European Court of Human Rights

 

 

 

FIFTH SECTION

 

 

 

 

 

 

CASE OF DERNOVYY AND DERNOVA v. UKRAINE

 

(Application no. 20142/10)

 

 

 

 

 

 

 

 

 

 

 

 

JUDGMENT

 

 

 

 

STRASBOURG

 

 

2 June 2016

 

 

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

In the case of Dernovyy and Dernova v. Ukraine,

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

          André Potocki, President,
          Ganna Yudkivska,
          Síofra O’Leary, judges,
and Milan Blaško, Deputy Section Registrar,

Having deliberated in private on 10 May 2016,

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

PROCEDURE

1.  The case originated in an application (no. 20142/10) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Ukrainian nationals, Mr Gennadiy Ivanovych Dernovyy and Ms Tamila Oleksandrivna Dernova (“the applicants”), on 18 March 2010.

2.  The Ukrainian Government (“the Government”) were represented most recently by their Acting Agent, Ms O. Davydchuk.

3.  On 3 September 2014 the complaint concerning the effectiveness of the investigation into the death of the applicants’ son 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 applicants were born in 1971 and 1975 respectively and live in the city of Komsomolsk.

5.  On 27 May 2006 Mr S., driving a bus, hit the applicants’ minor son who was later that day brought to hospital with severe injuries. On the same day police examined the scene of the accident, questioned S. and several other witnesses.

6.  On 1 June 2006 the applicants’ son died of numerous serious injuries caused by the above traffic accident.

7.  On 9 June 2006 the Komsomolsk Prosecutor’s Office refused to institute criminal proceedings against S. This refusal was quashed on 14 June 2006 by the same office and instructions were given as to further investigative actions. In particular, the police were instructed to find and examine the direct witness of the accident who was an employee of the Komsomolsk Department of State Postal Service (later it turned out to be B.). The case was transferred to the police for further inquiries.

8.  On 6 July 2006 the Poltava Regional Police Department instituted criminal proceedings into the traffic accident which led to the child’s death.

9.  On 13 July 2006 the applicants were officially recognised as aggrieved parties in the criminal proceedings.

10.  Between May 2006 and April 2007 the police conducted two technical and two medical forensic expert examinations, on-site traffic accident reconstructions, questioned S., the applicants and several other witnesses.

11.  From April 2007 until October 2009 the investigation was terminated on numerous occasions for lack of corpus delicti in the actions of S. Subsequently it was resumed by the investigator (in November 2007) or the above decisions were quashed by higher Prosecutor’s Office, due to various omissions in the investigation and with instructions to carry out further actions with a view to collecting evidence.

12.  On several occasions the criminal investigation was suspended because it was not possible to establish a person liable for the traffic accident.

13.  During the above period the police investigator examined several witnesses (including B. on 7 September 2009) and conducted one reconstruction.

14.  Between September 2010 and March 2012 the police conducted three additional technical forensic expert examinations, several on-site traffic accident reconstructions and questioned several witnesses. On several occasions the criminal investigation was suspended because of S.’s illness.

15.  On 5 October 2010 S. was for the first time officially recognised as a suspect in the criminal proceedings.

16.  On 26 March 2012 the case was referred to the Komsomolsk Court.

17.  On 4 April 2013 the Komsomolsk Court, having established that S. had committed the crime of negligence, amnestied him and left unexamined the applicants’ civil claim.

18.  On 25 June and 31 October 2013 the Poltava Regional Court of Appeal and the Higher Specialised Civil and Criminal Court upheld the judgment of 4 April 2013.

II.  RELEVANT DOMESTIC LAW

19.  The relevant provisions of domestic law can be found in the judgments in the cases of Muravskaya v. Ukraine (no. 249/03, §§ 35-36, 13 November 2008), Sergey Shevchenko v. Ukraine (no. 32478/02, §§ 38‑39, 4 April 2006).

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

20.  The applicants complained that the domestic proceedings concerning their son’s death had been lengthy and ineffective. They relied on Articles 2 and 13 of the Convention.

21.  The Court considers it appropriate to examine the case solely under the procedural aspect of Article 2 of the Convention. This Article, in so far as relevant, provides:

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

A.  Admissibility

22.  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

23.  The applicants complained that the investigation into their son’s death had been unreasonably protracted and ineffective. In particular, they submitted that on many occasions the investigation had been suspended without good reasons; decisions terminating criminal proceedings had been poorly substantiated; prosecutors had repeatedly quashed those decisions, remitted the case for further investigation and given instructions as regards the need to conduct certain investigative actions; those instructions had not been followed by the investigators; it had taken about four years for investigative authorities to eliminate inconsistencies in the two initial technical forensic expert examinations.

24.  The Government submitted that the national authorities had taken all necessary steps in order to collect evidence and establish the circumstances of the death of the applicants’ son. The applicants had been granted victim status and therefore had been able to participate effectively in the proceedings.

25.  Examining the circumstances of the present case in light of the principles established in its jurisprudence (see, in particular, Anna Todorova v. Bulgaria, no. 23302/03, §§ 72-74, 24 May 2011; Sergiyenko v. Ukraine, no. 47690/07, §§ 48-50, 19 April 2012 and Prynda v. Ukraine, no. 10904/05, §§ 50-54, 31 July 2012) the Court notes that the proceedings with a view to establishing whether S. was guilty of an offence in the context of the traffic accident lasted from May 2006 until October 2013, that is seven years and five months, and were accompanied by a number of delays.

26.  A majority of those delays were attributable to numerous referrals for additional investigation caused, inter alia, by the investigator’s failure to follow the instructions of the supervisory authorities and various omissions in the investigation (see paragraph 11 above). The Court has already considered a number of cases against Ukraine with similar factual circumstances and concluded that the repetition of such remittal orders discloses a serious deficiency in the criminal investigation (see, for example, Oleynikova v. Ukraine, no. 38765/05, § 81, 15 December 2011, and Prynda, cited above, § 56).

27.  In addition the proceedings in question included long periods when the investigation was suspended (see paragraphs 11 and 14 above).

28.  The Court also notes that the investigation was marked by an unusually high number of the same type of technical expert examinations (see paragraphs 10 and 14 above). This fact suggests the lack of a comprehensive approach to the collection of evidence during the pre-trial investigation phase (see Sergiyenko v. Ukraine, no. 47690/07, § 52, 19 April 2012).

29.  Lastly, the Court does not lose sight of the fact that in spite of clear instructions from the Prosecutor’s Office, for almost three years the police took no measures to establish the identity and examine the direct witness of the traffic accident (see paragraphs 7 and 13 above).

30.  In the light of the aforementioned facts the Court considers that a delay of more than seven years in establishing whether the bus driver was responsible for the death of the applicants’ son was incompatible with the State’s obligation under Article 2 of the Convention to carry out an effective investigation.

31.  There has therefore been a violation of the procedural limb of Article 2 of the Convention in the present case.

II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

32.  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

33.  The applicants claimed 12,000 euros (EUR) in respect of non‑pecuniary damage.

34.  The Government submitted that the claim was excessive.

35.  The Court awards the claimed amount in full.

B.  Costs and expenses

36.  The applicants also claimed EUR 34.60 for postal and travel expenses.

37.  The Government did not comment on the applicants’ claim for postal expenses.

38.  Regard being had to the documents in its possession and to its case‑law, the Court considers it reasonable to award the requested sum in full.

C.  Default interest

39.  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 concerning the length and effectiveness of the investigation into the death of the applicants’ son admissible;

 

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

 

3.  Holds

(a)  that the respondent State is to pay the applicants jointly, 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 12,000 (twelve thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)  EUR 34.60 (thirty-four euros and sixty cents), plus any tax that may be chargeable, 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.

Done in English, and notified in writing on 2 June 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

    Milan Blaško                                                                      André Potocki
Deputy Registrar                                                                       President