CASE OF BOZHENKO v. UKRAINE

FIFTH SECTION

CASE OF BOZHENKO v. UKRAINE

(Application no. 42595/14)

JUDGMENT
 

STRASBOURG

14 October 2021

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

In the case of Bozhenko v. Ukraine,

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

 Stéphanie Mourou-Vikström, President,
 Jovan Ilievski,
 Mattias Guyomar, judges,
and Viktoriya Maradudina, Acting Deputy Section Registrar,

Having deliberated in private on 23 September 2021,

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

PROCEDURE

1.  The case originated in an application against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 10 July 2014.

2.  The applicant was represented by Mr O. Suprun, a lawyer practising in Kyrylivka.

3.  The Ukrainian Government (“the Government”) were given notice of the application. The Government objected to the examination of the application by a Committee. Having considered the Government’s objection, the Court rejects it.

THE FACTS

4.  The applicant’s details and information relevant to the application are set out in the appended table.

5.  The applicant complained of ineffective investigation into the death of her husband, who had died in a traffic accident.

THE LAWALLEGED VIOLATION OF ARTICLE 2 § 1 of the Convention

6.  The applicant complained of the ineffective investigation into the death of her husband in a traffic accident. She relied on Articles 2, 6 § 1 and 13 of the Convention.

7.  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 under 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:

Article 2 § 1

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

8.  The Court notes 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 the investigation were summarized 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 (ibid., § 225).

9.  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).

10.  Reviewing the facts of the present case in the light of those principles, the Court considers that the investigation was marked by various shortcomings, which had undermined the ability of the investigating authorities to establish the circumstances surrounding the death of the applicant’s husband, and who, if anyone, was responsible. The specific shortcomings are indicated in the appended table.

11.  In the leading cases of Basyuk v. Ukraine (no. 51151/10, 5 November 2015), Pozhyvotko v. Ukraine (no. 42752/08, 17 October 2013) and Kachurka v. Ukraine (no. 4737/06, 15 September 2011), the Court already found violations in respect of issues similar to those in the present case.

12.  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 investigation failed to meet the criteria of effectiveness.

13.  These complaints are therefore admissible and disclose a breach of Article 2 of the Convention under its procedural limb.APPLICATION OF ARTICLE 41 OF THE CONVENTION

14.  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.”

15.  Regard being had to the documents in its possession and to its case‑law (see, in particular, Basyuk v. Ukraine, no. 51151/10, §§ 74-80, 5 November 2015), the Court considers it reasonable to award the sums indicated in the appended table and it rejects any additional claims for just satisfaction raised by the applicant.

16.  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 this application discloses a breach of Article 2 § 1 of the Convention concerning the ineffective investigation into the death of the applicant’s husband;Holds

(a)  that the respondent State is to pay the applicant, 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.Dismisses the remainder of the applicant’s claims for just satisfaction.

Done in English, and notified in writing on 14 October 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Viktoriya Maradudina Stéphanie Mourou-Vikström
Acting Deputy Registrar President

APPENDIX

Application raising complaints under Article 2 § 1 of the Convention

(ineffective investigation into death, caused by private parties or in circumstances that exclude involvement of State agents)

Application no.

Date of introduction

Applicant’s name

Year of birth

Representative’s name and location

Background to the case and domestic proceedings

Key issues

Amount awarded for pecuniary and non-pecuniary damage per applicant

(in euros)[1]

Amount awarded for costs and expenses per application

(in euros)[2]

42595/14

10/07/2014

Nadiya Sergiyivna BOZHENKO

1945

Suprun Oleg Mykolayovych

Kyrylivka

1. The circumstances of the incident:

(i) 12/02/2004 – L. was driving a bus on the wrong lane and his bus collided with another bus, driven by P.; as a result of collision the latter bus was thrown away and crushed down the applicant’s husband, V., who was walking nearby and was seriously injured. On the same day he died from the injuries sustained.

2. The course of the criminal investigation and its findings:

(i) 13/02/2004 – the criminal investigation into the accident was instituted; namely into the fact of breach of traffic rules that caused death of a person;

(ii) 21/02/2004 – the applicant was given a victim status;

(iii) 5/07/2004 – a prosecutor informed the applicant that the disciplinary proceedings were instituted against an investigator in charge of her case, because of the delays in investigation;

(iv) 25/01/2005 – an expert institution refused to conduct the expert examination of the vehicle, because it did not receive necessary information as regards the accident;

(v) 4/10/2005 – the applicant lodged a civil claim for damages within the criminal proceedings;

(vi) 20/01/2006 – L. was charged;

(vii) 16/02/2006 – the case was sent to the Kupyanskyy District Court for consideration;

(viii) 29/08/2008 – an expert institution informed the court that there had been no possibility to conduct an expert trace examination, because the information requested by the institution was not provided;

(ix) 17/07/2009 – the Kupyanskyy District Court found L. guilty of having violated traffic rules which caused the death of V. The court released L. from criminal liability under the Amnesty Act of 2008. The court also partly allowed the applicant’s civil claim;

(x) 10/12/2009 – the Kharkiv Regional Court of Appeal quashed that judgment and remitted the case to the first instance court for fresh examination; it reasoned that there had been no grounds to apply Amnesty Act; and the spot of the collision of the buses had not been established by the first-instance court and, thus, those responsible had not been identified;

(xi) 13/03/2013 – the Kupyanskyy District Court remitted the case to the Kharkiv Regional Prosecutor’s Office for an additional investigation; the court reasoned that: the reconstruction of the scene of the accident had not been comprehensive, there had remained discrepancies as to the measurements, and the exact spot of the accident had not been established; the exact adhesion coefficient of tire-pavement interface had not been established and, thus, there remained discrepancies between the results of various expert examinations; it had not been established from what distance L. could have spotted the other bus; the investigating authorities had not analysed the information that at the moment of the accident there had been road sign “movement to the right is prohibited” and that P. had had no licence to drive a bus and had had no relevant experience in that regard;

(xii) 25/03/2014 – the Kupyanskyy Prosecutor’s Office opened another set of criminal proceedings against P., the driver of the second bus, on account of a breach of traffic rules that caused death of V.;

(xiii) 26/05/2014 the Kupyanskyy District Court terminated the criminal proceedings against L. as time-barred;

(xiv) 17/06/2014 – the Kharkiv Regional Court of Appeal left the applicant’s appeal without consideration and gave her a time-limit to rectify shortcomings of her appeal; namely, arguments invoked in her appeal had concerned not the decision of 26/05/2014, but another unknown decision, etc.

(xv) 01/07/2014 – the Kharkiv Regional Court of Appeal returned the appeal to the applicant, because she did not rectify its shortcomings.

(xii) according to the most recent information, as of 19/06/2015 the investigation against P. was pending.

insufficient measures during the preliminary stage of the investigation (Kachurka v. Ukraine, no. 4737/06, § 52, 15 September 2011);

investigation criticised by the national authorities themselves for lack of efficiency (Pozhyvotko v. Ukraine, no. 42752/08, § 40, 17 October 2013; Prynda v. Ukraine,

no. 10904/05, § 56,

31 July 2012);

lack of thoroughness and promptness which undermined the authorities’ ability to establish the circumstances of the case (Lyubov Efimenko v. Ukraine, no. 75726/01,

§§ 76-80, 25 November 2010);

numerous shortcomings in collection of evidence (Basyuk v. Ukraine, no. 51151/10, § 67, 5 November 2015; Antonov v. Ukraine, no. 28096/04, § 50, 3 November 2011; Prynda v. Ukraine, no. 10904/05, § 56,

31 July 2012);

repeated remittals of the case for additional investigation owing to the insufficiency of the measures taken by the investigators (Basyuk v. Ukraine, no. 51151/10, § 69,

5 November 2015).

6,000

250

[1] Plus any tax that may be chargeable to the applicant.

[2] Plus any tax that may be chargeable to the applicant.

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