CASE OF BANDURA v. UKRAINE

FIFTH SECTION

CASE OF BANDURA v. UKRAINE

(Application no. 659/10)

JUDGMENT
 

STRASBOURG

8 July 2021

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

In the case of Bandura v. Ukraine,

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

Lətif Hüseynov, President,
Lado Chanturia,
Mattias Guyomar, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 659/10) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Ms Tamara Lvivna Bandura (“the applicant”), on 14 December 2009;

the decision to give notice to the Ukrainian Government (“the Government”);

the parties’ observations;

the decision to reject the Government’s objection to examine the application by a Committee;

Having deliberated in private on 17 June 2021,

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

INTRODUCTION

1.  The case concerns complaints under Article 2 of the Convention regarding the ineffectiveness of the investigation into the contract killing of the applicant’s husband.

THE FACTS

2.  The applicant was born in 1947 and lives in Kyiv. She was represented by Mr I. I. Lozovyy, a lawyer currently practising in New York.

3.  The Government were represented by their Agent, most recently Mr I. Lishchyna from the Ministry of Justice.

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

5.  Prior to the events in question, Mr Anatoliy Bandura, the applicant’s husband, had been a member of the Parliament of Ukraine and the director of the Azov Sea Shipping Company.

6.  On 22 March 2005 Mr Bandura was fatally shot near his house in Bykivnya village, Kyiv.

7.  On 23 March 2005 the Desnyanskyy District Prosecutor’s Office in Kyiv opened criminal proceedings on account of murder.

8.  During her questioning by the investigating authorities on the same day, the applicant alleged that her husband might have been murdered in order to preclude him from testifying in a potential trial related to the unlawfulness of the aforementioned company’s privatisation by company C.

9.  On 1 April 2005 M. was arrested in the town of Sumy in connection with Mr Bandura’s murder.

10.  On 4 April 2005 the investigator instituted criminal proceedings against M., K., Man. and N. on account of aggravated murder, which were merged into the initial proceedings. All the suspects were placed in pre-trial detention.

11.  On 11 April 2005 the applicant filed a motion with the prosecutor asking to investigate the possible involvement of D., a former chief executive of company C., who allegedly had motive and resources and thus might have been the contractor of the murder. Furthermore, D. and the arrested K. had been working and going hunting together.

12.  Since then, the applicant wrote to the prosecution authorities on many occasions sharing her suspicions as to who might have ordered and financed the murder of her husband. She submitted, in particular, that an influential political group had been involved in the unlawful privatization of the Azov Sea Shipping Company and that, following the events of so-called “Orange revolution” of 2004, Mr Bandura had decided to reveal some important documents to the new authorities with a view to returning the company into the State property.

13.  On 20 May 2005 the applicant’s daughter and her husband testified that D. had been calling them on numerous occasions over the period of three-four months prior to the murder and enquiring about the location of Mr Bandura. They also indicated that D. had contracted and paid an attorney for K. and endeavoured to do so for the other suspects.

14.  On 6 August 2005 the prosecutor ordered a number of investigative measures to be conducted against D. and the executives (P., R., S., Sk.) of the private companies which had been participating in the privatisation of the Azov Sea Shipping Company, as allegedly involved in the contracting of Mr Bandura’s murder.

15.  On 5 October 2005 the Desnyanskyy Prosecutor’s Office in Kyiv informed the applicant that, indeed, her version of Mr Bandura’s murder was considered to be of crucial importance. It was established that the privatisation of the Azov Sea Shipping Company had become possible, in particular, owing to the submission by unidentified persons of forged documents to the State Property Fund.

16.  On 8 November 2005 the investigator terminated the criminal proceedings on account of murder against Man. and N. for the lack of constituent elements of crime. Namely, their involvement in the crime (see paragraph 22 below) did not go so far as to kill Mr Bandura. Later on, they were prosecuted for illegal handling of weapons and concealment of a particularly serious offence respectively.

17.  Since it appeared that the murder of Mr Bandura had been contracted and paid for by some “unidentified individuals who had business control over company C.”, on 14 November 2005 the prosecution disjoined that part of the case in a separate criminal investigation (contract murder).

18.  In January 2006 the investigator carried out a number of inspections of financial and commercial activities of the private companies involved in the privatisation of the Azov Sea Shipping Company. As regards company S., it was not possible to find its documents, as it had been liquidated in June 2005. As regards the other companies, the inspections did not reveal any gross violations of national legislation.

19.  Between January and February 2006, a number of witnesses, including some executives and accountants of the private companies involved in the privatisation of the Azov Sea Shipping Company were questioned.

20.  Given that D. had been permanently living in Greece since June 2005, in February 2006 the investigator asked the Embassy of Greece in Ukraine to notify the Greek authorities responsible for issuing residence permits about the existence of evidence of D.’s involvement in the murder.

21.  On 23 June 2006 the Kyiv City Court of Appeal, sitting as a court of first instance, found M. and K. guilty of the murder and sentenced both to fourteen years’ imprisonment. While K. had never confessed, M. had made confessions during the pre-trial investigation, but had later retracted them.

22.  The court established that in December 2004 some unknown persons had hired K. to murder Mr Bandura. The latter contracted his former colleague M., bought a gun from Man. and hired a driver N. Since mid‑December 2004 they had been searching and lying in wait for the victim. It was also noted that M. and K. had provisionally bought new SIM cards, which they mostly used to communicate with one another; K. also used his SIM card to call D.

23.  On 14 August 2006 the investigator ordered the examination of the computer system unit, which was seized from D., by a technical expert. However, the examination was not conducted because the hard drive was inoperative.

24.  On 31 October 2006 the Supreme Court of Ukraine upheld the verdict of 23 June 2006.

25.  On 27 January 2007 the investigator ordered the Detention Facility No. 8 in Zhytomyr Region to conduct operative actions concerning K., who was held there after conviction, in order to identify the persons who had hired him to kill Mr Bandura. These actions included informing the investigation authorities about the persons visiting K. and transferring him money, about his correspondence, etc.

26.  Between February and May 2007 some of the witnesses were questioned.

27.  On 30 October 2007 the prosecutor ordered a number of investigative measures, most of which concerned private companies involved in the privatisation of the Azov Sea Shipping Company.

28.  The applicant, as well as other members of the victim’s family, complained on many occasions to the prosecution authorities that the investigation of the disjoined part of the case did not progress.

29.  On 12 June 2008 an investigator of the Kyiv City Department of the Ministry of the Interior (“the Kyiv City Department”) informed the applicant that the investigation was on-going and that the applicant, being a victim, would have access to the case-file materials once that investigation was completed.

30.  In August 2012 the Ministry of Infrastructure of Ukraine appointed D. as a chairman of the executive board of a State-owned company.

31.  On 14 April 2015 an official of the Kyiv City Department informed the applicant that, following the entry into force of the new Code of Criminal Procedure, on 17 January 2013 the case had been entered into the Unified register of pre-trial investigations.

32.  As at 8 June 2015, the proceedings were still pending.

33.  On 21 January 2019 the Court questioned the Government about the further developments in the applicant’s case, but no information has been provided.

THE LAWALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

34.  Relying on Article 2 of the Convention, the applicant complained that the domestic investigation into the murder of her husband had been ineffective. This provision, in so far as relevant, reads as follows:

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

35.  The parties did not submit any observations on the admissibility of the applicant’s complaints.

36.  The Court notes that the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.MeritsThe parties’ submissions

37.  The Government submitted that there had been no violation of the Convention. They noted in particular that the persons who murdered Mr Bandura were identified and sentenced. The Government further contended that the applicant’s version of her husband’s murder was being thoroughly investigated, listed a number of investigative actions that had been carried out (see, in particular, paragraphs 14, 18, 19 and 25 above) and provided two CDs with case-file materials. They also stated that the length of the investigation had been justified by the complexity of the case.

38.  The applicant disagreed. She contended that the investigating authorities had not acted promptly and had failed to collect and secure evidence. The applicant also argued that her version of events, i.e. the crime’s connection with the Azov Sea Shipping Company, had not been explored by the investigating authorities, while many investigative actions concerned the companies, the relevance of most of which to the given criminal proceedings was not clear. She further claimed that starting from 2008 she had not been informed as regards the progress of the investigation.The Court’s assessment

39.  The Court observes at the outset 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).

40.  Once the obligation to conduct an effective investigation is triggered, compliance with the procedural requirement of Article 2 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).

41.  Moreover, this 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).

42.  Turning to the present case, the Court notes that the persons directly responsible for killing Mr Bandura were identified and convicted. This part of the investigation was also rather prompt and there are no signs of any other deficiencies as regards its effectiveness. At the same time, the Court observes that the pivotal issue in the present case is the respondent State’s compliance with its obligation to carry out an effective investigation in respect of those who commissioned the murder.

43.  The Court reiterates that the investigation into a contract killing cannot be considered adequate to the extent of discharging the obligation of means implicit in the procedural limb of Article 2 in the absence of genuine and serious investigative efforts taken with the view to identifying the intellectual author of the crime, that is, the person or people who commissioned the murder. The domestic authorities’ scrutiny in the case concerning a contract killing must aim to go beyond identification of a hitman and it is incumbent on the Court to satisfy itself that the investigation has addressed this important point (see, for example, Gongadze v. Ukraine, no. 34056/02, § 176, ECHR 2005‑XI and Mazepa and Others v. Russia, no. 15086/07, § 75, 17 July 2018).

44.  In this context, the Court notes that already at the time when M. and K. were arrested it was clear that the murder had been organised and paid for by somebody else. Nevertheless, the investigative actions against the possible contractors were ordered more than 4 months later (see paragraph 14 above). During this time, one of the companies involved in the privatization of the Azov Sea Shipping Company was liquidated and the alleged contractor, D., left the country (see paragraphs 18 and 20 above).

45.  The Court further observes that it does not appear that a structured investigation took place thereafter. This assumption is notably supported by the fact that the Court has not been provided by any analytical and pertinent summary of the domestic proceedings. Although the Government submitted what appears to be a full copy of the pre-trial investigation case-file comprising almost four thousand pages, it is barely comprehensible and thus precluding the Court to follow the course of the investigation and evaluate its effectiveness. The situation is aggravated by the Government’s observations merely listing the investigative actions conducted, while providing limited or no information as to their results or relation to the proceedings.

46.  At the same time, based on the materials in its possession, the Court observes several deficiencies that undermined the prospects of that investigation’s success. In particular, there is no evidence that the applicant’s version about D.’s involvement in the murder was properly investigated, since the effectiveness of the methods chosen to involve him in the proceedings while he had been abroad looks questionable if at all appropriate (see paragraph 20 above), and the Government did not provide any explanation why there had been no investigative actions carried out against him upon his return to Ukraine. Moreover, it appears that some investigative actions undertaken had remote (if any) relevance for the case (see paragraph 45 above) and others appeared to be ineffective, e.g. it was not possible to examine the computer of D., because it had been damaged; yet, other actions were belated, namely the tracking of K.’s communication in the detention facility was ordered only in January 2007. Finally, the Court observes that despite the Government’s argument that the investigation is pending, no information was provided about any investigative actions carried out since 30 October 2007 or any investigation strategy whatsoever.

47.  The Court also notes that while the investigation as regards the applicant’s version as to possible contractors of Mr Bandura’s murder did not lead to any results, there is no indication that an attempt was made to gather any other possible versions either (see Yuriy Slyusar v. Ukraine, no. 39797/05, § 86, 17 January 2013).

48.  Having considered the issue under the adequacy requirement, the Court is neither convinced that the investigation was carried out promptly and with reasonable expedition. In the circumstances of the present case, where the criminal investigations started on 23 March 2005 and have not yet been terminated (see paragraph 32 above), the Court does not observe any convincing and plausible reasons to justify the length of the proceedings. The Government’s reference to the complexity of the case (see paragraph 37 above) appears irrelevant in the absence of tangible results in the investigation in respect of those who commissioned the killing that has been protracted for many years, especially given that the last investigation actions took place more than twelve years ago (see paragraph 27 above). Such a delay in itself raises serious concerns as to the domestic authorities’ compliance with the requirement of promptness and reasonable expedition (see Cerf v. Turkey, no. 12938/07, §§ 80-81, 3 May 2016 and Chumak v. Ukraine, no. 60790/12, § 27, 19 May 2016).

49.  In the light of the above findings, in particular, the failure to conduct a structured investigation in respect of those who commissioned the murder; its delays at the initial stages and the de facto suspension in 2007; the described shortcomings; and the overall length of the proceedings of more than fifteen years, the Court concludes that the investigation into the contract killing of the applicant’s husband was not effective.

50.  There has accordingly been a violation of Article 2 of the Convention under its procedural limb.APPLICATION OF ARTICLE 41 OF THE CONVENTION

51.  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.”

52.  The applicant claimed 9,000 euros (EUR) in compensation for non‑pecuniary damage. She did not raise any other claims.

53.  The Government contended that the claim was groundless and that there was no causal connection between the alleged violation of the Convention rights and the non-pecuniary loss sustained.

54.  Regard being had to the documents in its possession and to the approach taken in similar Ukrainian cases, in respect of non-pecuniary damage (see, in particular, Basyuk v. Ukraine, no. 51151/10, 5 November 2015), the Court awards the applicant EUR 6,000 in respect of non‑pecuniary damage, plus any tax that may be chargeable to the applicant.

55.  Since the applicant made no claim in respect of costs and expenses incurred either domestically or before the Court, the Court is not called upon to make an award under this head.

56.  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,Declares the application admissible;Holds that there has been a violation of Article 2 of the Convention under its procedural limb;Holds

(a)  that the respondent State is to pay the applicant, within three months, EUR 6,000 (six thousand euros), 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;Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 8 July 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Martina Keller Lətif Hüseynov
Deputy RegistrarPresident

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