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FIFTH
SECTION
CASE OF OLEYNIKOVA v. UKRAINE
(Application
no. 38765/05)
JUDGMENT
STRASBOURG
15
December 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 Oleynikova v.
Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Dean Spielmann,
President,
Elisabet Fura,
Karel
Jungwiert,
Boštjan M. Zupančič,
Mark
Villiger,
Ganna Yudkivska,
Angelika Nußberger,
judges,
and Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 22 November 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 38765/05)
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, Ms Valentina Alekseyevna Oleynikova (“the
applicant”), on 19 October 2005.
- The
applicant was represented by Mr A. V. Goncharenko, a lawyer
practising in Kharkiv. The Ukrainian Government (“the
Government”) were represented by their Agent, Mr Yuriy Zaytsev,
succeeded by Ms Valeria Lutkovska.
3. The
applicant alleged that there had been no effective domestic
investigation into the death of her son.
- On
1 June 2010 the Court decided to give notice of
the application to the Government.
It 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 1956 and lives in Kharkiv.
A. Death of the applicant’s son and related
events
- On
30 June 2002 the applicant’s son, D., who was then nineteen
years old, had a picnic with his friends (Mr) L., (Ms) N. and (Ms) G.
on the bank of a lake not far from the village of Staryy Saltiv in
the Kharkiv region. They drank some alcohol and took a swim.
According to D.’s friends, D. could not swim and stayed in the
shallow part of the lake. As submitted by the applicant, he had
aquaphobia.
- That
evening D. and L. had a fight with a group of about ten young people
picnicking nearby, which left D. with a bleeding nose and an injured
lip.
- According
to L., N. and G., after the fight was over and the other group left
for their camp, D. washed his face in the lake. Shortly afterwards,
at about 11 p.m., he took a towel and went towards some bushes in the
opposite direction to the lake.
- Some
minutes later, worried by his absence, L. and the girls started
looking for him. They continued the search for about three hours, but
to no avail. At some point N. thought she had heard D.’s voice,
saying that he was there and that he was unwell, after which it had
been interrupted abruptly as if forcibly stifled. The others did not
hear anything. The friends asked two fishermen fishing nearby whether
they had seen D., but were told in reply that there had been many
young men passing by. Having met three persons from the “rival”
group, L. asked whether they had seen D., but they replied that they
had not. Shortly after that four teenagers, including one of the
three mentioned above, approached L., N. and G. and asked whether
they had found D. On hearing that they had not, they wished them
“good luck with the search” with what D.’s friends
perceived as ironic smiles.
- L.,
N. and G. decided to wait until dawn to continue the search. While L.
and N. were asleep, G. heard some muffled noises not far from their
camp, followed by a splash.
- Having
resumed the search at 5 a.m. on the following day, 1 July 2002, L.
and the girls found D.’s towel on a tree some fifty metres from
their campsite. D.’s dead body was floating in the lake about
twenty metres from the bank. L. brought it back to the shore. He
noticed a bruise on D.’s head, which he did not remember having
been there after the fight.
- L.,
N. and G. went to call the police.
- The
youths from the other group left their camp at dawn and took the
first morning bus to Kharkiv.
B. Investigation into the death
- On
the morning of 1 July 2002 the police, having been informed of D.’s
death by his friends, intercepted the aforementioned bus and
apprehended some of the young people in question.
- According
to a report drafted on the same date by the officer on duty at Staryy
Saltiv police station, at 7 a.m. L. had informed the police of D.’s
drowning. The following officials had gone to inspect the scene of
the incident: the prosecutor, an investigator from the prosecutor’s
office, a forensic medical expert, the deputy chief of the
investigation unit of the local police station, and the neighbourhood
police inspector.
- According
to an on-site inspection report of the same date, the scene where the
body had been discovered was inspected from 8 to 9 a.m. It was
stated in the report that the inspection group had discovered D.’s
body floating in the lake three metres from the bank and had taken it
to the shore. The report was signed by the prosecutor, the
investigator, two medical experts, and two attested witnesses.
- The
applicant arrived at the scene at some point during the
aforementioned inspection.
- The
case file also contains an “accident report” of 1 July
2002 signed by the head of the Staryy Saltiv rescue station and a
nurse (apparently from the same rescue station). It is limited to
outlining the following events and their timing: 8.30 a.m. –
receipt of the information about the accident; 8.40 a.m. –
arrival at the scene; and 8.45 a.m. – removal of the body
from water.
- Still
on 1 July 2002, a post mortem was conducted. It gave drowning as the
cause of D.’s death.
- At
some point in July 2002 the applicant complained to the Vovchansk
Town Prosecutor’s Office (hereafter “the VTPO”)
that the persons with whom her son had been fighting could have been
involved in his death and sought the initiation of a criminal
investigation into the matter.
- Later
in July 2002 she additionally brought to the prosecutor’s
attention the fact that on the arrival of the police at the site on 1
July 2002 the body of her son had been found in the water several
metres from the shore, while L. had clearly stated that he had
already taken it out. It was unclear in what circumstances the body
had been put back into the water.
- On
16 July 2002 the applicant complained to the Kharkiv Regional
Prosecutor that the VTPO had been refusing to accept her complaints
under the pretext that the prosecutor’s personal authorisation
was required for that. Having received some additional facts from L.,
N. and G., the applicant brought them to the attention of the
prosecution. She had found out, in particular, that two of the
persons who had fought with her son, nicknamed T. and U., had
apparently had a previous conflict with D. During the fight on 30
June 2002 they had violently plunged L. into the water. Later, the
young man nicknamed T. had been among those who had wished D.’s
friends “good luck with the search”. Furthermore, the
group who had attacked D. and L. had hastily left their own campsite
at dawn on 1 July 2002. When being apprehended, some of them had
referred to the connections and influence of their parents as a
threat to the police. T. and U. had later gone into hiding.
- On
19 July 2002 the VTPO investigator decided not to open criminal
proceedings regarding the death of the applicant’s son, having
concluded that it had been an accident. The decision was mainly based
on the post mortem report, according to which D. had died by
drowning. As to the fight which had taken place on the eve of the
death, the investigator considered that its circumstances disclosed
elements of hooliganism. The case was therefore referred to the
Vovchansk police department for further verification in that regard.
- As
a result, on 21 July 2002 criminal proceedings were instituted in
respect of the fight of 30 June 2002, which was classified as
hooliganism.
- On
22 July 2002 the VTPO investigator ordered a forensic medical
examination with a view to clarifying the following issues: (a)
whether there were any injuries on D.’s body and, if so, what
their origin was and how serious they were; (b) what the cause of the
death was; and (c) whether D. had consumed alcohol before his death.
- On
10 August 2002 the forensic examination was completed. According to
its report, D. died from “asphyxia caused by water blocking the
airways as a result of drowning”. The expert noted that there
was a bruise on D.’s head and a wound on his lower lip. He
concluded that those injuries, which might have been caused by blunt
objects, had been sustained shortly before D. had died, but had no
relation to his death. It was also noted that D. had been moderately
drunk at the time of his drowning.
- On
25 October 2002 the Vovchansk Town Court (“the Vovchansk
Court”) set aside the investigator’s decision of 19 July
2002 not to institute criminal proceedings regarding the death. Its
criticism mainly concerned the absence of any conclusion as to the
possible connection between the fight and the subsequent drowning of
the applicant’s son. Furthermore, the court noted that the case
file did not contain the post mortem report referred to.
- On
21 November 2002 the VTPO again refused to open a criminal case,
given that while D.’s death had indeed been preceded by the
fight, there had been no causal link between those two events. The
investigator relied, in particular, on the statements of the youths
with whom D. and L. had had the fight, who claimed to have stayed in
their camp all night and not have seen or heard anything suspicious.
They explained their hasty departure from the campsite early in the
morning on 1 July 2002 by having panicked following the discovery of
D.’s body in the lake.
- On
12 August 2003 another forensic medical examination regarding D.’s
death was completed, this time undertaken as part of the criminal
investigation into hooliganism. It concluded that D. had died as a
result of drowning, some eight to twelve hours before the examination
of his body (conducted at 8.50 a.m. on 1 July 2002). The following
injuries to the body had been documented: a bruise on the left of the
forehead, a bruise on the lower lip, and an abrasion on the chin. All
these injuries were classified as light and estimated to have been
inflicted by solid blunt objects shortly before D. died. However, no
causal link was established between those injuries and the death.
After D. had sustained them, he would have been able to act
consciously and move. Lastly, the report noted that, at the time of
his death, D. had been moderately drunk.
- On
24 November 2003 the Vovchansk Court quashed the prosecutor’s
decision of 21 November 2002, refusing to institute criminal
proceedings concerning D.’s death as being premature and based
on an incomplete and perfunctory investigation in disregard of the
court’s earlier guidelines. It noted, in particular, the
following:
“... [The applicant’s] complaints and
submissions have not in fact been verified, additional explanations
have not been taken from specific [witnesses], and the necessary
documents, in particular, the forensic medical reports regarding the
nature and location of D.’s injuries and the cause of his
death, as well as the results of the operational enquiry measures,
have not been studied. ... In the court’s opinion, the
[decision] complained of is premature and not based on thoroughly
verified data, while the arguments contained therein are
unconvincing.”
- On
24 December 2003 the VTPO once again refused to initiate criminal
proceedings stating that there was no case to answer. This decision
was based on the lack of any established connection between the fight
and the resulting injuries on the one hand and the drowning of D. on
the other. The investigator relied on the statements of the witnesses
(the deceased’s friends and some of those with whom D. and L.
had been fighting) and the findings of the forensic medical reports.
- The
applicant unsuccessfully challenged that refusal before the domestic
courts at three levels of jurisdiction. On 12 March, 20 May 2004
and 10 February 2005 respectively, the Vovchansk Court, the Kharkiv
Regional Court of Appeal (“the Court of Appeal”) and the
Supreme Court, dismissed her complaint in that regard with succinct
reasoning that it was overall unsubstantiated.
- Meanwhile,
on 6 February 2004, the VTPO prosecutor had disciplined the
investigator in charge of the hooliganism case (see paragraph 24
above) for the latter’s failure to comply with his superiors’
guidelines and to duly report on the progress of the investigation
since the institution of the proceedings on 21 June 2002.
- On
25 August 2005 the General Prosecutor’s Office (“the
GPO”) quashed the investigator’s decision of 24 December
2003 (see paragraph 31 above) as premature. The parties did not
provide a copy of this decision of the GPO to the Court.
- On
24 September 2005 the VTPO again refused to institute criminal
proceedings in respect of D.’s death. The reasoning of this
decision was identical to that of the earlier one of 24 December
2003, except that the investigator inserted a new paragraph with his
critical assessment of the statements of D.’s friends about
having heard some stifled cries. The investigator considered them to
be too vague and not at variance with the version that the death had
been an accident. He also noted that there appeared to have been no
witnesses to the death.
- The
applicant challenged that decision before the Vovchansk Court.
Following several dismissals of her complaint on procedural grounds,
it was finally accepted for examination.
- On
16 March 2006 the Moskovskyy District Police Department in the
Kharkiv Region terminated the criminal proceedings regarding the
hooliganism offence (instituted on 21 July 2002), having found that
there was no indication of a crime. The investigator noted, in
particular, that the fight in question had not breached public order,
having taken place in a forest where it could not have disturbed
anybody. Furthermore, it had resulted in light injuries found to have
had no connection to D.’s death.
- On
16 January 2008 the case regarding D.’s death was transferred
to the Velykyy Burluk Town Court (hereafter “the Velykyy Burluk
Court”), as all the judges of the Vovchansk Court had already
sat in it.
- On
26 February 2008 the Velykyy Burluk Court quashed the VTPO’s
decision of 24 September 2005 (see paragraph 35 above), having found
that the additional investigation undertaken pursuant to the GPO’s
ruling of 25 August 2005 had failed to comply with the latter’s
instructions despite their binding nature. The court also reiterated,
in substance, the criticism which had earlier been expressed by the
Vovchansk Court in its ruling of 24 November 2003 (see paragraph 30
above).
- The
Velykyy Burluk Court also specified the measures to be undertaken in
the course of the additional investigation, such as the further
questioning of N. and G. on account of the noises and cries they
claimed to have heard after D.’s departure, as well as the
questioning of L., who had not been examined at all in that regard.
Furthermore, the investigation had to identify three persons who had
been present during the on-site inspection on 1 July 2002 by the
operational enquiry group without disclosing their identities and
without their presence having been recorded in the police report.
Referring to the confirmed threats the teenagers had made about their
influential relatives to the police officers during their
apprehension, the court noted that the applicant had in fact reasons
to fear that those persons could have been relatives in high-ranking
posts in law-enforcement authorities. Her allegation that the body of
her son had been put back into the water after L. had already brought
it out to the shore had to be verified as well. Moreover, the origin
of all the injuries on D.’s body remained to be clarified,
given the witnesses’ statements that not all of them had
resulted from the fight of 30 June 2002. It was also necessary to
identify and question the two fishermen who had been near the camp of
D. and his friends during the night of 30 June 2002, the teenagers
who had allegedly enquired in a sarcastic tone about the search for
D., as well as the police officer who had arrived at the site first,
who had waited there alone for his colleagues to arrive and might
therefore have been able to offer an explanation as to how the body
had ended up back in the lake. The court also instructed the
investigation to find out whether there had been any plankton from
the lake in issue in D.’s lungs. Lastly, it was necessary to
clarify the outcome of the investigation initiated on 21 July 2002 in
respect of the fight (the court was apparently not aware that the
investigation in question had been terminated on 16 March 2006 –
see paragraphs 24 and 37 above).
- The
Velykyy Burluk Court underlined that all the aforementioned
instructions had already been given by the GPO in the ruling of 25
August 2005, but had remained unlawfully ignored.
- On
23 July 2008 the Vovchansk police department, to which the VTPO had
apparently forwarded the case, issued a decision refusing to
institute criminal proceedings regarding D.’s death. In
addition to the reasoning, which had already been given in the VTPO’s
decision of 24 September 2005 (see paragraph 35 above), the
investigator stated the following. He had interviewed one of the
police officers and one of the attested witnesses who had arrived at
the scene together with the other officials for the on-site
inspection on the morning of 1 July 2002 (see paragraphs 15-16
above). The officer had confirmed what had already been stated in the
report (ibid.). The attested witness had submitted that the body had
indeed been found floating in the water and that he had personally
taken it to the shore in the presence of the other participants of
the inspection. Lastly, the investigator referred to the accident
report issued by the rescue station staff (see paragraph 18 above),
without commenting on it. A general conclusion was reached that D.’s
drowning had been an accident.
- On
22 June 2010 the Vovchansk Court upheld the above decision.
- On
22 November 2010 the Court of Appeal quashed the aforementioned
ruling in allowing the applicant’s appeal and remitted the case
to the Vovchansk Court for fresh examination. It noted that the
first-instance court had incorrectly adjudicated the case in the
applicant’s absence. Furthermore, it had failed to duly assess
the lawfulness of the impugned decision of 23 July 2008. The Court of
Appeal noted, in particular, that the Vovchansk Court had left the
incompleteness of the investigation into D.’s death without any
legal assessment, having ignored the applicant’s argument in
that regard.
- On
28 February 2011 the Vovchansk Court quashed the investigator’s
decision of 23 July 2008 (see paragraph 42 above) and ordered an
additional investigation. It reasoned its ruling as follows:
“... The pre-trial investigation authority
implemented the guidelines of the ... General Prosecutor’s
Office of 25 August 2005 ... and ... the Velykyy Burluk Court ... of
26 February 2008 in an incomplete and perfunctory manner.
As can be seen from the submitted materials, the
pre-trial investigation authority failed to verify the arguments
about the possible connection between the hooliganism-driven beating
of [D.] on the night of 30 June 2002 and his subsequent death. Thus,
while on 21 July 2002 a criminal investigation ... was instituted
into the fact of hooliganism, the case file regarding the
investigation [into the death] does not contain any information about
its outcome.
Furthermore, the pre-trial investigation authority did
not verify [the applicant’s] argument that her son could not
have died swimming given that he had been afraid of water and could
not swim and that the depth of the lake at the place where the body
had been found was 0.6 metres.
Moreover, not all the participants of the fight have
been identified or questioned. This concerns, in particular, those
nicknamed U. and T., who might have been involved in the events that
took place on 30 June 2002 ...
Following the study of the materials on the basis of
which the impugned decision was taken [not to institute criminal
proceedings], it has been established that the investigator did not
fully implement the guidelines of the judge and the prosecutor and
that the additional investigation was incomplete...”
- On
25 March 2011 the Vovchansk police department issued another decision
refusing to institute criminal proceedings regarding D.’s death
with concise reasoning that it had been an accident. On 2 September
2011 the Kharkiv Regional Prosecutor quashed this decision as
unlawful and remitted the case to the VTPO for additional
investigation which is apparently still ongoing.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
relevant legal provisions can be found in Myronenko v. Ukraine,
no. 15938/02, §§ 28 and 29, 18 February 2010.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
- Relying
on Articles 2, 6 and 17 of the Convention, the applicant complained
that there had been no effective investigation into the death of her
son. The Court considers that the application falls to be examined
under Article 2 of the Convention alone, which reads, in so far as
relevant, as follows:
“Everyone’s right to life shall be protected
by law. ...”
A. Admissibility
- The
Court notes that the application 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 parties’ submissions
(a) The applicant
- Having
referred to the considerable length of the domestic investigation and
the lack of any final conclusions, the applicant contended that it
could not be regarded as effective.
- She
considered that the authorities had shown no genuine will to find out
how her son had died, having contented themselves, from the outset,
with the accident version. In her view, the reasoning of the
investigator’s repeated refusals to institute criminal
proceedings regarding her son’s death had hardly evolved over
years.
- Furthermore,
she expressed doubts regarding the independence of the investigation
authorities fearing that they could have been influenced by some
high-ranking law-enforcement officials related to the young people
with whom her son had had a fight shortly before his death.
- Lastly,
the applicant referred to numerous omissions and deficiencies in the
investigation and emphasised that they had been acknowledged by the
domestic judicial or prosecutorial authorities, but had nevertheless
remained without remedy.
(b) The Government
- The
Government argued that the domestic authorities had done everything
they could to establish the circumstances of D.’s death, having
acted with due promptness and diligence.
- They
noted that, as soon as the law-enforcement authorities had become
aware of the death, they had immediately embarked on its
investigation, having inspected the site where the body was
discovered, undertaken the post mortem and collected the first
witnesses’ statements on the very same day when the body was
found.
- The
Government also enumerated various further investigative measures
which they considered to have been taken without major delays. They
noted that the authorities had thoroughly verified the applicant’s
theory that D. had been murdered and had had to dismiss it as not
corroborated by sufficient evidence. The Government referred, in
particular, to the conclusions of several forensic medical reports,
according to which D. had died as a result of drowning while being
moderately drunk, with no traces of violence discovered additional to
the injuries sustained in the earlier fight.
- They
further considered the applicant’s allegation of a lack of
independence on the part of the investigation authorities to be
devoid of any basis.
- Finally,
the Government observed that the applicant had been actively involved
in the investigation process, having not only been kept informed of
its developments but also able to raise her concerns, which had
received due attention. They viewed the repeated remittals of the
case for additional investigation as having been aimed at a thorough
verification of all her complaints and submissions.
2. The Court’s assessment
- The
Court reiterates that Article 2 § 1 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 June 1998, § 36, Reports of Judgments and
Decisions 1998 III). This implies putting in place 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 October 1998, § 115,
Reports 1998 VIII).
- More
specifically, where death occurs in suspicious circumstances leaving
room for any allegations of an intentional taking of life, the State
must ensure some form of effective official investigation (see Menson
v. the United Kingdom (dec.), no. 47916/99, ECHR 2003-V, and
Šilih v. Slovenia [GC], no. 71463/01, §§
156-157, 9 April 2009).
- This
is not an obligation of result, but of means. 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).
- Turning
to the present case, the Court notes at the outset that the
applicant’s son died in unclear, and therefore suspicious,
circumstances which warranted thorough investigation.
- More
than nine years after his death, it still remains unknown how it
occurred and what actually happened on the night of 30 June
2002.
- It is beyond doubt that it is for the domestic
authorities and not for the Court to determine factual issues. The
question, however, is whether they made a reasonable attempt to do so
(see, as a recent reference, Anna Todorova v.
Bulgaria, no. 23302/03, § 77, 24 May 2011).
- The
Court will therefore examine how the domestic investigation unfolded
in the present case.
- It
notes that one of the Government’s arguments concerned the
purported promptness of the authorities’ response to the news
about the death of the applicant’s son.
- Indeed, according to the Court’s case-law,
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 Šilih, cited above, § 195).
- As
regards the present case, the Court notes that the authorities
appeared to have immediately reacted to the information from D.’s
friends about the discovery of his dead body. Thus, the police acted
promptly enough to stop the bus with the teenagers, with whom D. had
had a fight the evening before, and to apprehend them for further
questioning. Furthermore, within a matter of one hour or so, the
police and prosecution authorities conducted the on-site inspection
with the participation of medical experts and, apparently, in the
applicant’s presence. Later that same day the post mortem was
carried out (see paragraphs 14-19 above).
- The
Court does not however lose sight of some ambiguities regarding those
vital initial steps raising the applicant’s concerns, which
were voiced by her throughout the investigation course, but remained
unclarified.
- The
Court notes, in particular, that the applicant drew the investigation
authorities’ attention to the fact that, although L. claimed to
have removed D.’s body from the lake in the presence of N. and
G., the authorities inspecting the scene discovered it back in the
water, about three metres from the bank. In the meantime, however, an
unidentified police officer, who was the first to have been contacted
by L. and his friends, had apparently been staying with the body and
could have offered some explanations (see paragraphs 21 and 40
above).
- While
the applicant raised this issue as early as in July 2002, it appears
to have been addressed by the investigation authorities – as it
can be seen from the decision of 23 July 2008 – only six years
later, despite the numerous instructions from the higher-level
prosecution authorities and courts to the investigator about the
necessity to check her submissions (see paragraphs 21, 30 and 40-42
above).
- Even
then the investigator confined his efforts to interviewing one of the
officers, who had arrived at the site together with the other
participants of the on-site inspection group on 1 July 2002 and had
had nothing more to say than that written in the report, as well as
one of the attested witnesses who had arrived at the scene at the
same time and claimed to have taken D.’s body to the shore
himself, without further details. The investigator also referred to
the accident report produced by the local rescue station (see
paragraph 42 above).
- The
Court notes, however, that the aforementioned on-site inspection
report and the accident report appear difficult to reconcile.
According to the former, the inspection lasted from 8 to 9 a.m. on 1
July 2002, while according to the latter, the body was taken out of
water at 8.45 a.m. It is hardly conceivable that forty-five minutes
could have reasonably elapsed between the inspection beginning and
the removal of the body from the lake, even if it was not a question
of rescuing D.
- In
the end, it remained unclear whether any law-enforcement official had
arrived at the scene before the inspection group, and if so, who it
was and what exactly he had discovered there.
- While
the Court does not undertake to judge whether the mentioned lack of
clarity in fact had any bearing on the investigation progress, it
undoubtedly undermined the credibility of the very initial, and thus
essential, steps taken by the authorities for securing the evidence
in the case.
- The
Court next observes that the applicant’s concerns about the
presence of some unidentified persons during the on-site inspection
on 1 July 2002 – particularly as viewed against the
background of the confirmed threats to the police from the teenagers,
with whom D. had had a fight shortly before his death, about their
influential high-ranking relatives – was apparently never
addressed at all, disregarding the instructions in this respect by
the GPO and the courts (see paragraphs 22, 30 and 40-41 above).
- This
indicates to the Court that the applicant’s doubts concerning
the independence of the investigation, while acknowledged by the
domestic authorities as not wholly ill-founded, were not dispelled.
- The
Court next notes that, overall, the domestic investigation into the
matter has lasted for over nine years and has apparently not yet been
completed (see paragraph 46 above).
- The
Court sees no explanation for the considerable length of the
investigation other than a number of delays and inadequacies in the
carrying out of vital investigative steps which made it necessary for
the prosecuting and judicial authorities to refer the case back to
the investigating authorities for additional investigation on no less
than six occasions.
- Thus,
the Court observes that the investigation authorities refused to
institute criminal proceedings in respect of D.’s death six
times and that all those decisions were set aside by a higher-level
prosecution authority or by courts as being based on an incomplete
and perfunctory investigation disregarding the earlier instructions
(see paragraphs 23, 27-28, 30-31, 34 35, 39, 41-42, 45 and 46
above). Meanwhile, the delays in the investigation inevitably
diminished the prospect of its success and completion.
- The
Court also notes with concern that such remittals of a case for
re-examination, which disclose a serious deficiency in criminal
investigation and, more broadly, in the functioning of the law
enforcement machinery apparently not able to effectively put this
practice to an end, have been a recurring problem in the cases
against Ukraine (see, for example, Myronenko, cited above, §
37; Muravskaya v. Ukraine, no. 249/03, §§ 46 47,
13 November 2008; Dudnyk v. Ukraine, no. 17985/04, § 36,
10 December 2009; and Lyubov Efimenko v. Ukraine, no.
75726/01, § 78, 25 November 2010).
- In
view of the above-mentioned oversights recognised by the domestic
authorities themselves and the inordinate length of the investigation
into the circumstances of the death of the applicant’s son, the
Court considers that the State cannot be regarded as having taken all
the measures which could have been reasonably expected of it under
the circumstances.
- In
sum, the Court concludes that there has been a violation of Article 2
of the Convention in the present case under its procedural limb.
II. 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 claimed 200,000 euros (EUR) in respect
of pecuniary and non-pecuniary damage.
- The
Government contested the claim as unsubstantiated and exorbitant.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, the Court observes that it has found that the
investigation into the death of the applicant’s son fell short
of the standards set forth in Article 2 of the Convention. In these
circumstances, the Court considers that the applicant’s
suffering and frustration cannot be compensated for by a mere finding
of a violation. Making its assessment on an equitable basis, it
awards her EUR 12,000 in respect of non-pecuniary damage, plus any
tax that may be chargeable on that amount.
B. Costs and expenses
- The
applicant also claimed reimbursement of legal fees, leaving the
amount to the Court’s discretion.
- The
Government contested the claim as not substantiated by any documents.
- According
to the Court’s case-law, an applicant is entitled to
reimbursement of his or her 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 applicant’s claim
under this head.
C. Default interest
- The
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.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application
admissible;
- Holds that there has been a violation of Article
2 of the Convention under its procedural limb;
- Holds
(a) that
the respondent State is to pay the applicant,
within three months from the date on which the judgment
becomes final in accordance with Article 44 § 2 of the
Convention, EUR 12,000 (twelve thousand euros) in respect of
non-pecuniary damage, to be converted into Ukrainian hryvnias at the
rate applicable at the date of settlement, plus any tax that may be
chargeable;
(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;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 15 December 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Dean Spielmann Registrar President
