FIFTH SECTION

CASE OF KOSMATA v. UKRAINE

(Applications nos. 10558/11 and 28218/11)

JUDGMENT

STRASBOURG

15 January 2015

This judgment is final. It may be subject to editorial revision.

In the case of Kosmata 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 9 December 2014,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in two applications (nos. 10558/11 and 28218/11) 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 Lyubov Petrivna Kosmata and Mrs Lyudmyla Anatoliyivna Kosmata (“the applicants”), on 2 February 2011 and 12 April 2011 respectively.
2.  The applicants were represented by Mr V.G. Belik, a lawyer practising in Mykolayiv. The Ukrainian Government (“the Government”) were represented by their Agent, Ms Nataly Sevostianova, of the Ministry of Justice.
3.  The applicants alleged that the investigation into the death of their relative had not been effective.
4.  On 9 December 2013 the complaint concerning ineffectiveness of investigation into the death of the applicants’ next of kin was communicated to the Government and the remainder of the applications nos. 10558/11 and 28218/11 was declared inadmissible.
THE FACTS
I.  THE CIRCUMSTANCES OF THE CASE
5.  The applicants were born in 1953 and 1975 respectively and live in Mykolayiv.
6.  The applicants are respectively mother and sister of Mr K. who had been working at a mill operated by company O.
7.  On 4 March 2006, as K. was cleaning an extruder machine at the mill, someone switched on the electricity, which set the machine in motion seriously injuring K.
8.  On 9 March 2006 K. died in hospital of his injuries.
A.  Special inquiry under workplace safety regulations and judicial review
9.  On 10 March 2006 the Mykolayiv Regional Department of State Authority for Workplace Safety and Mining Supervision (“the Regional Workplace Safety Department”) appointed a committee (“the first committee”) to conduct a special inquiry into the circumstances of the fatal accident with K.
10.  On 30 March 2006 the Mykolayiv Regional Labour Inspectorate (“the Labour Inspectorate”), in response to a request from the first committee, stated that K. had worked at the mill under a services contract concluded between him and company O. under which he had, as a matter of form, the status of an independent contractor. The Labour Inspectorate took the view that this contract arrangement operated to conceal employment relations which in fact existed between K. and the company.
11.  On 7 April 2006 the first committee found that K. had been registered as unemployed and was referred to company O. as a trainee by the unemployment office. He was not an employee and it had been planned that he would start as an employee of company O. only in April 2006. At the time of the accident he merely had a contract to provide services to the company. He did not contribute to the workplace accident insurance scheme. The committee concluded that the fact that an employment relationship existed between K. and the company had to be established in a court given that the nature of the contract between the parties was unclear. In view of these findings, the committee decided that the special inquiry procedure did not apply to K. since he had neither been an employee nor did he contribute to the workplace accident insurance scheme as a self-employed person. It accordingly decided not to conduct an investigation and to refer the materials to the local administration and local prosecutor’s office.
12.  On 20 November 2006 the Zavodsky District Court of Mykolayiv, upon the applicants’ claim, established that the contract between K. and company O. had been an employment contract.
13.  On 22 March 2007 the Mykolayiv Regional Court of Appeal upheld the judgment of 20 November 2006.
14.  On 24 March 2008 the State Bailiffs ordered the Regional Workplace Safety Department to give effect to the judgment.
15.  Complying with the order, in May 2008 the Regional Workplace Safety Department appointed three public officials, Mr L., Mrs L., and Mrs B., as well as Mrs Z., managing director of company O., and Mr Ku., a representative of company O.’s employees, as members of the second committee to investigate the circumstances of the accident (“the second committee”).
16.  On 12 June 2008 the second committee issued its report regarding the circumstances of the accident and K.’s death. It considered that the accident was not work-related. K. was not asked to repair the extruder and was even prohibited by the management from doing so. According to the conclusions, K., being drunk, himself switched on the extruder and started cleaning it with a vacuum cleaner. The extruder sucked in a loose end of K.’s clothing tearing off his arms and inflicting other injuries, which proved lethal. B. added a separate opinion stating that the committee’s report failed to identify organisational reasons for the accident, namely the absence of workplace safety management system at the mill, failure to train K. in safety rules, and failure to follow technical regulations.
17.  On 26 November 2012 the Zavodsky District Court of Mykolayiv rejected the first applicant’s civil claim in which she, contesting the factual findings of the second committee, sought to invalidate the second committee’s report of 12 June 2008.
18.  On 6 December 2012 this judgment became final.
B.  Criminal investigation
19.  On 4 March 2006 the Mykolayiv Tsentralny District Prosecutor examined the scene of the incident at the mill and drew up a report.
20.  On 4 and 6 March 2006 a number of employees of the mill and other witnesses were interviewed as part of pre-investigative inquiries.
21.  On 14 March 2006 the District Prosecutor’s Office refused to institute criminal proceedings against company O.’s managers for a breach of workplace safety rules for lack of corpus delicti. Among the reasons for this decision it noted, in particular, that the special inquiry into the accident had not been completed.
22.  On 24 December 2009 the Mykolayiv Regional Prosecutor’s Office (“the Regional Prosecutor’s Office”) quashed the decision of 14 March 2006 on the ground that the investigation had not been sufficiently thorough.
23.  On 11 January 2010 the District Prosecutor’s Office refused to institute criminal proceedings against company O.’s managers for breach of safety rules. It relied on the report of the second committee as one of the reasons for the decision and stated that it was not possible to verify the conclusions of the committee because too much time had elapsed since the accident.
24.  On 22 January 2010 the Regional Prosecutor’s Office quashed the decision of 11 January 2010 on the ground that the District Prosecutor’s Office had failed to establish whether K. could physically switch on the extruder while simultaneously cleaning it.
25.  On 6 February 2010 the District Prosecutor’s Office again refused to institute criminal proceedings into K.’s death. It relied, in part, on the report of the second committee. It stated that it was not possible to locate two of the witnesses to interview them.
26.  On 17 September 2010 the Regional Prosecutor’s Office quashed the decision of 6 February 2010 reaffirming the instruction to verify whether K. could possibly switch on the extruder himself and pointing out that it had not been shown that any steps had been taken to locate the two witnesses.
27.  On 16 February 2011 the District Prosecutor’s Office refused to institute criminal proceedings once again. It relied, in part, on the report of the second committee.
28.  On 1 March 2011 the Regional Prosecutor’s Office quashed the decision of 16 February 2011 and instituted criminal proceedings against the managers of company O. on suspicion of breach of labour regulations with fatal consequences. It noted in particular that the previous enquiries had been superficial. It also noted that the subordinate prosecutors had failed to take into account B.’s separate opinion to the second committee’s report and failed to interview her. In addition, it noted that the case raised a number of questions, including those identified by B., which needed to be examined by an expert, in particular the question of who had been responsible for ensuring safe working conditions at the mill.
29.  On 16 March 2011 the investigator recognised the first applicant as an aggrieved party and a party with a civil claim in the criminal proceedings.
30.  On 1 June 2011 the investigator appointed a workplace safety expert to examine a number of questions related to the causes of the accident with K. and compliance with safety regulations at the mill at the relevant time.
31.  On 9 September 2011 the investigator interviewed Ku. He stated, in particular, that he had been employed as Z.’s driver since 1998, had no training or experience related to the mill’s equipment, and that he had represented the employees on the second committee.
32.  On 27 December 2011 the workplace safety expert appointed by the investigator issued his report on the causes of the accident. The expert concluded that K. had switched on the extruder in order to be able clean it faster and was fatally injured as a result. The expert also concluded that the company’s management had breached a number of workplace safety regulations, in that K. was allowed to work on an extruder without sufficient workplace safety training, was improperly allowed access to the machine’s switch and was allowed to work on it while it was out of order and partially dismantled.
33.  On 30 March 2012 Z. was indicted for breach of safety regulations applicable in the course of dangerous operations which caused a death.
34.  On 4 May 2012 the Tsentralny District Court of Mykolayiv (“the trial court”) committed Z. for trial.
35.  On 1 July 2013 the trial court ordered an expert opinion on a number of questions concerning the case, including the question of whether K. had been fatally wounded in the course of a dangerous activity.
36.  As of 8 April 2014 the proceedings were pending.
II.  RELEVANT DOMESTIC LAW
A.  Procedure for inquiries into industrial accidents
37.  Resolution of the Cabinet of Ministers no. 1112 of 25 August 2004 approved the Procedure for Inquiries into Accidents, Professional Illnesses and Emergencies Occurring in the Course of Industrial Operations (“the Procedure”). The Procedure governed the investigation of accidents in the workplace at the material time. Paragraph 1 of the Procedure provided that it applied to incidents occurring at State and private companies and with self-employed persons, provided that they contributed to the workplace accident insurance scheme.
38.  Paragraphs 40 and 42 of the Procedure provided that in case of an industrial accident resulting in death and occurring at a private company a special inquiry had to be conducted by a committee appointed by a department of the State Authority for Workplace Safety and Mining Supervision (“the Workplace Safety Authority”). The committee had to include as members representatives of the Workplace Safety Authority, of the local administration, of the Workplace Accident Insurance Fund, of the employer and of the employees. The victim, his next-of-kin or representatives had the right to attend committee meetings, submit documents and be informed about the progress of investigation.
39.  Under Paragraphs 46, 56, 58, and 59 of the Procedure the committee was required, in particular, to establish the circumstances under which an accident had occurred and its cause, whether the work conditions complied with safety regulations, whether the accident was work-related, and to determine who was responsible for breaches of safety regulations. The employer had to implement all measures recommended by the committee and inform the prosecutor’s office and certain other State authorities about the committee’s findings. The committee’s findings could be challenged before the Workplace Safety Authority or in court.
B.  Criminal Code of 2001
40.  Under paragraph 2 of Article 271 of the Criminal Code a breach of workplace safety rules committed by an officer of a company or of another entity or by a private entrepreneur shall be punishable by community service for a term of up to two years or by restriction of liberty for a term of up to five years or by imprisonment for a term of up to seven years, with or without prohibition on the right to occupy certain positions or engage in certain activities for a term of up to two years.
41.  Under paragraph 2 of Article 272 the Criminal Code of Ukraine a breach of safety rules governing dangerous activities in the course of industrial operations or at any enterprise committed by a person required to observe such rules and which caused a death or other grave consequences is punishable by restriction of liberty for a term of up to five years or by imprisonment for a term of up to eight years with a prohibition on the right to occupy certain positions or engage in certain activities for a term of up to three years.
C.  Other relevant provisions of domestic law
42.  The other relevant provisions of domestic law can be found in the judgment of Muravskaya v. Ukraine (no. 249/03, §§ 35 and 36, 13 November 2008).
THE LAW
I.  JOINDER OF THE APPLICATIONS
43.  The Court considers that, pursuant to Rule 42 § 1 of the Rules of Court, the applications should be joined, given their common factual and legal background.
II.  ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
44.  The applicants complained that domestic authorities had failed to carry out an effective investigation of the accident which had caused K.’s death. They relied on Article 2 of the Convention, which 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.
2.  Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:
(a)  in defence of any person from unlawful violence;
(b)  in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c)  in action lawfully taken for the purpose of quelling a riot or insurrection.”
A.  Admissibility
45.  The Government did not raise any objections to the admissibility of the application.
46.  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
47.  The applicants maintained that the investigation had been ineffective. They noted that the investigation was delayed and was characterised by repeated refusals to institute criminal proceedings which were subsequently quashed. They asserted that the domestic authorities had failed to establish the identity of the person who switched on the machine injuring K. and that they had misidentified the cause of the incident, incorrectly stating that it was due to K.’s intoxication.
48.  The Government submitted that the investigation into K’s death met the requirements of Article 2. The police started their investigation on the very day of the incident, explanations of witnesses were collected and expert examinations ordered. The duly appointed committees conducted investigations and came to the conclusion that K. was intoxicated, switched the machine on himself, on his own initiative and without instructions from the management, and thus caused the accident. The applicants actively participated in the investigations. The authorities took all possible steps to identify those responsible for K’s death. The Government maintained that the issues involved in the case were complex and required technical expertise and this necessitated expert examinations prolonging the criminal investigation.
2.  The Court’s assessment
(a)  General principles
49.  The Court reiterates that the first sentence of Article 2 of the Convention requires the States, in particular, to put in place a legislative and administrative framework designed to provide effective deterrence against threats to the right to life in the context of any activity, whether public or not, in which the right to life may be at stake (see, e.g., Öneryıldız v. Turkey [GC], no. 48939/99, §§ 89-90, ECHR 2004-XII; Kalender v. Turkey, no. 4314/02, § 51, 15 December 2009; Krivova v. Ukraine, no. 25732/05, § 44, 9 November 2010). The obligation to create an effective legislative framework for protection of life also applies in the context of workplace and industrial safety (see Vilnes and Others v. Norway, nos. 52806/09 and 22703/10, § 223, 5 December 2013, Brincat and Others v. Malta, nos. 60908/11, 62110/11, 62129/11, 62312/11 and 62338/11, § 81, 24 July 2014). In case of a life-threatening injury or death, the above obligation calls for an effective independent judicial system to ensure enforcement of the aforementioned legislative framework by providing appropriate redress (see, e.g., Anna Todorova v. Bulgaria, no. 23302/03, § 72, 24 May 2011).
50.  An effective judicial system, as required by Article 2, may, and under certain circumstances must, include recourse to criminal law. However, where an accident has been caused by pure negligence without aggravating circumstances, the Court may be satisfied if the legal system affords victims a remedy in the civil courts, enabling any liability of the parties concerned to be established and any appropriate civil redress, such as an order for damages to be obtained (see Antonov v. Ukraine, no. 28096/04, § 45, 3 November 2011, with further references).
51.  However, the Court has held that in cases under Article 2 concerning incidents resulting from dangerous activities a purely civil remedy may not be sufficient and the competent authorities must of their own motion initiate investigations capable of, firstly, ascertaining the circumstances in which the incident took place and any shortcomings in the operation of the regulatory system and, secondly, identifying the State officials or authorities involved in any capacity whatsoever in the chain of events concerned (see Öneryıldız, cited above, § 94; Budayeva and Others v. Russia, nos. 15339/02, 21166/02, 20058/02, 11673/02 and 15343/02, § 142, ECHR 2008 (extracts); Brincat, cited above, § 121).
52.  In principle, the States should have a margin of appreciation in deciding how a system for the enforcement of a regulatory framework protecting the right to life must be designed and implemented. What is important, however, is that whatever the mode of the investigation, the available legal remedies, taken together, must amount to legal means capable of establishing the facts, holding accountable those at fault and providing appropriate redress. Any deficiency in the investigation, undermining its ability to establish the cause of the death or those responsible for it may bring to the finding that the Convention requirements have not been met. This requires by implication that that the investigation be prompt and free from unnecessary delays (see Antonov, cited above, § 46, with further references).
(b)  Application to the present case
53.  Turning to the present case, the Court notes that the Government did not contend that the applicants could effectively pursue the matter outside the framework of the criminal investigation (compare Sergiyenko v. Ukraine, no. 47690/07, §§ 40 and 42, 19 April 2012).
54.  The Court will therefore confine itself to examining whether the special inquiry and the criminal investigation of K.’s death satisfied the criteria of effectiveness required by Article 2 of the Convention (see, mutatis mutandis, Valeriy Fuklev v. Ukraine, no. 6318/03, §§ 68-76, 16 January 2014).
(i)  Special inquiry by ad hoc committees
55.  As to the special inquiry, the Court notes that the first committee was formed for the purpose of conducting its inquiry promptly, on 10 March 2006, the day after K.’s death. However, it subsequently decided not to conduct an investigation on the ground that it had not been established that K. had been employed by company O. It did so even though the Labour Inspectorate, in response to the committee’s own request, considered that K. had in fact been employed by the company.
56.  The latter opinion was ultimately confirmed by domestic courts and the domestic judgment to this effect became final on 22 March 2007. However, despite this fact the Regional Workplace Safety Department appointed the second committee only on 30 May 2008, that is a year and two months later and only after the State Bailiffs had opened proceedings to enforce the judgment.
57.  As a result of this initial error of the first committee and the subsequent delay in correcting that error, the start of investigation was delayed by more than two years and the initial investigation ultimately commenced only two years and more than two months after the accident.
58.  The Court would draw attention to the fact that the second committee which conducted the special inquiry into the accident was composed of five members, two of whom had links to company O.’s management: Mrs Z., the company’s managing director, and Mr Ku., her long-time driver. Of the remaining three members one, Mrs B., expressed, in a separate opinion, her reservations about the limited nature of the committee’s findings. She stressed, in particular, the committee’s failure to identify the structural causes of the accident, for which the employer and its management rather than K. as an individual worker would be responsible.
59.  This opinion eventually led, on 1 March 2011, to the decision to conduct a full-scale criminal investigation against employer’s managers. Moreover, on 1 June 2011 an expert was appointed by the investigator to examine the questions raised by B. However, this took place five years and two months after the accident.
(ii)  Criminal investigation
60.  Turning to the criminal investigation, the Court observes that immediately following the incident the authorities took a number of pre-investigative steps, conducting an examination of the scene of event and obtaining explanations of a number of witnesses.
61.  However, there was no follow-up to these initial steps and on 14 March 2006 the District Prosecutor’s Office in its initial decision refusing to institute criminal proceedings relied on the fact that the special inquiry had not yet been completed. This meant that the delays which characterized the opening of the special inquiry had the effect of delaying the criminal investigation as well.
62.  Even after completion of the special inquiry by the second committee, which was in itself delayed, the prosecutor’s office between 11 January 2010 and 16 February 2011 adopted three decisions refusing to institute criminal proceedings. Those decisions were based in part on the report of the second committee and disregarded B.’s separate opinion. They were quashed by the supervising prosecutor, who considered that the investigation had been incomplete.
63.  The Court has repeatedly held that the repetition of such remittal orders discloses a serious deficiency in criminal investigation (see, e.g., Oleynikova v. Ukraine, no. 38765/05, § 81, 15 December 2011, and Prynda v. Ukraine, no. 10904/05, § 56, 31 July 2012). It is relevant to note that in ordering additional investigations the supervising prosecutor specified, inter alia, that additional measures were necessary in order to carry out a comprehensive investigation of the case.
64.  In this particular case the repeated remittals are all the more notable given that the prosecutor’s office was well informed of the committee’s findings and, accordingly, B.’s criticisms. Instead, disregarding the flaws in the committee’s conclusions, the District Prosecutor’s Office repeatedly relied on them in the decisions refusing to institute criminal proceedings.
(iii)  The Court’s overall conclusion
65.  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 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 (see, e.g., Pozhyvotko v. Ukraine, no. 42752/08, § 41, 17 October 2013).
66.  The Court notes that in this case the delays in the special inquiry, with its limited scope, have also delayed the criminal investigation. In particular, the prosecutors relied on the absence of results of the special inquiry and later on its results as reasons for the refusal to institute criminal proceedings even though ultimately the limited nature of the special inquiry was one of the factors which led the authorities to institute criminal proceedings.
67.  As a result, as of 8 April 2014 – that is, more than eight years and one month after the incident – the trial in Z.’s case, which deals with the circumstances surrounding K.’s death, was still ongoing. It cannot be concluded that the overall length of the investigation was justified by the circumstances of the case.
68.  The foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of the procedural limb of Article 2 of the Convention.
III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
69.  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
70.  The applicants claimed 14,588.46 euros (EUR) in respect of pecuniary damage and EUR 29,444.66 each in respect of non-pecuniary damage.
71.  The Government considered that the claims were excessive and had no causal link with the alleged violations of the Convention.
72.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim.
73.  The Court considers that the applicants must have suffered distress and anxiety on account of the violation it has found. Ruling on an equitable basis, it awards the applicants EUR 6,000 each in respect of non-pecuniary damage.
B.  Costs and expenses
74.  The first applicant also claimed EUR 1,846.67 for legal fees incurred in domestic proceedings and before the Court. Under the head of pecuniary damage she also claimed EUR 101.11 for stationery, photocopying, postage, and mobile phone expenses.
75.  The Government argued that the applicant had not substantiated the claimed expenses, in particular submitted no agreement confirming the arrangements for the payment of legal fees and no itemised statements related to the claim for legal fees.
76.  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 makes no award under this head.
C.  Default interest
77.  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.  Decides to join the applications;

2.  Declares the applications admissible;

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

4.  Holds
(a)  that the respondent State is to pay, within three months, EUR 6,000 (six thousand euros) to each of the applicants, 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;

5.  Dismisses the remainder of the applicants’ claim for just satisfaction.
Done in English, and notified in writing on 15 January 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

	Stephen Phillips	Boštjan M. Zupančič
	Registrar	President