SEMERZHIY AND OTHERS v. UKRAINE - 55064/18 (Judgment : Article 2 - Right to life : Fifth Section Committee) [2022] ECHR 968 (10 November 2022)

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You are here: BAILII >> Databases >> European Court of Human Rights >> SEMERZHIY AND OTHERS v. UKRAINE - 55064/18 (Judgment : Article 2 - Right to life : Fifth Section Committee) [2022] ECHR 968 (10 November 2022) URL: http://www.bailii.org/eu/cases/ECHR/2022/968.html Cite as: ECLI:CE:ECHR:2022:1110JUD005506418, CE:ECHR:2022:1110JUD005506418, [2022] ECHR 968

In the case of Semerzhiy and Others v. Ukraine,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

          Stéphanie Mourou-Vikström, President,
          Ivana Jelić,
          Kateřina Šimáčková, judges,
and Viktoriya Maradudina, Acting Deputy Section Registrar,

Having deliberated in private on 20 October 2022,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in applications against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table.

2. The Ukrainian Government (“the Government”) were given notice of the applications.

THE FACTS

3. The list of applicants and the relevant details of the applications are set out in the appended table.

4. The applicants complained of the ineffective investigation into the death of their relatives.

THE LAW

I. JOINDER OF THE APPLICATIONS

5. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.

II. ALLEGED VIOLATION OF ARTICLE 2 § 1 of the Convention

6. The applicants complained of the ineffective investigation into the death of their relatives. They relied on Articles 2 and 6 § 1 and Article 13 of the Convention.

7. The Court, which is the master of the characterisation to be given in law to the facts of the case, finds that the complaints at issue fall to be examined under Article 2 of the Convention (see Igor Shevchenko v. Ukraine, no. 22737/04, § 38, 12 January 2012). This provision, in so far as relevant, reads as follows:

Article 2 § 1

“1. Everyone’s right to life shall be protected by law.”

8. The Court notes at the outset that the present case falls to be examined from the perspective of the State’s 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 Tunç and Fecire Tunç v. Turkey [GC] (no. 24014/05, §§ 169-82, 14 April 2015). In particular, once the investigative obligation is triggered, compliance with the procedural requirement of Article 2 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’s family, and the independence of the investigation. These elements are interrelated and each of them, taken separately, does not amount to an end in itself (ibid., § 225).

9. 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’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).

10. 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 applicants’ relatives, and who, if anyone, was responsible. The specific shortcomings are indicated in the appended table.

11. In the leading cases of Kachurka v. Ukraine, no. 4737/06, 15 September 2011, Pozhyvotko v. Ukraine, no. 42752/08, 17 October 2013 and Basyuk v. Ukraine, no. 51151/10, 5 November 2015, the Court already found violations in respect of issues similar to those in the present case.

12. 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 and the materials before it, the Court considers that in the instant case the investigation failed to meet the criteria of effectiveness.

13. These complaints are therefore admissible and disclose a breach of Article 2 § 1 of the Convention under its procedural limb.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

14. 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.”

15. Regard being had to the documents in its possession and to its case‑law (see, in particular, Basyuk, cited above, §§ 74-80), the Court considers it reasonable to award the sums indicated in the appended table.

16. The Court further 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. Decides to join the applications;

2. Declares the applications admissible;

3. Holds that these applications disclose a breach of Article 2 § 1 of the Convention concerning the ineffective investigation into the death of the applicants’ relatives;

4. Holds

(a) that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, 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 amounts 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 10 November 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Viktoriya Maradudina Stéphanie Mourou-Vikström
Acting Deputy Registrar President

APPENDIX

List of applications raising complaints under Article 2 § 1 of the Convention

(ineffective investigation into death, caused by private parties or in circumstances that exclude involvement of State agents)

Application no. Date of introduction	Applicant’s name Year of birth	Representative’s name and location	Background to the case and domestic proceedings	Key issues	Amount awarded for non‑pecuniary damage per applicant (in euros) [1]	Amount awarded for costs and expenses per application (in euros) [2]
55064/18 14/11/2018	Mykola Volodymyrovych SEMERZHIY 1949	Bityura Anatoliy Anatoliyovych Nova Kakhovka	1. The circumstances of the death On 09/08/2007 at around 2.30 a.m. the applicant’s son S. was beaten by a certain L. during a conflict in a bar. Afterwards S. was left presumably unconscious on a bench outside of the bar and was only hospitalised at 11.20 a.m. 2. The course of the investigation and its findings On 16/08/2007 the police instituted criminal proceedings on account of intentional grievous bodily injury. The applicant was a representative of his son in the criminal proceedings. On 16/10/2007 L. was charged with intentional grievous bodily injury and the indictment against him was sent to the Kalanchatskyy Local Court of the Kherson Region. On 28/05/2008 the case was remitted for an additional investigation on the grounds that: (i) the investigating authorities failed to question a number of pertinent witnesses and to address contradictions in statements of witnesses who were questioned; (ii) the conclusion of a forensic medical examination did not contain specific information as to the time and the way of sustaining injuries by S.; (iii) reconstruction of the events was conducted with procedural flaws. On 15/09/2008 the proceedings were requalified as negligent grievous bodily injury and the new indictment against L. was sent to the Chaplynskyy Local Court of the Kherson Region. On 13/11/2008 S. died. The applicant obtained victim status in the criminal proceedings. On 16/01/2009 the case was remitted for an additional investigation due to the need to requalify the actions of L. considering the death of S. On 25/04/2009 L. was charged with negligent homicide and the indictment was sent to the Chaplynskyy Local Court of the Kherson Region. On 21/06/2010 the court returned the indictment to the prosecutor due to the need to requalify the actions of L. On 25/11/2010 L. was charged with intended grievous bodily injury that caused death of the victim and the indictment was sent to the Chaplynskyy Local Court of the Kherson Region. On 26/10/2011 the court ordered a follow-up forensic medical examination to establish the cause of S.’s death. Subsequently, on two occasions, the Kherson Regional Court of Appeal quashed verdicts convicting L. and ordered retrial. By the decision of the Kalanchatskyy Local Court of the Kherson Region of 07/09/2017, upheld by the higher courts, the criminal proceedings against L. were terminated since prosecution had become time barred.	Repeated remittals of the case for additional investigation owing to the insufficiency of the measures taken by the investigators, lack of thoroughness and promptness which undermined the authorities’ ability to establish the circumstances of the case.	6,000	250
4218/19 18/12/2018	Vitaliy Mykhaylovych SHABALA 1947	Yelov Vitaliy Andriyovych Lutsk	1. The circumstances of the death On 25/05/2007 the applicant’s son died in a traffic incident involving Sa.’s car. 2. The course of the investigation and its findings On 10/10/2007 the investigative authorities refused to open proceedings against Sa. In 2013 and 2014 the applicant lodged several complaints challenging the refusal. On 10/10/2014 the Volyn Regional Court of Appeal upheld the decision of the first-instance court quashing the above-mentioned refusal. On 31/10/2014 criminal proceedings were instituted on account of a breach of traffic safety regulations that caused death of several people. Between 2015 and 2018 the proceedings were repeatedly terminated and later re-opened due to deficiencies of the investigation, such as failure to conduct the necessary forensic examinations, failure to question pertinent witnesses and to perform other investigative actions ordered by the prosecutor. As it appears from the available case-file materials, the investigation is currently ongoing.	Lack of thoroughness and promptness which undermined the authorities’ ability to establish the circumstances of the case, progressive deterioration/loss of evidence.	6,000	250
63903/19 03/12/2019	Svitlana Anatoliyivna TRYKUL 1969	Velychko Oleksandr Volodymyrovych Dnipro	1. The circumstances of the death On 20/08/2016 the car driven by the applicant’s son collided with a truck. The applicant’s son and his passengers died. 2. The course of the investigation and its findings Criminal proceedings were instituted. As there was no progress in the investigation, in September 2016 the applicant lodged several claims with the relevant authorities, which were left without consideration. An investigation was conducted by the heads of the investigating authorities and on 23/01/2017 the applicant was informed that the senior investigator should be disciplined for his inaction, but this penalty could not be imposed as he was no longer employed by the authorities. Subsequently the police established that it was the applicant’s son whose actions caused the above accident. Due to this, on two occasions the proceedings were terminated because of the death of the suspect. Both decisions were overruled by the investigative judge as unlawful and superficial. The case was afterwards referred to the court for trial. Between October 2017 and July 2019 on several occasions the bill of indictment was remitted by the court to the prosecutor’s office due to several procedural shortcomings in its preparation that prevented further examination of the case. During that period the court ruled that the applicant could not be represented by her counsel on the grounds that he had also previously represented the injured party in the proceedings. The court then required that a new lawyer be appointed for the applicant by the regional free legal aid centre. On 22/10/2019 the indictment was resubmitted to the trial court and a preliminary hearing was scheduled for 25/11/2019 but did not take place due to the failure of the applicant’s newly appointed lawyer to appear at the hearing. Since the same lawyer also failed to appear at the other scheduled hearings, on 12/08/2020 the court ordered the regional free legal aid centre to appoint another lawyer for the applicant. On 06/08/2021, due to the termination of the powers of the judge dealing with the case, it was transferred to another judge. Based on the available information, the proceedings are still pending without foreseeable progress.	Lack of thoroughness and promptness which undermined the authorities’ ability to establish the circumstances of the case, progressive deterioration/loss of evidence.	6,000	250
2081/20 16/12/2019	Vasyl Grygorovych GORBUNOV 1951		1. The circumstances of the death On 09/08/2003 the applicant’s son died in a car accident. 2. The course of the investigation and its findings On 19/08/2003, 27/11/2003 and 07/08/2009 the police refused to institute criminal proceedings due to absence of corpus delicti in the car driver’s actions. On 19/03/2010 the police instituted criminal proceedings against the car driver. That same day, the prosecutor overturned the decision of the police and remitted the case for further investigation. From 20/03/2010 to 10/03/2011 the police on three occasions refused to institute criminal proceedings due to absence of corpus delicti in driver’s actions. The applicant lodged several claims to Rivne Local Court to quash investigator’s decisions refusing to institute criminal proceedings. From 10/06/2011 to 03/02/2017 the Rivne Local Court on five occasions allowed the applicant’s claims, quashed investigator’s decisions and ordered to conduct a further pre‑trial investigation. On 30/09/2019 the Rivne Local Court held that the prosecutor and the police did not conduct an effective investigation into the applicant son’s death. The domestic court ordered the police to conduct proper investigation.	Applicant’s rights as a victim were not properly safeguarded, decisions refusing to institute proceedings issued without the circumstances of the case having been properly examined, repeated remittals of the case for additional investigation owing to the insufficiency of the measures taken by the investigators.	6,000	-

No.

Application no.

Date of introduction

Applicant’s name

Year of birth

Representative’s name and location

Background to the case and domestic proceedings

Key issues

Amount awarded for non‑pecuniary damage per applicant

(in euros) [1]

Amount awarded for costs and expenses per application

(in euros) [2]

55064/18

14/11/2018

Mykola Volodymyrovych SEMERZHIY

1949

Bityura

Anatoliy Anatoliyovych

Nova Kakhovka

1. The circumstances of the death

On 09/08/2007 at around 2.30 a.m. the applicant’s son S. was beaten by a certain L. during a conflict in a bar. Afterwards S. was left presumably unconscious on a bench outside of the bar and was only hospitalised at 11.20 a.m.

2. The course of the investigation and its findings

On 16/08/2007 the police instituted criminal proceedings on account of intentional grievous bodily injury. The applicant was a representative of his son in the criminal proceedings.

On 16/10/2007 L. was charged with intentional grievous bodily injury and the indictment against him was sent to the Kalanchatskyy Local Court of the Kherson Region. On 28/05/2008 the case was remitted for an additional investigation on the grounds that: (i) the investigating authorities failed to question a number of pertinent witnesses and to address contradictions in statements of witnesses who were questioned; (ii) the conclusion of a forensic medical examination did not contain specific information as to the time and the way of sustaining injuries by S.; (iii) reconstruction of the events was conducted with procedural flaws.

On 15/09/2008 the proceedings were requalified as negligent grievous bodily injury and the new indictment against L. was sent to the Chaplynskyy Local Court of the Kherson Region.

On 13/11/2008 S. died. The applicant obtained victim status in the criminal proceedings.

On 16/01/2009 the case was remitted for an additional investigation due to the need to requalify the actions of L. considering the death of S.

On 25/04/2009 L. was charged with negligent homicide and the indictment was sent to the Chaplynskyy Local Court of the Kherson Region. On 21/06/2010 the court returned the indictment to the prosecutor due to the need to requalify the actions of L.

On 25/11/2010 L. was charged with intended grievous bodily injury that caused death of the victim and the indictment was sent to the Chaplynskyy Local Court of the Kherson Region. On 26/10/2011 the court ordered a follow-up forensic medical examination to establish the cause of S.’s death.

Subsequently, on two occasions, the Kherson Regional Court of Appeal quashed verdicts convicting L. and ordered retrial.

By the decision of the Kalanchatskyy Local Court of the Kherson Region of 07/09/2017, upheld by the higher courts, the criminal proceedings against L. were terminated since prosecution had become time barred.

Repeated remittals of the case for additional investigation owing to the insufficiency of the measures taken by the investigators,

lack of thoroughness and promptness which undermined the authorities’ ability to establish the circumstances of the case.

6,000

250

4218/19

18/12/2018

Vitaliy Mykhaylovych SHABALA

1947

Yelov

Vitaliy Andriyovych

Lutsk

1. The circumstances of the death

On 25/05/2007 the applicant’s son died in a traffic incident involving Sa.’s car.

2. The course of the investigation and its findings

On 10/10/2007 the investigative authorities refused to open proceedings against Sa. In 2013 and 2014 the applicant lodged several complaints challenging the refusal.

On 10/10/2014 the Volyn Regional Court of Appeal upheld the decision of the first-instance court quashing the above-mentioned refusal.

On 31/10/2014 criminal proceedings were instituted on account of a breach of traffic safety regulations that caused death of several people.

Between 2015 and 2018 the proceedings were repeatedly terminated and later re-opened due to deficiencies of the investigation, such as failure to conduct the necessary forensic examinations, failure to question pertinent witnesses and to perform other investigative actions ordered by the prosecutor.

As it appears from the available case-file materials, the investigation is currently ongoing.

Lack of thoroughness and promptness which undermined the authorities’ ability to establish the circumstances of the case,

progressive deterioration/loss of evidence.

6,000

250

63903/19

03/12/2019

Svitlana Anatoliyivna TRYKUL

1969

Velychko Oleksandr Volodymyrovych

Dnipro

1. The circumstances of the death

On 20/08/2016 the car driven by the applicant’s son collided with a truck. The applicant’s son and his passengers died.

2. The course of the investigation and its findings

Criminal proceedings were instituted. As there was no progress in the investigation, in September 2016 the applicant lodged several claims with the relevant authorities, which were left without consideration. An investigation was conducted by the heads of the investigating authorities and on 23/01/2017 the applicant was informed that the senior investigator should be disciplined for his inaction, but this penalty could not be imposed as he was no longer employed by the authorities.

Subsequently the police established that it was the applicant’s son whose actions caused the above accident. Due to this, on two occasions the proceedings were terminated because of the death of the suspect. Both decisions were overruled by the investigative judge as unlawful and superficial. The case was afterwards referred to the court for trial. Between October 2017 and July 2019 on several occasions the bill of indictment was remitted by the court to the prosecutor’s office due to several procedural shortcomings in its preparation that prevented further examination of the case. During that period the court ruled that the applicant could not be represented by her counsel on the grounds that he had also previously represented the injured party in the proceedings. The court then required that a new lawyer be appointed for the applicant by the regional free legal aid centre.

On 22/10/2019 the indictment was resubmitted to the trial court and a preliminary hearing was scheduled for 25/11/2019 but did not take place due to the failure of the applicant’s newly appointed lawyer to appear at the hearing. Since the same lawyer also failed to appear at the other scheduled hearings, on 12/08/2020 the court ordered the regional free legal aid centre to appoint another lawyer for the applicant. On 06/08/2021, due to the termination of the powers of the judge dealing with the case, it was transferred to another judge. Based on the available information, the proceedings are still pending without foreseeable progress.

Lack of thoroughness and promptness which undermined the authorities’ ability to establish the circumstances of the case,

progressive deterioration/loss of evidence.

6,000

250

2081/20

16/12/2019

Vasyl Grygorovych GORBUNOV

1951

1. The circumstances of the death

On 09/08/2003 the applicant’s son died in a car accident.

2. The course of the investigation and its findings

On 19/08/2003, 27/11/2003 and 07/08/2009 the police refused to institute criminal proceedings due to absence of corpus delicti in the car driver’s actions. On 19/03/2010 the police instituted criminal proceedings against the car driver. That same day, the prosecutor overturned the decision of the police and remitted the case for further investigation. From 20/03/2010 to 10/03/2011 the police on three occasions refused to institute criminal proceedings due to absence of corpus delicti in driver’s actions. The applicant lodged several claims to Rivne Local Court to quash investigator’s decisions refusing to institute criminal proceedings. From 10/06/2011 to 03/02/2017 the Rivne Local Court on five occasions allowed the applicant’s claims, quashed investigator’s decisions and ordered to conduct a further pre‑trial investigation. On 30/09/2019 the Rivne Local Court held that the prosecutor and the police did not conduct an effective investigation into the applicant son’s death. The domestic court ordered the police to conduct proper investigation.

Applicant’s rights as a victim were not properly safeguarded,

decisions refusing to institute proceedings issued without the circumstances of the case having been properly examined, repeated remittals of the case for additional investigation owing to the insufficiency of the measures taken by the investigators.

6,000

[1] Plus any tax that may be chargeable to the applicants.

[2] Plus any tax that may be chargeable to the applicants.