FIFTH SECTION
CASE OF
PRYNDA v. UKRAINE
(Application no.
10904/05)
JUDGMENT
STRASBOURG
31 July 2012
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 Prynda v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as
a Chamber composed of:
Dean Spielmann, President,
Mark Villiger,
Karel Jungwiert,
Boštjan M. Zupančič,
Ann Power-Forde,
Ganna Yudkivska,
Angelika Nußberger, judges,
and Stephen Phillips, Deputy Section
Registrar,
Having deliberated in private on 10 July 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
10904/05) against Ukraine lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by two Ukrainian nationals, Mrs Olga Prynda and Mr Myron Prynda (“the
applicants”), on 7 March 2005. On 1 February 2010 the first applicant died and
the second applicant expressed a wish to continue the proceedings on behalf of
the first applicant, his wife.
The Ukrainian Government (“the Government”) were
represented by their Agent, Mr Y. Zaytsev, of the Ministry of Justice.
The applicants alleged, in particular, that the
investigation into the death of their son had been lengthy, deficient and
ineffective.
On 1 July 2010 the application was communicated to
the Government. It was 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 applicants were born in 1944 and 1942. The
first applicant, Ms Olga Prynda, died on 1 February 2010. The second
applicant lives in the town of Stryy, Ukraine.
On 6 October 2003, at around 9 p.m., the
applicants’ son was hit and killed by a car being driven by a German national,
Mr F. The car belonged to a Polish national, Ms G.
The law-enforcement authorities examined the
scene of the accident immediately after and prepared a vehicular accident scheme
with the relevant measurements. The participants in the road traffic
accident (Mr F. and Mr G., who was also in the car during the accident) gave their
account of it.
On 7 October 2003 the Stryy Police Department
instituted a criminal investigation into the road traffic accident and ordered a
forensic medical examination of the victim.
On 8 October 2003 an on-site vehicular accident
reconstruction was carried out with the participation of Mr
F. and Mr G. and in the presence of attesting witnesses (Mr R. and Mr L.). On
the same date two other persons were questioned as witnesses.
On 9 October 2003 the investigator ordered a
technical vehicular examination, which was conducted on 13 October 2003 and
established that the applicants’ son had died of serious head trauma as a
result of the road traffic accident.
The applicants learned on 13 October 2003 that
their son was dead and his body was in the town morgue.
On 23 October 2003 the applicants applied to the
Transport Insurance Company for compensation. On 3 November 2003 the applicants
and their granddaughters were awarded compensation of UAH 8,500 as heirs of the
victim. In the accompanying letter, the Insurance Company informed the
applicants that the above amount was the maximum amount it could pay under the
law without consent of the foreign insurance company and it was open to them to
seek any further compensation by lodging a civil claim against a person or
persons liable for the accident. The applicants and their grandchildren
received the above amount in equal shares on 13 June 2005.
On 28 October 2003 the forensic medical
examination ordered on 7 October 2003 was conducted. It concluded that the
applicants’ son had died as a result of the road traffic accident from open
head trauma, and that he had been moderately drunk when the accident had
occurred.
On 1 November 2003 the investigator ordered a
forensic technical vehicular examination, which was conducted on 2 December
2003.
On 26 February 2004 the investigator ordered a
vehicular trace examination, which was conducted on 26 April 2004.
Between December 2003 and December 2004 the
applicants made numerous complaints to the different State authorities about
delays in the investigation into the death of their son.
On 26 June 2004 the investigator stayed the
proceedings on the ground that the only witnesses to the accident were the
driver and the passenger of the car which had hit the applicants’ son, but they
could not be questioned as they resided abroad and the police had no funds to
arrange for them to travel to Ukraine.
On 14 July 2004 the Lviv Regional Prosecutor’s
Office (“the LRPO”) quashed the decision of 26 June 2004 and instructed the
police to continue the investigation.
On 30 December 2004 the investigator of the Lviv
Regional Police Department decided to discontinue the criminal proceedings for
lack of corpus delicti in the driver’s actions. It was established that,
given the darkness, the wet road and the headlights from an oncoming car, the
driver had only seen the applicant’s son, who had been walking on the road, at
a distance at which he could not avoid hitting him.
On 10 January 2005 the LRPO quashed the decision
of 30 December 2004 on account of the incompleteness of the investigation and
gave instructions for further investigative actions.
By a letter of 25 January 2005, the Lviv
Regional Police Department informed the applicants that the investigation of
the case was complicated by the fact that the defendants resided abroad and the
Department had no means available to cover the costs that would be incurred by
them travelling to Ukraine.
On 31 January 2005 the investigator ordered an
additional forensic technical vehicular examination, which was conducted on 25
February 2005.
On 4 April 2005 the investigator again decided
to discontinue the criminal proceedings for lack of corpus delicti in the
driver’s actions.
On 13 May 2005 the LRPO quashed the decision of
4 April 2005 on account of the incompleteness of the investigation, and gave
instructions for further investigative actions to be taken.
On 12 August 2005 the investigator discontinued the
criminal proceedings. The decision noted that the investigation had followed
all the instructions of the prosecutor but had found no new factual data capable
of affecting its previous conclusions.
On 26 December 2005 the LRPO quashed the
decision of 12 August 2005. It noted that the investigator had followed the
instructions given on 10 January 2005 only in part, while the instructions
given on 13 May 2005 had been ignored altogether.
By a letter of 5 January 2006 the LRPO informed
the applicant that the investigation had been reopened and disciplinary
proceedings had been instituted against the investigator in their son’s case
for having breached criminal procedure.
On 16 January 2006 the investigator refused to institute
criminal proceedings against Mr F., Mr G. and Ms G.
On 30 January 2006 the investigator stayed the
criminal proceedings concerning the death of the applicants’ son, stating that
the prosecutor had instructed him to find other witnesses to the accident,
which he had been unable to do so far.
On 5 May 2006 the investigation was resumed.
On 16 May 2006 the LRPO refused to institute
criminal proceedings in connection with a complaint by the applicants in which
they alleged that Mr. F, Mr. G. and Ms. G had bribed the police.
On 24 November 2006 the criminal proceedings were
again discontinued. The investigator noted that he had summoned Mr G., who
resided in Poland, to appear for participation in further investigative
actions, but he had failed to appear. He also noted that Mr F. could not be
summoned from Germany, as the investigation had no funds to pay for his travel
expenses to Ukraine. It was further mentioned that there was no evidence that
Mr F. had been the guilty party in the road traffic accident in question.
On 28 November 2006 the LRPO quashed the
decision of 24 November 2006 on account of the incompleteness of the
investigation.
On 4 November 2007 the investigation conducted
an on-site reconstruction of the accident with the participation of Mr F., who
was summoned from Germany.
On 17 November 2007 the investigator refused to
institute criminal proceedings against Mr F. and discontinued the criminal proceedings
into the road traffic accident that had led to the death of the applicants’
son. This latter decision was quashed by the LRPO on 15 January 2008.
On 6 February 2008 the investigator ordered an
additional forensic transport trasological examination, which was completed on
3 April 2008.
On 19 April 2008 the investigator discontinued the
criminal proceedings once again. He noted that the additional examination had established
that the driver could have avoided hitting the victim with the use of emergency
breaking only if the victim had been running. Given that there was no
confirmation that the victim had been running, the investigator discontinued
the proceedings, noting that under Article 62 of the Constitution an accusation
could not be based on assumptions.
On 4 July 2008 the LRPO quashed the decision of
19 April 2008, stating that it was necessary to conduct additional
investigations.
On 22 November 2008 the investigator
discontinued the criminal proceedings. That decision was quashed by the LRPO on
9 December 2008.
On 30 December 2008 the criminal proceedings
were stayed by the investigator, who indicated in his decision that on 6
October 2003 Mr F. had hit an unknown person.
On 20 April 2010 the investigator resumed the criminal
proceedings.
On 20 August 2010 the investigator refused to
institute criminal proceedings against Mr F. for lack of corpus delicti
in his actions. By another decision, of the same date, the investigator
discontinued the criminal proceedings concerning the road traffic accident
which had led to the death of the applicants’ son. That decision by the
investigator had been examined and upheld by the General Prosecutor’s Office.
II. RELEVANT DOMESTIC LAW
The relevant provisions of domestic law can be
found in the judgments in the cases of Muravskaya v. Ukraine (no. 249/03,
§§ 35-36, 13 November 2008), and Igor Shevchenko v. Ukraine (no. 22737/04, § 31, 12 January 2012).
THE LAW
I. AS TO THE LOCUS STANDI OF THE SECOND
APPLICANT IN RESPECT OF THE COMPLAINTS OF THE FIRST APPLICANT
The first applicant died on 1 February 2010,
while the case was pending before the Court. It has not been disputed that the
second applicant (her husband) is entitled to pursue the application on her
behalf and the Court sees no reason to hold otherwise (see, among other
authorities, Shastin and Shastina v. Ukraine, no. 12381/04, § 12, 10 December 2009). However,
reference will still be made to both applicants throughout the ensuing text.
II. THE ALLEGED INEFFECTIVENESS AND THE LENGTH
OF THE INVESTIGATION INTO THE DEATH OF THE APPLICANT’S SON
The applicants complained that the investigation
into the road traffic accident that caused their son’s death had been lengthy
and ineffective. They relied on Articles 2, 6 § 1 and 13 of the
Convention.
The Court, which is master of the
characterisation to be given in law to the facts of the case, finds that the
complaint at issue falls to be examined under Article 2 of the Convention,
which is the relevant provision (see Igor Shevchenko v. Ukraine, no. 22737/04, § 38, 12 January 2012). This provision, in so far as
relevant, reads as follows:
“1. Everyone’s right to life shall be protected by
law. No one shall be deprived of his life intentionally save in the execution
of a sentence of a court following his conviction of a crime for which this
penalty is provided by law.”
A. Admissibility
The Court considers, in the light of the parties’
submissions, that the complaint raises serious issues of fact and law under the
Convention, the determination of which requires an examination of the merits.
The Court concludes therefore that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 (a) of the Convention. No other ground for
declaring it inadmissible has been established.
B. Merits
The applicants complained about the length and
the alleged ineffectiveness of the investigation. They considered that the
criminal case materials had been falsified and that the police had been bribed
by Mr F., Mr G. and Ms G., who had been responsible for the death of their son.
They noted that although initially the investigator had considered that there were
sufficient reasons to institute criminal proceedings into the death of their
son, he had later concluded that there had been no corpus delicti in the
actions of Mr F. They also complained that they had not been sufficiently
involved in the case, as the investigation had not conducted a single
investigative action involving their participation, and as they had learned
about some of the documents in the criminal case file only from the Government’s
submissions to this Court.
The Government maintained that the domestic
authorities had acted with due diligence from the outset and that there had
been no delays that could have affected the effectiveness of the investigation
and the establishment of the facts of the case. They also noted that the number
of investigative actions taken in the criminal case in question demonstrated
the willingness of the authorities to conduct a thorough investigation of the
case. They maintained that the referrals of the case for additional investigation
did not mean the investigation was ineffective. According to them, the
investigator had followed all the instructions of the higher prosecutors during
the additional investigation of the case. They also noted that the majority of
such instructions had been based on the applicants’ complaints, which also
demonstrated sufficient involvement of the applicants in the criminal
proceedings in question. The law-enforcement authorities had also checked other
allegations by the applicants, for example, that the investigator had been
bribed by the defendants. The Government also noted that the fact that the
investigation had not established any corpus delicti in the actions of
Mr F. did not render the investigation ineffective.
The Court reiterates that Article 2 does not
concern only deaths resulting from the use of force by agents of the State. In
the first sentence of its first paragraph it lays down a positive obligation on
the Contracting States to take appropriate steps to safeguard the lives of
those within their jurisdiction. That obligation applies in the context of any
activity in which the right to life may be at stake, including deaths resulting
from road traffic accidents, and calls for an effective judicial system which
can determine the cause of death and bring those responsible to account (see Anna
Todorova v. Bulgaria, no. 23302/03, § 72, 24 May 2011, with further references).
The State’s obligation under Article 2 of the
Convention will not be satisfied if the protection afforded by domestic law
exists only in theory; above all, it must also operate effectively in practice
and that requires a prompt examination of the case without unnecessary delays
(see Šilih v. Slovenia [GC], no. 71463/01, § 195, ECHR 2009-...).
In line with the above, while the identification
and punishment of those responsible for a death and the availability of
compensatory remedies to the applicant are important criteria in the assessment
of whether or not the State has discharged its Article 2 obligation (see, among
other authorities, Rajkowska v. Poland (dec.), no. 37393/02, 27 November
2007, and Fedina v. Ukraine, cited above, §§ 66-67), in a number of
recent cases before the Court the finding of a violation has largely been based
on the existence of unreasonable delays and a lack of diligence on the part of the
authorities in conducting the proceedings, regardless of their final outcome
(see, for example, Šilih v. Slovenia [GC], cited above, § 211; Dvořáček
and Dvořáčková v. Slovakia, no. 30754/04, § 70, 28 July
2009; and Antonov v. Ukraine, no. 28096/04, §§ 50-51, 3 November
2011).
The Court has stated on a number of occasions
that, although the right to have third parties prosecuted or sentenced for a
criminal offence cannot be asserted independently, an effective judicial
system, as required by Article 2, may, and under certain circumstances must,
include recourse to the criminal law (see, for example, Perez v. France
[GC], no. 47287/99, § 70, ECHR 2004‑I). However, if the
infringement of the right to life or to physical integrity was not caused intentionally,
the positive obligation imposed by Article 2 to set up an effective judicial
system does not necessarily require the provision of a criminal-law remedy in
every case (see Vo v. France [GC], no. 53924/00, § 90, ECHR 2004‑VIII).
The Court also underlines that it would be
inappropriate and contrary to its subsidiary role under the Convention to
attempt to establish the facts of this case on its own, duplicating the efforts
of the domestic authorities, which are better placed and equipped for that
purpose (see, for example, McShane v. the United Kingdom, no. 43290/98,
§ 103, 28 May 2002). Following its well‑established practice, it will
confine the examination of this application to an evaluation of the domestic
investigation into the matter as regards its overall compliance with the
aforementioned standards.
Turning to the facts of the present case, the
Court notes that, having learned about the violent death of the applicants’
son, the authorities instituted criminal proceedings and took a number of
measures aimed at discharging their positive obligation under Article 2 of the
Convention. A number of investigative actions, including an on-site
reconstruction of the events, questioning, and various forensic examinations, were
conducted during the following months. The fact that the authorities did not
establish any criminal liability on the part of the driver does not render the
investigation ineffective.
At the same time, the Court observes that the
road traffic accident and the death of the applicants’ son occurred in October
2003, whereas the final decision was taken in August 2010 – almost seven years
later. It notes that, despite the substantial number of investigative measures
taken, the investigation was criticised by the national authorities themselves
for a lack of efficiency (see paragraph 26 above). Furthermore, the criminal
proceedings in question were marked by numerous referrals for additional
investigation caused, inter alia, by the investigator’s failure to
follow the instructions of the supervisory authorities (ibid). The police also
had been aware from the outset of the fact that the defendants in the case
permanently resided abroad and their availability for the investigative actions
at the later stage could be therefore problematic, which required from the
investigators to act with particular diligence at the initial stage of the
proceedings. The behaviour by the investigating authorities, however, was
incompatible with the State’s obligation under Article 2 of the Convention to
carry out an effective investigation into suspicious deaths. Furthermore, the
Court is reinforced in this view by the fact that the applicants were not
involved, appropriately, in the investigation and only found out about some of
the procedural decisions from reading the Government’s submissions to this
Court (see paragraph 48 above).
There has therefore been a violation of the procedural limb of Article 2
of the Convention in the present case.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The applicants originally complained under
Article 1 of Protocol No. 1 that they had not yet been paid the insurance
sum for the death of their son, and that they had not been offered compensation
for the damage suffered on account of his death.
Having considered the applicants’ submissions in
the light of all the material in its possession, the Court finds that, in so
far as the matter complained of is within its competence, it does not disclose
any appearance of a violation of the rights and freedoms set out in the
Convention.
It follows that this part of the application
must be declared inadmissible as manifestly ill-founded, pursuant to
Article 35 §§ 3 (a) and 4 of the Convention.
IV. 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 3,500 euros (EUR) in
respect of pecuniary damage, and EUR 200,000 in respect of non-pecuniary damage.
The Government considered these amounts unreasonable
and excessive.
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, it awards the applicants EUR 6,000 in
respect of non-pecuniary damage.
B. Costs and expenses
The applicants also claimed 67.30
Ukrainian hryvnias (UAH) for the postal expenses incurred at the domestic
level, UAH 117.70 for the indexation of the sum claimed above, and UAH 350.70
for the expenses incurred before this Court.
The Government considered the expenses incurred
domestically to be unrelated to the present case. They also left the issue of
awarding costs and expenses for the proceedings before the Court to the latter’s
discretion.
According to the Court’s case-law, an applicant
is entitled to the reimbursement of 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 awards the applicants
EUR 21 under all heads.
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 concerning
the length and effectiveness of the investigation into the death of the
applicants’ son admissible and the remainder of the application inadmissible;
2. Holds that there has been a violation of
Article 2 of the Convention;
3. Holds
(a) that the respondent State is to pay the applicants,
within three months of the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention, the following
amounts, to be converted into Ukrainian hryvnias at the rate applicable on the
date of settlement:
(i) EUR 6,000 (six thousand euros), plus any tax
that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 21 (twenty-one euros), plus any tax that
may be chargeable to the applicants, in respect of costs and expenses;
(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;
4. Dismisses the remainder of the applicants’
claim for just satisfaction.
Done in English, and notified in writing on 31 July 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Dean
Spielmann Deputy Registrar President
