CASE OF BARSUKOVY v. UKRAINE

FIFTH SECTION

CASE OF BARSUKOVY v. UKRAINE

(Application no. 23081/07)

JUDGMENT

STRASBOURG

26 February 2015

This judgment is final. It may be subject to editorial revision.

In the case of Barsukovy 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 3 February 2015,

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

PROCEDURE

1. The case originated in an application (no. 23081/07) 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, Mrs Lidiya Mykolayivna Barsukova on 23 April 2007. On 14 August 2011 Mrs Natalya Valeriyivna Barsukova joined as the second applicant in the above case.

2. The Ukrainian Government (“the Government”) were represented by their Agent, then Mrs Valeriya Lutkovska.

3. On 14 November 2011 the application was communicated to the Government.

THE FACTS

THE CIRCUMSTANCES OF THE CASE

4. The applicants were born in 1938 and 1972 respectively and live in Donetsk.

5. On 13 October 2001 Yaroslav Barsukov, the first applicant’s grandson and the second applicant’s son, born in 1992, and his friend N. P. were hit by a car, when crossing the street. Yaroslav Barsukov died in hospital from his injuries. N. P. sustained minor injuries. On the date of the accident the police inspected the site of the collision, established the identity of the driver (O.F.) and examined him as well as several eyewitnesses.

6. On 17 October 2001 the Donetsk Police Department instituted criminal proceedings on suspicion that O.F. had driven negligently. On various dates both applicants were admitted to the proceedings as injured parties.

7. On 26 November 2001, after having questioned the eyewitnesses and having conducted several expert assessments, the police discontinued the proceedings. They concluded that O. F. had no technical possibility to avoid the collision, as the two boys had suddenly emerged from behind a vehicle parked along the street.

8. Following the Barsukov family’s complaints that the investigation was perfunctory, on 8 January 2002 the above decision was revoked and the case was remitted for further investigation.

9. Between January 2002 and June 2008 the proceedings were discontinued on numerous occasions (namely, on 30 January and 15 April 2002 and 8 May, 1 August and 30 October 2003) for want of evidence that O. F. had been at fault in causing the accident. The above decisions were subsequently quashed by higher law-enforcement or judicial authorities (namely, on 8 January and 22 March 2002, 3 March, 19 May and 26 September 2003 and 4 August 2004), with reference to various omissions in the investigation and instructions to carry out further activities with a view to collecting evidence.

10. On 12 May 2005 the Deputy Minister of the Interior informed the first applicant that, following her complaints, an internal investigation into the quality of work organisation in the Donetsk Police Department for the investigation of road traffic accidents had been carried out. As a result, various shortcomings had been revealed and the Chief of the Department and a Senior Investigator had been subjected to disciplinary sanctions.

11. On 8 June 2005, following the applicants’ complaints, the Donetsk Regional Prosecutor’s Office requested the First Deputy Head of the Donetsk Department of the Ministry of the Interior to review the quality of investigation in Yaroslav Barsukov’s case. It was noted that there were numerous omissions in the examination of the accident site. In particular, the police had failed to record the position of Yaroslav Barsukov’s body after the collision; to establish the exact place of the collision; to identify the driver of a parked vehicle from behind which the children had emerged on to the road; to photograph the site; to examine the interior of O.F.’s car; to check the level of alcohol in O.F.’s blood; to question a street-stall seller who had witnessed the accident.

12. On 18 June 2005 the Donetsk Department of the Ministry of the Interior acknowledged that there were omissions in investigating the circumstances of the accident. It found, however, that a disciplinary action against the officer responsible would have been time-barred.

13. In April 2008 O.F. was indicted of negligent driving resulting in a fatal accident and in June 2008 committed to stand trial before the Voroshylivsky District Court of Donetsk. The first applicant lodged a civil claim within the framework of these proceedings. It is not clear whether the second applicant also lodged a civil claim.

14. Between June 2008 and September 2011 some forty hearings were scheduled. Some twenty of them were adjourned or rescheduled, the reasons including repeated failures of witnesses to appear, health-related and other absences of the defendant party and various administrative reasons, such as unavailability of recording equipment for a hearing or absences of the presiding judge.

15. On 23 September 2011 the court found that the case-file contained sufficient proof that O.F. had committed a negligent offence. It further closed the proceedings relying on the Amnesty Act of 2011, which allowed, in particular, to dispense with prosecution of disabled individuals, who had committed unintentional crimes. Based on the available materials, this decision was not appealed against.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

16. The applicants complained that the investigation into the road traffic accident that caused death of their next of kin had been lengthy and ineffective. They relied on Articles 1, 6, 13, 17, 18 and 53 of the Convention and Article 3 of Protocol No. 7 to the Convention.

17. The Court, which is master of the characterisation to be given in law to the facts of the case, finds that the complaint at issue falls to be examined under Article 2 of the Convention, which is the relevant provision (see, e.g., Igor Shevchenko v. Ukraine, no. 22737/04, § 38, 12 January 2012). This provision, in so far as relevant, reads as follows:

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

A. Admissibility

18. The Government submitted that both applicants had standing to bring the present application and otherwise did not comment on the admissibility of the present complaint.

19. The Court notes that the complaint at issue 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

20. The applicants alleged that the State authorities had fallen short of their obligation to protect Yaroslav Barsukov’s right to life. In particular, the proceedings aimed at establishing the circumstances of his death, identifying those responsible and providing redress to the applicants were unreasonably delayed on account of repeated and deliberate omissions by the investigative and judicial authorities.

21. The Government alleged that they had duly discharged their Convention duties in the applicants’ case. They acknowledged that there were some delays and omissions in the initial stage of the investigation, but emphasized that eventually the circumstances of the accident had been properly established and the driver, who had fatally hit Yaroslav Barsukov, had been found liable of a negligent crime.

22. 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; Antonov v. Ukraine, no. 28096/04, §§ 44-46, 3 November 2011 and Prynda v. Ukraine, no. 10904/05, §§ 50-54, 31 July 2012) the Court notes that the proceedings with a view to establishing O.F.’s guilt or innocence in the traffic accident lasted from October 2001 until September 2011, that is almost ten years. The pre-trial investigation stage of these proceedings, which terminated by O.F.’s committal for trial, lasted from October 2001 until June 2008, that is, six years and seven months. It is notable that the accident site was examined promptly and that O.F.’s identity and those of the main witnesses were established at the very beginning of the investigation. Based on the case file materials, major delays at this stage were attributable to numerous remittals of the case for further investigations following poorly substantiated decisions to discontinue the criminal proceedings for want of evidence that O.F. had committed a crime and the need to rectify procedural shortcomings and collect further evidence (see paragraphs 9-12 above).

23. The second, judicial stage of the proceedings, lasted from June 2008 until September 2011, that is three years and three months for one judicial instance. It was marked by numerous postponements and adjournments of hearings, in particular, in view of repeated summons of witnesses, who failed to appear, absences of the defendant and his representative and administrative complications, such as unavailability of recording equipment or judge’s absences.

24. 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, cited above, §§ 75-83; Antonov, cited above, §§ 49-52; Prynda, cited above, §§ 55-56 and Igor Shevchenko v. Ukraine, cited above, §§ 57-62).

25. 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.

26. The Court therefore concludes that in the present case the competent authorities, faced with an arguable claim of a negligent act causing death, failed to provide an adequate and timely response consonant with the State’s obligation under Article 2 of the Convention.

27. There has accordingly been a breach of Article 2 of the Convention.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

28. 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

29. The applicants claimed that they had sustained grave moral sufferings and health damage on account of the violation complained about. They submitted that they were unable to quantify the damage sustained and requested the Court to rule on an equitable basis.

30. The Government submitted that there was no call to award any damages, as there was no Convention breach in the present case.

31. Ruling on an equitable basis, the Court awards the applicants jointly EUR 3,000 in respect of non-pecuniary damage.

B. Costs and expenses

32. The applicants also claimed that they had sustained various postal, travel, medical and other expenses in connection with the present proceedings, however, they did not specify the amount of their claim.

33. The Government submitted that the claim should be rejected.

34. 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 that there is no call to give any award.

C. Default interest

35. 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;

3. Holds

(a) that the respondent State is to pay the applicants jointly, within three months, EUR 3,000 (three 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;

4. Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 26 February 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Milan BlaškoAngelika Nußberger
Deputy RegistrarPresident

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