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FIFTH SECTION

Application no. 13381/07
Tamara Nikolayevna NOVIK
against Ukraine
lodged on 3 March 2007

STATEMENT OF FACTS

THE FACTS

The applicant, Ms Tamara Nikolayevna Novik, is a Ukrainian national who was born in 1956 and lives in Torez. Her application was lodged on 3 March 2007.

A.  The circumstances of the case

1.  Circumstances of death of the applicant’s relative

At 11.30 a.m. on 4 May 2004 the applicant’s son, Mr Roman Novik (born in 1982), driving his motorcycle on a main road, collided with the car which was moving out of a minor street. The car was being driven by a local police officer. The applicant’s son was taken to the hospital on account of the injuries he had received. On 6 May 2004 he was reported to have died. According to the applicant, her son died immediately after the accident on 4 May 2004.

2.  Official investigation

On 17 May 2004 the applicant complained to the Torez prosecutor that she had not been informed of any decision taken on account of the accident.

On 20 May 2004 the Torez prosecutor’s office refused to conduct a criminal investigation under Article 286 of the Criminal Code (negligent driving causing injuries or death to a victim) for lack of corpus delicti in on the part of the police officer (who had been driving the car) and informed the applicant accordingly.

On 20 July 2004 the higher prosecutor’s office quashed the decision as unfounded and remitted the case for further inquiry.

On 2 August 2004 the Torez prosecutor’s office refused for the second time to institute criminal proceedings in respect of the accident.

On 4 April 2005 the higher prosecutor’s office quashed that decision and opened an investigation under Article 286 § 2 of the Criminal Code (negligent driving causing the death of a victim).

On 1 September 2005 the investigation was closed for lack of corpus delicti.

On 6 October 2005 a local court quashed that decision as unfounded. The court noted that the statements of the police officer involved in the accident were inconsistent; the expert’s opinion on technical assessment of the accident was contradictory; the examination carried out at the scene of the accident had not been done properly; the on-site inspection was carried out without eyewitnesses F. and R.; the other eyewitnesses to the accident had not been identified; the motorcycle and the car had not been attached as evidence to the case file; the technical assessment of traces on the damaged parts of the motorcycle had not been made; the motorcyclist’s helmet had not been examined. The court therefore remitted the case for further investigation.

On 25 January 2006 the applicant informed the prosecutor that she had found V., another eyewitness to the accident, who could testify that the motorcyclist had died at the scene of the accident; that his helmet had been smashed and that the driver of the car showed signs of alcoholic intoxication.

On 5 February 2007 the applicant complained that she could not effectively exercise her procedural right to participate in the investigation as the investigator did not accept her applications, requests, explanations and other submissions in the file. She requested therefore that she be given access to the file. The applicant was informed in reply that she would be allowed to study the file at a later stage of the proceedings.

On 9 April 2007 the investigation was closed for lack of corpus delicti. V.’s statements were found to be inconsistent with other evidence and therefore ignored.

On 23 April 2008 the local court quashed the decision as unfounded after noting that the experts’ technical opinions available in the case file contradicted each other.

The proceedings are pending.

COMPLAINTS

1.  The applicant complains that the investigation of the circumstances of her son’s death was not effective for the purpose of Article 2 of the Convention: the investigation was superficial and excessively lengthy; she had no access to the case file and could not effectively participate in the proceedings.

2.  The applicant complains under Article 6 § 1 of the Convention that the proceedings in the case were excessively lengthy and that she has not been able to properly exercise her right of civil claim in respect of the accident.

3.  The applicant complains under Article 13 of the Convention that she had no effective remedies in respect of her complaint under Article 2 of the Convention.

4.  The applicant complains of violations of Articles 1, 14, 17 of the Convention on account of ineffective investigation of her son’s death.

QUESTIONS TO THE PARTIES

1.  Having regard to the procedural protection of the right to life, were the domestic proceedings in the present cases in breach of Article 2 of the Convention?

2.  Did the applicant have effective access to the case file regarding the investigation of the circumstances of her relative’s death (see Oleksiy Mykhaylovych Zakharkin v. Ukraine, no. 1727/04, §§ 71-74, 24 June 2010)?

3.  Are there any safeguards for ensuring compliance of the investigation authority with the instructions given by the higher-level prosecutor or a court along with a remittal of the case for additional pre-investigating inquiry or additional investigation?

4.  Was Article 6 § 1 of the Convention applicable to this case? if so:

(a)  Did the applicant have access to a civil remedy in respect of her claim for compensation on account of the death of her son, as required by Article 6 § 1 of the Convention?

(b)  Was the length of the criminal proceedings in the present case contrary to the requirements of Article 6 § 1 of the Convention?

The Government are invited to provide copies of documents concerning the applicant’s civil claim for compensation of damage.

5.  Did the applicant have at her disposal effective domestic remedies for her complaint under Article 2, as required by Article 13 of the Convention?

The Government are invited to provide:

(a)  a chronological list of pre-investigative, investigative, and judicial actions taken in respect of the applicant’s complaints under the Convention;

(b)  copies of the relevant documents concerning respective domestic proceedings.