European Court of Human Rights

 

 

FIFTH SECTION

CASE OF BUDAYEVA v. UKRAINE

(Application no. 75485/12)

 

 

 

 

 

 

JUDGMENT

STRASBOURG

9 March 2023

 

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

In the case of Budayeva v. Ukraine,

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

          Carlo Ranzoni, President,
          Mattias Guyomar,
          Mykola Gnatovskyy, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 75485/12) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 27 July 2012 by a Ukrainian national, Ms Svetlana Andreyevna Budayeva (“the applicant”), who was born in and lives in Odesa;

the decision to give notice of the application to the Ukrainian Government (“the Government”), represented by their Agent, most recently Ms M. Sokorenko, from the Ministry of Justice;

the parties’ observations;

Having deliberated in private on 9 February 2023,

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

SUBJECT MATTER OF THE CASE

1.  The present case concerns the applicant’s complaints under Articles 2 and 13 of the Convention about the ineffectiveness of the investigation and subsequent court proceedings concerning the circumstances of her son’s death, which allegedly involved State agents, and those under Article 6 § 1 of the Convention about the length of the consideration of her civil claim lodged within the criminal proceedings.

2.  The facts of the case, as submitted by the parties, may be summarised as follows.

3.  On 28 May 1993 the applicant’s son, driving a motorcycle with two passengers, collided with a police car in a street in Odesa. The next day he died in a hospital from the injuries sustained.

4.  On 4 June 1993 the Kyivskyy District Prosecutor’s Office of Odesa instituted criminal proceedings concerning the death of the applicant’s son.

5.  On 22 December 1993 the applicant was granted victim status.

6.  On 25 December 1993 G., the police officer who had been driving the police car, was served with a written obligation not to abscond. On 3 January 1994 this preventive measure was lifted.

7.  On 17 July 1994 the investigator terminated the criminal proceedings against G. on account of the lack of corpus delicti in his actions. That decision was set aside in December 1994.

8.  On 5 January 1995 G. was identified as an accused person and the next day he was again served with a written obligation not to abscond.

9.  On 16 April 1996 the investigation was completed and on 8 May 1996 the criminal case was sent for trial.

10.  On 19 August 1996 G. was put on the wanted list because of his numerous failures to appear at court hearings and an order was made for his arrest and detention.

11.  On 24 October 2005 and on 11 November 2008 the applicant was informed that the police were still searching for G. and that following an internal police inquiry, it had been established that the search measures had not been appropriate and the police officers in charge had been disciplined.

12.  On 24 September 2009 G. was arrested.

13.  On 14 April 2010 the Kyivskyy District Court of Odesa delivered a guilty judgment, finding that G. had violated traffic safety rules, exceeded his powers and left the applicant’s son in danger and that all those actions had resulted in the latter’s death. The court sentenced G. to eight years’ imprisonment with a three-year driving ban and five years’ prohibition on holding any post with the law-enforcement authorities.

14.  On 2 December 2010 the Odesa Regional Court of Appeal quashed the above-mentioned judgment as ill-founded and remitted the case to the prosecutor for additional investigation. The appellate court noted that the available evidence in support of the applicant’s version of events indicated that G. might have acted deliberately in order to stop the motorcycle and his actions might not have been properly categorised under the criminal law. It also considered that the measures taken to locate G. had been inappropriate taking into account his uncontested statements that he had always lived in his apartment in Russia and had known nothing about being wanted by the police in Ukraine.

15.  On 23 August 2011, after the completion of the additional investigation, the Prymorskyy District Court of Odesa delivered a guilty verdict reiterating that G. had violated traffic safety rules and exceeded his powers and that those actions had resulted in the death of the applicant’s son. The court then exempted G. from criminal punishment because the limitation period had expired. He was released from custody on that day.

16.  On 24 January 2012 the Odesa Regional Court of Appeal quashed the verdict of 23 August 2011 and remitted the case to the first-instance court for fresh examination.

17.  On 8 October 2014 the Prymorskyy District Court of Odesa remitted the case to the prosecutor for additional investigation in order to establish the circumstances in which G.’s actions could have been incorrectly categorised.

18.  On 10 November 2015 the prosecutor approved a bill of indictment against G. and sent the case for trial.

19.  On 16 November 2016 the Kyivskyy District Court of Odesa returned the bill of indictment to the prosecutor for the elimination of procedural shortcomings.

20.  As of February 2017, the additional investigation was ongoing. The parties did not inform the Court of any further developments in this connection.

21.  The applicant complained under Article 2 and Article 13 of the Convention that the investigation and subsequent court proceedings concerning the circumstances of her son’s death had not been effective. The applicant also complained under Article 6 § 1 of the Convention that her civil claim for damages had remained undetermined for a considerable time.

THE COURT’S ASSESSMENT

ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

22.  The Court, which is master of the characterisation to be given in law to the facts of the case, finds that the complaints at issue fall to be examined under Article 2 of the Convention alone (see Igor Shevchenko v. Ukraine, no. 22737/04, § 38, 12 January 2012).

23.  The Government submitted that the period of the investigation prior to 11 September 1997 (the date of entry into force of the Convention in respect of Ukraine) fell outside the Court’s jurisdiction ratione temporis, but relevant events that had taken place before that date should be taken into account. They further noted that the competent investigating authorities had demonstrated a willingness to conduct a thorough investigation and had acted with the requisite diligence in order to establish the circumstances surrounding the death of the applicant’s son and the identities of the persons involved in the crime.

24.  The applicant disagreed and maintained her complaints.

25.  The Court notes at the outset that the initial investigation into the incident resulting in the death of the applicant’s son was launched on 4 June 1993 and completed before 11 September 1997, so this period falls outside the Court’s jurisdiction ratione temporis, with the result that the corresponding part of the application should be declared inadmissible under Article 35 §§ 3 (a) and 4 of the Convention. Nevertheless, in order to assess the context and the situation complained of as a whole, the Court will take into account relevant facts prior to the date when the Convention entered into force in respect of Ukraine (see, mutatis mutandis, Milanović v. Serbia, no. 44614/07, § 78, 14 December 2010).

26.  As regards the period starting from 11 September 1997, the Court notes that the procedural aspect of Article 2 of the Convention can be considered to be a detachable obligation, especially in cases where a significant proportion of the proceedings have been or ought to have been carried out after the critical date (see Šilih v. Slovenia [GC], no. 71463/01, § 159, 9 April 2009). Accordingly, this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

27.  The Court observes that the present case falls to be examined from the perspective of the State’s obligation to conduct an effective investigation under the procedural limb of Article 2 of the Convention. The relevant general principles concerning the effectiveness of an investigation within the meaning of Article 2 of the Convention were summarised in Mustafa Tunç and Fecire Tunç v. Turkey ([GC], no. 24014/05, §§ 169-82, 14 April 2015). In particular, once the investigative obligation is triggered, compliance with the procedural requirement of Article 2 of the Convention is assessed on the basis of several essential parameters: the adequacy of the investigative measures, the promptness of the investigation, the involvement of the deceased person’s family, and the independence of the investigation. These elements are interrelated and each of them, taken separately, does not amount to an end in itself (see Mustafa Tunç and Fecire Tunç, cited above, § 225).

28.  Moreover, the obligation to conduct an effective investigation is not an obligation of results to be achieved but of means to be employed. The Court accepts that not every investigation is necessarily successful or comes to a conclusion coinciding with the claimant’s account of events. However, it should, in principle, be capable of leading to the establishment of the facts of the case and, if the allegations prove to be true, to the identification and punishment of those responsible (see Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 71, ECHR 2002-II).

29.  Turning to the circumstances of the present case, the Court firstly notes that the criminal investigation into the death of the applicant’s son was launched on 4 June 1993, several days after the incident took place, and is still ongoing.

30.  The Court further observes that the investigation was marked by the following substantial shortcomings:

(i) the national authorities themselves acknowledged that the measures taken to establish the whereabouts of G., the police officer involved in the death of the applicant’s son, had been inappropriate and that G. had been on the wanted list for about thirteen years (see Merkulova v. Ukraine, no. 21454/04, § 58, 3 March 2011);

(ii) the applicant’s version of events that G. might have acted deliberately in order to stop the motorcycle driven by her son was never properly investigated (see Yuriy Slyusar v. Ukraine, no. 39797/05, §§ 86-87, 17 January 2013);

(iii) the investigation was criticised by the domestic courts for the failure to establish the circumstances of the incident, and this could have led to the incorrect classification of G.’s actions (see Prynda v. Ukraine, no. 10904/05, § 56, 31 July 2012);

(iv) the criminal case was remitted on several occasions for additional investigation because of the insufficiency of the measures taken by the investigators (see Antonov v. Ukraine, no. 28096/04, § 50, 3 November 2011); and

(v) there was a lack of thoroughness and promptness which undermined the authorities’ ability to establish the circumstances of the case (see Zubkova v. Ukraine, no. 36660/08, § 40, 17 October 2013).

31.  Having regard to its well-established case-law on the subject (see Pozhyvotko v. Ukraine, no. 42752/08, 17 October 2013), the Court concludes that in the present case the investigation into the circumstances surrounding the death of the applicant’s son failed to meet the requirement of effectiveness.

32.  There has accordingly been a violation of Article 2 of the Convention under its procedural limb.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

33.  The applicant claimed 100,000 euros (EUR) in compensation for non-pecuniary damage caused by the violation of her rights guaranteed by the Convention and for the expenses incurred in seeking to protect her rights.

34.  The Government submitted that the amount claimed was excessive and unsubstantiated.

35.  With regard to the documents in its possession and to the approach taken in similar Ukrainian cases (see, among many other authorities, Basyuk v. Ukraine, no. 51151/10, 5 November 2015) in respect of non‑pecuniary damage, the Court finds it reasonable to award the applicant EUR 6,000, plus any tax that may be chargeable.

36.  As regards expenses, according to the Court’s well-established case-law, an applicant is entitled to their reimbursement 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 that there is no call to give any award.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.      Declares the complaint under the procedural limb of Article 2 of the Convention relating to the period of the domestic proceedings starting from 11 September 1997 admissible and the remainder of the application inadmissible;

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 EUR 6,000 (six thousand euros) to the applicant within three months, 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;

4.      Dismisses the remainder of the applicant’s claims for just satisfaction.

Done in English, and notified in writing on 9 March 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

            Martina Keller                                                    Carlo Ranzoni
          Deputy Registrar                                                      President