SHULGA v. UKRAINE - 40298/06 (Judgment (Merits and Just Satisfaction) : Court (Fifth Section Committee)) [2015] ECHR 1001 (12 November 2015)

In the case of Shulga v. Ukraine,

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

          Angelika Nußberger, President,
          Boštjan M. Zupančič,
          Vincent A. De Gaetano, judges,
and Milan Blaško, Deputy Section Registrar,

Having deliberated in private on 20 October 2015,

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

PROCEDURE

1. The case originated in an application (no. 40298/06) 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 Petro Grygorovych Shulga (“the applicant”), on 29 September 2006.

2. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr Borys Babin, of the Ministry of Justice of Ukraine.

3. On 20 March 2013 the application was communicated to the Government.

THE FACTS

THE CIRCUMSTANCES OF THE CASE

4. The applicant was born in 1952 and lives in the village of Baybuzy, Cherkassy region, Ukraine.

A. Proceedings related to the death of the applicant’s wife in a traffic accident

5. On 26 September 2003 at around 8 p.m. the applicant’s wife, while riding a bicycle, was hit by a car and died on the spot.

6. On the same day police examined the accident spot in the presence of two witnesses, V. and M. (both inhabitants of Baybuzy who arrived at the spot after the accident) and the accident sketch map was drawn. The driver of the car, P., was questioned. He testified that he had been temporarily blinded by the long-distance headlights of an approaching car. After that he saw a bicycle rider 7-8 meters in front of his car. He did not brake and his car hit the bicycle. Similar testimonies were given by the car passenger, S. The driver also underwent a test for the blood alcohol and drugs level.

7. On 27 September 2003 a forensic medical expert concluded that the applicant’s wife’s death had been caused by a basal skull fracture.

1. Criminal proceedings

8. On 29 September 2003 criminal proceedings into the accident were instituted by the Cherkassy District Police Office (Черкаський районний відділ Управління Міністерства внутрішніх справ України в Черкаській області) for an alleged breach of traffic rules which caused a person’s death (Article 286 paragraph 2 of the Criminal Code). On the same day an investigation officer requested the head of the Cherkassy District Police Office to order a search for the accident witnesses, if any.

9. On the next day the applicant was recognised as a victim in the above criminal proceedings.

10. On 7 October 2003 a police officer informed the head of the Cherkassy District Police Office that it was impossible to identify witnesses who could have seen the accident.

11. On 17 October 2003 a reconstruction of events was carried out and a decision to perform an auto-technical forensic examination was adopted. The expert was requested to determine interposition of the car and the bicycle at the moment of collision, whether the driver had had a technical possibility to avoid the collision and whether the driver and the bicycle rider had breached the traffic rules.

12. On 27 October 2003 the applicant lodged a civil claim within the criminal proceedings.

13. On 18 November 2003 an expert concluded that the applicant’s wife had breached the traffic rules when riding a bicycle since there had been no lights and light reflectors on the bicycle and that the car driver had had no technical possibility of avoiding the accident.

14. On 26 November 2003 the proceedings were terminated for absence of evidence of a crime.

15. On 6 February 2004 the Cherkassy District Prosecutor’s Office (прокуратура Черкаського району Черкаської області) quashed this decision and remitted the case for additional investigation. A prosecutor instructed the head of the police investigation department in charge of the investigation to perform numerous additional investigation actions. It was noted, inter alia, that the questioning of P. and S. had been superficial, a number of details had not been clarified, the witnesses of the accident had not been properly sought, and the reconstruction of events had been conducted improperly. There were significant corrections on the accident sketch map and there was contradictory evidence in the case-file materials. It was also noted that “the expert conclusion was based actually on the testimonies of P. and S.” Consequently, another auto-technical forensic examination should be performed and an expert should be provided with objectively received data. It was also noted that an investigation officer should verify the facts and circumstances indicated by the applicant in his complaints.

16. By a letter of 22 March 2004 the Cherkassy District Prosecutor’s Office informed the applicant, in reply to his complaint to the General Prosecutor’s Office, that the investigation had been indeed protracted and there were disciplinary proceedings against two investigation police officers pending. The district prosecutor ordered to accelerate the proceedings.

17. In June 2004 P. and S. were again questioned and in July 2004 several other witnesses were questioned (M., V. and the persons who stopped at the spot after the accident). On 29 September 2004 the reconstruction of events was conducted. It was established that after passing an on-coming car the bicycle had become visible to the car driver and at that moment the distance to the bicycle had been 20 metres.

18. On 5 May 2005 a decision was taken to conduct an auto-technical forensic examination. The expert was requested to give an opinion, inter alia, on how the driver should have acted in the circumstances and whether he had had a possibility of avoiding the collision. On 19 July 2005 the expert concluded that P. had had no technical possibility of avoiding the collision. It was not safe to overtake the bicycle rider “since the collision had happened when P. had been passing an on-coming car”. An expert indicated that, according to the circumstances of the accident described by an investigation officer, there had been no breach of the traffic rules by the car driver which could have provoked the accident. The expert also separately noted that the reconstruction of events of 29 September 2004 had been performed with a breach of procedure.

19. On 1 November 2005 the proceedings were terminated for the absence of evidence of a crime.

20. By letter of 3 November 2005 the Cherkassy Regional Department of the Ministry of Internal Affairs of Ukraine (Управління Міністерства внутрішніх справ України в Черкаській області) informed the applicant, inter alia, that the investigation officer, K., in charge of the case, had been disciplinarily sanctioned for protracting the proceedings.

21. On 23 November 2005 the decision of 1 November 2005 was quashed by the Cherkassy District Prosecutor’s Office and the case was remitted for additional investigation. It was noted that more witnesses should be questioned, a police officer should be questioned about the corrections on the accident sketch map, a reconstruction of events should be conducted, if necessary, but with the assistance of a traffic specialist.

22. On 26 December 2005 the proceedings were stayed since “it was impossible to establish the guilt of the person who caused the collision with the applicant’s wife”. By letter of 7 March 2007 the Cherkassy Regional Prosecutor’s Office informed the applicant, however, that a forensic automobile technical examination was pending in his case.

23. In August 2008 the case was transferred to another investigation officer. On 9 August 2008 a decision similar to the one of 26 December 2005 was adopted.

24. On 24 June 2009 the decision of 9 August 2008 was quashed by the Cherkassy District Prosecutor’s Office. It was noted, inter alia, that a number of witnesses had to be questioned, a reconstruction of events should be conducted and the police officers should be questioned about corrections on the accident sketch map.

25. On the next day, however, an investigation officer of the Cherkassy Regional Police Department again terminated the proceedings for the absence of evidence of a crime.

26. On 15 June 2011 this decision was quashed by the Cherkassy District Prosecutor’s Office and the case was remitted for additional investigation. It was noted that the instructions of the prosecutor’s office issued on 23 November 2005 and 24 June 2009 had to be complied with.

27. On 8 August 2011 an auto-technical forensic examination was ordered.

28. On 25 June 2012 an expert concluded that it was impossible to answer the questions about a possibility for P. of having avoided a collision and whether P. had breached the traffic rules that had resulted in a traffic accident. The expert noted that the reconstruction of events of 29 September 2004 had been conducted with a breach of procedure therefore the obtained data could not be used for an expert conclusion. The expert, however, noted that the applicant’s wife had breached the traffic rules since there had been no lights on her bicycle and that had caused the collision.

29. On 29 June 2012 an investigation officer, referring to the above expert conclusion, terminated the proceedings in the case.

2. Civil proceedings

30. On 10 August and 22 September 2004 the applicant brought two claims for damages against P. On 14 September and 28 October 2004 the Cherkassy District Court dismissed the applicant’s claims for procedural shortcomings. The applicant neither appealed against these decisions nor submitted new claims in compliance with procedural requirements.

B. The applicant’s participation in local elections

31. On 26 March 2006 the applicant took part in the local elections as a candidate for the position of the head of the village territorial community and came second with three votes less. On 3 April 2006 the Cherkasskyy District Court invalidated the results of the elections. On 6 April 2006 the Cherkassy Regional Court of Appeal quashed the decision of 3 April 2006 and rejected the applicant’s complaint that some of the voters had been prevented from voting. On 25 May 2006 the Higher Administrative Court of Ukraine rejected the applicant’s request for leave to appeal in cassation as the decision of 6 April 2006 was not subject to appeal.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

32. The applicant complained about lack of an effective investigation into the death of his wife. He invoked Articles 2, 6 and 13 of the Convention. The Court reiterates that it is the master of the characterisation to be given in law to the facts of a case. In the present case, it considers that the applicant’s complaint concerns exclusively the failure of the State authorities to effectively investigate the circumstances of his wife’s death. The complaint is therefore to be examined under the procedural limb of 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

33. The Government did not submit any observations as to the admissibility of this complaint.

34. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

(a) The applicant

35. The applicant submitted that he had not been informed about his rights in the criminal proceedings and about a number of decisions in the case, in particular, about the decisions on termination of the proceedings. In the applicant’s view the investigation officers did everything to defend P. instead of investigating the case. The accident sketch map was modified and the photos of the accident site had been lost or hidden. The applicant further noted that P. and “persons accompanying him” had moved the applicant’s wife’s body and her bicycle after the accident; that P.’s car had been moving with a speed higher than indicated by him; that there had been no on-coming car which had blinded P.; that St. had seen P.’s car moving with the long-distance headlights but he had not been questioned; and that the investigation authorities had failed to conduct the reconstruction of events properly.

36. In the applicant’s view, P. was moving at a speed 100 of km/h with the long-distance headlights but was inattentive, breached the traffic rules and thus caused the fatal accident. The applicant disagreed with the last decision to terminate the criminal proceedings, in particular, because it was based on an expert conclusion despite the failure of the expert to make an opinion on existence or absence of the driver’s guilt.

37. The applicant concluded that the investigation officers had had no intent to effectively investigate this case and for ten years had tried to accuse the applicant’s wife instead of establishing the truth.

(b) The Government

38. The Government noted at the outset that all necessary steps for effective investigation of the applicant’s wife’s death had been taken.

39. They submitted that the authorities had acted promptly, on their own motion and with reasonable expedition. Immediately after the traffic accident the police arrived on the spot. The police officers, accompanied by the witnesses V. and M., examined the accident site and noted the circumstances and details of the accident. In particular, the car driver P. and his passenger, S., were questioned. P. also underwent a medical examination in order to check his blood alcohol and drugs concentration if any. A forensic-medical examination of the applicant’s wife’s body was ordered. Later other witnesses were questioned and other investigative steps taken (forensic examinations, reconstructions of events etc.).

40. Since it had been impossible to identify the witnesses of the accident, the expert conclusions, which confirmed the testimonies of the available witnesses, were the main evidence in the case. In particular, the experts concluded that the applicant’s wife had breached the traffic rules and that P. had had no possibility of avoiding the collision.

41. The Government maintained that the prosecutor’s office had effectively supervised the investigation. In particular, the fact that the decisions to terminate the proceedings had been quashed by a prosecutor indicated that the national authorities had sought to conduct a thorough investigation in the applicant’s case.

42. The Government noted that the applicant had effectively participated in the investigation. In particular, the majority of the prosecutor’s instructions given to investigation authorities were based on the applicant’s requests.

43. The Government finally reiterated that an effective investigation implied an obligation of means and not of result. In their view, in the present case the investigation authorities had taken all possible steps for the investigation into the applicant’s wife’s death to be an effective one. Therefore, there was no breach of Article 2 of the Convention in the present case.

2. The Court’s assessment

44. Examining the circumstances of the present case in light of the principles established in its jurisprudence (see, in particular, Railean v. Moldova, no. 23401/04, §§ 27-29, 5 January 2010; Igor Shevchenko v. Ukraine, no. 22737/04, § 56, 12 January 2012; and Nikolay Volkogonov and Igor Volkogonov v. Ukraine [Committee], no. 40525/05, §§ 53-57, 28 November 2013), the Court notes that immediately after the accident in question the police undertook a number of steps crucial for further effective investigation - the accident site was examined, the results of that examination were documented and the testimonies of all involved persons were collected, as well as other specific steps were taken (the driver’s alcohol and drugs blood level was checked). The criminal proceedings into the accident in question were also instituted quite promptly with another investigative steps expediently taken (experts’ examinations ordered, search for witnesses requested, further questionings conducted).

45. However, the Court observes that, according to the domestic authorities, nearly all evidence obtained as a result of such actions had been compromised (superficial questioning; lack of objective data submitted for the expert examination; failure to find the witnesses etc.) (see paragraph 15 above).

46. The Court notes that for that reason the initial decision to terminate the criminal proceedings in the case was quashed by a prosecutor on 6 February 2004 and the case was remitted for additional investigation. The prosecutor indicated numerous investigative steps which were to be performed or redone. It appears, however, that neither those instructions nor the instructions from the later prosecutor’s decisions of 23 November 2005 and 24 June 2009 were properly complied with. In particular, on at least two occasions forensic experts indicated that the reconstruction of events performed on 29 September 2004 had been conducted in breach of procedure, therefore, the data received could not serve a basis for the expert conclusion. Despite those indications no new reconstruction of events was conducted.

47. The Court further notes that, after 2004, the investigation in the applicant’s case became nearly inexistent apart from two auto-technical forensic examinations of 2005 and 2012. It appears that between those examinations the proceedings were stayed most of the time “for the failure to establish the guilt of the driver”.

48. The Court also notes that although the applicant’s complaints about ineffective investigation were allegedly taken into consideration (see paragraph 15 above), there is also evidence in support of his statement that he had not been properly informed about the course of proceedings in his case (see paragraph 22 above).

49. The Court observes that the criminal proceedings, within which the applicant also lodged a civil claim, lasted for eight years and nine months and were terminated with a conclusion about the absence of the driver’s guilt of the fatal accident despite the absence of such conclusion on the expert’s part. Although the expert noted that the absence of lights on the applicant’s wife’s bicycle had caused the collision, it remains unclear in the absence of properly obtained evidence whether it was the main or only reason of the accident. It thus appears that after nearly nine years and in view of the decision on termination of the criminal proceedings based on ineffective investigation, the recourse for the applicant to a separate civil remedy became futile (see Antonov v. Ukraine, no. 28096/04, § 51, 3 November 2011).

50. The Court has already found violations of Article 2 of the Convention in other cases, where the proceedings aimed at establishing the circumstances of a fatal accident and providing redress to the victim’s relatives were unreasonably delayed (see, e.g., Anna Todorova v. Bulgaria, no. 23302/03, §§ 75-79, 24 May 2011; Antonov, cited above, §§ 50-52; Igor Shevchenko v. Ukraine, no. 22737/04, §§ 57-62, 12 January 2012 and Prynda v. Ukraine, no. 10904/05, §§ 55-57, 31 July 2012).

51. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case.

52. The Court therefore concludes that there has been a breach of Article 2 of the Convention under its procedural limb.

II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

53. The applicant also complained under Articles 6 § 1 and 14 of the Convention that the proceedings in his civil case had been unfair. He also submitted under Articles 6 § 1 and 14 of the Convention and Article 3 of Protocol No. 1 that both the elections and the proceedings aimed to challenge the results of those elections had been unfair and discriminatory.

54. Having considered the applicant’s submissions in the light of all the material in its possession, the Court finds that, 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.

55. It follows that this part of the application must be declared inadmissible as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

56. 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

57. The applicant claimed 50,000 euros (EUR) in respect of non-pecuniary damage.

58. The Government stated that there was no violation of the applicant’s rights under Article 2 of the Convention. There was no causal link between the alleged violations and the applicant’s claims for compensation for non-pecuniary damage, and the amount claimed was excessive.

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

B. Costs and expenses

60. The applicant also claimed 3,700 Ukrainian hryvnias (around EUR 334 at the material time) for the costs and expenses incurred before the domestic authorities and before the Court, in particular, expenses for translation of his observations, postal expenses, expenses incurred in the investigation proceedings and by travelling to Cherkasy in 2013.

61. The Government submitted that some of those claims had not been substantiated. They maintained that the claims except for those for postal expenses were to be rejected.

62. 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 considers it reasonable to award the sum of EUR 200 for the proceedings before the Court.

C. Default interest

63. 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 complaints concerning the lack of effective investigation into the applicant’s wife’s death admissible and the remainder of the application inadmissible;

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 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;

(iii) EUR 200 (two hundred 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 12 November 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Milan Blaško Angelika Nußberger
Deputy Registrar President

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