FIFTH SECTION
CASE OF
POZHYVOTKO v. UKRAINE
(Application no.
42752/08)
JUDGMENT
STRASBOURG
17 October 2013
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 Pozhyvotko v. Ukraine,
The European Court of Human
Rights (Fifth Section), sitting as a Chamber composed of:
Mark Villiger, President,
Angelika Nußberger,
Boštjan M. Zupančič,
Ann Power-Forde,
Ganna Yudkivska,
Helena Jäderblom,
Aleš Pejchal,
and Claudia Westerdiek, Section Registrar,
Having deliberated in private on 24 September 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no. 42752/08)
against Ukraine lodged with the Court under Article 34 of the Convention for
the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Ukrainian
nationals, Ms Nataliya Mykolayivna Pozhyvotko (“the first applicant”) and Ms Mariya
Mykolayivna Pozhyvotko (“the second applicant”) on 5 August 2008.
The Ukrainian Government (“the Government”) were
represented by their Agent, Mr N. Kulchytskyy.
The applicants alleged, in particular, that the
investigation of the circumstances of their relative’s death had not been
effective for the purpose of Article 2 of the Convention.
On 14 December 2011 the application was
communicated to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicants live in Nosivka, Chernihiv Region.
The first applicant is Mr Volodymr Pozhyvotko’s widow and the second applicant
is his mother.
A. Event of 12 October 2004 and official investigation
In the evening of 12 October 2004 Mr
Volodymyr Pozhvotko was shot dead in a local bar.
On the same date the Nosivskyy District
Prosecutor’s Office opened an investigation in connection with the death.
During the night of 12-13 October 2004 an
investigator from the prosecutor’s office, together with other law-enforcement
officers, experts and witnesses, carried out an on-site examination, including
photographing and videotaping of the crime scene. Certain material evidence was
seized, including two pistols, cartridges, bullets and other items. The victim’s
body was sent for a forensic medical examination.
In the subsequent period the investigative
authorities ordered forensic examinations of the seized evidence, questioned a
number of witnesses and conducted searches in order to find additional
evidence.
On 18 October 2004 the first applicant was
admitted to the proceedings as an aggrieved party.
On 9 November 2004 the investigator charged T. with
murder and put him on the list of wanted persons.
On 7 February 2005 L. voluntarily confessed to
shooting the victim dead. On the same day L. was arrested. The decisions
concerning T. were revoked.
On 16 February 2005 L. was released on the
grounds that there was insufficient evidence to charge him with the crime.
On the same day the second applicant was granted
the status of aggrieved party in the criminal proceedings.
By letter of 1 August 2005 the
second applicant was informed that the case had been referred to the Chernihiv
Regional Prosecutor’s Office for “a more qualified investigation”.
In its letter of 23 October 2005
the General Prosecutor’s Office informed the second applicant that the
investigation had been delayed. They further noted that the Chernihiv Regional
Prosecutor’s Office had been instructed to take comprehensive measures in the case.
As regards her request for referral of the case to a different prosecutor’s
office, she was informed that it would not be appropriate to do so.
On 1 November 2005 the investigator in charge of
the case stated in writing that the video recording and photographs of the crime
scene made on 12 October 2004 could not be found.
On 28 December 2005 the investigation was closed
on the grounds that L. had acted in the state of necessary defence and the involvement
of other individuals in the crime could not be established.
On 29 December 2005 the deputy prosecutor of the
Chernihiv Region quashed that decision, noting that the dactylographic
examination had not been completed and a number of witnesses had not been
questioned.
On 20 March 2006, following the additional investigation,
the case was closed once again on the grounds that L. had acted in the state of
necessary defence, while the involvement of other individuals in the crime
could not be established.
On 5 June 2006 the Novozavodskyy District Court
of Chernihiv quashed that decision, finding that the investigation had not been
comprehensive. It noted that there had been a significant number of
investigative measures at the initial stage of the proceedings, including an on-site
examination and forensic expert examinations, which had been carried out
unprofessionally and in breach of procedural rules, and that the video recording
and photographs of the crime scene could not be found. The court remitted the
case for additional investigation, specifying, inter alia, that it was
necessary to investigate the personality of the victim in more detail,
establish the precise time of the crime, take measures to find the missing
video recording and photographs, question witnesses, and conduct, if
appropriate, additional expert examinations.
Following that decision, the investigation was
renewed and conducted by the Chernihiv Regional Prosecutor’s Office.
In his letter of 24 May 2007 the
Deputy Prosecutor of the Chernihiv Region informed the second applicant that the
video recording of the crime scene had been found and a range of additional
investigative measures had been undertaken. He indicated that the investigator
of the Nosivskyy District Prosecutor’s Office should have been sanctioned for
the inadequate investigation of the case, but he had been dismissed.
In August 2007 the case was referred to the Chernihiv
Regional Police Department and in November 2008 it was referred to the Sumy
Regional Police Department for further investigative measures.
On 12 November 2009 the police investigator
terminated the proceedings on the grounds that L. had acted in the state of
necessary defence. The applicants appealed against that decision.
On 15 November 2010 the Zarichnyy District Court
of Sumy quashed that decision as unfounded and ordered further investigative
measures.
In December 2010 and January 2011 the Sumy
Regional Prosecutor’s Office gave instructions to the police investigator as to
the further investigations to be carried out. Those instructions included,
among other things, an additional examination of the crime scene, questioning
of witnesses, a reconstruction of the crime, confrontations between witnesses, and
additional expert examinations.
As of 25 April 2012 the proceedings were
pending.
B. Other proceedings
The applicants also instituted two sets of civil
proceedings against the law-enforcement authorities, claiming that they had
failed to investigate the case properly and had breached procedures during the
investigation. The claims in the first set of proceedings were rejected. The
applicants did not inform the Court of the outcome of the second set of
proceedings.
The applicants also requested that an
investigation be opened concerning the disappearance of the harvest of
sunflower seeds which had allegedly belonged to Mr V. Pozhyvotko and
had been entrusted to his business colleagues. The authorities refused to open
an investigation, after finding that the matter was of a civil-law nature and
that there was no evidence that Mr V. Pozhyvotko had ever owned the harvest in
question.
II. RELEVANT DOMESTIC LAW
The relevant domestic law can be found in the
judgment of Muravskaya v. Ukraine (no. 249/03, §§ 35 and 36, 13 November
2008).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 2 OF THE
CONVENTION
The applicants complained that the domestic
authorities had failed to carry out an effective investigation of Mr V.
Pozhyvotko’s death. They relied on Articles 2, 13, 14 and 17 of the Convention.
The Court considers that the complaint should be
examined solely under Article 2 of the Convention, which reads, in so far as
relevant, as follows:
“1. Everyone’s right to life shall be protected by law. ... ”
A. Admissibility
The Court notes that this 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
The applicants maintained that the investigation
had been ineffective.
The Government argued that throughout the whole
period of the investigation the law-enforcement bodies had taken all the procedural
actions necessary in order to investigate the case effectively. All the
instructions given by the supervising authorities were followed by the
investigators in charge. Moreover, the applicants had had sufficient access to
the case file and had been able effectively to participate in the proceedings.
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 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 October 1998, § 115, Reports
1998-VIII).
More specifically, where
death occurs under suspicious circumstances, leaving room for allegations to be
made of the intentional taking of life, the State must ensure some form of
effective official investigation (see Šilih v. Slovenia [GC], no.
71463/01, §§ 156-57, 9 April 2009, and Oleynikova v. Ukraine, no. 38765/05, § 60, 15 December 2011).
This is not an obligation of result, but of
means. The authorities must have taken all reasonable
steps to secure the evidence concerning the incident. Any deficiency in the
investigation which undermines its ability to establish the cause of death or
the persons responsible will risk falling foul of this standard (see Muravskaya,
cited above, § 41).
Turning to the present case, the Court notes
that during the investigation the authorities took a significant number of procedural
measures aimed at discharging their positive obligation under Article 2 of the
Convention. At the same time, the Court observes that the investigators’ three
decisions to close the proceedings were quashed by the supervising authorities
after finding that such decisions were unfounded and further investigation
measures were required. The repetition of such remittal orders discloses a serious deficiency in the criminal investigation
(see Oleynikova, cited above, § 81).
In particular, the last remittal of the case for further investigation was
followed by instructions from the supervising prosecutor’s office, which provided
a substantive list of investigative measures that had to be undertaken. Apart
from the remittal orders, it appears that on several other occasions the
authorities conceded that the investigation had been inadequate (see paragraphs
15, 16 and 23 above). Having examined the available material, the Court
considers that the investigative authorities did not take all the necessary
steps in order to carry out a thorough investigation which would be compatible
with the Convention requirements.
Furthermore, as of 25 April 2012 - that is, more
than seven and a half years after the incident - the investigation had still not
been completed and it cannot be concluded that its overall length was justified
by the circumstances of the case. In this regard, 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 Šilih, cited above, § 195).
Moreover, with the lapse of time the prospects
that any effective investigation can be undertaken will increasingly diminish.
The foregoing considerations are sufficient to
enable the Court to conclude that there has accordingly been a violation of the
procedural limb of Article 2 of the Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The applicants also complained under Article 6
of the Convention that the compensation proceedings against the law-enforcement
authorities were unfair. Relying on Articles 6, 13 and 17 of the Convention and
Article 1 of Protocol No. 1, the applicants alleged that the harvest of
sunflower seeds belonging to Mr V. Pozhyvotko had been unlawfully
appropriated by his business colleagues.
44. The Court has examined these complaints and considers
that, in the light of all the materials in its possession and in so far as the
matters complained of are within its competence, they do not disclose any
appearance of a violation of the rights and freedoms set out in the Convention
or its Protocols.
It follows that this part of the application
must be rejected 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 applicants claimed 20,000 euros (EUR) in
respect of non-pecuniary damage.
The Government contended that the applicant had failed
to submit any claims for just satisfaction at the appropriate stage of the
proceedings before the Court.
The Court notes that the applicants submitted
their claim in respect of non-pecuniary damage at the right stage of the
proceedings and within the time-limit established by the Court for that purpose.
The Court further considers that the applicants must have suffered distress and
anxiety on account of the violation it has found. Ruling on an equitable basis,
as required by Article 41 of the Convention, it awards each applicant EUR 10,000
in respect of non-pecuniary damage.
B. Costs and expenses
The applicants did not submit any claims under
this head. The Court therefore makes no award.
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,
1. Declares the complaint under Article 2 of
the Convention admissible and the remainder of the application inadmissible;
2. Holds that there has been a violation of
the procedural limb of Article 2 of the Convention;
3. Holds
(a) that the respondent State is to pay each applicant,
within three months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention, EUR 10,000
(ten thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary
damage, to be converted into the currency of the
respondent State at the rate applicable at 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
amount at a rate equal to the marginal lending rate of the European Central
Bank during the default period plus three percentage points.
Done in English, and notified in writing on 17 October 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia
Westerdiek Mark Villiger
Registrar President
