{"id":1043,"date":"2019-04-17T09:52:56","date_gmt":"2019-04-17T09:52:56","guid":{"rendered":"https:\/\/laweuro.com\/?p=1043"},"modified":"2019-04-24T15:25:42","modified_gmt":"2019-04-24T15:25:42","slug":"case-of-zorina-and-others-v-ukraine","status":"publish","type":"post","link":"https:\/\/laweuro.com\/?p=1043","title":{"rendered":"CASE OF ZORINA AND OTHERS v. UKRAINE (European Court of Human Rights)"},"content":{"rendered":"

FIFTH SECTION
\nCASE OF ZORINA AND OTHERS v. UKRAINE
\n(Applications nos. 20295\/07 and 3 other applications – see appended list)<\/em><\/p>\n

JUDGMENT
\nThis version was rectified on 26 March 2019
\nunder Rule 81 of the Rules of Court
\nSTRASBOURG
\n14 February 2019
\nThis judgment is final but it may be subject to editorial revision.<\/em><\/p>\n

In the case of Zorina and Others v. Ukraine,<\/strong><\/p>\n

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:<\/p>\n

S\u00edofra O\u2019Leary, President,
\nL\u04d9tif H\u00fcseynov,
\nLado Chanturia, judges,
\nand Milan Bla\u0161ko, Deputy Section Registrar,<\/p>\n

Having deliberated in private on 22 January 2019,<\/p>\n

Delivers the following judgment, which was adopted on that date:<\/p>\n

PROCEDURE<\/strong><\/p>\n

1.\u00a0\u00a0The case originated in applications against Ukraine lodged with the Court under Article\u00a034 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) on the various dates indicated in the appended table.<\/p>\n

2.\u00a0\u00a0Notice of the applications was given to the Ukrainian Government (\u201cthe Government\u201d).<\/p>\n

3.\u00a0\u00a0With regard to applications nos.\u00a024328\/08 and 65898\/11, the Government objected to the examination of the applications by a Committee. Having considered the Government\u2019s objection, the Court rejects it.<\/p>\n

THE FACTS<\/strong><\/p>\n

4.\u00a0\u00a0The list of applicants and the relevant details of the applications are set out in the appended table.<\/p>\n

5.\u00a0\u00a0The applicants complained of the failure to effectively investigate the deaths of their relatives, who appear to have died under suspicious circumstances.<\/p>\n

THE LAW<\/strong><\/p>\n

I.\u00a0\u00a0JOINDER OF THE APPLICATIONS<\/p>\n

6.\u00a0\u00a0In accordance with Rule\u00a042\u00a0\u00a7\u00a01 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.<\/p>\n

II.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE\u00a02 OF THE CONVENTION<\/p>\n

7.\u00a0\u00a0The applicants complained that the investigations into the deaths of their relatives, who died in a road traffic accident or in circumstances which could have been regarded as suspicious, without there being evidence that State agents were involved, had been ineffective (the relevant facts of the applications are outlined in \u00a7\u00a016 below and in the appended table). They relied on Article\u00a02, Article 6\u00a0\u00a7 1 and Article\u00a013 of the Convention.<\/p>\n

8.\u00a0\u00a0The 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\u00a02 of the Convention (see Igor Shevchenko v. Ukraine, no.\u00a022737\/04, \u00a7\u00a038, 12\u00a0January\u00a02012). This provision, in so far as relevant, reads as follows:<\/p>\n

\u201c1.\u00a0\u00a0Everyone\u2019s right to life shall be protected by law. (…)\u201d<\/p>\n

A.\u00a0\u00a0Admissibility<\/strong><\/p>\n

9.\u00a0\u00a0In application no.\u00a020295\/07 the accident in question happened on 30\u00a0August 1996, nearly one\u00a0year before the Convention entered into force in respect of Ukraine on\u00a011\u00a0September\u00a01997.<\/p>\n

However, the investigation continued for another fifteen years and seven\u00a0months after that date. In view of this, the Court finds that the alleged interference with Article 2 of the Convention in its procedural aspect, which took place after 11 September 1997, falls within the Court\u2019s temporal jurisdiction (see Igor Shevchenko v.\u00a0Ukraine, cited above, \u00a7\u00a7\u00a047-48).<\/p>\n

10.\u00a0\u00a0The Court notes that the complaints in the present cases are not manifestly ill-founded within the meaning of Article\u00a035\u00a0\u00a7\u00a03\u00a0(a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.<\/p>\n

B.\u00a0\u00a0Merits<\/strong><\/p>\n

1.\u00a0\u00a0The parties\u2019 submissions<\/em><\/p>\n

11.\u00a0\u00a0The 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\u2019 relatives\u2019 deaths (nos.\u00a020295\/07 and 24328\/08) or had taken all investigative steps in order to conclude that an investigation was not necessary (nos.\u00a065898\/11 and 52601\/12). 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.<\/p>\n

12.\u00a0\u00a0The applicants did not accept the Government\u2019s 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\u2019 cause of the death.<\/p>\n

2.\u00a0\u00a0The Court\u2019s assessment<\/em><\/p>\n

13.\u00a0\u00a0The Court reiterates that Article 2\u00a0\u00a7\u00a01 of the Convention enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see L.C.B. v. the United Kingdom, 9\u00a0June 1998, \u00a7\u00a036, Reports of Judgments and Decisions 1998-III). This implies the putting in place of effective criminal-law provisions to deter the commission of offences against the person, backed up by law-enforcement machinery for the prevention, suppression and punishment of breaches of such provisions (see Osman v. the United Kingdom, 28\u00a0October\u00a01998, \u00a7\u00a0115, Reports 1998\u2011VIII).<\/p>\n

14.\u00a0\u00a0More specifically, the obligation to protect the right to life under Article\u00a02 of the Convention, read in conjunction with the State\u2019s general duty under Article\u00a01 of the Convention to \u201csecure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention\u201d, requires by implication that there should be an effective official investigation when individuals have died in suspicious circumstances. This obligation is not confined to cases where it has been established that the killing was caused by an agent of the State. The mere fact that the authorities have been informed of the death will give rise ipso facto to an obligation under Article\u00a02 of the Convention to carry out an effective investigation into the circumstances in which it occurred (see,\u00a0for example, Railean v. Moldova, no. 23401\/04, \u00a7\u00a028, 5 January 2010; Basyuk v. Ukraine, no.\u00a051151\/10, \u00a7\u00a7\u00a056-57, 5 November 2015; and Igor Shevchenko v. Ukraine, cited above, \u00a7\u00a056). 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\u2019s 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\u00a0and\u00a0Audrey Edwards v. the United Kingdom, no.\u00a046477\/99, \u00a7\u00a071, ECHR 2002\u2011II).<\/p>\n

15.\u00a0\u00a0Once the investigative obligation is triggered, compliance with the procedural requirement of Article\u00a02 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\u2019s family, and the independence of the investigation. These elements are inter\u2011related and each of them, taken separately, does not amount to an end in itself (see Mustafa Tun\u00e7 and Fecire Tun\u00e7 v. Turkey [GC], no.\u00a024014\/05, \u00a7\u00a0225, 14\u00a0April 2015).<\/p>\n

16.\u00a0\u00a0Turning to the circumstances of the present cases, the Court notes that the applicants\u2019 relatives either died in a road traffic accident (no.\u00a020295\/07), or were found dead with signs of serious physical injuries (nos.\u00a024328\/08, 52601\/12), or died under the unknown circumstances, which could have been regarded as suspicious (no.\u00a024328\/08). There was no evidence that State agents were involved in possible murder of the applicants\u2019 relatives (the relevant facts of the applications are outlined in the appended table).<\/p>\n

17.\u00a0\u00a0The Court has firstly had regard to the substantial delay in commencing the inquiries into the applicants\u2019 relatives\u2019 deaths. Namely, in applications nos. 65898\/11 and 52601\/12, more than one year elapsed between the date of the applicants\u2019 relatives\u2019 deaths and the date the criminal proceedings were instituted. Moreover, in these cases, the decisions to refuse to institute proceedings were taken without the circumstances of the cases having been properly examined.<\/p>\n

18.\u00a0\u00a0In this connection, the Court reiterates that the effectiveness of an investigation implies a requirement of promptness and reasonable expedition. Even where there may be obstacles or difficulties which prevent progress in an investigation in a particular situation, a prompt response by the authorities is vital in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts (see, for example, Sergiyenko v. Ukraine, no.\u00a047690\/07, \u00a7\u00a7\u00a052-53, 19\u00a0April 2012; Chumak v. Ukraine [Committee], no.\u00a060790\/12, \u00a7\u00a7\u00a027-28, 19\u00a0May 2016; and Yuriy Slyusar v. Ukraine, no.\u00a039797\/05, \u00a7\u00a082, 17\u00a0January 2013).<\/p>\n

19.\u00a0\u00a0The Court further notes that, in the present cases, the investigations were characterised by repeated discontinuations and reopenings as a result of the insufficiency of the measures taken by the inquiring officers, and were marked by the progressive deterioration of evidence. Moreover, from the information available, it does not appear that structured investigations took place after criminal proceedings were instituted. In the following ways, the investigations were marked by substantial shortcomings in their preliminary stages which undermined any possibility of establishing causes of death or punishing those responsible.<\/p>\n

(i)\u00a0\u00a0In application no.\u00a020295\/07, for more than ten years, there were substantial divergences between the conclusions of technical expert examinations of the vehicle in question, which were not reconciled and which precluded the examination of the case on the merits. During this time the suspect left Ukraine and as a consequence the criminal proceedings against him were terminated because the limitation period for criminal liability expired.<\/p>\n

(ii)\u00a0\u00a0In application no.\u00a024328\/08 there is no evidence that the investigating authorities explored other possible avenues apart from pursuing an investigation against B., whose confession could not serve as a basis for establishing his guilt, since he was suffering from schizophrenia. Moreover, the investigating authorities failed to secure any possible evidence to corroborate B.\u2019s guilt. Namely, they did not examine the suspect\u2019s clothes, which, in view of the circumstances of the incident, could have had bloodstains on them. Lastly, the investigating authorities acknowledged that it was not possible to establish the circumstances of the incident, because of the significant lapse of time since the event in issue.<\/p>\n

(iii)\u00a0\u00a0In application no.\u00a065898\/11 the investigating authorities did not provide any explanations as to the lack of medical evidence regarding the applicant\u2019s brother\u2019s alleged ischaemic illness. Nor did they examine the traces of injuries on the applicant\u2019s brother\u2019s body. The Court also notes that the police officers were disciplined because of their inactivity: there was no medical evidence regarding the applicant\u2019s brother\u2019s ischaemic illness before the day of his death, swelling on his brain documented in the post-mortem examination had not been explained, and other evidence indicating a possible murder had not been properly assessed.<\/p>\n

(iv)\u00a0\u00a0In application no.\u00a052601\/12, despite the fact that a number of forensic medical examinations were carried out, none of them provided convincing evidence regarding the cause of the applicants\u2019 daughter\u2019s death. More specifically, the exhumation conducted on 29\u00a0March 2012 fell short of the procedural requirements, and thus the court declared the results of the subsequent forensic medical examination inadmissible. Furthermore, since another exhumation was conducted on 6\u00a0May 2014, nearly three years after the incident, the subsequent forensic medical examination was unable to determine the cause of death, because the body was in an advanced state of decomposition. There is no indication that the substantive discrepancies between the expert forensic medical examinations \u2013 regarding the fact that the scene of the incident was covered with the blood of the applicants\u2019 daughter \u2013 were resolved.<\/p>\n

20.\u00a0\u00a0In this regard, the Court reiterates that the effectiveness of an investigation also implies a requirement of thoroughness, in that the authorities must have taken all reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony and forensic evidence (see, for example Ryzhenkov and Zaytsev v.\u00a0Ukraine, nos.\u00a01805\/03 and 6717\/03, \u00a7\u00a019, 13\u00a0December 2005, and Yuriy\u00a0Slyusar v. Ukraine, cited above, \u00a7\u00a082). Moreover, any deficiency in the investigation which undermines its ability to establish the circumstances of the case or the person responsible is liable to fall foul of the required measure of effectiveness (see Nachova and Others v. Bulgaria [GC], nos.\u00a043577\/98 and 43579\/98, \u00a7\u00a0113, ECHR 2005 VII).<\/p>\n

21.\u00a0\u00a0The Court observes that, in the present cases, 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\u2019 relatives, and who, if anyone, was responsible.<\/p>\n

22.\u00a0\u00a0Having regard to its well-established case-law on the subject (see Basyuk v. Ukraine, cited above, and Svystoruk v. Ukraine (dec.) [Committee], no.\u00a050067\/13, 24\u00a0November\u00a02016), the Court considers that, in the instant cases, the investigations failed to meet the criteria of effectiveness. These complaints therefore disclose a breach of the procedural limb of Article\u00a02 of the Convention.<\/p>\n

III.\u00a0\u00a0APPLICATION OF ARTICLE\u00a041 OF THE CONVENTION<\/p>\n

23.\u00a0\u00a0Article\u00a041 of the Convention provides:<\/p>\n

\u201cIf 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.\u201d<\/p>\n

A.\u00a0\u00a0Damage<\/strong><\/p>\n

24.\u00a0\u00a0The applicants claimed between 30,000 euros (EUR) and 42,160,069,728 Ukrainian hryvnias (UAH) (around EUR\u00a01,576,669,572 at the material time) in respect of non-pecuniary damage. In application no.\u00a065898\/11 the applicant also claimed UAH\u00a0560,000 (around EUR\u00a023,333 at the material time) in respect of pecuniary damage for the loss of a library located in the apartment where her brother had lived. Apparently, that library had been destroyed, and the applicant claimed that the person responsible for her brother\u2019s death was also responsible for destroying the library.<\/p>\n

25.\u00a0\u00a0Regard being had to the documents in its possession and to the approach taken in similar Ukrainian cases (see, in particular, Basyuk v.\u00a0Ukraine, cited above, and Nikolay Volkogonov and Igor Volkogonov v.\u00a0Ukraine [Committee], no.\u00a040525\/05, 28\u00a0November\u00a02013), in respect of non\u2011pecuniary damage, the Court finds it reasonable to award each of the applicants in applications nos.\u00a020295\/07, 24328\/08 and 65898\/11 EUR\u00a06,000, and the applicants in application no.\u00a052601\/12 EUR\u00a06,000 jointly.<\/p>\n

26.\u00a0\u00a0The Court rejects the remainder of the applicants\u2019 claims in respect of non\u2011pecuniary damage.<\/p>\n

27.\u00a0\u00a0The Court further notes that in application no.\u00a065898\/11 no causal link has been established between the pecuniary damage alleged and the violation found, nor has the applicant submitted any evidence in support of the claim in respect of pecuniary damage; the Court therefore rejects this claim.<\/p>\n

B.\u00a0\u00a0Costs and expenses<\/strong><\/p>\n

28.\u00a0\u00a0The applicants claimed the following amounts in respect of costs and expenses incurred:<\/p>\n

(i)\u00a0\u00a0in application no.\u00a020295\/07 the applicant claimed UAH\u00a04,795 (around EUR\u00a0160 at the material time) for the costs and expenses incurred before the Court for legal representation;<\/p>\n

(ii)\u00a0\u00a0in application no.\u00a024328\/08 the applicant claimed EUR\u00a01,000 for the costs and expenses incurred before the domestic courts for legal representation and subsistence expenses, and EUR\u00a01,120 for the costs and expenses incurred before the Court, comprising EUR\u00a01,000 for legal representation and EUR\u00a0120 for her lawyer\u2019s postal and subsistence expenses. The applicant submitted that she had not made any advance payment to her lawyer because of her lack of financial resources. She thus requested that the costs and expenses be transferred directly to her lawyer\u2019s bank account;<\/p>\n

(iii)\u00a0\u00a0in application no.\u00a065898\/11 the applicant claimed UAH\u00a029,649 (around EUR\u00a01,011 at the material time) for the costs incurred in printing documents, UAH\u00a01,279 (around EUR\u00a044 at the material time) for postal expenses, and UAH\u00a020,000 (around EUR\u00a0833 at the material time) for legal representation before the Court;<\/p>\n

(iv)\u00a0\u00a0in application no.\u00a052601\/12 the applicants claimed UAH\u00a011,500 (around EUR\u00a0500 at the material time) for the costs and expenses incurred before the Court for legal representation.<\/p>\n

29.\u00a0\u00a0The Government stated that the amounts claimed were excessive and unsubstantiated.<\/p>\n

30.\u00a0\u00a0According to the Court\u2019s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present cases, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award: EUR\u00a0160 to the applicant in application no.\u00a020295\/07; EUR\u00a0196 to the applicant in application no.\u00a024328\/08, to be paid to the applicant\u2019s lawyer; EUR\u00a023 to the applicant in application no.\u00a065898\/11; and EUR\u00a0500 jointly to the applicants in application no.\u00a052601\/12.[1]<\/p>\n

31.\u00a0\u00a0The Court rejects the remainder of the applicants\u2019 claims for costs and expenses in applications nos.\u00a024328\/08 and 65898\/11.<\/p>\n

C.\u00a0\u00a0Default interest<\/strong><\/p>\n

32.\u00a0\u00a0The 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.<\/p>\n

FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n

1.\u00a0\u00a0Decides to join the applications;<\/p>\n

2.\u00a0\u00a0Declares the applications admissible;<\/p>\n

3.\u00a0\u00a0Holds that there has been a violation of Article\u00a02 of the Convention under its procedural limb in respect of the complaints concerning the ineffective investigations into the applicants\u2019 relatives\u2019 deaths;<\/p>\n

4.\u00a0\u00a0Holds<\/p>\n

(a)\u00a0\u00a0that the respondent State is to pay, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:<\/p>\n

(i)\u00a0\u00a0EUR 6,000 (six thousand euros) to each of the applicants in applications nos.\u00a020295\/07, 24328\/08 and 65898\/11, and EUR\u00a06,000 (six thousand euros) jointly to the applicants in application no.\u00a052601\/12, plus any tax that may be chargeable, in respect of non-pecuniary damage;<\/p>\n

(ii)\u00a0\u00a0EUR\u00a0160 (one hundred and sixty euros) to the applicant in application no.\u00a020295\/07; EUR\u00a0196 (one hundred and ninety-six euros) to the applicant\u2019s lawyer in application no.\u00a024328\/08; EUR\u00a023 (twenty-three euros) to the applicant in application no.\u00a065898\/11; and EUR\u00a0500 (five hundred euros) jointly to the applicants in application no.\u00a052601\/12,[2] plus any tax that may be chargeable to the applicants, in respect of costs and expenses;<\/p>\n

(b)\u00a0\u00a0that 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;<\/p>\n

5.\u00a0\u00a0Dismisses the remainder of the applicants\u2019 claims for just satisfaction.<\/p>\n

Done in English, and notified in writing on 14 February 2019, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and\u00a03 of the Rules of Court.<\/p>\n

Milan Bla\u0161ko\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 S\u00edofra O\u2019Leary
\nDeputy Registrar\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n

 <\/p>\n\n\n\n\n\n\n\n\n
No.<\/strong><\/td>\nApplication no.<\/strong>
\nDate application lodged<\/strong><\/td>\n		Applicant name<\/strong>
\nDate of birth<\/strong>
\nPlace of residence<\/strong>
\nNationality<\/strong><\/td>\n		Represented by<\/strong><\/td>\nFacts of the cases<\/strong><\/td>\n<\/tr>\n<\/thead>\n
1.<\/td>\n20295\/07
\n29\/04\/2007<\/td>\n		Olga Konstantinovna ZORINA<\/strong>
\n19\/01\/1929
\nDnipro
\nUkrainian<\/td>\n		Valeriy Vasilyevich ANDRUSENKO<\/td>\nOn\u00a030\u00a0August\u00a01996 the applicant\u2019s son was killed when he was hit by a car driven by P. while he was crossing the road. On\u00a019\u00a0February\u00a01997 criminal proceedings were initiated against P. on charges of breaching traffic rules and thereby causing death. The Zhovtnevyy District Court in Dnipro remitted the case to a prosecutor for additional examination on multiple occasions, for various reasons: (i)\u00a0on\u00a02\u00a0August\u00a01999 because, inter alia<\/em>, there were substantial divergences between the conclusions of technical expert examinations of the vehicle in question; (ii)\u00a0on\u00a031\u00a0July\u00a02001 because the additional technical expert examination of the vehicle and reconstruction of the incident had not fully taken into account the circumstances of the incident; (iii)\u00a0on\u00a017\u00a0May and on\u00a018\u00a0November\u00a02004 because the court\u2019s previous instructions had not been complied with; and (iv)\u00a0on\u00a029\u00a0December\u00a02007 because the whereabouts of the suspect had not been established and no actions by the investigator had been taken in this regard. On\u00a03\u00a0February\u00a02008 the criminal proceedings were suspended owing to the fact that P.\u2019s whereabouts had not been established. Subsequently,\u00a0P. was arrested in the Russian Federation, but on\u00a04\u00a0August\u00a02008 the Prosecutor General\u2019s Office of the Russian Federation refused to extradite him to Ukraine because of the expiry of the limitation period for criminal liability. On\u00a029\u00a0April\u00a02013 the Babyshkinskyy District Court in Dnipro terminated the criminal proceedings against P. owing to the expiry of the limitation period for criminal liability.<\/td>\n<\/tr>\n
2.<\/td>\n24328\/08
\n08\/05\/2008<\/td>\n		Natalia Petrovna KOZAK<\/strong>
\n05\/02\/1961
\nVinnitsa
\nUkrainian<\/td>\n		Andriy Olegovych KADOCHNIKOV<\/td>\nOn\u00a04\u00a0September\u00a01999 the applicant\u2019s six-year-old son went missing. On\u00a06\u00a0September\u00a01999 his body was found on wasteland near an unfinished factory building. According to a forensic medical conclusion, the applicant\u2019s son had more than ten head wounds, skull fractures, and bruises all over his body. Criminal proceedings regarding his death were instituted on the same day. The testimony of witnesses suggested that not long before his death the applicant\u2019s son had been seen in the company of an unidentified boy aged 15-18. The case-file material contains a reference to a confession to murder dated 5\u00a0July\u00a02003 of a certain B., a person diagnosed with schizophrenia. Since B. withdrew his confession and the authorities were unable to identify the perpetrator of the crime, the criminal proceedings were suspended and resumed on numerous occasions. The applicant was not duly informed about such suspensions. On\u00a03\u00a0July\u00a02007 B. again confessed to murdering the applicant\u2019s son. On\u00a021\u00a0March\u00a02008 the Zamostyanskyy District Court in Vinnytsia rejected an application by the prosecutor for compulsory medical treatment for B., and remitted the case for additional investigation, ordering, inter alia<\/em>, that an additional comprehensive forensic psychological and medical examination be carried out. The court noted that the Vinnytsia regional prosecutor\u2019s office and the Prosecutor General\u2019s Office had given instructions on how the case was to be investigated, however, those instructions had not been complied with. Furthermore, the court noted that the investigating authorities had not explained the origin of cuts on the child\u2019s body in the area of his kidney. On\u00a01\u00a0June\u00a02010 the Vinnytsia Regional Court of Appeal ordered additional investigation into the case. It was noted that the applicant\u2019s son had had numerous wounds. A stone covered with blood had been found near the body. It could be concluded that the applicant\u2019s son\u2019s attacker had also had bloodstains on his clothes. The court also noted that on\u00a07\u00a0September\u00a01999 B.\u2019s apartment had been searched and some of his clothing had been seized, however, it had never been examined. On\u00a028\u00a0September\u00a02011 the Zamostyanskyy District Court terminated the proceedings against B. for lack of evidence of his guilt. The court held that B.\u2019s confessions could not serve as a basis for establishing his guilt, since he was suffering from schizophrenia. There was no other evidence corroborating his guilt. B.\u2019s clothes had not been examined by an expert, since there were no traces on them. L. (B.\u2019s stepfather), a witness who had given evidence in the case, had died. The decision of\u00a028\u00a0September\u00a02011 was upheld on\u00a08\u00a0December\u00a02011 by the Vinnytsia Regional Court of Appeal. On\u00a015\u00a0November\u00a02012 the Higher Specialised Civil and Criminal Court of Ukraine rejected an appeal in cassation by the prosecutor against the above decisions. On\u00a013 and 26\u00a0February\u00a02013 the investigator ordered the police to conduct an investigation in order to establish the circumstances of the applicant\u2019s son\u2019s death. On\u00a014\u00a0March\u00a02013 the police officers submitted that it was not possible to execute such an order, because of the significant lapse of time since the event.<\/td>\n<\/tr>\n
3.<\/td>\n65898\/11
\n13\/10\/2011<\/td>\n		Larysa Volodymyrivna DENYSOVA<\/strong>
\n25\/12\/1959
\nKyiv
\nUkrainian<\/td>\n		<\/td>\nThe applicant and her brother, S., owned a flat in Kyiv. S. lived there with his civil partner, L. The applicant lived at a different address. S. suffered from epilepsy. On\u00a018\u00a0April\u00a02008 S. gifted his part of the flat to a private individual. The gift was certified by a notary. On\u00a025\u00a0April\u00a02008 at around 9.30\u00a0p.m. S. was in his flat drinking alcohol and having dinner with L. and his friend, a person called D. L. and D. then left the flat and when L. returned home later at 2.00\u00a0a.m. she found S. unconscious in the flat. She called an ambulance. Upon arrival, doctors found that S. was dead. They also noted that he was drunk. The police examined the scene of the incident immediately. The next day a forensic medical examination of S.\u2019s body was conducted, which concluded that he had died from ischaemic heart disease. On\u00a02\u00a0May\u00a02008 the Pecherskyy district police station in Kyiv refused to open criminal proceedings in respect of S.\u2019s death. On\u00a04\u00a0November\u00a02009 the Kyiv Court of Appeal upheld a decision by a lower court rejecting a complaint by the applicant against the decision of 2\u00a0May\u00a02008. On\u00a031\u00a0August\u00a02010 the Supreme Court quashed the decisions of the lower courts, noting: that there was no medical evidence regarding the applicant\u2019s brother\u2019s ischaemic illness before the day of his death; that swelling on his brain documented in the post-mortem examination had not been explained; and that other evidence indicating a possible murder had not been properly assessed. On an unspecified date pre-investigation inquiries were reopened. Furthermore, on multiple occasions the police refused to open criminal proceedings in respect of the alleged murder; those decisions were quashed by the courts or prosecutors as unsubstantiated, and further pre-investigation inquiries were ordered. On\u00a011\u00a0December\u00a02012 the police opened criminal proceedings in respect of S.\u2019s murder. On\u00a014\u00a0January\u00a02013 the criminal proceedings were terminated because of the lack of corpus delicti<\/em>. On\u00a030\u00a0September\u00a02013 the Pecherskyy District Court in Kyiv quashed the latter decision as wholly unsubstantiated and remitted the case for further investigation. The court noted that neither the circumstances of the incident nor evidence in this regard had been assessed. The court also noted that the shortcomings in the investigation indicated by the judgment of the Supreme Court of Ukraine of 31\u00a0August\u00a02010 had not been rectified. By a letter of 8\u00a0December\u00a02014 the applicant was informed that, in accordance with the results of an internal enquiry, the investigators in charge of her case had been disciplined because of their inactivity.<\/td>\n<\/tr>\n
4.<\/td>\n52601\/12
\n15\/08\/2012<\/td>\n		Mykola Ivanovych KOPYSHCHYK<\/strong>
\n21\/08\/1955
\nKlesiv
\nUkrainian
\nNina Ustymivna KOPYSHCHYK<\/strong>
\n23\/07\/1960
\nUkrainian<\/td>\n		Lyubov Vasylivna KARPYUK<\/td>\nOn\u00a02\u00a0March\u00a02011 the applicants\u2019 daughter, S., together with two other persons, was found dead in a house. The official cause of death was carbon monoxide poisoning. However, the applicants state that their daughter was killed, since her face was blue and a bed and some clothes were covered with blood. On\u00a05\u00a0March\u00a02011 the Sarnenskyy district police station refused to institute criminal proceedings in respect of the applicants\u2019 daughter\u2019s death, stating that the official cause of death was carbon monoxide poisoning. That decision, as well as numerous subsequent refusals to institute proceedings, were quashed, in particular by a court, and the case remitted for additional investigation. The court noted that the decision to refuse to institute criminal proceedings had been taken without the circumstances of the case being properly examined. Namely, on\u00a01\u00a0February\u00a02012 the Rivne District Court noted that no explanation had been given about whose blood had covered the scene of the incident. In order to establish that, the exhumation of S.\u2019s body was required, and that was carried out on\u00a029\u00a0March\u00a02012. On\u00a017\u00a0December\u00a02012 criminal proceedings in respect of the applicants\u2019 daughter\u2019s alleged murder were instituted. On\u00a012\u00a0August\u00a02013 a forensic medical examination was conducted. On multiple occasions the criminal proceedings were terminated, and subsequently those decisions were quashed by the courts or prosecutors as unsubstantiated and premature, and further investigation was ordered. Namely, on\u00a01\u00a0October\u00a02013 the Sarnentskyy District Court quashed the termination of the criminal proceedings and remitted the case for additional investigation. The court noted that the investigating authorities had not complied with procedural requirements when carrying out the exhumation on 29\u00a0March\u00a02012:\u00a0no record had been drafted in this respect and the forensic medical expert had been absent during the course of the exhumation. The court therefore declared that the correct procedure for the exhumation had not been complied with, and that the resulting forensic medical examination was inadmissible. On\u00a029\u00a0April\u00a02014 the Rivne prosecutor\u2019s office ordered another exhumation of S.\u2019s body, which was carried out on\u00a06\u00a0May\u00a02014. A subsequent forensic medical examination was carried out on the body between 6\u00a0May and 2\u00a0July\u00a02014. It was not possible to determine the cause of S.\u2019s death, because the body was in an advanced state of decomposition. The Rivne District Court remitted the case for additional investigation for the last time on 7\u00a0September\u00a02016. The court reasoned that there were discrepancies between the witnesses\u2019 statements. The court also noted that no explanation had been given as to why the scene of the incident had been covered with the blood of the applicants\u2019 daughter, and that there were substantive discrepancies between the expert forensic medical examinations in this regard.<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

[1] Rectified on 26 March 2019: the text was \u201cand EUR\u00a0500 to the applicants in application no.\u00a052601\/12.\u201d<\/p>\n

[2] Rectified on 26 March 2019: the text was \u201cand EUR\u00a0500 (five hundred euros) to the applicants in application no.\u00a052601\/12.\u201d<\/p>\n