FIFTH SECTION
CASE OF
SLYUSAR v. UKRAINE
(Application no.
39797/05)
JUDGMENT
STRASBOURG
17 January 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 Slyusar 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, judges,
and Claudia Westerdiek, Section Registrar,
Having deliberated in private on 11 December 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
39797/05) against Ukraine lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Ukrainian national, Mr Yuriy Borysovych Slyusar (“the
applicant”), on 26 October 2005.
The applicant, who had been granted legal aid,
was represented by Mr K.M. Buzadzhy, a lawyer practising in Kyiv. The Ukrainian
Government (“the Government”) were represented by their Agent, most recently,
Mr N. Kulchytskyy, of the Ministry of Justice of Ukraine.
The applicant alleged, in particular, that the
investigation of his brother’s death was ineffective.
On 31 August 2010 the application was
communicated to the Government.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1957 and lives in Kyiv.
A. Investigation of the applicant’s brother’s
disappearance
On 15 April 2003 the applicant’s twin brother
(“Se.”) made a will in the applicant’s favour, according to which, in the event
of the applicant’s brother’s death, the applicant would inherit an apartment (“apartment
A”) and other property.
Between 16 and 17 April 2003 Se. disappeared. The
applicant claimed he had talked to his brother on the phone at around 8 p.m. on
16 April and they had agreed to meet the next day. However, when the applicant
called his brother the next morning, nobody answered. According to statements
from the applicant’s former sister-in-law (“G.”), (with whom the applicant’s
brother had continued to share an apartment after their sham divorce in the
1990s,) on the evening of 16 April 2003 her former husband had been using the
phone when she went to bed. As they slept in different rooms and as the door to
her former husband’s room was closed, she did not know whether or not he was at
home when she left the apartment on the morning of 17 April 2003.
According to the applicant, on the evening of 17
April 2003 his friends, (“the Be.”), visited his brother’s apartment. They claimed
to have noticed “the absence of the carpet and that [the applicant’s] brother’s
son (“S.”) had a wound to his hand”. They also stated that G. and S. were very
nervous.
On 18 April 2003, the applicant and G. reported Se.’s
disappearance to the Solomyanskiy district police station in Kyiv (Солом’янський
районний
відділ ГУ МВС
України в м. Києві). According to G., the applicant’s brother had left their
apartment at an unknown time and had not come back. She did not see him
leaving. The applicant alleged that G. and S. knew of his brother’s whereabouts
and requested that the police look for an acquaintance of G. called I.
On 18, 22 and 23 April 2003 the apartment was
examined by the police. The following items were seized: pieces of wallpaper
stained brown, traces of a brown coloured substance from a radiator and door, a
plastic pipe from the bathroom, a stool, a T-shirt, and running shoes and trousers
belonging to S. Police also seized the deeds for three apartments, 2,000 United
States dollars (USD) and 1,000 Ukrainian hryvnas (UAH) (in cash) and Se.’s
passport.
On 26 April 2003 the police refused to institute
criminal proceedings owing to lack of evidence, since Se. had not been found
among bodies awaiting identification and he himself had not sought the help of
the police or been brought to a medical institution in need of assistance.
On 20 May 2003 the prosecutor quashed the police
decision of 26 April 2003 and instituted criminal proceedings on suspicion
of kidnapping since “there were grounds to believe that [the applicant’s
brother] had been confined by unknown persons”.
On 30 May 2003 the applicant was questioned by
the police. He said that his brother had told him he had received threats from
his former wife and son.
On 9 June 2003 Se.’s neighbours, (“B.”),
testified that between 2 and 3 a.m. on 17 April 2003 they had heard the sounds
of the water heater being turned on, the sounds of running water and what
appeared to be the sounds of someone cleaning the apartment.
On 24 June 2003 the applicant was informed that
the police officers K. and O. were being disciplined for breaching criminal
procedure law and for their unsubstantiated refusal to institute criminal
proceedings.
On 20 and 24 June and 1 and 4 July 2003, six
forensic examinations took place. No traces of blood were found on the plastic
water pipe or stool or the clothes confiscated from S. It was impossible to
identify the owner of the blood on S.’s running shoes. The blood on the door may
have belonged to a woman and there was a possibility that the blood found on
the radiator and wallpaper was that of S. or G. However, on 7 July 2003 another
forensic examination concluded that the stains on the wallpaper did not contain
blood from either S. or G. It is unclear whether, as regards the wallpaper, two
different samples had been examined or each examination had reached a different
conclusion.
On 9 July 2003, S. and G. were arrested. However,
since there was no proof of their involvement in any crimes, they were released
on 18 July 2003 and the criminal proceedings against them were terminated on 21
July 2003.
On 21 August 2003 the criminal proceedings which
had been opened on 20 May 2003 were suspended, as it was impossible to
establish who had committed the crime.
On 24 August 2003 S. was questioned as a
witness.
On 15 October 2003 the criminal proceedings on
the charge of kidnapping were terminated and new proceedings were opened on a
charge of murder. It was noted that “it appears that Se. was killed”.
On 20 December 2003 the applicant was recognised
in the proceedings as a victim.
Between January and November 2004 a number of
witnesses including Se.’s friends and neighbours, police officers, S. and G.
and the notary who had certified the Se.’s will, gave written statements.
On 10 March 2004 the General Prosecutor’s Office
(“the GPO”) informed the applicant that the officer investigating the case had
been disciplined for inefficiency.
On 29 November 2004 a forensic medical
examination of the wound to S.’s hand was carried out. S. claimed that he had
cut his hand on 18 or 19 April 2003 on a piece of broken glass from a jar.
The examination proved inconclusive.
On 27 December 2004 the case was transferred to
the Zhytomyr Regional Prosecutor’s Office for investigation.
Between May and June 2005 some of the witnesses
were called again for additional questioning.
On 2 June 2005 following a reconstruction of
events which took place in the Bs’ apartment in the early hours of 17 April
2003, it was established that it was impossible to hear any sounds of washing
and cleaning from the applicant’s brother’s apartment.
On 3 June 2005 the case was transferred back to
Kyiv.
On the same day S. underwent a lie-detector
test. According to the applicant, its results were not included in the
case-file and were later lost.
Between 5 July 2005 and 21 February 2006 S. was
questioned again. The applicant was questioned five times, his father was
questioned twice, and several investigating officers and a forensic expert, who
had been present during the searches of the applicant’s brother’s apartment,
were also questioned.
On 9 November 2005 Y., the investigation officer
at that time, was questioned as a witness. He stated that he had been present
during the visit to the applicant’s brother’s apartment on 23 April 2003.
According to his statements, parts of the wallpaper which had been stained
brown had been cut out and removed by the police - allegedly for further
forensic examination. Brown spots had also been found on the doors and on the
heater. Some clothes were seized (a T-shirt, running shoes and trousers). He
did not know what had happened to this evidence.
On 16 January 2006, at a briefing in the GPO, it
was held that the criminal case had not been properly investigated and the
applicant’s allegations regarding the involvement of S., G. and M. (G.’s friend,
whom the applicant had first identified as “I.”) in the crime had not been investigated.
On the same date the GPO sent the following letter to the Kyiv Prosecutor’s Office:
“After examining the material in the case file it was
established that the investigation was marked by shortcomings. The allegations
made by Y.B. Slyusar about the circumstances of the crime and the involvement
of G. and S. into ... disappearance were not properly checked.
Unsubstantiated decisions to drop the investigation were taken.
The case was transferred several times from one investigating officer to
another.
The initial stage of the investigation was marked by delays and
a number of tactical mistakes. In particular, much time was lost in verifying
the statement that S.B. Slyusar had disappeared. Only after numerous substantiated
complaints had been made by the victim’s relatives were criminal proceedings opened
on a charge of murder.
The investigation was unstructured and chaotic ... no
reconstruction of events was held and no checks were made as to whether it was
possible to hear the cleaning of the floor and walls from the neighbouring
apartment.
The majority of witnesses were questioned perfunctorily,
without verification of the circumstances of the case. Despite statements from
relatives, neighbours and friends that there had been a conflict about money in
the victim’s family, no enquiries were made, at the initial stage of the
investigation, into whether the former wife and son of the victim had committed
a crime for monetary reasons. M.’s implication in the crime was not properly
checked either.
It was not established how S. had cut his hand or whether he
had an illness which could cause nose bleeding ...
The GPO is to be informed of the results of the investigation
by 16 February 2006.”
On 13 February 2006 M. was questioned. He stated
that G. had told him that S. had killed Se. and had hidden the body. There was
a quarrel between Se. and S., and the latter said: “You took my inheritance and
I will take your life”. After that G. had heard some noise but S. had told her
to stay in her room. Later she had seen two bags in the corridor.
On 17 February 2006 the GPO informed the
applicant that there was no evidence to support his statement that the case
materials had disappeared.
On 21 February 2006 M. was again questioned. He
stated that he had been told by G. that the applicant’s brother had been killed
by S., who had hit the victim with a dumbbell, cut the body in two, and had
hidden it. On 22 February 2006 a face-to-face confrontation was held between M.
and S., and between M. and G, with M. insisting that S. had killed the
applicant’s brother and S. denying his guilt.
On 24 February 2006 S. was arrested and released
three days later.
Between 4 October 2006 and 26 February 2007 the
applicant, S., G. and M. were questioned again.
On 9 July 2007 the case was transferred to the
Kyiv Investigation Unit of the Ministry of Internal Affairs (слідче
управління
Міністерства
внутрішніх
справ м.
Києва). Between
26 July 2007 and 23 September 2009, the applicant was questioned three times
with several face-to-face confrontations having taken place between the
applicant, G. and S., and M. having been questioned also.
In 2008 S. left for Australia.
In June 2009 an “A.” enterprise informed the
police that in 2003, allegedly upon the request by the investigation
authorities, M. was interrogated by its specialists with the use of a lie
detector. S. was interrogated in 2005. However, the relevant records were lost.
On 1 December 2009 the case was transferred to
the Solomyanskyi district police department in Kyiv.
Between 1 December 2009 and 11 September 2011 M.
and K. were questioned. The whereabouts of G. and S. at that time were
allegedly unknown.
According to the applicant, since May 2003 there
have been sixteen different investigating officers in charge of the case,
including two from the Zhytomyr Regional Prosecutor’s Office who handled the
case from December 2004 to June 2005.
The applicant’s brother’s body has never been
found. The proceedings are still pending.
B. Defamation proceedings
On 19 April 2006 a TV programme called “Bez
tabu” (“Without taboo”) which dealt with the disappearance of the applicant’s
brother was shown on TV. The applicant states that it was filmed at the end of
2005 but that at that time the GPO banned it from being broadcast. The
programme was finally shown six months later but, according to the applicant, with
some of the initial footage missing.
On 16 May 2006, S. and G. instituted defamation
proceedings in the Pecherskyy District Court of Kyiv against the “1+1” TV
company which had made the programme, the investigating journalist, the
applicant and three of his family members.
On 13 November 2006 the court found for the
claimants and held that thirty-three different phrases used by the defendants
during the programme were defamatory. The court awarded the former UAH 15,000
in compensation for non-pecuniary damage and ordered the defendants to retract
the false information by reading out the operative part of the judgment on the
same TV programme.
On 22 May 2007 the Kyiv City Court of Appeal
reduced the award to UAH 6,000 and upheld the remainder of the judgment.
On 23 January 2008 the Supreme Court of Ukraine
quashed the judgment of 22 May 2007 and sent the case back to the Court of Appeal.
On 17 April 2008 the Kyiv City Court of Appeal
quashed the judgment of 13 November 2006 and rejected the claims.
On 18 June 2008 the Supreme Court of Ukraine
upheld the judgment of 17 April 2008.
C. Civil proceedings to declare the applicant’s
brother dead
In October 2003 the applicant instituted
proceedings in the Pecherskiy District Court to have the death of his brother on
16 April 2003 formally recognised.
On 22 September 2004 the court rejected the
applicant’s request as criminal proceedings were still pending, no body had
been found and there was no evidence that the applicant’s brother had died on
the date indicated by the applicant. On 13 January 2005 and 6 April 2006 the
Kyiv City Court of Appeal and the Supreme Court of Ukraine, respectively,
upheld this decision.
On 4 October 2006 the Pecherskiy District Court
again rejected the applicant’s request − referring to its decision of 22
September 2004.
On 29 January 2007 the same court found for the
applicant in part and finally declared his brother dead. It rejected the
applicant’s request for a formal declaration that the death had occurred on 16
April 2003.
D. Property-related proceedings
In 2003, the applicant lodged numerous claims
against G. with the courts, requesting, inter alia, the return of some
of his brother’s property and the eviction of G. from apartment A. The majority
of his claims were rejected by the courts for failure to comply with procedural
formalities.
On 28 April 2007 the Shevchenkivskiy District
Court rejected G.’s request to evict the applicant from apartment A. The court
also rejected the applicant’s request for formal acknowledgement that G. had
lost her right to live in the apartment as it had belonged not to the applicant
but to his brother.
On 6 June 2008 the applicant received an
inheritance certificate for apartment A in accordance with the will and
testament of his brother.
In 2008 and 2009 the applicant instituted civil
proceedings against G. and S. in order to claim his brother’s property. The
courts rejected his claims for failure to comply with procedural requirements.
E. Other proceedings
The applicant unsuccessfully lodged numerous
requests to institute criminal proceedings against the prosecutors, police
officers and judges who were involved in the case for, inter alia,
forgery and neglect of their duties. and against S. and G. for perjury −
but to no avail.
He also instituted civil and administrative
proceedings against various State authorities for negligence and claimed
compensation for non-pecuniary damage, but this was also to no avail.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 2 OF THE
CONVENTION
The applicant complained under Articles 2, 6, 8 and
13 of the Convention of the lack of an effective investigation into his brother’s
death and the failure of the domestic authorities to respond to his complaints.
In particular, the applicant alleged that his twin brother had been killed by
S. and G. in their apartment on the evening of 16 April 2003. He claimed
that the body had been removed by S. with the assistance of M. and then hidden.
In his opinion, S. and G. had not been prosecuted because they had bribed the investigating
authorities.
The Court considers that this complaint is to be
examined under the procedural limb of Article 2 of the Convention, which, in so
far as relevant, reads as follows:
“Everyone’s right to life shall be protected by law ...”.
A. Admissibility
The Government did not submit any observations as
to the admissibility of the applicant’s complaint.
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
1. The parties’ submissions
(a) The Government
The Government submitted that in the present
case the requirements of an “effective investigation” under the procedural limb
of Article 2 of the Convention had been complied with. The investigating
authorities had acted diligently and promptly.
As soon as G. and the applicant had informed the
police that the applicant’s brother had disappeared, the police inspected Se’s
apartment and questioned all those who seemed to have any information about his
whereabouts (close relatives, acquaintances and former colleagues). As they
found no evidence that Se. had been the victim of a crime, on 26 April 2003 it
was decided not to institute criminal proceedings. However, on 20 May 2003 this
decision was quashed when a prosecutor considered that Se. had had no reason to
leave home without informing his close relatives and friends therefore giving
rise to the suspicion that he was being kept somewhere by unknown persons.
The case has still not been solved by the
investigating authorities since the body of the applicant’s brother has never been
found and no suspects have been identified. However, the Government insisted
that the authorities had done everything possible to investigate the
circumstances of the case. The applicant’s version of events had been examined but
the investigating officers had not had enough evidence to charge the individuals
accused by the applicant - M., G. and S. - or other witnesses who were
questioned on numerous occasions. A reconstruction of events had taken place in
the neighbours’ apartment where it was established that it would have been impossible
to hear what was happening in the apartment belonging to the applicant’s
brother. The investigating authorities had also done their best to find the
body of the applicant’s brother.
The Government further stated that the applicant’s
rights as a victim in the criminal case had not been ignored. He had been recognised
by the courts as a victim on 20 December 2003 and had been kept well informed
about the investigation. All the possible versions of events suggested by the
applicant had been investigated. For them, the applicant’s complaint was that
the investigation of the case had only proved to be ineffective because G. and
S. had not been prosecuted.
The Government also claimed that the fact that
disciplinary sanctions had been imposed on some of the investigating officers
did not mean that the investigation had been ineffective as a whole. The investigating
officers had complied with all the requests made by the prosecutors. The
Government found the applicant’s statement that the investigation officers had
received a bribe from G. and S. to be unsubstantiated.
(b) The applicant
The applicant did not accept the Government’s assertions
that an effective investigation had been carried out. In particular, (i) the
State authorities had not acted on their own initiative; (ii) there had been no
immediate response from the investigating authorities; (iii) the applicant had not
been involved in the investigation to an extent which would have secured his
lawful interests, (iv) the investigating officers had not secured the evidence
in the case; and (v) the shortcomings and delays in the initial stages of the
investigation had undermined any possibility of establishing the cause of the
death or punishing of those responsible.
According to the applicant, between 18 April and
15 October 2003 there had been no investigation into the cause of his brother’s
death in spite of the numerous complaints he had submitted. The applicant
himself had paid for the forensic examinations which had been held in June
2003. No additional examinations had been undertaken. Evidence such as the confiscated
money, the envelopes in which the money had been kept, and the shoes, had been returned
to the suspects in the case. The applicant had made a request that no-one
should be allowed into his brother’s apartment but this had been rejected,
which made any search of the premises meaningless. At the preliminary stage of
the investigation M. had not yet been questioned, nor S.’s wound examined; no
search had been made for traces of crime near the apartment, nor had an
investigation been carried out into how the body had been transported.
Therefore the shortcomings and ineffectiveness of the investigation at that initial
stage, and the failure to preserve the evidence undermined the ability of the investigating
authorities to establish the cause of the death and those responsible for it.
Later, between 15 October 2003 and 16 January
2006 the investigation had been carried out in a chaotic manner without any
clear plan of action. For example, nine of the investigating officers had been replaced
and for some unknown reason the case had been transferred to the Zhytomyr
Regional Prosecutor’s Office and then sent back to Kyiv.
The applicant indicated that on 13 October 2005
the GPO had issued detailed instructions on the investigation of the case. However,
those were not complied with by the investigating authorities. In the beginning
of the following year, on 16 January 2006, the GPO stated that the
investigation in the case was unsatisfactory. The applicant’s allegation of the
involvement of G., S. and M. in his brother’s murder had not been checked by 16
January 2006 and M. was questioned for the first time only three years after
the event.
Lastly, the applicant concluded that: (i) the
investigation had been marked by substantial shortcomings in its preliminary stage
and most of the investigation had been delayed (from two months to three years)
or not carried out at all; (ii) the case had been transferred from one
investigating officer to another and the investigation had been chaotic and
unprofessional; (iii) most of the evidence had not been secured; and (iv) the
applicant had not been allowed to participate in the investigation to the
extent which could secure his interests.
2. The Court’s assessment
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 Menson v. the
United Kingdom (dec.), no. 47916/99, ECHR 2003-V; Šilih v. Slovenia
[GC], no. 71463/01, §§ 156-57, 9 April 2009; Girard v. France, no. 22590/04, § 76, 30 June 2011;
and Shafiyeva v. Russia, no. 49379/09, §§ 86-96, 3 May 2012).
This is not an obligation of result, but of means.
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).
Turning to the present case, the Court notes at
the outset that the applicant’s brother disappeared on 16 or 17 April 2003. On
18 April 2003 the applicant and his brother’s former wife reported the
disappearance of Se. to the police. In the following days the police visited Se.’s
apartment and seized evidence. However, a week later, the police refused to
institute criminal proceedings for lack of evidence.
Although, in the absence of the victim’s body and
judging solely on the available evidence, it is not the responsibility of this
Court to establish whether or not there was enough evidence in the present case
to institute criminal proceedings regarding the murder of the applicant’s
brother in April 2003, the Court notes that in October 2003 such proceedings were
instituted while it does not appear that any additional evidence had been
discovered by the investigation. Even assuming that the results of forensic
examinations of July 2003 led the investigation authorities to the conclusion
about the possible murder of the applicant’s brother, the Court notes that the
criminal proceedings on a charge of murder were still instituted only three
months later.
The Court also does not lose sight of the fact
that the police officers were disciplined for breaches of criminal procedure
law and for the unsubstantiated refusal to institute criminal proceedings (see
paragraph 15 above). It was also noted later by the GPO that the initial stage
of the investigation had been marked by tactical mistakes.
In this connection 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).
Therefore, it appears that despite indications
that the applicant’s brother had been killed, the instigation of criminal
proceedings for murder were delayed.
The Court further notes that it does not appear from
the evidence available that a structured investigation took place even after
the institution of criminal proceedings. During the first two and a half years
of the investigation there were numerous shortcomings, which were pointed out by
the GPO in its letter of 16 January 2006.
The Court notes that following this letter, a
key witness, M., was finally questioned, although there is evidence that he had
been interrogated with a lie detector in 2003. This evidence was not acted on before
2009, although the applicant (despite confusing M.’s name with another) had
mentioned M.’s possible involvement in his very first letter to the police.
However, despite interviews held with M. and
confrontations held between him and G. and S., the investigation did not
progress. Nearly three years after the incidents in question took place, no
other evidence in support of M.’s version of events has been found; nor is
there any indication that an attempt was made to gather any.
The Court further notes that, although the
applicant’s complaints are mainly confined to his dissatisfaction with the fact
that neither G. nor S. was prosecuted, there is no evidence that any other
possible avenues were explored by the investigating authorities.
The Court also notes that the applicant’s
allegations of not being allowed to participate sufficiently in the case, and
of the loss of material evidence. However, it suffices in the present case to consider
that delays in the investigation, namely the failure to complete the necessary
steps in the investigation in a timely manner, which was acknowledged by the
national authorities, and the subsequent inactivity of the investigating authorities
are sufficient for the Court to conclude that the State cannot be regarded as
having conducted the investigation in a manner which could have been reasonably
expected of it under the circumstances.
There has accordingly been a violation of Article
2 of the Convention under its procedural limb.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The applicant complained under Article 1 of
Protocol No. 1 that he had not been able to gain possession of property he had
inherited from his brother. The applicant also complained under Articles 6 and
10 of the Convention, that the Prosecutor General’s Office had banned the
broadcasting of a TV programme dealing with the lack of investigation into the
applicant’s case, and also that his rights had been breached in the defamation
proceedings.
91. Having
considered the applicant’s submissions in the light of all the material in its
possession, the Court finds that, 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.
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.
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 applicant claimed 700,000 euros (EUR) in
respect of non-pecuniary damage. He further claimed EUR 250,000 as compensation
for the value of his brother’s apartment and other property allegedly belonging
to his brother, and the sums of USD 2,000 and UAH 1,000 which had been confiscated
by the police in April 2003.
The Government considered the amount of
compensation for non-pecuniary damage claimed by the applicant to be excessive.
They further maintained that there was no causal link between the alleged
violation and the pecuniary damage complained of.
The Court does not discern any causal link
between the violation found and the pecuniary damage complained of. It therefore
rejects this claim. On the other hand, deciding on an equitable basis, it
awards the applicant EUR 12,000 in respect of non-pecuniary damage.
B. Costs and expenses
The applicant also claimed EUR 4,532 for costs
and expenses incurred before the domestic authorities and the Court. This
amount, according to him, can be broken down thus: UAH 1,643.49
in payment for forensic examinations, UAH 4,500
for the cost of paper, UAH 24,000
for photocopying, UAH 5,000
for legal services in the national courts, UAH 1,027.09
for correspondence with this Court, UAH 5,000 for correspondence in Ukraine and
UAH 10,000
in travel expenses.
The Government argued that part of the applicant’s
claim had not been supported by any documents or vouchers and was unrelated to
the proceedings before this Court.
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 to the above-mentioned criteria, the Court
awards the sum of EUR 500 covering costs 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 concerning Article
2 of the Convention under its procedural limb admissible and the remainder of
the application inadmissible;
2. Holds that there has been a violation of
Article 2 of the Convention under its procedural limb;
3. Holds
(a) that the respondent State is to pay the
applicant, 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 the national currency of the respondent State at
the rate applicable on the date of settlement:
(i) EUR 12,000 (twelve thousand euros), plus any
tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 500 (five hundred euros), plus any tax that
may be chargeable to the applicant, 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 applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 17 January 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Mark
Villiger
Registrar President
