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FIFTH
SECTION
CASE OF ANTONOV v. UKRAINE
(Application
no. 28096/04)
JUDGMENT
STRASBOURG
3
November 2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Antonov v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Dean Spielmann,
President,
Elisabet Fura,
Karel Jungwiert,
Mark
Villiger,
Isabelle Berro-Lefèvre,
Ann
Power-Forde,
Ganna Yudkivska, judges,
and
Claudia Westerdiek, Section
Registrar,
Having
deliberated in private on 11 October 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 28096/04) against Ukraine
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Ukrainian national, Mr Viktor Timofeyevich
Antonov (“the applicant”), on 13 July 2004.
- The
applicant was represented by Mr D.V. Antonov, a lawyer practising in
Donetsk, and Mr V.V. Skyba of the Centre for Democracy and Freedom,
Donetsk. The Ukrainian Government (“the Government”) were
represented by their Agent, Mr Y. Zaytsev.
- The
applicant alleged, in particular, that the State authorities had
failed to take all reasonable measures to establish the circumstances
of his son’s accidental death.
- On
22 June 2009 the President of the Fifth Section decided to give
notice of the application to the Government. It was also decided to
rule on the admissibility and merits of the application at the same
time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1940 and lives in Kirove, Dzerzhynsk.
- On
3 March 1998 Igor Antonov, the applicant’s adult son was
hitchhiking on an intercity motorway and was hit by a car being
driven by V.L. Soon after the accident Igor Antonov died in the
hospital.
A. Official investigation of the death of the
applicant’s son
- On
3 March 1998 (the date of the accident) a Krynychansky Road Police
expert examined the accident site and drew up an accident report.
- On
9 March 1998 an expert facility of the Krynychansky Road Police
concluded, on the basis of the accident report, that the driver had
not been able to avoid the collision in view of the sudden appearance
of the victim on the road.
- On
14 March 1998 the Krynychansky Road Police produced a one-page
statement refusing to initiate criminal proceedings against the car
driver, referring to the findings by the expert facility.
- On
8 July 1998 the Pyatykhatsky District Prosecutors’ Office
revoked this decision and initiated criminal proceedings in respect
of the accident. The case was transferred to the Pyatykhatsky Police
Department and subsequently to the Dnipropetrovsk Regional Police
Department.
- On
7 August 1998 a post-mortem examination of Igor Antonov was
conducted.
- On
10 August 1998 the applicant was admitted to the proceedings as an
injured party.
- On
28 August 1998 an expert assessment was carried out on the vehicle
which had hit Igor Antonov.
- On
17 September 1998 the criminal proceedings were discontinued, for
want of evidence that V.L. had been at fault in hitting the
applicant’s son.
- On
28 November 1998 the Dnipropetrovsk Regional Prosecutors’
Office revoked this decision, having found it insufficiently
substantiated, and remitted the case for further investigation.
- Between
November 1998 and September 2002 the investigating authorities
ordered the criminal proceedings to be discontinued on five occasions
for want of evidence of criminal conduct on the driver’s part.
All of these decisions were subsequently quashed by the supervising
police officials or the Prosecutors’ Office on account of
procedural omissions in the investigation.
- On
20 November 1998 and 19 July 2001, in response to complaints by the
applicant, the Prosecutors’ Office acknowledged that the
investigation had been carried out with a number of procedural flaws.
- On
31 October 2002 the criminal proceedings were again discontinued for
want of evidence of a crime.
- On
15 November 2002 the Prosecutors’ Office approved this decision
and archived the case file materials. The applicant appealed before
the Babushkinsky District Court of Dnipropetrovsk (hereafter “the
Babushkinsky Court”).
- On
3 March 2003 the Babushkinsky Court dismissed the applicant’s
appeal. The applicant further appealed to the Dnipropetrovsk Regional
Court of Appeal (hereafter “the Court of Appeal”).
- On
21 January 2004 the Court of Appeal quashed the ruling of 3 March
2003 and ordered an additional investigation of the facts of the
accident. The court found that the investigation had been carried out
in violation of a number of procedural norms; the instructions of the
Prosecutors’ Office revoking the previous decisions to
discontinue the proceedings had not been carried out; also, the
conclusions concerning the material circumstances of the case had
been poorly substantiated. In particular, the investigating
authorities had failed to establish the precise site of the collision
as well as to determine which part of the victim’s body had
been hit. Furthermore, they had failed to justify the findings
concerning the distance between the victim and the vehicle at the
moment of the victim’s appearance on the road as well as those
concerning the victim’s speed. The reconstruction of the events
had been carried out in absence of the eyewitnesses and any
bystanders. No information had been collected as regards the
disappearance of the victim’s clothes and shoes, which could
have served as important physical evidence. The court further found
that the expert opinions, which formed the basis of the conclusions
by the investigation, were based on data collected with procedural
flaws and could therefore not be deemed reliable.
- Between
November 2004 and February 2007 the criminal proceedings were
discontinued three more times for want of evidence of a crime and
subsequently resumed following the revocation of these decisions by
the Prosecutors’ Office.
- On
27 February 2007 the investigating authorities again discontinued the
proceedings for want of evidence of a crime. The Prosecutors’
Office approved this decision. In May 2007 the applicant appealed
before the Babushkinsky Court, seeking resumption of the
investigation.
- On
15 August 2007 the Babushkinsky Court quashed this decision, finding,
in particular, that the investigating authorities had failed to
reconcile various pieces of evidence and had not complied with the
instructions of the Court of Appeal of 21 January 2004 as regards
rectification of the omissions of their previous investigation.
- On
16 July 2009 and 12 April 2011 the Babushkinsky Court quashed two
further decisions to discontinue the proceedings (taken on 6 February
2009 and 3 April 2010 respectively) and ordered a further
investigation, finding that the law-enforcement authorities had not
completely remedied earlier shortcomings as they had been instructed,
and had closed the proceedings prematurely.
- On
29 April 2011 the Dnipropetrovsk Regional Court of Appeal annulled
the decision of 12 April 2011 and remitted the case for a fresh
consideration.
B. Other proceedings
- On
28 August 2001 the Pyatykhatsky District Police separated the
applicant’s complaint concerning the disappearance of his son’s
belongings from the proceedings concerning investigation of the
circumstances of his death. The parties did not inform the Court
about the outcome of these proceedings.
- On
28 February 2008 the Court of Appeal of the Autonomous Republic of
the Crimea, acting as the court of cassation, remitted for fresh
consideration the applicant’s civil action against the
investigator Sh., in which he was seeking damages for inadequate
investigation of his son’s death.
- On
17 September 2008 the Supreme Court of Ukraine refused the applicant
leave to appeal in cassation against the rulings of the lower courts
dismissing his civil claim against the law-enforcement authorities
for failure to carry out an effective investigation into his son’s
death.
- On
19 November 2008 the Donetsk District Administrative Court refused to
consider the applicant’s complaint of omissions on the part of
the law-enforcement authorities investigating his son’s death.
The court claimed to have no jurisdiction over the subject matter of
the complaint, as the shortcomings of the investigation could only be
assessed by a criminal court within the framework of examination of
the criminal case. On 8 May and 25 November 2009 the Donetsk
Administrative Court of Appeal and the Higher Administrative Court,
respectively, upheld this decision.
II. RELEVANT DOMESTIC LAW
A. Relevant criminal law provisions
- According
to Article 215 of the Criminal Code of Ukraine of 1960 a driver, who,
having breached the rules of road safety or correct use of his
vehicle, has caused a human death, could be divested of his driver’s
licence for up to a five-year term and sentenced to a term of
imprisonment of up to ten years. Article 286 of the Criminal Code of
Ukraine of 2001, which replaced the above provision, reduced the
maximum term of imprisonment for the same offence to eight years and
the maximum term of revocation of the drivers’ licence to three
years.
B. Other relevant provisions of domestic law
- The
relevant provisions of the Constitution of Ukraine and the Code of
Criminal Procedure of Ukraine can be found in the judgment in the
case of Muravskaya v. Ukraine (no. 249/03, §§ 35-36,
13 November 2008).
- The
relevant provisions of the Civil Code of Ukraine and the Code of
Civil Procedure of Ukraine can be found in the judgment in the case
of Fedina v. Ukraine (no. 17185/02, §§ 43-45, 2
September 2010).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
- The
applicant complained that the State authorities had failed to take
all reasonable measures to establish whether or not V.L. had been at
fault in respect of his son’s death and that the relevant
criminal proceedings were lengthy and unfair. He relied on Articles
2, 6 § 1 and 13 of the Convention in respect of these
complaints.
- The
Court, which is 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, which is the relevant
provision (see, mutatis mutandis, Mikhalkova and Others v.
Ukraine, no. 10919/05, §§ 24 25, 13 January
2011, and Anna Todorova v. Bulgaria, no. 23302/03, §§
74, 84-87, 24 May 2011). This provision, in so far as relevant, reads
as follows:
“1. Everyone’s right to life
shall be protected by law. No one shall be deprived of his life
intentionally save in the execution of a sentence of a court
following his conviction of a crime for which this penalty is
provided by law.”
A. Admissibility
- The
Government alleged that this part of the application was inadmissible
for non-exhaustion of domestic remedies. In particular, the applicant
should have instituted an administrative action against the
law enforcement authorities, challenging the omissions of their
investigation. While the applicant admittedly had lodged some
complaints to this end in civil proceedings, a civil court was not
the proper forum for examining them, so the civil remedies were
futile from the very beginning.
- The
applicant disagreed. He submitted that he had exhausted all the
remedies available under the domestic law for his complaint,
including numerous complaints to various competent executive
authorities, civil actions and an administrative action. None of
these remedies, available in theory, proved to be effective in
practice.
- The
Court points out that it appears from the case file materials that
the applicant did in fact avail himself of the remedy referred to by
the Government (see paragraph 30 above). In particular, he aired his
complaint of omissions by the law-enforcement authorities’ in
the administrative courts at three levels of jurisdiction. The latter
refused to examine his complaint on the merits, referring to lack of
jurisdiction over questions of quality of criminal investigations.
The remedy suggested by the Government has therefore proved to be
ineffective in the applicant’s case. The Government’s
objection should therefore be dismissed.
- The
Court further notes that the applicant’s complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 (a)
of the Convention. It further notes that it is not inadmissible on
any other grounds. It must therefore be declared admissible.
B. Merits
1. The submissions of the parties
- The
applicant alleged that Ukraine had not put in place an adequate
framework to protect his son’s life. Although legislative
provisions had rightfully been adopted envisaging criminal liability
for causing innocent deaths by negligent driving, the enforcement
framework, including the conduct of the investigating, judicial and
other pertinent authorities, had divested the legislative framework
of any meaning.
- In
particular, the State was under an obligation to respond to Igor
Antonov’s death by verifying, through an official
investigation, whether or not the driver’s actions fell within
the ambit of the applicable criminal-law provisions. In the meantime,
the investigation had been perfunctory and had not led to the
establishment of relevant facts. The courts had acted
unprofessionally in handling the applicant’s complaints about
specific omissions on the part of the investigating authorities and
had proved incapable of restraining the investigating authorities’
casual attitude. In the general climate of corruption, neglect for
human rights and incompetence encountered by the applicant in his
communications with the authorities in the context of the criminal
investigation of his son’s death, there could be no domestic
avenue of redress for his son’s killing which could reasonably
be expected to be effective in practice.
- The
Government agreed that they had an obligation to conduct, on their
own initiative, an official investigation of the circumstances of
Igor Antonov’s death and to take all reasonable measures to
establish the relevant facts, including the extent to which the
driver had possibly been at fault in respect of negligent driving.
They further submitted that since Article 2 obligations generally
required the State to take reasonable measures to establish the
identity of those responsible for unnatural deaths, a civil action
against the driver or the vehicle owner could not constitute an
effective remedy in the context of the present complaint. In
particular, the only remedy inherent in civil litigation, a
compensatory payment, could not be regarded as sufficient redress for
the applicant’s son’s death.
- The
Government further submitted that they had carried out the
investigation in good faith. In particular, a number of investigative
activities had been carried out, including questioning of witnesses,
reconstructions of the accident scene and various expert assessments.
Since at the time of compiling the Government’s observations
the investigation was still under way, more detailed comments on its
peculiarities could be prejudicial to its independence and
impartiality.
2. The Court’s assessment
(a) General principles
- The Court reiterates that the first sentence of
Article 2 of the Convention requires the States, in particular, to
put in place a legislative and administrative framework designed to
provide effective deterrence against threats to the right to life in
context of any activity, whether public or not, in which the right to
life may be at stake (see, among other authorities, Öneryıldız
v. Turkey [GC],
no. 48939/99, §§ 89-90, ECHR 2004-XII; Kalender
v. Turkey, no. 4314/02, § 51, 15 December 2009; and Krivova
v. Ukraine, no. 25732/05, § 44, 9 November 2010). It
further requires that, where a life-threatening injury or a
death occurs, an effective independent judicial system is set up to
ensure enforcement of the aforementioned legislative framework by
providing appropriate redress (see, for example,
Anna Todorova v. Bulgaria, no. 23302/03, §
72, 24 May 2011). This obligation
indisputably applies in the context of designing a framework for
protection of life from road traffic accidents (see,
for example, Rajkowska v. Poland
(dec.), no. 37393/02, 27 November 2007; Al
Fayed v. France (dec.), no. 38501/02, §§ 73-78,
27 September 2007; Railean v. Moldova,
no. 23401/04, § 30, 5 January 2010).
- An
effective judicial system, as required by Article 2, may, and under
certain circumstances must, include recourse to the criminal law (see
e.g. Railean, cited above, § 27 and Fedina, cited
above, § 62). However, where an accident has been caused by pure
negligence without aggravating circumstances, the Court may be
satisfied if the legal system affords victims a remedy in the civil
courts, enabling any liability of the parties concerned to be
established and any appropriate civil redress, such as an order for
damages to be obtained (see Furdik v. Slovakia (dec.), no
42994/05, 2 December 2008; Fedina, cited above, §
66; Krivova, cited above, § 50;
Ciechońska v. Poland, no. 19776/04, § 77, 14
June 2011; and Anna Todorova, cited above, §§
79-80).
- In principle, the States should have a margin of
appreciation in deciding how a system for the enforcement of a
regulatory framework protecting the right to life must be designed
and implemented (see Furdik (dec.), cited above). What
is important, however, is that whatever the mode of the
investigation, the available
legal remedies, taken together, must amount to legal means capable of
establishing the facts, holding accountable those at fault and
providing appropriate redress (see, for
example, Ciechońska, cited above, § 71).
Any deficiency in the investigation,
undermining its ability to establish the cause of the death or those
responsible for it may bring to the finding that the Convention
requirements have not been met (see Pereira Henriques v.
Luxembourg, no. 60255/00, § 57, 9 May 2006). This
requires by implication that that the investigation be prompt and
free from unnecessary delays (see e.g. Railean, cited above,
§ 33).
(b) Application of the general principles
to the present case
- Turning
to the facts of the present case, the Court notes that the applicant
complains in essence only that the criminal proceedings were
ineffective, and that he never attempted to lodge a civil claim
against the vehicle owner or the driver who had fatally hit his son.
This element distinguishes the present case from a number of other
accidental death cases, in which the Court, in assessing whether the
State had complied with its Article 2 obligations, attached
significant weight to whether or not a compensatory civil remedy was
available to an aggrieved party (see, for example, Rajkowska
(dec.), cited above; Fedina, cited above, § 66; Krivova,
cited above, §§ 50-51; Ciechońska, cited above,
§ 77; and Anna Todorova, cited above, § 80).
- It
appears from the Court’s recent case-law that the Ukrainian
legislative framework envisages the possibility for the relatives of
accident victims to institute civil proceedings or to lodge a claim
in criminal proceedings for the purpose of obtaining monetary
compensation for the injury or death. Compensation could have been
obtained, in particular, where a defendant’s negligence has
been shown (see Lovygina v. Ukraine (dec.), no.
16074/03, 22 September 2009 and Krivova, cited above, §§
17 and 32) or under strict liability rules, where an inherently
hazardous activity was the cause of the death (see Fedina,
cited above, §§ 43, 44 and 66). According to the Civil Code
of 1963, in force at the time of Igor Antonov’s death, car
owners were expressly listed as strictly liable for damage caused by
their vehicles (see Fedina, cited above, § 43).
- It
is doubtful, however, whether these remedies would have been
appropriate in the applicant’s situation. In particular, it
appears that the applicant was in any event precluded from lodging a
civil claim within the criminal-proceedings framework, since without
an official indictment there was no defendant to lodge such a claim
against (see Kositsina v. Ukraine (dec.), no. 35157/02, 15
January 2008). As regards a possibility to institute separate civil
proceedings based on negligence or strict liability rules, without
awaiting the outcome of the official investigation, the Court notes
that the Government themselves have pleaded that these remedies would
have been ineffective in the applicant’s case. In these
particular circumstances the Court can neither hold against the
applicant that he did not avail himself of such remedies, nor is it
called upon to assess their potential effectiveness in abstracto
(see Dodov v. Bulgaria, no. 59548/00, § 86, ECHR
2008 , and Dobrev v. Bulgaria, no. 55389/00, §§
112-114, 10 August 2006). It will therefore confine itself to
examining whether the criminal investigation into Igor Antonov’s
death met the minimum criteria of effectiveness required by Article 2
of the Convention.
- In
this regard the Court notes that, while the site was examined on the
date of the accident, the criminal investigation was initiated only
four months later. This delay inevitably led to the deterioration of
important evidence (including decomposition of the corpse,
disappearance of possible marks on the road surface and so on).
Further, the investigation has lasted over twelve years and has been
characterised by more than ten remittals of the case for
re-examination and collection of additional materials. On various
occasions the domestic authorities themselves acknowledged that the
investigating officers had acted without due diligence when
collecting evidence and ignored instructions given by their
hierarchical superiors and domestic courts.
- In
as much as the criminal investigation, characterised by repeated
remittals for re-investigation and numerous shortcomings in
collection of evidence, failed to shed sufficient light on the facts
surrounding the death of the applicant’s son within a
reasonable timeframe, it also cannot be discerned that the civil-law
remedy, if available, would have been able to remedy these
shortcomings.
- The
Court concludes that the legal system as a whole, faced with an
arguable case of a negligent act causing death, failed to provide an
adequate and timely response consonant with the State’s
obligation under Article 2 of the Convention to provide an effective
judicial system. There has therefore been a violation of that
provision.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- In
addition, the applicant complained under Article 1 of Protocol No. 1
about the disappearance of his son’s belongings, either from
the accident site or from the hospital in which he died. He also
generally complained about corruption, neglect of human rights and
incompetence within the public governance system, and cited Articles
1, 17, 18 and 53 of the Convention and Article 3 of Protocol No. 7 in
connection with the facts of the present case.
- Having
considered the applicant’s submissions in the light of all the
material in its possession, the Court finds that, in so far as the
matter complained of is within its competence, it does not disclose
any appearance of a violation of the rights and freedoms set out in
the Convention.
- It
follows that this part of the application must be declared
inadmissible as being manifestly ill-founded, pursuant to Article 35
§§ 3 (a) and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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.”
A. Damage
- The
applicant initially claimed the global sum of 100,000 euros (EUR) in
respect of damage and costs allegedly sustained by him on account of
violations of his Convention rights. Subsequently, within the
time-limit allotted by the Court for providing claims for just
satisfaction, the applicant updated his claims and sought EUR 100,000
in compensation for non-pecuniary damage only. In addition, he
claimed 24,023.15 Ukrainian hryvnias (UAH) in pecuniary damages,
comprising expenses for correspondence with the Court, translation
and copying documents, legal, court and translation fees,
compensation for Igor Antonov’s lost or stolen belongings,
transport and mobile communication costs and medical expenses.
- The
Government noted that the applicant had arbitrarily modified his
submissions. They further noted that in any event his submissions
with respect to non-pecuniary damage had been exorbitant and
unsubstantiated. As regards pecuniary damage, they accepted that it
was reasonable to reimburse the applicant his postal expenses.
- The
Court does not discern any causal link between the violation found
and the alleged cost of the disappeared belongings of Igor Antonov;
it therefore rejects this claim. As regards the remainder of the
claims concerning “pecuniary damage”, in the Court’s
view they should be considered under the head of “Costs and
expenses” below. As regards the applicant’s claim for
non-pecuniary damage, the Court considers that the applicant must
have suffered anguish and distress on account of the facts giving
rise to the finding of a violation in the present case, that cannot
be made good by a finding of a violation alone. Ruling on an
equitable basis, the Court awards the applicant EUR 15,000 in respect
of non-pecuniary damage.
B. Costs and expenses
- The
applicant claimed UAH 1,000.10 in correspondence expenses; UAH
1,126.31 in copying expenses; UAH 197.45 in computer services; UAH
1,236.60 in transportation fees; UAH 4,356.12 in medical expenses;
UAH 1,882.17 in domestic court and expert assessment fees; UAH 6,034
in legal fees; UAH 1,980 in translation fees; UAH 1,136.00 in mobile
telephone communication expenses. He presented voluminous
documentation, containing receipts and other documents in evidence of
the payment of the above expenses.
- According
to the Court’s 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 case, regard being had to
the documents in its possession and the above criteria, the Court
rejects the claim for medical bills and mobile telephone
communication costs and awards the applicant EUR 1,200 to cover other
costs.
C. Default interest
- The
Court considers it appropriate that the default interest 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
- Declares the complaint concerning the failure of
the State to take reasonable measures to establish the circumstances
of Igor Antonov’s death admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
2 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months of
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 15,000 (fifteen thousand
euros) in respect of non-pecuniary damage and EUR 1,200 (one thousand
two hundred euros) in costs and expenses, plus any tax that may be
chargeable to the applicant in respect of these amounts, to be
converted into the national currency of Ukraine at the rate
applicable on 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;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 3 November 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Dean Spielmann
Registrar President
