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FIFTH
SECTION
CASE OF SERGIYENKO v. UKRAINE
(Application
no. 47690/07)
JUDGMENT
STRASBOURG
19
April 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 Sergiyenko v.
Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Dean Spielmann,
President,
Elisabet
Fura,
Karel
Jungwiert,
Boštjan
M. Zupančič,
Mark
Villiger,
Ganna
Yudkivska,
Angelika
Nußberger, judges,
and
Stephen Phillips, Deputy Section Registrar,
Having
deliberated in private on 20 March 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 47690/07) against Ukraine
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Ukrainian national, Mr Volodymyr Ivanovych
Sergiyenko (“the applicant”), on 9 October 2007.
- The
applicant was represented by Mr O.A. Sakhnenko, a lawyer practising
in Kryvyy Rig. The Ukrainian Government (“the Government”)
were represented by their Agent, Mrs V. Lutkovska, from the Ministry
of Justice.
- The
applicant alleged, in particular, that the criminal proceedings
concerning the death of his son and the examination of his civil
claim within those proceedings had been excessively long.
- On
1 February 2011 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
applicant was born in 1949 and lives in Kryvyy Rig.
- On
1 October 2002 the applicant’s son was hit by the vehicle of
Mr B., who fled from the scene of the accident.
- On
2 October 2002 the police examined the scene of the accident, traced
and located Mr B., examined his vehicle and conducted a medical
examination of Mr B.
- On
9 October 2002 the applicant’s son died in hospital as a result
of his injuries sustained in the accident.
- On
11 October 2002 the Zhovtnevy District Police Department instituted
criminal proceedings against Mr B. for causing a traffic accident
resulting in the death of the applicant’s son and for leaving
him in danger after the accident. Mr B. was questioned the same day.
- On
15 October 2002 the applicant was recognised as a civil claimant
within the criminal proceedings.
- Between
October 2002 and January 2003 the investigation team conducted
technical, medical forensic expert examinations, questioned the
suspect, the applicant and several witnesses and conducted a number
of other investigative actions.
- On
20 January 2003 the criminal proceedings were terminated for lack of
corpus delicti in the actions of Mr B.
- On
17 February 2003 the Zhovtnevy District Prosecutor’s Office
quashed the decision of 20 January 2003 and remitted the case for
further investigation. The investigator in the case was replaced.
- On
5 April 2003 the investigator ordered a repeated technical expert
examination. The examination was completed on 6 June 2003.
- On
23 October 2003 the Main Investigative Department of the Ministry of
the Interior noted the ineffectiveness of the investigation in the
case and ordered the investigator to take appropriate investigative
actions.
- Between
November 2003 and April 2004 the investigator questioned a number of
witnesses.
- On
27 April 2004 the investigator conducted a repeated on-site
reconstruction of the events. Another on-site reconstruction was
scheduled for 9 June 2004 and postponed on several occasions. It was
finally conducted on 28 July 2004.
- On
30 July 2004 the investigator, upon the applicant’s request,
ordered additional medical, technical and trace evidence
examinations. They were completed on 22 February 2005.
- On
6 May 2005 the case was given to another investigator, who ordered
additional medical, technical and trace evidence examinations on the
same day.
- On
20 June 2006 the technical examination was completed.
- On
6 July 2006 the investigator in the case was replaced.
- On
18 July 2006 the investigator ordered an additional medical
examination. It was completed on 19 August 2006.
- Between
October 2006 and April 2007 the investigation team questioned several
witnesses and conducted a number of confrontations.
- On
12 December 2007 the case was transferred to the Kryvyy Rig City
Police Department for further investigation.
- On
1 February 2008 a new investigator in the case was appointed.
- On
20 February 2008 the investigator in the case was replaced.
- On
3 June 2008 the investigator ordered additional medical, technical
and trace evidence examinations. They were completed on 31 June 2008.
- On
10 September 2008 Mr B. was charged with a breach of traffic rules
causing the death of the applicant’s son. At the same time, the
charge of leaving a person in danger after the accident was dropped.
- On
9 October 2008 the criminal investigation was completed and the case
was transferred to the Zhovtnevy District Court of Kryvyy Rig
(hereinafter – “the District Court”) for
examination.
- On
18 November 2008 the District Court held a preparatory hearing.
- On
21 January 2009 the applicant lodged a civil claim, which he later
reformulated on several occasions.
- On
9 December 2009 the District Court found Mr B. guilty of a breach of
traffic rules causing death and sentenced him to four years’
imprisonment. It also awarded the applicant 80,000 Ukrainian hryvnias
(UAH), the equivalent of 7,175 euros (EUR), in compensation for
non pecuniary damage and UAH 29,798, the equivalent of EUR
2,672, in compensation for pecuniary damage.
- On
18 and 24 December 2009 respectively the defendant and the prosecutor
appealed against the judgment. The former claimed his innocence; the
latter considered the sentence too lenient.
- On
25 December 2009 the applicant submitted his objections to the
defendant’s appeal, considering that the judgment of 9 December
2009 had been well-founded and lawful.
- On
3 February 2010 the Dnipropetrovsk Court of Appeal upheld the
decision of the first-instance court. This decision was not appealed
against and it became final.
- On
18 February 2010 Mr B. was arrested by the police and sent to prison
to serve his sentence.
II. RELEVANT DOMESTIC LAW
A. Civil Code 1963
- Article
450 of the Civil Code, as in force until 1 January 2004, provided as
follows:
“Organisations and persons whose activities give
rise to an increased hazard to their environment (transport
organisations, industrial enterprises, buildings, car owners etc.)
shall be obliged to compensate [any] damage caused by the source of
that increased hazard unless they can prove that the damage resulted
from force majeure or from intentional actions on the part of
the victim.”
B. Civil Code 2004
- The
relevant provision of the Civil Code, as in force since 1 January
2004, reads:
Article 1187. Compensation for damage caused by a
source of increased danger
“...
5. A [natural or legal] person involved in an activity
constituting a source of increased hazard shall be responsible for
[any] damage caused [by that activity] unless [he, she or it] can
prove that the damage has resulted from force majeure or from
intentional actions on the part of the victim.”
THE LAW
I. THE ALLEGED INEFFECTIVENESS AND THE LENGTH OF THE
INVESTIGATION INTO THE DEATH OF THE APPLICANT’S SON
- The
applicant complained about the length of the criminal proceedings and
the length of the examination of his civil claim within those
proceedings. He referred to Articles 2 § 1 and 6 § 1 of the
Convention, which read insofar as relevant as follows:
Article 2 § 1
“1. Everyone’s right to life
shall be protected by law...”
Article 6 § 1
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair and public hearing
within a reasonable time by an independent and impartial tribunal
established by law. ...”
A. Admissibility
1. Non-exhaustion of domestic remedies
- The
Government maintained that domestic legislation had provided for a
special procedure for seeking compensation for material and
non pecuniary damage in a case like the present. It had been
open to the applicant to institute civil proceedings against Mr B.
and to claim compensation for the damage caused by the source of
increased hazard – in this case, the vehicle. The applicant
could have had recourse to this civil remedy, which had not been
dependent on the outcome of any criminal investigation. Given that
the applicant had not instituted such proceedings, the Government
considered that the application was inadmissible because the
applicant failed to exhaust available domestic remedies.
- The
applicant did not submit any observations within the set time-limit.
- The Court notes that the remedy suggested by the
Government is not intended to address the issue of the length of the
investigation and trial in the present case, but rather is an
alternative civil remedy. In this respect the Court reiterates that,
although the right to have third parties prosecuted or sentenced for
a criminal offence cannot be asserted independently (see Perez v.
France [GC], no. 47287/99, § 70, ECHR 2004 I), the
Court has stated on a number of occasions that an effective judicial
system, as required by Article 2, may, and under certain
circumstances must, include recourse to the criminal law. However, if
the infringement of the right to life or to physical integrity is 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 Fedina v.
Ukraine, no. 17185/02, § 62, 2 September 2010, with further
references). In the circumstances of the present case, even if the
applicant could have recourse to a civil remedy, which was not
dependent on the outcome of any criminal investigation, any relevant
findings in the criminal proceedings would have influenced the
outcome of the civil proceedings and the amount of compensation,
which could be different depending on finding of a guilt of Mr B.
Therefore, the Government’s objection in respect of the
applicant’s complaint under Article 2 § 1 of the
Convention must be rejected.
- The Court further notes that the applicant could have
claimed damages from Mr B., both within the criminal proceedings and
in separate civil proceedings. The applicant chose the former remedy
and exhausted it. The Court reiterates that under its established
case-law, when a remedy has been pursued, use of another remedy which
has essentially the same objective is not required (see Micallef
v. Malta [GC], no. 17056/06, § 58, 15 October 2009).
The Court notes that both remedies served the same purpose and were
equally available to the applicant. The Government did not
demonstrate that in the circumstances of the present case that
separate civil proceedings would a priori have been a more
effective remedy than the examination of a civil claim within the
criminal proceedings. The Court therefore also dismisses this
objection of the Government in respect of the applicant’s
complaint under Article 6 § 1 of the Convention.
2. Otherwise as to admissibility
- The
Court notes that this application is not inadmissible on any other
grounds and is not manifestly ill-founded within the meaning of
Article 35 § 3 (a) of the Convention. It must therefore be
declared admissible.
B. Merits
- The
applicant complained about the length of the investigation and trial.
He submitted no further observations in reply to those of the
Government.
- 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 had demonstrated the willingness of the authorities to
conduct a thorough investigation of the case.
- As
to the length of the examination of the applicant’s civil
claim, the Government noted that the applicant had been recognised as
a civil claimant in the criminal case on 15 October 2002. The
proceedings had been terminated by the decision of the Dnipropetrovsk
Regional Court of Appeal on 3 October 2010. According to the
Government, the proceedings had therefore lasted for six years, three
months and nineteen days and this length had been reasonable in the
circumstances of the case.
- 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 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 was largely based on the existence of unreasonable delays
and a lack of diligence on the authorities’ part in conducting
the proceedings, regardless of their final outcome (see, for example,
Šilih v. Slovenia [GC], no. 71463/01, § 211, 9
April 2009; Dvořáček and Dvořáčková
v. Slovakia, no. 30754/04, § 70, 28 July 2009; Antonov v.
Ukraine, no. 28096/04, §§ 50-51, 3
November 2011).
- Turning
to the facts of the present case, the Court notes that the
authorities took a number of measures aimed at discharging their
positive obligation under Article 2 of the Convention. The person
responsible for the death of the applicant’s son was promptly
identified and number of investigative actions, including an on-site
reconstruction of events, questioning and different forensic
examinations, were conducted within the following months. The Court
further notes that the perpetrator was eventually committed for
trial, convicted and sentenced to a term of imprisonment. The
applicant was also awarded damages.
- At
the same time, the Court observes that the traffic accident and the
death of the applicant’s son occurred in October 2002, whereas
the final decision concerning Mr B.’s punishment was taken in
February 2010 – more than 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 15 above). Furthermore, the
criminal proceedings in question were marked by numerous changes of
investigator and an unusually high number of repeated expert
examinations. It could be accepted that in certain circumstances a
repeated expert examination might be required to clarify the
circumstances of the case. At the same time, in the Court’s
opinion, the fact that the same type of forensic examination was
ordered several times (see paragraphs 11, 14, 18, 22 and 27 above)
within the same criminal case suggests the lack of a comprehensive
approach to the collection of evidence during the pre-trial
investigation phase. The Court considers that a delay of seven years
in bringing to accountability the person responsible for the death of
the applicant’s son was incompatible with the State’s
obligation under Article 2 of the Convention to carry out an
effective investigation of suspicious deaths.
- There has therefore been a violation of the procedural
limb of Article 2 of the Convention in the present case.
- Having
regard to the particular circumstances of the present case and to the
reasoning which led it to find a violation of Article 2 in its
procedural limb, the Court considers that it is not necessary to also
examine the case under Article 6 § 1 of the Convention (see
Šilih v. Slovenia, cited above, § 216).
II. 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.”
- The
applicant did not submit a claim for just satisfaction within the set
time-limit. Accordingly, the Court considers that there is no call to
award him any sum on that account.
FOR THESE REASONS, THE COURT
- Declares unanimously the application admissible;
- Holds by six votes to one that there has been a
violation of Article 2 of the Convention under its procedural limb;
- Holds by six votes to one that there is no need
to examine the complaint under Article 6 § 1 of the Convention.
Done in English, and notified in writing on 19 April 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Dean Spielmann Deputy Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the separate opinion of Judge
Nußberger is annexed to this judgment.
D.S.
J.S.P.
PARTLY DISSENTING OPINION OF JUDGE NUSSBERGER
I
respectfully disagree with the majority’s opinion that mere
delays in investigating a death caused by a road accident – not
an intentional killing – are to be considered as a violation of
Article 2. As the investigation was successful in the end and
compensation was paid, I see only a violation of Article 6 § 1,
not of Article 2 of the Convention.
The
Court has constantly widened the scope of applicability of Article 2
of the Convention. The procedural obligation under Article 2 has been
applied not only in cases where the State could be held responsible
for a person’s death, but also where private persons were
responsible (see Anna Todorova v. Bulgaria, no.
23302/03, § 72, 24 May 2011, and Šilih
v. Slovenia ([GC], no. 71463/01, § 192, 9 April 2009).
This approach has been applied in respect of deaths resulting from
medical negligence (see Šilih, cited above) and also in
respect of fatal road-traffic accidents (see Rajkowska v. Poland
(dec.), no. 37393/02, 27 November 2007). However, up to now the
Court has found a violation of the procedural limb of Article 2 only
where the investigation was not only long and ineffective, but also,
as a consequence of the length and of the lack of diligence, the
perpetrator could either not be identified or his or her
responsibility could not be proven, so that ultimately the victim was
deprived of any redress (see Anna Todorova, cited
above; Šilih, cited above; and Dvořáček
and Dvořáčková v. Slovakia, no.
30754/04, 28 July 2009, which became final on 28 October 2009).
Contrary to the approach taken in the present case, delays in the
investigation have up to now been considered as a violation of
Article 6 alone (see Fedina v. Ukraine, no. 17185/02, 2
September 2010). Consequently, in Rajkowska v. Poland, cited
above, the Court did not find a violation because the driver
responsible for the accident was ultimately convicted of the offence
and sentenced.
The
present case is the first case in which the Court has found a
violation of Article 2 despite the fact that the perpetrator was
identified and punished and compensation was paid. It is true that
the victim had to wait seven years before that result was achieved.
This, however, is a problem of inefficiency in long civil and
criminal proceedings, which is covered by Article 6 of the
Convention. I do not therefore see any need for a further widening of
the scope of applicability of Article 2. There is no lacuna to be
filled. This departure from settled case-law does not improve the
protection of victims, but rather mitigates the stigmatizing effect
which the finding of a violation of Article 2 should have. Article 2
ranks as one of the most fundamental provisions of the Convention
(see McCann and Others v. the United Kingdom, 27 September
1995, § 147, Series A no. 324). Therefore it matters whether a
State is reproached for having violated Article 2 or Article 6.
Delays in investigating a road accident cannot be equated with an
intentional killing by State agents. In my view, this departure from
the case law blurs the nuanced approach to different types of
human rights violations enshrined in the Convention.
