CASE OF BASYUK v. UKRAINE

FIFTH SECTION

CASE OF BASYUK v. UKRAINE

(Application no. 51151/10)

JUDGMENT

STRASBOURG

5 November 2015

FINAL

05/02/2016

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Basyuk v. Ukraine,

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

Josep Casadevall, President,
Angelika Nußberger,
Boštjan M. Zupančič,
Ganna Yudkivska,
Vincent A. De Gaetano,
André Potocki,
Aleš Pejchal, judges,
and Claudia Westerdiek, Section Registrar,

Having deliberated in private on 6 October 2015,

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

PROCEDURE

1. The case originated in an application (no. 51151/10) 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, Mr Viktor Ivanovych Basyuk (“the applicant”), on 26 August 2010.

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

3. The applicant alleged that there had been no effective investigation of the traffic accident, which had resulted in the death of his daughter.

4. On 29 April 2013 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1940 and lives in Odessa.

6. On 4 September 2005 the applicant’s daughter, Ms Ye., and her child D., when crossing a road, were hit by a car driven by Ms M. It appears that the driver called an ambulance and the police. According to her statements to the police, Ms Ye. and the child had stopped at first in the middle of the road giving her the impression that they would wait until the car passed, but then had unexpectedly started running further across the road making the collision inevitable.

7. On the same day the police inspected the site and questioned some witnesses. They submitted that Ms. Ye. and her daughter had been crossing the road at some distance from the marked pedestrian crossing.

8. On 21 November 2005 the applicant’s daughter died in hospital. As to the injuries of his granddaughter, they were not dangerous for life.

9. On 12 December 2005 a forensic medical examination of the body of Ms Ye., which had been started on 23 November 2005, was completed. It established that she had died from the injuries sustained in the accident. The expert also established the victim’s position in respect of the car at the collision.

10. On 28 December 2005 another expert report was issued. It stated that it had been technically impossible for Ms M. to avoid the accident.

11. On 29 December 2005 an investigator of the Traffic Accidents Investigation Unit of the Odessa Regional Department of the Ministry of the Interior (слідчий відділу розслідування дорожньо-транспортних пригод ГУ МВС в Одеській області) delivered a ruling refusing to initiate criminal proceedings in respect of the accident. It was established that Ms Ye. and her daughter had been crossing the road unexpectedly and not on a pedestrian crossing, and when the driver, Ms M., had seen them, it had been technically impossible for her to avoid the accident.

12. On unspecified dates thereafter three additional witnesses of the accident, whom the applicant had identified in the meantime, stated that the collision had taken place at the pedestrian crossing.

13. The Government submitted to the Court a copy of the notarised agreement of 14 March 2006 signed by Ms M. and her father, for one part, and the applicant, his wife, Ms Ye.’s widower Mr Dr. (the applicant’s son-in-law) and Ms Y.A., another daughter of Ms Ye., for the other part. Its contents are as follows. Ms M. and her father undertook to pay the other party UAH 101,000 (then equivalent of about 16,700 euros (EUR)) “in respect of pecuniary and non-pecuniary damage caused by the traffic accident”. This obligation would be considered discharged if the payment was made to anyone of the cosignatories for the other party. It was additionally noted that, by that time, Ms M. had also paid UAH 87,264 (then equivalent of EUR 14,400) in respect of the victims’ medical treatment. In exchange, the victims’ family undertook not to seek initiation of criminal proceedings and not to lodge any claims or complaints against Ms M. In case they did not comply, they would have to pay back to Ms M., within three days, the amount of the compensation received. As an attachment to the agreement, there was a receipt signed by Mr Dr., the applicant’s son-in-law, in confirmation that he had received the money in question.

14. The case file did not contain any further information or documents regarding the aforementioned agreement or any follow-up to it. The applicant neither mentioned it in any of his submissions to the Court nor commented on it in reply to the Government’s observations. Accordingly, on 5 June 2015 the Court sent a factual request to the applicant with a view to clarifying the matter. More specifically, the applicant was requested to comment on the agreement of 14 March 2006, namely, to specify whether his family had received the amounts in question and, if so, whether he had had to recover them to the other party given his subsequent criminal complaints in her respect. The applicant replied that he had signed the agreement in question without reading it while being affected by the stress and sorrow caused by the death of his only child. He further noted that it was not him, but his son-in-law, who had received the money from the driver’s family (see also paragraph 31 below).

15. On 4 April 2006 the applicant complained to the Main Investigation Department of the Ministry of the Interior that the investigation of the traffic accident, which had caused the death of his daughter, had been lengthy and ineffective.

16. On 13 April 2006 the Ministry of the Interior replied to him that the investigation had been entrusted to the Odessa law-enforcement authorities.

17. On 6 May 2006 the Odessa Police Department further informed the applicant that it remained open for him to challenge the decision of 29 December 2005 refusing to initiate criminal proceedings in respect of the accident (see paragraph 11 above).

18. On 20 May 2006 the applicant complained to the Odessa City Prosecutor’s Office (“the city prosecutor”) about the ineffectiveness of the investigation into the death of his daughter.

19. As a result, on 7 June 2006 the city prosecutor quashed the decision of 29 December 2005 as premature and based on incomplete investigation. He ordered additional investigation, which was to include, in particular, the following measures: establishing the gravity of the child’s injuries and considering the possibility of her questioning in a pedagogue’s presence; questioning the applicant as to how he had identified some additional eye-witnesses of the accident, of whom he had informed the investigation; questioning those witnesses; and considering the possibility of an additional on-site inspection.

20. On 20 July 2006 another decision not to open a criminal case in respect of the accident was delivered.

21. On 10 January 2007 the Odessa Regional Prosecutor’s Office (“the regional prosecutor”) quashed the decision of 20 July 2006 as premature and remitted the case to the traffic police for additional investigation.

22. On 25 January 2007 another forensic technical expert examination report was issued. This time the expert had, in particular, to assess the conflicting accounts of the events given by the witnesses (some of them submitted that the accident had taken place at an unregulated pedestrian crossing, while others maintained that the victims had been crossing the road at some distance from that crossing). It was found impossible to reconcile those two versions.

23. On 1 March 2007 the investigator again refused to initiate criminal proceedings having found that there was no case to answer.

24. On 24 March 2009 the regional prosecutor quashed the above decision and opened a criminal case against Ms M. on suspicion of a breach of traffic rules causing the death of the applicant’s daughter. The investigator previously dealing with the case was disciplined for the inadequate and lengthy investigation.

25. On 20 May 2009 the applicant was attributed the status of an aggrieved party.

26. On the same day the applicant signed a statement in confirmation that his right to lodge a civil claim had been explained to him. He noted that he intended to lodge such a claim later in the course of the pre-trial investigation once he decided on the amount of the damages.

27. On 1 June 2009 a forensic medical expert established that the death of Ms Ye. had resulted from the injuries sustained by her in the accident.

28. On 26 October 2009 the investigator ordered a complex forensic medical and technical expert examination. On 30 November 2009 it was completed. Having analysed the injuries sustained by Ms Ye. and her daughter, as well as the damages to the car of Ms M., the expert established the position of the victims at the time of the accident.

29. In November 2009 the applicant complained to the regional prosecutor once again that the investigation was not progressing.

30. On 18 May 2010 yet another technical examination was assigned, and on 30 September 2010 it was completed. The expert concluded that, if the victims had been crossing the road not on the pedestrian crossing, it had been technically impossible for the driver to avoid the accident. If, however, they had been on the pedestrian crossing, it had been possible for her to avoid the accident.

31. On 25 May 2010 the father of the driver involved in the accident, Mr M., lodged a civil claim against the applicant and his family seeking the termination of the agreement of 14 March 2006 and the recovery of the amounts paid under that agreement (see paragraph 13 above). On 19 August 2010 Mr M., however, withdrew that claim for unknown reason. The information about these events has been provided to the Court by the applicant in his reply to the factual request of 5 June 2015 (see paragraph 14 above), without any further details.

32. On 7 January 2011 the investigator requested the Odessa transport police to establish the whereabouts of the car involved in the accident and to find who its owner was at that time.

33. On 18 March 2011 the car involved in the accident was attached as material evidence in the criminal investigation.

34. On 24 May 2011 a reconstruction of the circumstances of the accident was conducted with the applicant’s participation. He showed where his granddaughter and the body of his daughter had been found.

35. Having regard to those statements of the applicant, on 6 June 2011 the investigator assigned another forensic technical expert examination. On 9 September 2011 it was completed. The expert found it impossible to establish the exact place of the accident owing to the absence of the documentation regarding the car’s brake trace. Nor could the expert establish whether it had been technically possible for the driver to avoid the accident.

36. On 10 May 2012 the investigator terminated the proceedings for want of evidence of the driver’s guilt. As noted in his decision, three witnesses stated that the accident had taken place on the pedestrian crossing, while other four witnesses stated that it had been outside the crossing, and it appeared impossible to establish the truth.

37. On 6 June 2012 the regional prosecutor quashed the above decision and ordered additional investigation. He noted that the initial investigative measures, such as the accident reconstruction, had not reflected all the issues essential for the subsequent technical expert evaluations to establish the pertinent facts with precision. Furthermore, the inquiry authorities had inadequately complied with the assignments given by the investigator.

38. On 5 July 2012 the investigator ordered an additional forensic medical and technical expert examination. On 6 August 2012 it was completed. It established, in particular, the position of the victims in relation to the car. The examination also confirmed that the applicant’s daughter had died as a result of the accident. Lastly, the expert found it impossible to establish at what speed Ms M. had been driving at the time of the accident.

39. On 28 January 2013, following the entry into force of the new Code of Criminal Procedure, the information on the case was entered in the Unified Register of Pre-Trial Investigations.

40. On 15 March 2013 the investigator repeatedly questioned a number of witnesses.

41. On 12 July 2013 another technical expert examination was assigned. Its results are unknown.

42. According to the most recent information from the Government, as of 29 November 2013 the investigation was ongoing.

II. RELEVANT DOMESTIC LAW AS WORDED AT THE MATERIAL TIME

43. The relevant provisions of the Constitution of Ukraine (1996) and the Code of Criminal Procedure (1960) can be found in the judgment in the case of Muravskaya v. Ukraine (no. 249/03, §§ 35-36, 13 November 2008).

44. Under Article 286 of the Criminal Code (2001), a driver, who having breached the rules of road safety or correct use of his/her vehicle has caused a human death, shall be sentenced to a term of imprisonment from three to eight years. His/her driving license may also be revoked for up to three years.

45. The relevant provisions of the Civil Code (2003) and the Code of Civil Procedure (2004) can be found in the judgment in the case of Fedina v. Ukraine (no. 17185/02, §§ 44 and 45, 2 September 2010).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

46. The applicant complained that the investigation into the death of his daughter had been lengthy and ineffective. He relied on Articles 2, 6 § 1, 7, 13 and 34 of the Convention.

47. 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 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. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.”

A. Admissibility

48. The Court takes note of the applicant’s failure to inform the Court of the agreement of 14 March 2006 signed by his family and that of the driver involved in the accident (see paragraphs 13 and 14 above). The Court received the relevant information from the Government. Assuming that the Government’s submissions might be interpreted as suggesting that the applicant abused his right of petition, the Court considers it necessary to address this issue.

49. The Court recalls that submission of incomplete and thus misleading information may amount to an abuse of the right of application, especially if the information concerns the very core of the case and no sufficient explanation has been provided for the failure to disclose that information. However, the applicant’s intention to mislead the Court must always be established with sufficient certainty (see Gross v. Switzerland [GC], no. 67810/10, § 28, ECHR 2014, with further references).

50. Turning to the present case, the Court notes that the agreement in question had no impact on the domestic criminal investigation into the accident, which continued during more than seven years thereafter (see §§ 13 and 42 above). While it is regrettable that the applicant did not inform the Court about its existence, it cannot be established with certainty that he intended to mislead the Court.

51. The Court does not therefore consider that the applicant abused his right of an individual petition in the present case.

52. It further notes that this complaint is neither manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention nor inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

53. The applicant argued that the domestic authorities had failed to take timely and genuine efforts to establish the truth regarding the death of his daughter. He submitted, in particular, that the essential evidence had not been secured, that the eye-witnesses had been identified and questioned with considerable delays, and that the numerous remittals of the case for additional investigation had had no meaningful results.

54. The Government submitted that the circumstances of the death of the applicant’s daughter had been investigated with due expedition and diligence. They noted that the remittals of the case for additional investigation were to be regarded as an indication of the thoroughness of the investigation. Furthermore, the Government emphasised that the applicant had been assigned a victim status without delay and that he had successfully initiated numerous investigative measures. Lastly, the Government observed, with the reference to the agreement of 14 March 2006 (see paragraph 13 above), that the applicant had received the compensation in respect of pecuniary and non-pecuniary damage in full.

55. In reply to the Government’s observations, the applicant reiterated his arguments that the investigation had been lengthy and ineffective. He did not comment on the Government’s submission regarding the agreement of 14 March 2006.

2. The Court’s assessment

56. The first sentence of Article 2 of the Convention requires the States to put in place a legislative and administrative framework designed to provide effective deterrence against threats to the right to life in context of any activity, whether public or not, in which the right to life may be at stake (see, among other authorities, Öneryıldız v. Turkey [GC], no. 48939/99, §§ 89-90, ECHR 2004‑XII; Kalender v. Turkey, no. 4314/02, § 51, 15 December 2009; and Krivova v. Ukraine, no. 25732/05, § 44, 9 November 2010). It further requires that, where a life-threatening injury or a death occurs, an effective independent judicial system is set up to ensure enforcement of the aforementioned legislative framework by providing appropriate redress (see, for example, Anna Todorova v. Bulgaria, no. 23302/03, § 72, 24 May 2011). This obligation indisputably applies in the context of designing a framework for protection of life from road traffic accidents (see, for example, Rajkowska v. Poland (dec.), no. 37393/02, 27 November 2007; Al Fayed v. France (dec.), no. 38501/02, §§ 73-78, 27 September 2007; and Railean v. Moldova, no. 23401/04, § 30, 5 January 2010).

57. An effective judicial system, as required by Article 2, may, and under certain circumstances must, include recourse to the criminal law (see e.g. Railean, cited above, § 27, and Fedina v. Ukraine, no. 17185/02, § 62, 2 September 2010). However, where an accident has been caused by pure negligence without aggravating circumstances, the Court may be satisfied if the legal system affords victims a remedy in the civil courts, enabling any liability of the parties concerned to be established and any appropriate civil redress, such as an order for damages to be obtained (see Furdik v. Slovakia (dec.), no. 42994/05, 2 December 2008; Fedina, cited above, § 66; Krivova, cited above, § 50; Ciechońska v. Poland, no. 19776/04, § 77, 14 June 2011; and Anna Todorova, cited above, §§ 79-80).

58. Turning to the circumstances of the present case, the Court observes that the applicant’s complaint concerns only the criminal investigation into the death of his daughter. At no point did he lodge a civil claim against the driver who had fatally hit his daughter. At the same time, it is noteworthy that the respondent Government did not contend that the matter could be effectively pursued outside the framework of the criminal proceedings.

59. The Court notes that in a number of other cases against Ukraine, where, like in the present case, the applicants did not lodge any civil claim and the Government did not argue that that could have been an appropriate remedy, the Court did proceed with the examination whether the criminal proceedings in question satisfied the criteria of effectiveness required by Article 2 of the Convention (see Antonov v. Ukraine, no. 28096/04, § 49, 3 November 2011, Igor Shevchenko, cited above, §§ 57-62, Prynda v. Ukraine, no. 10904/05, § 54, 31 July 2012, and Zubkova v. Ukraine, no. 36660/08, § 38, 17 October 2013).

60. The Court further observes that in the case of Antonov, cited above, the Government admitted that they had an obligation to conduct, on their own initiative, an official investigation of the circumstances of the death resulting from a traffic accident and to take all reasonable measures to establish the relevant facts, including the extent to which the driver had possibly been at fault in respect of negligent driving (§ 42). The Government did not contend otherwise in the present case.

61. A distinctive element in the present case, as compared to those cited above, is the Government’s submission that the applicant has already received compensation in respect of the pecuniary and non-pecuniary damage as a result of his private agreement with the driver involved in the accident (see paragraphs 13 and 54 above).

62. The Court notes that, indeed, according to its case-law, sometimes civil redress, rather than criminal prosecution, would suffice for the requirements of Article 2 of the Convention to be complied with (see paragraph 57 above). However, if neither the pertinent facts surrounding the death nor the liability of the parties involved has been established, there appears to be no basis for taking a clear stand which forum, civil or criminal, would have been appropriate in the circumstances.

63. It has not been suggested by the Government in the present case that the compensation-related agreement between the victim’s and the driver’s families absolved the authorities of their duty to establish the truth concerning the death of the applicant’s daughter. The Court does not see any reason to consider otherwise. This is even more so given that, as it follows from the case-file materials, the agreement in question was never brought to the attention of the domestic authorities. Therefore, it was not a consideration for them in deciding as to how to deal with the applicant’s complaints.

64. The Court further observes that the applicant consistently pursued the criminal-law venue available to him and that he declared his intention to lodge a civil claim (see, in particular, paragraph 26 above). The fact that he never did so cannot be held against him, because, in any event, he was precluded from lodging a civil claim within the criminal-proceedings framework, since without an official indictment there was no defendant to lodge such a claim against (see Kositsina v. Ukraine (dec.), no. 35157/02, 15 January 2008). The possibility to institute separate civil proceedings based on negligence or strict liability rules was not feasible either without awaiting the outcome of the official investigation (see Antonov, cited above, § 49).

65. The Court will therefore proceed with examining whether the criminal investigation into the death of the applicant’s daughter met the minimum criteria of effectiveness required by Article 2 of the Convention.

66. The Court notes that the investigation into the accident, which took place in September 2005, continued for more than eight years and, as of November 2013, was still pending at the pre-trial stage (see paragraph 42 above).

67. The Court observes that, despite a number of investigative measures taken, the national authorities themselves criticised the investigation. More specifically, the regional prosecutor acknowledged in his decision of 6 June 2012 that the traffic police had inadequately collected the evidence from the very beginning thus rendering the establishing of truth practically impossible (see paragraph 37 above). Furthermore, the inquiry authorities had not complied with some instructions of the investigator (ibid.). Lastly, as indicated in the regional prosecutor’s decision of 24 March 2009, the investigator himself had failed to perform his duties in a timely and effective manner (see paragraph 24 above).

68. The Court also notes that the investigation in question was marked by an unusually high number of repeated technical expert examinations (at least six – see paragraphs 10, 22, 28, 30, 35 and 38 above). It could be accepted that in certain circumstances a repeated expert examination might be required to clarify the circumstances of the case. At the same time, the fact that the same type of forensic examination was ordered several times within the same criminal case suggests to the Court 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).

69. Furthermore, the Court does not lose sight of four remittals of the case for additional investigation. In the case of Oleynikova v. Ukraine (no. 38765/05, § 81, 15 December 2011), it already expressed its concern over such remittals of a case for additional investigation as disclosing a serious deficiency in criminal investigation and, more broadly, in the functioning of the law-enforcement machinery not able to effectively put this practice to an end. It further noted in the cited case that this had been a recurring problem in the cases against Ukraine. The present case appears to disclose the aforementioned problem once again.

70. The Court next observes that the criminal case in respect of the accident was opened and the applicant was assigned the victim status more than three and a half years after the death of his daughter (see paragraphs 24 and 25 above).

71. Lastly, the Court does not lose sight of the fact that the car involved in the accident was attached as material evidence only almost five and a half years after that accident (see paragraph 33 above).

72. In the light of the foregoing, the Court finds that there was no effective investigation into the death of Ms Ye. and that the applicant was not provided with effective legal procedures compatible with the procedural requirements of Article 2 of the Convention.

73. There has therefore been a violation of Article 2 of the Convention under its procedural limb.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

74. 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

75. The applicant claimed 5,647 euros (EUR) in respect of pecuniary damage and EUR 55,000 in respect of non-pecuniary damage.

76. The Government contested these claims.

77. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicant EUR 6,000 in respect of non-pecuniary damage.

B. Costs and expenses

78. The applicant also claimed EUR 120 for the postal expenses.

79. The Government contested this claim as unsubstantiated.

80. 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 rejects the claim for costs and expenses.

C. Default interest

81. 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

1. Declares by a majority the application admissible;

2. Holds, by five votes to two, that there has been a violation of Article 2 of the Convention under its procedural limb;

3. Holds, by four votes to three,

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 6,000 (six thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; this amount is 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, unanimously, the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 5 November 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Claudia WesterdiekJosep Casadevall
RegistrarPresident

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judges Casadevall and Nußberger is annexed to this judgment.

J.C.M.
C.W.

JOINT DISSENTING OPINION OF JUDGE CASADEVALL AND JUDGE NUSSBERGER

The present case concerns an ineffective investigation into a fatal traffic accident. It is similar to numerous earlier cases against Ukraine on the same matter and clearly points to a systemic problem.

This fact does not, however, absolve the applicant from providing the Court with all the relevant information on the facts of the case.

About six months after the accident, on 14 March 2006, when the instigation of the criminal proceedings had been rejected for the first time by an investigating officer from the Traffic Accidents Investigation Union of the Odessa Regional Department of the Ministry of the Interior, the applicant, together with his family (his wife, his son-in-law, and his daughter) concluded a notarised agreement with the driver potentially responsible for the accident and her father. Against the payment of EUR 31,100 the applicant and his family members undertook not to bring criminal proceedings and not to lodge any claims or complaints against the driver. It is unclear if this agreement was in conformity with national law. In any case, it is undisputed that the applicant’s son-in-law received the money in question and that the obligation was discharged on the basis of the clear stipulation in the treaty that the payment could be made to any of the cosignatories (§ 13). The applicant’s reply that it was not he personally who received the money (§ 14) is thus irrelevant. The complaint seeking the termination of the agreement and the recovery of the amounts paid was withdrawn for reasons unknown (§ 31).

In our view the existence of the agreement and the payment of the sum of EUR 31,100 are important aspects of the case which the applicant has failed to reveal to the Court. It is relevant for assessing the applicant’s (material) interest in the outcome of the criminal investigation which would usually serve as a basis for a civil claim (§ 60). It is also relevant for the Court’s assessment of the non-pecuniary damage to be granted to the applicant if his complaint is considered well-founded (§ 73).

According to the well-established case-law of the Court, failure to inform the Court of relevant factual circumstances may amount to abuse of the right of individual petition, especially if the information concerns the very core of the case and no sufficient explanation is given for the failure to disclose that information (see, e.g., Gross v. Switzerland [GC], no. 67810/10, § 28, ECHR 2014; Predescu v. Romania, no. 21447/03, §§ 25-26, 2 December 2008, and Hadrabová and Others v. the Czech Republic (dec.), nos. 42165/02 and 466/03, 25 September 2007).

The Court can raise such an objection to the admissibility of the case of its own motion (see Řehák v. the Czech Republic (dec.), no. 67208/01, 18 May 2004, and Duringer and Grunge v. France (dec.), nos. 61164/00 and 18589/02, ECHR 2003-II).

In the present case the applicant argued that he had signed the agreement without reading it while being affected by the stress and sorrow caused by the death of his only child (§ 14). In our view that does not justify the failure to inform the Court of the agreement and the payment four years later when lodging the application.

We think that sincere cooperation by the applicants with the Court is a precondition for the Court’s effective functioning. The Court must therefore make clear that it cannot proceed with the examination of complaints where the applicants withhold parts of the relevant information.

Consequently, the Court should have declared the complaint inadmissible on the basis of Article 35 § 3(a) of the Convention

 

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