office by M. because of the absence of the constituent elements of that crime. By the same decision the investigator dropped the charge of neglect of official duty by M., finding that there had been no causal link between M.’s failings in office and the death of the applicant’s son.
The applicant challenged that decision to the supervising prosecutor, but received no reply.
On 20 January 2010 the Bar District Court of Vinnytsya Region found police officer M. guilty of forgery of documents without aggravating circumstances. The court found that M. had created fraudulent official documents to show that there had been comprehensive search actions in response to the applicant’s requests. However, M. was exempted from criminal liability owing to the expiry of the limitation period for that offence, classified as being of medium gravity.
The applicant appealed arguing, inter alia, that the investigation had not been thorough and that it had not been conducted in a proper manner with the result that the relevant facts had not been properly established.
On 10 March 2010 the Vinnytsya Regional Court of Appeal upheld the first-instance court decision.
The applicant appealed on points of law, contending that the findings of the court were not consistent with the facts of the case and the evidence available in the file.
On 11 May 2010 the Supreme Court rejected the applicant’s appeal on points of law and endorsed the decisions of the lower courts. The Supreme Court also noted that the applicant could further pursue his civil claim for damages against M. in civil courts.
B. Relevant domestic law
The relevant domestic law is quoted and summarised in Gongadze v. Ukraine (no. 34056/02, §§ 147-149, ECHR 2005‑XI), and Sergey Shevchenko v. Ukraine (no. 32478/02, §§ 36-39, 4 April 2006).
COMPLAINTS
The applicant complains that the State failed to take preventive operative measures to protect the life of his son and that there has been no effective investigation into the police failings on conducting the search of R. The applicant relies on Articles 2, 6 and 13 of the Convention and on Article 1 of Protocol No. 1.
QUESTIONs TO THE PARTIES
Has the applicant’s son’s right to life, ensured by Article 2 of the Convention, been violated in the present case? In particular:
1. Did the State authorities respond in an effective and rapid manner to the applicant’s complaint about his son’s disappearance?
2. Having regard to the circumstances surrounding the applicant’s son death, did the authorities ensure an effective independent judicial system securing the availability of legal means capable of establishing the facts, holding accountable those at fault and providing appropriate redress to the victim?
The Government are requested to provide the Court with the following material:
– documents regarding disciplinary proceedings against police officers in connection with the search for the applicant’s son;
– decision(s) taken in relation to the applicant’s challenge of the investigator’s ruling of 22 December 2009 dropping a part of the charges against police officer M.
– decision(s) on the applicant’s civil claim, if any, taken after the termination of the criminal proceedings against police officer M.
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