FIFTH SECTION

CASE OF PADURA v. UKRAINE

(Application no. 48229/10)

JUDGMENT

STRASBOURG

11 December 2014

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

In the case of Padura v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
	Boštjan M. Zupančič, President,
	Helena Jäderblom,
	Aleš Pejchal, judges,
and Stephen Phillips, Section Registrar,
Having deliberated in private on 18 November 2014,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 48229/10) 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, Ms Mariya Ivanivna Padura (“the applicant”), on 2 August 2010.
2.  The applicant was represented by Mr V. M. Osovskyy, a lawyer practising in Novoyavorivsk. The Ukrainian Government (“the Government”) were represented by their Agent at that time, Mr N. Kulchytskyy.
3.  On 8 October 2012 the application was communicated to the Government.
THE FACTS
I.  THE CIRCUMSTANCES OF THE CASE
4.  The applicant was born in 1961 and lives in Novoyavorivsk, Lviv Region.
5.  In the late evening of 1 April 2006 the applicant’s husband and his friend (P.) were attacked in a street of Novoyavorivsk by a group of young men. The applicant’s husband sustained grievous head injuries, including fractures to his skull. His friend sustained bruises and abrasions to his face, a fractured nose, brain concussion and other less serious injuries. Following the incident the applicant’s husband was placed in hospital and remained there in a vegetative state.
6.  On 2 and 3 April 2006 the police interviewed K., Dz. and Sh. who stated that they had beaten up the two men.
7.  On 11 April 2006 the investigator of the Yavorivsk District Police Department of Lviv Region (“the District Police Department”) opened an investigation into disorderly conduct by a group under Article 296 § 2 of the Criminal Code. In the course of further questionings and confrontations, Dz., Sh., and K. gave details as to their scuffle with the two men.
8.  On 28 April 2006 the investigator reclassified the case as individual disorderly conduct under Article 296 § 1 of the Criminal Code as only K. had behaved in a disorderly manner in respect of the applicant’s husband. On the same day K. was charged with individual disorderly conduct under Article 296 § 1 of the Criminal Code.
9.  On 29 May 2006 the investigator additionally charged K. with the individual infliction of grievous bodily injury on the applicant’s husband under Article 121 § 1 of the Criminal Code.
10.  On 30 May 2006 the investigator refused to open criminal proceedings under Article 121 of the Criminal Code against Dz. and Sh. noting that they had not inflicted any injuries on the applicant’s husband and that they had only been nearby when K. was beating the applicant’s husband.
11.  On 5 June 2006 the applicant submitted a civil claim against K. for damages caused by the crime. The civil claim was joined to the criminal case.
12.  On 12 June 2006 the Yavoriv District Court of Lviv Region (“the District Court”) committed K. for trial.
13.  On 25 July 2006 the authorities instituted another set of criminal proceedings under Article 296 § 1 of the Criminal Code against Dz. for individual disorderly conduct during the incident on 1 April 2006 which resulted in injuries inflicted on P. (the applicant’s husband’s friend).
14.  On 27 July 2006 the investigator refused to open criminal proceedings against Sh. for disorderly conduct as the latter had not done anything wrong during the incident on 1 April 2006.
15.  On 31 July 2006 the applicant’s husband died as a result of the head injury sustained on 1 April 2006.
16.  On 10 August 2006 the District Court committed Dz. for trial in respect of charges of individual disorderly conduct.
17.  On 3 October 2006 the District Court consolidated the criminal cases against K. and Dz. in a single set of proceedings noting that the charges against the two defendants were inextricably linked to each other and the consolidated proceedings were necessary for the comprehensive and objective examination of the charges.
18.  On 16 March 2007 the District Court remitted the case for additional investigation after finding that the facts suggested that the defendants should be charged with more serious offences.
19.  On 26 April 2007 a forensic medical expert issued a report stating that the death of the applicant’s husband had been caused by an open head injury which was accompanied by skull fractures.
20.  On 7 May 2007 the investigator reclassified the case. He charged K. with inflicting bodily injury and disorderly conduct, both as part of a group, as provided for in Articles 121 § 2 and 296 § 2 of the Criminal Code. Dz. was charged under Article 296 § 2 of the Criminal Code.
21.  On 1 June 2007 the case was referred to the District Court for trial of K. and Dz.
22.  On 23 June 2008 the District Court ordered the compulsory attendance of K., noting that he had earlier failed to appear without a valid reason.
23.  On 3 July 2008 the District Court found that K. had failed to appear at court hearings without a valid reason and his whereabouts were unknown. The court therefore ordered a search for K. and issued an arrest warrant for him.
24.  On 31 July 2008 K. was arrested and placed in pre-trial detention.
25.  On 23 December 2008 the District Court remitted the case for additional investigation after finding that the investigator had not clarified the role of the two defendants in the incident. Moreover, the refusal to open criminal proceedings against Sh. had been groundless. The District Court further released K. under a written obligation not to abscond.
26.  On 3 April 2009 the Lviv Regional Court of Appeal quashed the decision of 23 December 2008 and remitted the case to the District Court for trial.
27.  On 16 June 2009 the District Court resumed the proceedings.
28.  Between October 2009 and July 2011 the District Court scheduled a number of court hearings which, however, were adjourned for the reasons that K., lawyers, witnesses or victims failed to appear, or that the judge was ill or that it was necessary to arrange an audio recording of the hearing.
29.  On 15 August 2011 the District Court found that it was necessary to carry out a reconstruction of the events and take other measures by the investigating authorities to verify and clarify the circumstances of the incident.
30.  On 25 October 2011 the District Court resumed the proceedings after the investigatory measures had been completed.
31.  On 26 December 2011 the District Court found that K. had failed to appear at a court hearing without a valid reason. The court ordered a search for K. and issued an arrest warrant against him.
32.  On 26 March 2012 K. was arrested.
33.  On 27 March 2012 the District Court placed K. in pre-trial detention.
34.  On 29 March 2012 the District Court terminated the criminal proceedings against Dz. (who was charged with disorderly conduct under Article 296 § 2 of the Criminal Code) as time-barred.
35.  On 23 May 2012 the District Court delivered a judgment in the criminal case against K. It established that K. had inflicted grievous bodily injuries on the applicant’s husband which caused the latter’s death. The court found K. guilty of crime provided for in Article 121 § 2 of the Criminal Code and sentenced him to seven years’ imprisonment. The court also ordered K. to pay pecuniary and non-pecuniary damages to the victims of the crime. The charges of disorderly conduct against K. were dropped as time-barred.
36.  On the same day the District Court issued a separate ruling noting that there had been a number of shortcomings during the pre-trial investigation and requesting the Yavorivsk District Prosecutor and the head of the District Police Department to take relevant measures. The court considered that the investigation was not appropriate in the first days following the incident; it noted in particular that the police officers seized Sh.’s jacket with blood spots and then returned the jacket without examination of blood spots failing thereby to establish if Sh. had participated in the crime.
37.  On 21 September 2012 the Court of Appeal upheld the judgment of the District Court of 23 May 2012.
II.  RELEVANT DOMESTIC LAW
A.  Criminal Code of Ukraine of 5 April 2001
38.  Article 121 of the Code provides as follows:
Article 121.  Intentional infliction of grievous bodily injury
“1.  Intentional infliction of grievous bodily injury, that is intentional bodily injury which is dangerous to life ...,
shall be punishable by imprisonment for the period from five to eight years.
2.  Intentional infliction of grievous bodily injury, if ... committed by a group of individuals, ... or if that injury caused the victim’s death,
shall be punishable by imprisonment for the period from seven to ten years.”
39.  Article 296 of the Code provides as follows:
Article 296. Disorderly conduct
“1.  Disorderly conduct, namely serious breach of public order motivated by flagrant disrespect of the community, combined with particular impudence and exceptional cynicism,
shall be punishable by a fine of between five hundred to one thousand times the tax-free monthly income or by up to six months’ arrest, or by up to five years’ restriction of liberty.
2.  The same acts, if committed by a group of individuals,
shall be punishable by up to five years’ restriction of liberty or by up to four years’ imprisonment. ...”
B.  Code of Criminal Procedure of 28 December 1960 (in force at the relevant time)
40.  The relevant provisions of the Code can be found in the judgment of Muravskaya v. Ukraine (no. 249/03, § 36, 13 November 2008).
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
41.  The applicant complained that the criminal investigation concerning the death of her husband had been ineffective. Relying on Article 6 of the Convention, she further complained of excessive length of these domestic proceedings.
42.  The Court decided to examine these allegations solely under Article 2 of the Convention which provides, in so far as relevant, 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
43.  The Court notes that the 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
44.   The Government submitted that the criminal investigation was carried out comprehensively and promptly. The national authorities had taken necessary steps in order to collect the evidence and to establish the circumstances of the applicant’s husband’s death. Certain delays during the proceedings had not been attributable to the State. The procedural requirements of Article 2 of the Convention had been complied with.
45.  The applicant maintained her allegations arguing that the domestic proceedings had not been effective.
2.  The Court’s assessment
46.  The Court reiterates that 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, among other authorities, Pozhyvotko v. Ukraine, no. 42752/08, § 38, 17 October 2013). 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).
47.  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 v. Slovenia [GC], no. 71463/01, § 195, 9 April 2009). Moreover, with the lapse of time the prospects that any effective investigation can be undertaken will increasingly diminish.
48.  The Court notes that on 21 September 2012 the court of appeal upheld the conviction of K. for causing fatal injury to the applicant’s husband and the award of pecuniary and non-pecuniary damages in connection with the crime. The Court observes that it took the domestic authorities more than six years and five months after the incident to reach these conclusions. However, the overall length of the criminal investigations and further proceedings before the courts does not appear to be justified. After the substantial period of investigation and trial, the District Court decided to remit the case for additional investigation considering that the charges against the defendants had to be aggravated (see paragraph 18 above). During the new trial a number of delays between 2009 and 2011 took place because of the authorities’ failure to ensure the presence of the participants of the trial. Many times the hearings were rescheduled causing numerous delays affecting the overall length of the proceedings. In 2011 the trial was also suspended as the District Court considered it necessary to carry out additional investigative measures. Eventually, the delays in the investigations and the trial resulted in some of charges against two defendants being dropped as time-barred (see paragraphs 34 and 35 above).
49.  Furthermore, as regards the comprehensiveness of the investigations, the Court takes note of the separate ruling of 23 May 2012 delivered by the District Court expressing concerns about the failure of the police authorities to carry out proper investigation in the initial period and to procure evidence in respect of all possible participants of the scuffle.
50.  Having regard to its well-established case-law and to the facts of the present case, the Court finds that the domestic proceedings aimed at scrutinising the circumstances of the death of the applicant’s husband were not compatible with the procedural requirements of Article 2 of the Convention.
51.  There has therefore been a procedural violation of that provision.
II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
52.  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
53.  The applicant claimed 70,087.92 Ukrainian hryvnias (UAH) in respect of pecuniary damage and UAH 500,000 in respect of non-pecuniary damage.
54.  The Government argued that these claims were unfounded.
55.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. As regards the non-pecuniary damage, the applicant must have suffered distress and anxiety on account of the violation found. Ruling on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicant EUR 6,000 in respect of non-pecuniary damage.
B.  Costs and expenses
56.  The applicant also claimed UAH 180 for the translation costs in connection with the proceedings before the Court.
57.  The Government left that issue at the Court’s discretion.
58.  Regard being had to the evidence provided, the Court awards the sum of EUR 17 in respect of that claim.
C.  Default interest
59.  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 application admissible;

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

3.  Holds
(a)  that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i)  EUR 6,000 (six thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii)  EUR 17 (seventeen euros), plus any tax that may be chargeable to the applicant, in respect of translation costs;
(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 11 December 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Stephen Phillips	Boštjan M. Zupančič
	Registrar	President