FIFTH SECTION
CASE OF BGANKA AND VOTCHENIKOVA v. UKRAINE
(Applications nos. 39591/20 and 39713/20)
JUDGMENT
STRASBOURG
20 June 2024
This judgment is final but it may be subject to editorial revision.
In the case of Bganka and Votchenikova v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Carlo Ranzoni, President,
Mārtiņš Mits,
María Elósegui, judges,
and Viktoriya Maradudina, Acting Deputy Section Registrar,
Having deliberated in private on 30 May 2024,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in applications against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table.
2. The applicants were represented by Mr V. V. Savko, a lawyer practising in Dnipro.
3. The Ukrainian Government (“the Government”) were given notice of the applications.
THE FACTS
4. The list of applicants and the relevant details of the applications are set out in the appended table.
THE LAW
JOINDER OF THE APPLICATIONS5. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.
ALLEGED VIOLATION OF ARTICLE 3 of the Convention6. The applicants complained of the ineffective investigation into ill-treatment inflicted by private parties. They relied, expressly or in substance, on Article 3 of the Convention.
7. The Court notes at the outset that the violent treatment in question fell within the scope of Article 3 of the Convention. The Court reiterates that Article 3 of the Convention requires that the authorities conduct an effective official investigation of alleged ill‑treatment, even if such treatment has been inflicted by private individuals (see M.C. v. Bulgaria, no. 39272/98, § 151, ECHR 2003‑XII, and Denis Vasilyev v. Russia, no. 32704/04, § 99, 17 December 2009). The minimum standards of effectiveness laid down by the Court’s case-law include the requirements that the investigation must be independent, impartial and subject to public scrutiny, and that the competent authorities must act with exemplary diligence and promptness (see, mutatis mutandis, Menesheva v. Russia, no. 59261/00, § 67, ECHR 2006-III).
8. The procedural requirements of Article 3 go beyond the preliminary investigation stage when the investigation leads to legal action being taken before the national courts: the proceedings as a whole, including the trial stage, must meet the requirements of Article 3. This means that the domestic judicial authorities must on no account be prepared to let the physical or psychological suffering inflicted go unpunished. This is essential for maintaining the public’s confidence in, and support for, the rule of law and for preventing any appearance of the authorities’ tolerance of or collusion in unlawful acts (see, mutatis mutandis, Okkalı v. Turkey, no. 52067/99, § 65, ECHR 2006 XII (extracts)).
9. Reviewing the facts of the present case in the light of those principles, the Court considers that the authorities, who were empowered to open and conduct a criminal investigation, did not make a genuine attempt to take a prompt and thorough examination of the matter, establish the facts and, if necessary, bring those responsible to account. The specific shortcomings are indicated in the appended table.
10. In the leading cases of Muta v. Ukraine (no. 37246/06, 31 July 2012) the Court already found violations in respect of issues similar to those in the present case.
11. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the investigations failed to meet the criteria of effectiveness.
12. These complaints are therefore admissible and disclose a breach of Article 3 of the Convention under its procedural limb.
APPLICATION OF ARTICLE 41 OF THE CONVENTION13. Regard being had to the documents in its possession and to its case‑law (see, in particular, Pobokin v. Ukraine, no. 30726/14, 6 April 2023), the Court considers it reasonable to award the sums indicated in the appended table.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
Decides to join the applications;Declares the applications admissible;Holds that these applications disclose a breach of Article 3 of the Convention concerning the ineffective investigation into ill-treatment inflicted by private parties; Holds(a) that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, 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 amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
Done in English, and notified in writing on 20 June 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Viktoriya Maradudina Carlo Ranzoni
Acting Deputy Registrar President
APPENDIX
List of applications raising complaints under Article 3 of the Convention
(ineffective investigation into ill-treatment inflicted by private parties or in circumstances that exclude involvement of State agents)
Application no.
Date of introduction
Applicant’s name
Year of birth
Background to the case and domestic proceedings
Key issues
Amount awarded for non-pecuniary damage per applicant
(in euros)[1]
Amount awarded for costs and expenses per application
(in euros)[2]
39591/20
13/08/2020
AND
39713/20
25/08/2020
Nataliya Volodymyrivna BGANKA
1970
AND
Nadiya Mykolayivna VOTCHENIKOVA
1951
On 21/09/2014 the two applicants, mother and a daughter, were allegedly assaulted by A. in his apartment. Forensic medical examinations on 13/10/2014 and 19/12/2014 revealed that they had sustained minor injuries. Subsequently, a criminal investigation was initiated, and A. was charged with assault, with the applicants being recognised as victims. On 15/05/2015 they filed civil claims within the criminal proceedings against A.
On 20/04/2016 the Leninskyy District Court of Dnipropetrovsk found A. guilty as charged, imposed a fine, and partially accepted the civil claims. However, on 22/09/2016 the Dnipropetrovsk Court of Appeal overturned this verdict as ill-reasoned and ordered retrial. The Dnipropetrovsk Court of Appeal noted various shortcomings in the previous proceedings, including the failure to establish a criminal motive and intent, failure to question experts and eyewitnesses, and absence of additional medical examinations.
On 04/01/2018 the Leninskyy District Court of Dnipropetrovsk ordered a forensic psychological examination of the applicants. Ultimately, on 04/02/2021 the Leninskyy District Court of Dnipropetrovsk terminated the criminal proceedings against A., absolving him of the criminal liability due to expiry of the statutory limitation period, with the civil claims left unexamined.
Failure to take the necessary steps to investigate the case thoroughly (Skorokhodov v. Ukraine,
no. 56697/09, §§ 34-35,
14 November 2013),
groundless and significant periods of inactivity (Muta v. Ukraine,
no. 37246/06, § 65, 31 July 2012),
overall protracted character of the investigation and court proceedings (Muta v. Ukraine, no. 37246/06, § 65, 31 July 2012),
shortcomings recognised by the national authorities themselves (Muta v. Ukraine, no. 37246/06,
§ 65, 31 July 2012).
3,000
250
[1] Plus any tax that may be chargeable to the applicants.
[2] Plus any tax that may be chargeable to the applicants.