European Court of Human Rights

FIFTH SECTION

CASE OF DRAZMAN AND OTHERS v. UKRAINE

(Applications nos. 22207/12 and 2 others)

JUDGMENT
 

STRASBOURG

29 June 2023

This judgment is final but it may be subject to editorial revision.

In the case of Drazman and Others v. Ukraine,

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

 Carlo Ranzoni, President,
 Mattias Guyomar,
 Mykola Gnatovskyy, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the applications (nos. 22207/12 and 2 others) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") by the applicants listed in the appended table ("the applicants") on the various dates indicated therein;

the decision to give notice of the applicants' complaints concerning the failure of the national authorities to effectively investigate three separate road traffic accidents in which the applicants' relatives have died to the Ukrainian Government ("the Government"), represented by their Agent, most recently Ms M. Sokorenko, and to declare the remainder of application no. 43998/12 inadmissible;

the parties' observations;

Having deliberated in private on 8 June 2023,

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

SUBJECT MATTER OF THE CASE

1.  The present applications concern allegations under Article 2, Article 6 § 1 and Article 13 of the Convention of ineffective investigations into the deaths of the applicants' relatives in three separate road-traffic accidents.

2.  The applicants' details and the relevant facts are set out in the appended table.

THE COURT'S ASSESSMENT

1. JOINDER OF THE APPLICATIONS

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

2. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

4.  The applicants complained that the investigations into the deaths of their relatives in road-traffic accidents had been ineffective and lengthy. They relied on Article 2, Article 6 § 1 and Article 13 of the Convention.

5.  The Court, which is 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).

6.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

7.  The general principles concerning the State's positive obligation to conduct an effective investigation under the procedural limb of Article 2 in the context of a traffic accident are described in Nicolae Virgiliu Tănase v. Romania ([GC], no. 41720/13, §§ 158-71, 25 June 2019).

8.  The Court notes that in the present case the authorities immediately became aware of the incidents in question. From that moment they should have made all reasonable efforts, given the practical realities of investigation work, including having in place the necessary resources, to ensure that on-site and other relevant evidence was collected promptly and with sufficient thoroughness to secure the evidence and to eliminate or minimise any risk of omissions that might later undermine the possibility of establishing facts and of holding the person(s) responsible accountable (ibid., § 162). However, the Court considers that those investigations, contrary to the above-mentioned requirements and the Government's arguments, had substantial shortcomings in their preliminary stages and, from the information available, it does not appear that structured investigations took place after criminal proceedings had been instituted.

9.  Reviewing the facts of the present case, the Court considers that the investigations were characterised by having been repeatedly discontinued and reopened. The investigations lacked thoroughness. They also included a high number of repeated expert examinations, some of which were carried out many years after the incidents. As a result of the insufficiency of the measures taken by the investigators, including the failure to take the necessary measures for securing evidence, the cases were on multiple occasions remitted for additional investigations, which inevitably prolonged proceedings and caused the deterioration of important evidence. In addition, in application no. 44005/12, despite the presence of several eyewitnesses at the scene of the accident, the investigating authorities initially acknowledged that they had not been identified and subsequently that the eyewitnesses had not been properly questioned, and also that there were substantial shortcomings in the record of the accident. Furthermore, on multiple occasions the criminal proceedings in the case to which this application relates were suspended without any reasonable grounds.

10.  As a result, criminal proceedings which had lasted between ten and twelve years were terminated as time-barred and the perpetrators were exempted from any criminal liability on account of the expiry of the limitation period.

11.  The Court notes that in separate subsequent civil proceedings against the alleged perpetrators, which in themselves were not lengthy, the applicants were awarded damages for the death of their relatives. In those proceedings the civil courts relied on, inter alia, the conclusions reached by the criminal courts (see, among other authorities, Sergiyenko v. Ukraine, no. 47690/07, § 52, 19 April 2012, and Basyuk v. Ukraine, no. 51151/10, §§ 67-68, 5 November 2015). However, the mere result of those proceedings, being favourable to the applicants, could not remedy the substantial shortcomings of the preceding criminal proceedings, which concern the core of the applicants' grievances under the Convention. Furthermore, the Court notes that in the case of Antonov v. Ukraine (no. 28096/04, § 42, 3 November 2011), which likewise concerned a non-intentional infringement of the right to life in the context of a road traffic accident, the Government admitted that they had an obligation to conduct, on their own initiative, an official investigation of the circumstances of the 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. The Government did not argue otherwise in the present case. In addition, they have not explicitly pleaded that the orders for damages in the applicants' favour were to be regarded sufficient in the context of the State's obligation under Article 2 of the Convention.

12.  In view of the above, the Court considers that the national authorities failed, in the circumstances of the cases, to comply with the State's obligation under the procedural limb of Article 2 of the Convention (see Antonov v. Ukraine, cited above, §§ 50-51; Igor Shevchenko, cited above, §§ 56-60; and Basyuk, cited above, §§ 56-71).

13.  There has therefore been a violation of the procedural limb of Article 2 of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

14.  The applicants in application no. 22207/12 claimed 100,000 euros (EUR) in respect of non-pecuniary damage. In application no. 44005/12 the applicant claimed EUR 50,000 in respect of non-pecuniary damage, while in application no. 43998/12 the applicant did not submit a claim for just satisfaction.

15.  Regard being had to the documents in its possession and to the approach taken in similar Ukrainian cases (see, in particular, Basyuk, cited above; Nikolay Volkogonov and Igor Volkogonov v. Ukraine [Committee], no. 40525/05, 28 November 2013; and Zorina and Others v. Ukraine [Committee], nos. 20295/07 and 3 others, 14 February 2019), the Court finds it reasonable to make a joint award of EUR 6,000 to the first and third applicants and an award of the same amount to the second applicant in application no. 22207/12 and the applicant in application no. 44005/12, in respect of non-pecuniary damage.

16.  The Court rejects the remainder of the respective applicants' claims in applications nos. 22207/12 and 44005/12 in respect of non-pecuniary damage. It further notes that none of the applicants made any claim in respect of pecuniary damage.

17.  The applicants did not submit a claim for costs and expenses. Accordingly, the Court will not award them any sum on that account.

18.  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. Decides to join the applications;
2. Declares the applications admissible;
3. Holds that there has been a violation of Article 2 of the Convention under its procedural limb in respect of the complaints concerning the ineffective investigations into the deaths of the applicants' relatives;
4. Holds

(a)  that the respondent State is to pay the applicants, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i)  EUR 6,000 (six thousand euros), plus any tax that may be chargeable, jointly to the first and third applicants and an award of the same amount to the second applicant in application no. 22207/12 in respect of non-pecuniary damage;

(ii)  EUR 6,000 (six thousand euros) plus any tax that may be chargeable, to the applicant in application no. 44005/12 in respect of non-pecuniary damage;

(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;

5. Dismisses the remainder of the applicants' claims for just satisfaction in applications nos. 22207/12 and 44005/12.

Done in English, and notified in writing on 29 June 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Martina Keller Carlo Ranzoni
 Deputy Registrar President

APPENDIX