CASE OF BLIZNYUK v. UKRAINE

FIFTH SECTION 

CASE OF BLIZNYUK v. UKRAINE

(Application no. 20789/14)

JUDGMENT
 

STRASBOURG

10 June 2021

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

In the case of Bliznyuk v. Ukraine,

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

 Mārtiņš Mits, President,
 Lətif Hüseynov,
 Mattias Guyomar, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 20789/14) 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 Galina Fedorovna Bliznyuk (“the applicant”), on 5 March 2014;

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

the parties’ observations;

Having deliberated in private on 20 May 2021,

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

INTRODUCTION

1.  The case concerns the applicant’s complaints under Article 2 of the Convention about the death of her son in suspicious circumstances allegedly involving State agents and about ineffective investigation into those events.

THE FACTS

2.  The applicant was born in 1940 and lives in the town of Kamyanske (former Dniprodzerzhynsk), Dnipropetrovsk Region, Ukraine.

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

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

5.  On 11 August 2001, at 6.15 p.m. and at 7.00 p.m., the applicant’s thirty-four-year-old son was stopped twice by two different patrols of the Dnipropetrovsk City Traffic Police (hereafter – “the traffic police”) for breach of road traffic rules when driving a car. They drew up two administrative offence reports in respect of the applicant’s son which were signed by the same attesting witnesses. Since there were signs of his alcoholic intoxication, the applicant’s son was brought twice, at 6.30 p.m. and at 7.55 p.m., to the Dnipropetrovsk City Drug Treatment Centre (hereafter – “the medical centre”) where a narcologist found him to be heavily intoxicated; the alcohol level in his urine when tested was 2.66‰ and 3.7‰, respectively. Both times the applicant’s son was released following the test. On the second occasion, according to the statements of the police officers and the narcologist, he refused medical assistance.

6.  The next day, in the afternoon, the traffic police received a call about a car abandoned on the roadway, and upon arrival, at around 7.00 p.m., they found the applicant’s son dead in his car. The corpse was inspected, and no visible bodily injuries were found. According to the conclusion of the post‑mortem expert commission examination dated 18 September 2001, the applicant’s son had died as a result of an acute ischaemic heart disease complicated by an acute blood circulatory disturbance in the myocardium; an internal bleeding was also found. Furthermore, scratches on the left leg were found which had been caused by blunt object or objects with limited contacting surfaces, but they were not connected with the death. In addition, it was established that, at the time of the death, the applicant’s son had been heavily intoxicated as the alcohol level in his blood was 3‰. At the same time, two experts of the commission partly disagreed with the above conclusion noting in their review that the death of the applicant’s son had been caused by an acute heart failure of toxic origin.Pre-investigative inquiry

7.  Immediately after the death of the applicant’s son, the Krasnogvardiyskyy District Prosecutor’s Office of Dnipropetrovsk (hereafter – “the local prosecutor’s office”) instituted a pre-investigative inquiry.

8.  The witnesses K. and Z.O. testified that on 11 August 2001, at around 7.00 p.m., they had seen the police officers stop the applicant’s son’s car, handcuff him and bring him to the police car; those witnesses further testified that the next day they had seen the applicant’s son sleep in the car. The witnesses Ch., P. and Z.I. testified that on 12 August 2001, in the morning, they had seen the applicant’s son open the car bonnet and sit at the steering wheel.

9.  In September 2001 the applicant requested to open a full-scale criminal investigation into her son’s death. In particular, she alleged that her son had been beaten and forced to consume alcohol by the police officers, and that the narcologist had failed to provide him with appropriate medical assistance. Moreover, the applicant doubted that her son, who, according to her, had led a healthy life, could have consumed so much alcohol voluntarily, without any interference of the police officers. Later, she maintained the above allegations during questioning.

10.  The police officers, who had stopped the applicant’s son’s car on the first occasion, testified that on 11 August 2001, at 6.15 p.m., the applicant’s son had been stopped since he had been driving through a red light; as he was drunk, they had brought him to the medical centre for testing and then released him. The police officers, who had stopped the applicant’s son’s car on the second occasion, testified that forty-five minutes later they had tried to stop the applicant’s son since he again had been driving through a red light; as he had not stopped, they had given chase; when the applicant’s son had finally stopped, he had refused to leave the car, so he had been pulled out of the car by force, handcuffed, brought to the medical centre and then again released. The police officers denied any ill-treatment of the applicant’s son; they explained that in the medical centre he was conscious, followed the instructions of the narcologist but refused the medical assistance proposed.

11.  The narcologist testified that on 11 August 2001 the applicant’s son had been twice transferred to the medical centre for determination of the alcohol level in his urine; he had been behaving adequately; he had refused medical aid as, according to him, he felt good. Later the narcologist maintained the above statements and additionally testified that she had found the applicant’s son to be heavily intoxicated as the alcohol level in his urine, when tested, was 2.66‰ and 3.7‰; despite the above, his state of health was satisfactory.

12.  The witness R. testified that on 11 August 2001, in the evening, he had seen the police officers stop the applicant’s son’s car, pull him out of the car by force and bring him to the police car, afterwards they had gone; on 12 August 2001, in the morning, he had seen the applicant’s son inspect his car, open the bonnet and sit in the car.

13.  The witnesses R.I., R.L. and S. testified that on 11 August 2001, in the evening, they had seen the police officers pull the applicant’s son out of his car and beat him with rubber truncheons; according to their testimonies, later he had been handcuffed and brought to the police car.

14.  According to a letter from the forensic expert institution dated 3 December 2003, the applicant’s son had died approximately two to four hours before the inspection of his body on 12 August 2001 at 7.10 p.m.; the minor injuries found on his body had emerged shortly before the death, and they were unlikely to have been caused by blows with rubber truncheons used by the police.

15.  The witness Z.V. testified that on 11 August 2001, in the evening, he had seen the police officers handcuff the applicant’s son near his car and bring him to the police car; according to his testimonies, they had no rubber truncheons and had not beaten him.

16.  According to a letter from the traffic police dated 19 June 2006, police officers had not been provided with rubber truncheons at the material time.

17.  According to a letter from the forensic expert institution dated 19 March 2007, the applicant’s son had died as a result of an acute ischaemic heart disease complicated by an acute blood circulatory disturbance in the myocardium against the background of heavy alcohol intoxication.

18.  Between September 2001 and January 2012, the local prosecutor’s office delivered more than twenty decisions on refusal to institute criminal proceedings. However, all those decisions were set aside by the Dnipropetrovsk City Prosecutor’s Office (hereafter – “the city prosecutor’s office”), the Dnipropetrovsk Regional Prosecutor’s Office, the Krasnogvardiyskyy District Court of Dnipropetrovsk, the Babushkinskyy District Court of Dnipropetrovsk (hereafter – “the Babushkinskyy Court”) and the Dnipropetrovsk Regional Court of Appeal (hereafter – “the appellate court”) as there was contradictory evidence as to the cause and circumstances of the applicant’s son’s death and the inquiry was marked by substantial shortcomings, in particular:

(i) the conclusion of the examination of 18 September 2001 contradicted the experts’ review of that conclusion as to the cause of death of the applicant’s son, for which reason a complex forensic medical expert examination should have been performed but was not;

(ii) the applicant’s statements that her son had no underlying heart condition were not checked;

(iii) the testimonies of the witnesses as to beating of the applicant’s son by the police officers were disregarded;

(iv) it was necessary to establish whether there was a danger to the life of the applicant’s son due to increasing alcohol level in his urine to 3.7‰, and the reasons and period of such an increase;

(v) the mechanism of appearance of the minor injuries on the body of the applicant’s son was unestablished;

(vi) the administrative offence reports, drawn by different patrols of police officers with a 45-minute time lapse, had been signed by the same witnesses who had to be found and questioned;

(vii) the applicant’s son’s body showed signs of internal bleeding, the origin of which had not been clarified.Criminal investigation as regards the police officers

19.  On 16 January 2013 the city prosecutor’s office instituted criminal proceedings on account of abuse of power by the police officers.

20.  On 14 February and 11 April 2013 forensic medical expert examinations were performed; the results of which confirmed the findings of the initial examination. In particular, it was noted in the conclusion of 14 February 2013 that heavy alcohol intoxication of the applicant’s son could have provoked his heart failure and resulted in his death; having in mind the nature and localisation of the minor injuries on the applicant’s son’s body, they could have emerged simultaneously as a result of the fall onto the knees on firm surface such as tarmac; as to the internal bleeding, it had a natural cause. Moreover, according to the conclusion of 11 April 2013, no causal link was found between the death of the applicant’s son and the lack of medical aid a day before. During the last examination, pathological changes in the cardiovascular system were additionally established; in this respect, it was indicated that cardiovascular diseases might not be apparent during lifetime, especially at a young age, and might not cause noticeable deterioration of health, so patients might not need medical aid or be aware of existence of such conditions.

21.  Meanwhile, on 26 February 2013 the applicant was given a victim status and questioned. She maintained her previous assertions.

22.  On 24 April 2013 the city prosecutor’s office terminated the criminal proceedings due to the lack of constituent elements of crime. It was noted that the death of the applicant’s son had been caused by an acute ischaemic heart disease against the background of heavy alcohol intoxication; there was no evidence of any involvement of the police officers. As to the witnesses telling about beating of the applicant’s son by the police officers with rubber truncheons, it was indicated in the relevant decision that their testimonies contradicted other available evidence and, moreover, they had later submitted that since the events in question had taken place long ago, they could no longer remember them clearly. The above decision was upheld by the Babushkinskyy Court on 20 May 2013 and by the appellate court on 3 June 2013. By a decision dated 9 September 2013 the Higher Specialised Court of Ukraine in Civil and Criminal Matters refused to open cassation proceedings.Criminal investigation as regards the narcologist

23.  On 27 April 2013 the Investigating Unit of the Dnipropetrovsk City Department of the Main Directorate of the Ministry of Internal Affairs of Ukraine of the Dnipropetrovsk Region (hereafter – “the police investigating unit”) instituted criminal proceedings on account of the alleged failure to provide the applicant’s son with medical assistance.

24.  On 25 September 2013 a forensic medical expert examination was performed. It was established that, despite high level of alcohol in the urine, the applicant’s son, when at the medical centre, was conscious. He had followed the necessary medical procedures, spoken to medical personnel and the police officers, signed medical documents but refused medical assistance. Due to the fact that the death of the applicant’s son had occurred almost a day after the last testing by the narcologist and that the alcohol level in his blood was 3‰ at the time of death, it was suggested that after leaving the medical centre he had continued to consume alcohol and had not turned to medical institutions. Based on that, it was concluded that the narcologist could not be held responsible for the death of the applicant’s son.

25.  Between November 2013 and March 2020, the police investigating unit terminated the criminal proceedings on numerous occasions due to the lack of constituent elements of crime. However, all those decisions were set aside by the Babushkinskyy Court and the appellate court. In particular, the domestic courts noted that the investigating authorities failed to establish the place of residence of, and question additionally, the narcologist, her colleague K. who tested the applicant’s son’s urine, and the police officers as to his behaviour after testing and the necessity to provide him with urgent medical assistance.

26.  As it appears from the available case-file materials, the criminal investigation on that account is still ongoing.

THE LAWALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

27.  The applicant complained that State agents had been involved in the death of her son and that there had been no effective investigation in this respect. The applicant relied on Articles 2, 6 and 13 of the Convention.

28.  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 from the standpoint of Article 2 of the Convention (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. ...”AdmissibilityThe parties’ submissions

29.  The Government considered that the applicant’s complaints under Article 2 of the Convention were ill‑founded within the meaning of Article 35 § 3 of the Convention. In particular, the Government noted that the applicant’s son’s death was natural which had been confirmed by extensive taking of evidence in the pre-investigative inquiry and the pre-trial investigation. The evidence obtained refuted the applicant’s statements about the possible involvement of the police officers and the narcologist into the death of her son.

30.  The applicant disagreed and maintained her complaints under Article 2 of the Convention. In particular, the applicant stressed that, before the death, her son had been beaten and forced to consume alcohol by the police officers, and that the narcologist had failed to provide him with necessary medical assistance; she also complained about the lack of effective investigation in this regard.The Court’s assessment

(a)   As to the substantive limb of Article 2 of the Convention

(i)      Cause of death

31.  The Court reiterates that, in assessing evidence, it has generally applied the standard of proof “beyond reasonable doubt”. However, such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see, for example, Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000‑VII).

32.  In the present case, the domestic authorities provided an explanation for the death of the applicant’s son. They concluded that he had died from acute ischaemic heart disease complicated by an acute blood circulatory disturbance in the myocardium; heavy alcoholic intoxication and pathological changes in the cardiovascular system could have provoked his death which had occurred approximately two to four hours before inspection of his body; the minor injuries found on the body had emerged shortly before the death, they were unlikely to have been caused by blows with rubber truncheons used by the police; as to his internal bleeding, it had a natural cause. That conclusion was based on reliable medical evidence which was coherent with other pieces of evidence collected by the domestic authorities. The available evidence further suggested that the applicant’s son had not been beaten by the police officers the day before his death; some witnesses testifying about such a beating did not maintain their statements which were also refuted by other pieces of evidence, including medical ones. Furthermore, some witnesses testified that, on the day of his death, they had seen the applicant’s son inspect his car and sit in it, from which fact it could be inferred that after refusal of medical aid he had been free to leave and had not been in contact with police officers before his death.

33.  It is true that the domestic authorities failed to provide any precise explanations for the fact that the applicant’s son had been stopped twice by two different patrols of police officers within a short period of time, and that, nevertheless, the relevant documents concerning his arrest had been signed by the same witnesses – who had never been found. However, for the Court, the subsistence of these unclear issues could not automatically engage the State’s responsibility for the death of the applicant’s son.

34.  Despite the concerns expressed below as to the effectiveness of the domestic inquiries and investigations, the Court does not find sufficient grounds to call into question the above findings of the domestic authorities. Indeed, there appears to be no reliable evidence whatsoever in support of the applicant’s version that her son had been beaten and forced to consume alcohol by the police officers. In such circumstances, the Court accepts the version of events provided by the domestic authorities and dismisses the applicant’s assertion as to the alleged involvement of the police officers into the death of her son as unsubstantiated.

(ii)    Operational measures to protect life

35.  The Court further reiterates that, in certain well-defined circumstances, Article 2 of the Convention may imply a positive obligation on the authorities to take preventive operational measures to protect an individual from another individual or, in particular circumstances, from himself. For such a positive obligation to arise, it must be established that the authorities knew, or ought to have known at the time, of the existence of a real and immediate risk to the life of an identified individual and, if so, that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk (see Keenan v. the United Kingdom, no. 27229/95, §§ 89 and 92, ECHR 2001‑III).

36.  As to the instant case, it should be noted that the applicant’s son had never been diagnosed as suffering from any heart problems, however, pathological changes in the cardiovascular system had been discovered after his death, during the forensic examination of the corpse. Regardless of the fact that the criminal proceedings on account of the alleged failure of the narcologist to provide the applicant’s son with medical assistance are still pending (see paragraphs 25-26 above), there is nothing in the case file confirming that the applicant’s son’s death was conditioned by the lack of medical aid in the medical centre (especially, by taking into account that he had died almost a day after the last testing and that alcohol level in his blood was 3‰ at the time of death). In such circumstances, it cannot be concluded that the staff of the medical centre was under a positive obligation to take specific preventive measures in relation to the applicant’s son before his death.

37.  To the extent that the lack of proof on this issue might have been caused by the domestic authorities’ failure to investigate the matter duly, this question will be examined separately in the context of the procedural obligations under the Convention. However, as regards the substantive aspects of Article 2, the Court is in possession of no factual materials that would establish that the personnel of the medical centre can be held responsible for the death of the applicant’s son. The Court therefore dismisses the applicant’s allegation as to the alleged failure of the narcologist to provide her son with appropriate medical aid as unsubstantiated.

(iii)   Conclusion

38.  Having regard to the above considerations, the Court holds that this part of application is manifestly ill-founded and must be dismissed in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

(b)   As to the procedural limb of Article 2 of the Convention

39.  The Court notes that this part of the application is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. The Court further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.Merits

40.  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). In particular, once the investigative obligation 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 inter‑related 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 circumstances of the present case, the Court observes that for more than twelve years the circumstances of the death of the applicant’s son were examined exclusively by way of pre-investigative inquiry. The Court has held that such investigative procedures do not comply with the principles of an effective remedy because the inquiring officer could only take a limited number of steps and the victim had no formal status, meaning his or her effective participation in the procedure was excluded (see, mutatis mutandis, Strogan v. Ukraine, no. 30198/11, § 53, 6 October 2016 with further references). It is notable that during such long period of time the authorities supervising the quality of the pre‑investigative inquiry found on more than twenty occasions that the inquiries had not been thorough and the cause of the applicant’s son’s death and the circumstances of the case had not been properly examined. As a result, a full-scale investigation into the death of the applicant’s son commenced with a substantial delay (see, among many others, Antonov v. Ukraine, no. 28096/04, § 50, 3 November 2011): the criminal investigation as regards the police officers and the narcologist was opened more than twelve years after the death of the applicant’s son.

43.  As to the criminal proceedings on account of abuse of power by the police officers, the investigating authorities established that the applicant’s son’s death was natural, without any possible involvement of the police officers. A substantial delay in commencing the investigation had led to the proceedings lasting more than thirteen years until the decision to terminate the proceedings was finally upheld by the domestic courts (see, mutatis mutandis, Sergiyenko v. Ukraine, no. 47690/07, §§ 51-53, 19 April 2012).

44.  As to the criminal proceedings on account of the alleged failure to provide the applicant’s son with appropriate medical aid, that investigation lacked thoroughness in that it was characterised by repeated discontinuations and re-openings of the proceedings. These occurred because of the insufficiency of the measures taken by the investigating authorities, in particular, their inability to establish the place of residence of, and to question additionally, the witnesses. The repetition of remittal orders discloses a serious deficiency in criminal proceedings (see, mutatis mutandis, Zubkova v. Ukraine, no. 36660/08, § 40, 17 October 2013). In addition, these proceedings have lasted more than nineteen years and are still ongoing. All the above substantially compromised the effectiveness of the investigation (see, for example, Chumak v. Ukraine, no. 60790/12, § 27, 19 May 2016).

45.  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 instant case, the investigation into the circumstances of the applicant’s son’s death failed to meet the requirement of effectiveness.

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

47.  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.”

48.  The applicant claimed 250,000 euros (EUR) in respect of non‑pecuniary damage.

49.  The Government considered such a sum of non-pecuniary damage to be exorbitant.

50.  With regard to the documents in its possession and to the approach taken in similar Ukrainian cases (see, among many others, 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.

51.  The applicant made no costs claim.

52.  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 complaint about the lack of effectiveness of the domestic investigation into the death of the applicant’s son admissible, and the remainder of the application inadmissible;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, within three months, EUR 6,000 (six thousand euros) to the applicant, 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 10 June 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Martina Keller  Mārtiņš Mits
Deputy Registrar President

 

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