CASE OF DEVYATKINA v. RUSSIA

THIRD SECTION

CASE OF DEVYATKINA v. RUSSIA

(Application no. 30559/13)

JUDGMENT
 

STRASBOURG

15 June 2021

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

In the case of Devyatkina v. Russia,

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

Darian Pavli, President,
Dmitry Dedov,
Peeter Roosma, judges,
and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the application (no. 30559/13) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Ms Valentina Ivanovna Devyatkina (“the applicant”), on 26 March 2013;

the decision to give notice of the application to the Russian Government (“the Government”);

the parties’ observations;

Having deliberated in private on 18 May 2021,

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

INTRODUCTION

1.  The application concerns the lack of an effective investigation into the death of the applicant’s son.

THE FACTS

2.  The applicant was born in 1963 and lives in Krasnodar.

3.  The Government were represented by Mr M. Galperin, Representative of the Russian Federation to the European Court of Human Rights.

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

5.  During the night of 7 to 8 July 2007 the applicant’s son A. and a certain S.K. were riding A.’s motorcycle when they hit a metal cable stretched across the road. The accident resulted in A.’s traumatic head amputation. A. died on the spot. S.K. survived.

6.  On 8 July 2007 the site of the incident was inspected. On 9 July 2007 a forensic medical examination of the applicant’s son’s body was carried out, which established that the injuries found on A. might have been sustained in a road accident as a result of contact of the front side of his neck with a metal object with limited contact surface. At the moment of injury A. might have been driving a motor vehicle, as confirmed by the nature and location of the injuries on his body. Witnesses I.R. and A.K. were questioned. They submitted that the metal cable had been stretched across the road fifteen years ago, that they had not seen the person who had put the cable in place and could not indicate anybody who would have such information.

7.  The pre-investigation inquiry established that A., who had been steering the motorcycle, had breached traffic rules: driving without a license in disregard of road and weather conditions at a speed not allowing him to keep constant control over driving, he lost control of his motorcycle on an unlit section of the road and hit the metal cable fencing the roadway.

8.  In view of the above conclusions, on 18 July 2007 an investigator of the Prikubanskiy District Prosecutor’s Office of Krasnodar (“the District Prosecutor’s Office”) issued a decision refusing the institution of criminal proceedings into the death of the applicant’s son for lack of an event of a crime.

9.  It appears that the decision in question had been set aside, as on 9 August 2007 the investigator of the District Prosecutor’s Office issued another decision refusing the institution of criminal proceedings.

10.  On 15 August 2007 the deputy prosecutor of the District Prosecutor’s Office set aside the decision of 9 August 2007 as premature.

11.  On 24 August 2007 criminal proceedings were instituted into A.’s death under Article 109 § 1 of the Criminal Code of the Russian Federation (negligent infliction of death).

12.  On 28 November 2007 the applicant was granted victim status in the proceedings. During her questioning as a victim she submitted, in particular, that when she had gone to the scene of the accident on 16 July 2007 certain women had told her that the metal cable had been stretched across the road by Mr I.R., that prior to the accident resulting in her son’s death, a car and a bicycle had already run into it, but no measures had been taken by I.R. to remove it. The applicant would not be able to identify the women in question and had no information about where they had been living. On the same date the applicant was granted the status of civil claimant in the criminal case.

13.  Meanwhile, between 24 October 2007 and 13 December 2008 the criminal proceedings were on six occasions suspended for failure to identify an alleged perpetrator and subsequently resumed. A technical expert examination was conducted on 25 March 2008.

14.  Between 29 December 2008 and 19 November 2011 the criminal proceedings were on five occasions discontinued for lack of an event of a crime and subsequently resumed by an investigator of the investigations department for Krasnodar in view of the failure of the investigating authority to conduct a comprehensive investigation. During this time another medical examination of A.’s remains was performed on 25 May 2010. An additional technical expert examination was carried out on 29 June 2011. The applicant was given an opportunity to study the case file on 22 August 2011.

15.  Meanwhile, on 20 April 2010 the Prikubanskiy District Prosecutor issued a demand on elimination of violations of federal law committed in the course of the pre-trial investigation. It was indicated, in particular, that there were undue delays and omissions in the conduct of the investigation, as well as lack of supervision over the course of the investigation by the deputy head of the investigations department for Krasnodar, which resulted in unlawful and unsubstantiated decisions on suspension of the investigation violating the applicant’s right under Article 52 of the Constitution of the Russian Federation to have access to justice. The Prosecutor further noted that, regardless of considerable length of the investigation, the investigating authority had failed to question S.K. and to establish the nature and gravity of damage sustained by him in the accident; to establish whether it had been A. or S.K. who had steered the motorcycle and whether during the accident the motorcycle had its headlights on. Although it followed from the questioning of witnesses L.M., V.M. and A.M. that the metal cable at the origin of the accident could have been put in place by their neighbour I.R. whom they had seen removing the lock from the cable to drive to his house, the latter had not been questioned; it had not been established whether I.R. had a car and whether there had been other witnesses who had seen him removing the cable. The investigating authority had also failed to study A.’s personality closely regardless of the fact that the latter had previously been involved in a road traffic accident.

16.  On 25 April 2012 the deputy head of the investigations department for Krasnodar set aside the decision of 19 November 2011 to discontinue the criminal proceedings as unsubstantiated. He indicated that it had been necessary to inform the applicant of the results of the expert examinations and to carry out a number of investigative and procedural actions necessary for the examination of all the circumstances of the accident and the assessment of the actions which caused A.’s death.

17.  On 25 May 2012 the criminal proceedings were again discontinued for lack of an event of a crime.

18.  On 13 September 2012 the applicant challenged before the court the inactivity of the deputy head of the investigations department for Krasnodar. She complained, in particular, that she had not been informed of the decision of 25 April 2012, as well as other procedural decisions taken in the framework of the criminal proceedings, that she had been prevented from studying the case file, that the investigation had taken on a protracted character and that no measures had been taken for moving the investigation forward.

19.  On 20 December 2012 the Prikubanskiy Disrtict Court of Krasnodar (“the District Court”) established that there had been no evidence that the applicant had been given an opportunity to study the case file or that copies of the procedural decisions taken in the framework of the criminal proceedings had been sent to her, that the applicant’s rights and legal interests were thus being violated, her access to justice – obstructed, and that the investigation authority had been idle in investigating the circumstances of her son’s death.

20.  On 22 July 2013 the deputy head of the investigations department for Krasnodar set aside the decision of 25 May 2012 as unsubstantiated. In particular, it was established that the investigator had not fully complied with the previously given instructions (see paragraph 16 above).

21.  On 22 August 2013 the criminal proceedings were once again discontinued on the same grounds.

22.  On 3 April 2018 the deputy head of the investigations department for Krasnodar set aside the decision of 22 August 2013 as premature. He considered it necessary to identify the owner of the land plot on which the incident had taken place and to question him/her with the view of identifying the person who had stretched the metal cable across the road; to obtain from the competent State authorities information about registration of property rights in respect of the land plot in question; to identify officials in charge of road maintenance and safety on the section of the road in question and, if necessary, give legal assessment to their actions; identify other possible eyewitnesses of the incident and to carry out other actions deemed necessary.

23.  On 19 April 2018 the chief investigator of the investigations department for Prikubanskiy District of Krasnodar discontinued the criminal proceedings for lack of an event of a crime under Article 109 § 1 of the Criminal Code. He noted, furthermore, that criminal prosecution was time‑barred since negligent infliction of death belonged to the category of misdemeanors under Article 15 of the Criminal Code and Article 78 of the Criminal Code provided that a person shall be absolved from criminal liability upon the expiration of two years since the date of misdemeanor.

THE LAWALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

24.  The applicant complained about the failure of the domestic authorities to carry out an effective investigation into the circumstances of her son’s death. She relied on Articles 3, 6, 13 and 14 of the Convention.

25.  Being the master of the characterisation to be given in law to the facts of the case, the Court considers that the complaint falls to be examined under the procedural limb of Article 2 of the Convention (see Nicolae Virgiliu Tănase v. Romania [GC], no. 41720/13, § 83, 25 June 2019). Article 2, in so far as relevant to the present case, reads as follows:

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

26.  The Government claimed that the applicant had not exhausted domestic remedies by failing to lodge a civil claim for compensation of damage caused by the death of her son and/or by the ineffective investigation thereof. Such claim should have been lodged against the local authorities responsible for the road construction and maintenance in order to establish the reasons for stretching the metal cable across the road, to establish the alleged inaction of the local authorities in keeping the territory safe for the residents, and to bring the local authorities to civil liability. The applicant should have started doubting the effectiveness of the criminal-law remedy which she had pursued at an earlier stage and had recourse to other remedies available to her given the non-violent nature of her son’s death and non‑involvement of the State agents. The applicant had also failed to bring an action for compensation for a violation of her right to criminal proceedings within a reasonable time in accordance with the Compensation Act (Federal Law no. 68‑FZ of 30 April 2010 on Compensation for Violation of the Right to a Trial within a Reasonable Time or the Right to Enforcement of a Judgment within a Reasonable Time). The Government made no comments on the effectiveness of the investigation carried out by the domestic authorities.

27.  The applicant maintained that the investigation had been ineffective and slow. The criminal proceedings had been discontinued on multiple occasions and the relevant decisions had been subsequently set aside as unlawful, incomplete and taken without compliance with the instructions by the higher instances. The applicant had not been informed about the procedural decisions taken in the course of the investigation and could not gain access to the case file in a timely manner. No genuine effort had been made by the domestic authorities to identify those responsible for the death of her son.The Court’s assessmentAdmissibility

28.  The Court considers that the Government’s objections concerning domestic remedies raise issues relevant for the effectiveness of the investigation which are closely linked to the merits of the applicant’s complaint, and that therefore these objections should be joined to the merits and examined below.

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

(a)   General principles

30.  The Court reiterates that the State’s duty to safeguard the right to life must be considered to involve having in place an effective independent judicial system capable of promptly establishing the facts, holding accountable those at fault and providing appropriate redress to the victim (see Nicolae Virgiliu Tănase, cited above, § 137).

31.  The form of investigation required by this obligation varies according to the nature of the interference with the right to life. In cases concerning unintentional infliction of death and/or lives being put at risk unintentionally the requirement to have in place an effective judicial system will be satisfied if the legal system affords victims (or their next-of-kin) a remedy in the civil courts, either alone or in conjunction with a remedy in the criminal courts, enabling any responsibility to be established and any appropriate civil redress to be obtained (see Nicolae Virgiliu Tănase, cited above, § 158-59).

32.  Even in cases of non-intentional interferences with the right to life or physical integrity there may be exceptional circumstances where an effective criminal investigation is necessary to satisfy the procedural obligation imposed by Article 2. Such circumstances can be present, for example, where a life was lost or put at risk because of the conduct of a public authority which goes beyond an error of judgment or carelessness, or where a life was lost in suspicious circumstances or because of the alleged voluntary and reckless disregard by a private individual of his or her legal duties under the relevant legislation (see Nicolae Virgiliu Tănase, cited above, § 160).

33.  The requirements of an effective investigation in the context of Article 2 of the Convention have been summarised in Nicolae Virgiliu Tănase (cited above, §§ 165-68, with further references).

(b)   Application of those principles in the present case

34.  The Court notes at the outset that the circumstances of the applicant’s son’s death were unclear, and the domestic rules on criminal procedure afforded the possibility of a joint examination of criminal responsibility and civil liability arising from the same culpable actions (see paragraph 12 above). The applicant has therefore acted reasonably in pursuing the case within the framework of the criminal proceedings. Furthermore, given that the applicant did not as such complain about the length of the proceedings, she should have not been required to claim compensation for the length of the criminal proceedings under the Compensation Act before bringing her complaint under Article 2 to the Court (see Vovk and Bogdanov v. Russia, no. 15613/10, § 75, 11 February 2020). The Government’s objections should therefore be dismissed.

35.  The Court observes that criminal proceedings into the circumstances of the applicant’s son’s death were instituted forty-seven days after he died on 8 July 2007, that they were suspended on six occasions for failure to identify a perpetrator (see paragraph 13 above) and later discontinued on seven occasions for lack of an event of a crime (see paragraphs 14, 17 and 21 above). The relevant decisions on termination of the criminal proceedings were set aside by the hierarchical superior in view of the failure of the investigating authority to conduct a comprehensive investigation and persistent failure to comply with the previously given instructions, and the case was remitted for further investigation. The proceedings were discontinued for the eighth and last time in April 2018 for lack of an event of a crime and also because the criminal prosecution was time-barred (see paragraphs 22-23 above). The overall length of the criminal proceedings into the circumstances of the applicant’s son’s death amounted to over ten years and nine months. Undue delays and omissions in the conduct of the investigation were revealed by the Prikubanskiy District Prosecutor (see paragraph 15 above).

36.  The Court further notes with regret that the applicant’s access to the criminal investigation was seriously and unjustifiably curtailed. The applicant was recognized as victim and civil claimant in the proceedings only in November 2007 (see paragraph 12 above) and, according to the documents in the Court’s possession, was only able to gain access to the case-file in August 2011 (see paragraph 14 above). The Court notes that following the applicant’s complaint, on 20 December 2012 the District Court established that there had been no evidence that the applicant had been given an opportunity to study the case file or that copies of the procedural decisions taken in the framework of the criminal proceedings had been sent to her, that the applicant’s rights and legal interests were thus being violated, her access to justice – obstructed, and that the investigation authority had been idle in investigating the circumstances of her son’s death (see paragraph 19 above). Finally, many years after the incident the investigation has failed to establish even the basic facts of the events in question, to identify the person(s) responsible or otherwise to ensure adequate redress to the applicant.

37.  The foregoing considerations are sufficient to enable the Court to conclude that the requirements of the procedural aspect of Article 2 were not met in the present case, which may suffice for it to conclude that the investigation in the case was not in compliance with the requirements of Article 2 of the Convention. There has accordingly been a violation of the procedural limb of Article 2 of the Convention.APPLICATION OF ARTICLE 41 OF THE CONVENTION

38.  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.”Damage

39.  The applicant claimed 120,000 euros (EUR) in respect of non‑pecuniary damage.

40.  The Government submitted that if the Court were to find a violation of the Convention and award the applicant just satisfaction, such award should be made in compliance with the Court’s established case-law.

41.  The Court observes that the prolonged failure of the authorities to give satisfactory answers to the questions raised by the applicant’s son’s death must have caused the applicant acute mental suffering. At the same time, the Court’s findings under Article 2 in the present case are of a procedural nature. In the light of all the material in its possession and making its assessment on an equitable basis, the Court awards the applicant EUR 10,000 on account of non‑pecuniary damage, plus any tax that may be charged on this amount.Costs and expenses

42.  As the applicant claimed no costs and expenses, the Court awards none.Default interest

43.  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,Joins to the merits the Government’s objections as to the exhaustion of domestic remedies and rejects them;Declares the application admissible;Holds that there has been a violation of Article 2 of the Convention;Holds

(a)  that the respondent State is to pay the applicant, within three months, EUR 10,000 (ten 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;Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 15 June 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Olga Chernishova Darian Pavli
Deputy RegistrarPresident

 

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