VASYUNETS v. UKRAINE - 24738/11 (Judgment (Merits and Just Satisfaction) : Court (Fifth Section Committee)) [2016] ECHR 123 (28 January 2016)

In the case of Vasyunets v. Ukraine,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

          Khanlar Hajiyev, President,
          Faris Vehabović,
          Carlo Ranzoni, judges,
and Milan Blaško, Deputy Section Registrar,

Having deliberated in private on 5 January 2016,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 24738/11) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Andriy Maryanovych Vasyunets (“the applicant”), on 7 April 2011.

2. The applicant was represented by Mr B. Fokiy, a lawyer practising in Chernivtsi. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr B. Babin, of the Ministry of Justice.

3. On 18 December 2014 the complaint concerning the effectiveness of the investigation into the death of the applicant’s daughter was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4. The applicant was born in 1967 and lives in Kalush.

5. On 4 November 2006 the applicant’s daughter, Ms S.V., born in 1997, and two other individuals, Ms L.M. and Ms V.K., stayed overnight at a private house. On the morning of 5 November 2006 S.V., L.M. and V.K. were found dead in the room where they had been sleeping.

6. On an unspecified date after the incident a committee composed of five employees of the gas company conducted an inquiry into the incident and drew up a report (“the internal inquiry report”). According to the report, gas company employees visited the scene on the morning of 5 November 2006 and observed that the room where the accident had occurred had a window with a vent for ventilation, but that it was closed at the time of examination. All the gas equipment in the house was in good working order and the heater’s flue had adequate draught. The report went on to note that on the night of the incident Mrs M.T. had turned on the gas heater in the room where S.V., L.M. and V.K. were sleeping, closed the door and left the room and the gas heater unsupervised. The committee took the view that the incident had been caused by a strong wind on the night of the incident and M.T.’s failure to check the heater.

7. Between 14 November 2006 and 24 May 2012 the prosecutor’s office refused eleven times to institute criminal proceedings in respect of the death. All those decisions were overruled by supervising prosecutors or the courts as being premature owing to the incompleteness of the investigation and the need to conduct additional investigative measures.

8. On 25 January 2013, following the entry into force in November 2012 of the new Code of Criminal Procedure (see paragraph 11 below), a criminal investigation was initiated into the actions of the employees of the gas company on suspicion of neglect of official duties in connection with the death of the applicant’s daughter. An entry to that effect was made in the Unified Register of Pre-Trial Investigations.

9. Thereafter the police twice discontinued the criminal investigation, on 21 December 2013 and on 15 December 2014, for lack of corpus delicti in the actions of the gas company’s employees. Those decisions were overruled on 3 February 2014 and 19 August 2015 respectively.

II. RELEVANT DOMESTIC LAW

10. The relevant provisions of the Code of Criminal Procedure of 1960 concerning pre-investigation enquiries can be found in the judgment in the case of Kaverzin v. Ukraine (no. 23893/03, § 45, 15 May 2012).

11. The Code of Criminal Procedure of 1960 was repealed on 19 November 2012 when the new Code of Criminal Procedure of 2012 (“the new Code”) came into force. The new Code abolished the stage of pre-investigation enquiries. Instead, Article 214 of the new Code provides that once a prosecutor or an investigator has received any information about an alleged offence, he or she must create an entry in the Unified Register of Pre-Trial Investigations within twenty-four hours. The creation of such an entry in the Register means that a pre-trial investigation has been opened.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

12. The applicant complained that the investigation into the circumstances of his daughter’s death had been lengthy and ineffective. He relied on Article 2 of the Convention, which reads as follows:

“1. Everyone’s right to life shall be protected by law ... ”

A. Admissibility

13. The Court notes that the application 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

14. The applicant alleged that the State authorities had fallen short of their obligation to investigate effectively the death of his daughter, which had taken place in suspicious circumstances.

15. The Government submitted that the domestic authorities had taken adequate and prompt measures in order to look into the circumstances of the incident. In their opinion, the State had properly discharged its procedural obligations under Article 2 of the Convention.

16. The Court notes that the Government did not contend that the applicant could have effectively pursued the matter arising from the incident with his daughter outside the framework of the criminal investigation (compare Sergiyenko v. Ukraine, no. 47690/07, §§ 40 and 42, 19 April 2012). The Court will therefore confine itself to examining whether the criminal investigation into the death of the applicant’s daughter satisfied the criteria of effectiveness required by Article 2 of the Convention (see Antonov v. Ukraine, no. 28096/04, §§ 47-49, 3 November 2011, and Zubkova v. Ukraine, no. 36660/08, § 38, 17 October 2013).

17. Examining the circumstances of the present case in light of the principles established in its case-law (see, in particular, Railean v. Moldova, no. 23401/04, §§ 27-29, 5 January 2010, and Igor Shevchenko v. Ukraine, no. 22737/04, § 56, 12 January 2012), the Court notes that the investigation into the death of the applicant’s daughter has lasted more than nine years. Moreover, the facts suggest that throughout this considerable period of time there has been no genuine attempt on the part of the investigative authorities to investigate thoroughly the circumstances of the death. Thus, between November 2006 and August 2014 the investigative authorities took thirteen decisions whereby they either refused to open a criminal investigation or discontinued one. All those decisions were, however, overruled by the supervising authorities, who considered that the investigation had not been thorough and that further procedural measures were required (see paragraphs 7 and 9 above).

18. The Court has already examined a number of factually similar cases against Ukraine and concluded that such repeated remittal orders disclosed a serious deficiency in the criminal investigation of a case (see, for example, Oleynikova v. Ukraine, no. 38765/05, § 81, 15 December 2011, and Prynda v. Ukraine, no. 10904/05, § 56, 31 July 2012). This problem is also evident in the present case.

19. The Court therefore concludes that the Ukrainian authorities failed in the present case to carry out an effective investigation into the circumstances of the death of the applicant’s daughter, as required by Article 2 of the Convention.

20. There has accordingly been a breach of Article 2 of the Convention under its procedural limb.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

21. 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

22. The applicant claimed 30,000 euros (EUR) in respect of non-pecuniary damage.

23. The Government considered the claim to be excessive

24. The Court, ruling on an equitable basis, awards the applicant EUR 6,000 in respect of non-pecuniary damage.

B. Costs and expenses

25. The applicant also claimed 3,115 Ukrainian hryvnias for postage and translation expenses incurred in domestic proceedings and before the Court.

26. The Government did not comment on the applicant’s claim for postal expenses. They submitted that the applicant’s claim in respect of translation services was not supported by any documentation showing how much time had been spent on the work and the hourly rates.

27. Regard being had to the documents in its possession and to its case-law, the Court considers it reasonable to award the sum of EUR 129 under this head.

C. Default interest

28. 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 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, 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 129 (one hundred and twenty-nine 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 28 January 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Milan Blaško Khanlar Hajiyev
Deputy Registrar President

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