FIFTH SECTION

CASE OF POZHYVOTKO v. UKRAINE

(Application no. 42752/08)

JUDGMENT

STRASBOURG

17 October 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 Pozhyvotko 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,
and Claudia Westerdiek, Section Registrar,
Having deliberated in private on 24 September 2013,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 42752/08) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Ukrainian nationals, Ms Nataliya Mykolayivna Pozhyvotko (“the first applicant”) and Ms Mariya Mykolayivna Pozhyvotko (“the second applicant”) on 5 August 2008.
2.  The Ukrainian Government (“the Government”) were represented by their Agent, Mr N. Kulchytskyy.
3.  The applicants alleged, in particular, that the investigation of the circumstances of their relative’s death had not been effective for the purpose of Article 2 of the Convention.
4.  On 14 December 2011 the application was communicated to the Government.
THE FACTS
I.  THE CIRCUMSTANCES OF THE CASE
5.  The applicants live in Nosivka, Chernihiv Region. The first applicant is Mr Volodymr Pozhyvotko’s widow and the second applicant is his mother.
A.  Event of 12 October 2004 and official investigation
6.  In the evening of 12 October 2004 Mr Volodymyr Pozhvotko was shot dead in a local bar.
7.  On the same date the Nosivskyy District Prosecutor’s Office opened an investigation in connection with the death.
8.  During the night of 12-13 October 2004 an investigator from the prosecutor’s office, together with other law-enforcement officers, experts and witnesses, carried out an on-site examination, including photographing and videotaping of the crime scene. Certain material evidence was seized, including two pistols, cartridges, bullets and other items. The victim’s body was sent for a forensic medical examination.
9.  In the subsequent period the investigative authorities ordered forensic examinations of the seized evidence, questioned a number of witnesses and conducted searches in order to find additional evidence.
10.  On 18 October 2004 the first applicant was admitted to the proceedings as an aggrieved party.
11.  On 9 November 2004 the investigator charged T. with murder and put him on the list of wanted persons.
12.  On 7 February 2005 L. voluntarily confessed to shooting the victim dead. On the same day L. was arrested. The decisions concerning T. were revoked.
13.  On 16 February 2005 L. was released on the grounds that there was insufficient evidence to charge him with the crime.
14.  On the same day the second applicant was granted the status of aggrieved party in the criminal proceedings.
15.  By letter of 1 August 2005 the second applicant was informed that the case had been referred to the Chernihiv Regional Prosecutor’s Office for “a more qualified investigation”.
16.  In its letter of 23 October 2005 the General Prosecutor’s Office informed the second applicant that the investigation had been delayed. They further noted that the Chernihiv Regional Prosecutor’s Office had been instructed to take comprehensive measures in the case. As regards her request for referral of the case to a different prosecutor’s office, she was informed that it would not be appropriate to do so.
17.  On 1 November 2005 the investigator in charge of the case stated in writing that the video recording and photographs of the crime scene made on 12 October 2004 could not be found.
18.  On 28 December 2005 the investigation was closed on the grounds that L. had acted in the state of necessary defence and the involvement of other individuals in the crime could not be established.
19.  On 29 December 2005 the deputy prosecutor of the Chernihiv Region quashed that decision, noting that the dactylographic examination had not been completed and a number of witnesses had not been questioned.
20.  On 20 March 2006, following the additional investigation, the case was closed once again on the grounds that L. had acted in the state of necessary defence, while the involvement of other individuals in the crime could not be established.
21.  On 5 June 2006 the Novozavodskyy District Court of Chernihiv quashed that decision, finding that the investigation had not been comprehensive. It noted that there had been a significant number of investigative measures at the initial stage of the proceedings, including an on-site examination and forensic expert examinations, which had been carried out unprofessionally and in breach of procedural rules, and that the video recording and photographs of the crime scene could not be found. The court remitted the case for additional investigation, specifying, inter alia, that it was necessary to investigate the personality of the victim in more detail, establish the precise time of the crime, take measures to find the missing video recording and photographs, question witnesses, and conduct, if appropriate, additional expert examinations.
22.  Following that decision, the investigation was renewed and conducted by the Chernihiv Regional Prosecutor’s Office.
23.  In his letter of 24 May 2007 the Deputy Prosecutor of the Chernihiv Region informed the second applicant that the video recording of the crime scene had been found and a range of additional investigative measures had been undertaken. He indicated that the investigator of the Nosivskyy District Prosecutor’s Office should have been sanctioned for the inadequate investigation of the case, but he had been dismissed.
24.  In August 2007 the case was referred to the Chernihiv Regional Police Department and in November 2008 it was referred to the Sumy Regional Police Department for further investigative measures.
25.  On 12 November 2009 the police investigator terminated the proceedings on the grounds that L. had acted in the state of necessary defence. The applicants appealed against that decision.
26.  On 15 November 2010 the Zarichnyy District Court of Sumy quashed that decision as unfounded and ordered further investigative measures.
27.  In December 2010 and January 2011 the Sumy Regional Prosecutor’s Office gave instructions to the police investigator as to the further investigations to be carried out. Those instructions included, among other things, an additional examination of the crime scene, questioning of witnesses, a reconstruction of the crime, confrontations between witnesses, and additional expert examinations.
28.  As of 25 April 2012 the proceedings were pending.
B.  Other proceedings
29.  The applicants also instituted two sets of civil proceedings against the law-enforcement authorities, claiming that they had failed to investigate the case properly and had breached procedures during the investigation. The claims in the first set of proceedings were rejected. The applicants did not inform the Court of the outcome of the second set of proceedings.
30.  The applicants also requested that an investigation be opened concerning the disappearance of the harvest of sunflower seeds which had allegedly belonged to Mr V. Pozhyvotko and had been entrusted to his business colleagues. The authorities refused to open an investigation, after finding that the matter was of a civil-law nature and that there was no evidence that Mr V. Pozhyvotko had ever owned the harvest in question.
II.  RELEVANT DOMESTIC LAW
31.  The relevant domestic law can be found in the judgment of Muravskaya v. Ukraine (no. 249/03, §§ 35 and 36, 13 November 2008).
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
32.  The applicants complained that the domestic authorities had failed to carry out an effective investigation of Mr V. Pozhyvotko’s death. They relied on Articles 2, 13, 14 and 17 of the Convention.
33.  The Court considers that the complaint should be examined solely under Article 2 of the Convention, which reads, in so far as relevant, as follows:
“1. Everyone’s right to life shall be protected by law. ... ”
A.  Admissibility
34.  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
35.  The applicants maintained that the investigation had been ineffective.
36.  The Government argued that throughout the whole period of the investigation the law-enforcement bodies had taken all the procedural actions necessary in order to investigate the case effectively. All the instructions given by the supervising authorities were followed by the investigators in charge. Moreover, the applicants had had sufficient access to the case file and had been able effectively to participate in the proceedings.
37.  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).
38.  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 Šilih v. Slovenia [GC], no. 71463/01, §§ 156-57, 9 April 2009, and Oleynikova v. Ukraine, no. 38765/05, § 60, 15 December 2011).
39.  This is not an obligation of result, but of means. The authorities must have taken all reasonable steps to secure the evidence concerning the incident. Any deficiency in the investigation which undermines its ability to establish the cause of death or the persons responsible will risk falling foul of this standard (see Muravskaya, cited above, § 41).
40.  Turning to the present case, the Court notes that during the investigation the authorities took a significant number of procedural measures aimed at discharging their positive obligation under Article 2 of the Convention. At the same time, the Court observes that the investigators’ three decisions to close the proceedings were quashed by the supervising authorities after finding that such decisions were unfounded and further investigation measures were required. The repetition of such remittal orders discloses a serious deficiency in the criminal investigation (see Oleynikova, cited above, § 81). In particular, the last remittal of the case for further investigation was followed by instructions from the supervising prosecutor’s office, which provided a substantive list of investigative measures that had to be undertaken. Apart from the remittal orders, it appears that on several other occasions the authorities conceded that the investigation had been inadequate (see paragraphs 15, 16 and 23 above). Having examined the available material, the Court considers that the investigative authorities did not take all the necessary steps in order to carry out a thorough investigation which would be compatible with the Convention requirements.
41.  Furthermore, as of 25 April 2012 – that is, more than seven and a half years after the incident – the investigation had still not been completed and it cannot be concluded that its overall length was justified by the circumstances of the case. In this regard, 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). Moreover, with the lapse of time the prospects that any effective investigation can be undertaken will increasingly diminish.
42.  The foregoing considerations are sufficient to enable the Court to conclude that there has accordingly been a violation of the procedural limb of Article 2 of the Convention.
II.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION
43.  The applicants also complained under Article 6 of the Convention that the compensation proceedings against the law-enforcement authorities were unfair. Relying on Articles 6, 13 and 17 of the Convention and Article 1 of Protocol No. 1, the applicants alleged that the harvest of sunflower seeds belonging to Mr V. Pozhyvotko had been unlawfully appropriated by his business colleagues.
44.  The Court has examined these complaints and considers that, in the light of all the materials in its possession and 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 or its Protocols.
45.  It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
46.  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
47.  The applicants claimed 20,000 euros (EUR) in respect of non-pecuniary damage.
48.  The Government contended that the applicant had failed to submit any claims for just satisfaction at the appropriate stage of the proceedings before the Court.
49.  The Court notes that the applicants submitted their claim in respect of non-pecuniary damage at the right stage of the proceedings and within the time-limit established by the Court for that purpose. The Court further considers that the applicants must have suffered distress and anxiety on account of the violation it has found. Ruling on an equitable basis, as required by Article 41 of the Convention, it awards each applicant EUR 10,000 in respect of non-pecuniary damage.
B.  Costs and expenses
50.  The applicants did not submit any claims under this head. The Court therefore makes no award.
C.  Default interest
51.  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 of the Convention admissible and the remainder of the application inadmissible;

2.  Holds that there has been a violation of the procedural limb of Article 2 of the Convention;

3.  Holds
(a)  that the respondent State is to pay each applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 10,000 (ten thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, 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 amount 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 17 October 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Claudia Westerdiek	Mark Villiger
	Registrar	President