{"id":21190,"date":"2023-09-21T09:59:46","date_gmt":"2023-09-21T09:59:46","guid":{"rendered":"https:\/\/laweuro.com\/?p=21190"},"modified":"2023-09-21T10:14:13","modified_gmt":"2023-09-21T10:14:13","slug":"case-of-leznyuk-v-ukraine","status":"publish","type":"post","link":"https:\/\/laweuro.com\/?p=21190","title":{"rendered":"CASE OF LEZNYUK v. UKRAINE – 35431\/21"},"content":{"rendered":"

The applicant complained of the ineffective investigation into the death of his son without involvement of State agents.<\/span><\/p>\n

\n

FIFTH SECTION
\nCASE OF LEZNYUK v. UKRAINE<\/strong>
\n(Application no. 35431\/21)<\/em>
\nJUDGMENT
\nSTRASBOURG
\n21 September 2023<\/p>\n

This judgment is final but it may be subject to editorial revision.<\/p>\n

In the case of Leznyuk v. Ukraine,<\/strong><\/p>\n

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
\nCarlo Ranzoni, President,
\nLado Chanturia,
\nMar\u00eda El\u00f3segui, judges,
\nand Viktoriya Maradudina, Acting Deputy Section Registrar,<\/p>\n

Having deliberated in private on 31 August 2023,<\/p>\n

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

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

1. The case originated in an application 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 26 June 2021.<\/p>\n

2. The Ukrainian Government (\u201cthe Government\u201d) were given notice of the application.<\/p>\n

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

3. The applicant\u2019s details and information relevant to the application are set out in the appended table.<\/p>\n

4. The applicant complained of the ineffective investigation into the death of his son without involvement of State agents.<\/p>\n

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

I. ALLEGED VIOLATION OF ARTICLE 2 \u00a7 1 of the Convention<\/strong><\/p>\n

5. The applicant complained of the ineffective investigation into the death of his son in a traffic accident. He relied on Articles\u00a02 and 13 of the Convention.<\/p>\n

6. The Court, which is the master of the characterisation to be given in law to the facts of the case, finds that the complaint at issue falls to be examined under Article 2 of the Convention (see Igor Shevchenko v.\u00a0Ukraine, no.\u00a022737\/04, \u00a7\u00a038, 12 January 2012).<\/p>\n

7. The Court notes at the outset that the present case should be examined from the perspective of the State\u2019s 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\u00a0Tun\u00e7\u00a0and\u00a0Fecire\u00a0Tun\u00e7 v.\u00a0Turkey [GC], no.\u00a024014\/05, \u00a7\u00a7 169-82, 14 April 2015). In particular, once 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 (ibid., \u00a7\u00a0225).<\/p>\n

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\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 and Audrey Edwards v.\u00a0the United Kingdom, no. 46477\/99, \u00a7 71, ECHR 2002-II).<\/p>\n

9. 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 applicant\u2019s next of kin, and who, if anyone, was responsible. The specific shortcomings are indicated in the appended table.<\/p>\n

10. In the leading cases of Basyuk v. Ukraine (no. 51151\/10, 5 November 2015), Pozhyvotko v.\u00a0Ukraine (no. 42752\/08, 17 October 2013) and Kachurka v.\u00a0Ukraine (no.\u00a04737\/06, 15\u00a0September\u00a02011), the Court already found violations in respect of issues similar to those in the present case.<\/p>\n

11. 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, the Court considers that in the instant case the investigation failed to meet the criteria of effectiveness.<\/p>\n

12. These complaints are therefore admissible and disclose a breach of Article\u00a02 of the Convention under its procedural limb.<\/p>\n

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/strong><\/p>\n

13. Article 41 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

14. Regard being had to the documents in its possession and to its case\u2011law (see, in particular, Basyuk, cited above, \u00a7\u00a7\u00a074-80), the Court considers it reasonable to award the sum indicated in the appended table.<\/p>\n

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

1. Declares the application admissible;<\/p>\n

2. Holds that this application discloses a breach of Article\u00a02\u00a0\u00a7\u00a01 of the Convention concerning the ineffective investigation into the death of the applicant\u2019s son;<\/p>\n

3. Holds<\/p>\n

(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;<\/p>\n

(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.<\/p>\n

Done in English, and notified in writing on 21\u00a0September\u00a02023, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and\u00a03 of the Rules of Court.<\/p>\n

Viktoriya Maradudina \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0Carlo Ranzoni
\nActing Deputy Registrar \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0President<\/p>\n

____________<\/p>\n

APPENDIX<\/strong>
\nApplication raising complaints under Article 2 \u00a7 1 of the Convention
\n(ineffective investigation into deaths without involvement of State agents)<\/p>\n\n\n\n\n\n
Application no.<\/strong><\/p>\n

Date of introduction<\/strong><\/td>\n

Applicant\u2019s name<\/strong><\/p>\n

Year of birth<\/strong><\/td>\n

Background to the case and domestic proceedings<\/strong><\/td>\nKey issues<\/strong><\/td>\nAmount awarded for non-pecuniary damage<\/strong><\/p>\n

(in euros)[1]<\/a><\/strong><\/td>\n<\/tr>\n<\/thead>\n

35431\/21<\/p>\n

26\/06\/2021<\/td>\n

Petro Mykhaylovych LEZNYUK<\/strong><\/p>\n

1946<\/td>\n

The applicant\u2019s son I. died on 12\/11\/2001 while crossing the street in an unauthorised place. He had been hit by a car driven by Mr\u00a0Ch. Investigation authorities, on numerous occasions, refused to initiate criminal proceedings in view of the victim\u2019s conduct. Eventually, on 19\/05\/2014 criminal proceedings were instituted. From June 2014 until March 2015 the following investigatory action were conducted: technical forensic examinations, medical forensic examinations, and witnesses\u2019 interrogation. On 19\/03\/2015 the criminal proceedings were discontinued. The applicant challenged that decision following which the proceedings were resumed. Further on, the criminal proceedings were discontinued and resumed on several occasions.<\/p>\n

On 30\/11\/2018 the proceedings were discontinued. There is no indication that the applicant was informed of the decision. In a final decision, on 07\/10\/2020 the Supreme Court of Ukraine rejected the applicant\u2019s claim for compensation of damage caused by the ineffective investigation finding that the applicant had failed to prove illegal actions of the authorities and the resulting damage.<\/td>\n

applicant\u2019s rights as a victim were not properly safeguarded (Sergey Shevchenko v. Ukraine<\/em>, no. 32478\/02, \u00a7 74, 4 April 2006; Prynda v.\u00a0Ukraine<\/em>, no. 10904\/05, \u00a7 56, 31 July 2012; Masneva v. Ukraine<\/em>, no. 5952\/07, \u00a7 56, 20\u00a0December 2011),<\/p>\n

decisions refusing to institute proceedings issued without the circumstances of the case having been properly examined (Oleynikova v.\u00a0Ukraine<\/em>, no. 38765\/05, \u00a7\u00a7 80-81, 15\u00a0December 2011, with further references),<\/p>\n

lack of thoroughness and promptness which undermined the authorities\u2019 ability to establish the circumstances of the case<\/p>\n

(Igor Shevchenko v. Ukraine<\/em>, no. 22737\/04, \u00a7\u00a060, 12\u00a0January 2012; Zubkova v. Ukraine<\/em>, no.\u00a036660\/08, \u00a7 40, 17 October 2013),<\/p>\n

progressive deterioration\/loss of evidence (Antonov v. Ukraine<\/em>, no. 28096\/04, \u00a7 50, 3\u00a0November 2011)<\/td>\n

6,000<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

[1]<\/a> Plus any tax that may be chargeable to the applicant.<\/p>\n