FIFTH SECTION
CASE OF FIYALO AND OTHERS v. UKRAINE
(Applications nos. 62545/15 and 3 others –
see appended list)
JUDGMENT
STRASBOURG
6 July 2023
This judgment is final but it may be subject to editorial revision.
In the case of Fiyalo and Others v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Carlo Ranzoni, President,
Lado Chanturia,
María Elósegui, judges,
and Viktoriya Maradudina, Acting Deputy Section Registrar,
Having deliberated in private on 15 June 2023,
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 Ukrainian Government (“the Government”) were given notice of the applications.
THE FACTS
3. The list of applicants and the relevant details of the applications are set out in the appended table.
4. The applicants complained of the ineffective investigation into the deaths or life-threatening accidents without involvement of State agents.
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 2 § 1 of the Convention6. The applicants complained of the ineffective investigation into deaths or life-threatening accidents without involvement of State agents. They relied on Articles 2, 3, 6 and 13 of the Convention.
The Court, which is the 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 (see, Igor Shevchenko v. Ukraine, no. 22737/04, § 38, 12 January 2012).
7. The Court notes at the outset that the present case should 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 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 (ibid., § 225).
8. 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).
9. Reviewing the facts of the present case in the light of those principles, the Court considers that the investigations were marked by various shortcomings, which had undermined the ability of the investigating authorities to establish the circumstances surrounding the deaths of the applicants’ next of kin or the life-threatening accidents, and who, if anyone, was responsible. The specific shortcomings are indicated in the appended table.
10. 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.
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 2 of the Convention under its procedural limb.
APPLICATION OF ARTICLE 41 OF THE CONVENTION13. 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.”
14. Regard being had to the documents in its possession and to its case‑law (see, in particular, Basyuk, cited above, §§ 74-80), the Court considers it reasonable to award the sums indicated in the appended table and rejects any additional claims for just satisfaction raised by the applicant in application no. 62545/15.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
Decides to join the applications;Declares the applications admissible;Holds that these applications disclose a breach of Article 2§ 1 of the Convention concerning the ineffective investigation into deaths or life-threatening accidents without involvement of State agents; 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;
Dismisses the remainder of the applicant’s claims for just satisfaction in application no. 62545/15.Done in English, and notified in writing on 6 July 2023, 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 2 § 1 of the Convention
(ineffective investigation into deaths or life-threatening accidents without involvement of State agents)
No.
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 non-pecuniary damage
er applicant
(in euros)[1]
Amount awarded for costs and expenses
per application
(in euros)[2]
62545/15
04/12/2015
Vasyl Adamovych FIYALO
1959
Tarakhkalo Mikhail Aleksandrovich
Kyiv
Kozmenko Anna Hryhorivna
Kyiv
Lebid Vitaliia Pavlivna
Kyiv
Volkova Nadiia Kyiv
1. The circumstances of the incident
On 15/10/2004 the applicant was riding a bicycle and, allegedly, was hit by a minibus. The applicant was taken to a hospital and diagnosed with a closed traumatic brain injury, a closed linear skull cap fracture in the frontal area, and brain contusion. The doctor concluded that the applicant had sustained severe head injuries. The applicant was treated in the hospital until 02/11/2004. On 07/12/2004 he was readmitted to a hospital where he underwent in-patient treatment until 31/12/2004.
2. The course of the criminal investigation and its findings
On 19/10/2004, 07/03/2005, 28/11/2005, and 11/04/2006 the police, having conducted pre-investigation inquiries, refused to open criminal proceedings against the minibus driver for lack of constituent elements of the crime, finding that there had been no evidence that the applicant or his bicycle had any physical contact with the minibus in the accident. Those decisions were quashed by the supervising prosecutors as unsubstantiated and additional inquiries were ordered. Certain police officers were disciplined for failure to assemble evidence related to the accident.
On 01/08/2007 criminal proceedings were instituted against the minibus driver for breach of the traffic rules resulting in injuries to the applicant. In October 2007 different types of medical examinations were ordered and witnesses were questioned.
On 17/11/2008 a record of reconstruction of the circumstances of the event was drawn up. Additional questionings of the witnesses and of the applicant were conducted. On 14/11/2008 the applicant was given victim status.
On 25/05/2009 a confrontation between the victim and the minibus driver was held. In May-September 2009 witnesses were questioned.
On 04/09/2009 the reconstruction of the situation was repetitively held. Some witnesses refused to participate in it reasoning that they did not remember all the circumstances of the case since a long time had passed from the date of the accident.
On 02/11/2009 the criminal proceedings were discontinued. On 06/04/2011 this investigator’s decision was cancelled because some of the conclusions were based on the expert opinions, while the forensic examinations should have been ordered in that regard, including the examination of the applicant’s bike and whether it had collided with the minibus. During that period, disciplinary proceedings were initiated multiple times against the investigators due to procedural violations, specifically their failure to ensure a thorough investigation of the accident.
On 21/04/2011 different types of forensic examinations were ordered. In the expert conclusion of 07/12/2011 it was noted that it was impossible to answer all the investigator’s questions due to the insufficiency of the initial data provided by the investigator. In February-April 2012 the witnesses were questioned. On 30/04/2012 the event reconstruction of the situation was again held. The complex forensic examination was ordered on 03/05/2012 and later on 12/03/2013. On 29/09/2015 an additional examination was ordered. In February 2017 some witnesses were called for questioning. On 11/04/2017 criminal proceedings against the minibus driver were discontinued on the ground of the absence of any crime. The investigator concluded that the applicant had sustained bodily injuries on his own as a result of falling from the bicycle owing to his negligence. The applicant appealed against this decision. On 15/11/2017 the Rivne Local Court of the Rivne Region dismissed the applicant’s appeal. On 27/11/2017 the Rivne Regional Court of Appeal upheld the previous decision. This decision was final and not open to appeal.
decisions refusing to institute proceedings issued without the circumstances of the case having been properly examined (Oleynikova v. Ukraine, no. 38765/05, §§ 80-81, 15 December 2011, with further references),
extended pre-investigation inquiries (Yukhymovych v. Ukraine, no. 11464/12, § 67, 17 December 2020),
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),
insufficient measures during the preliminary stage of the investigation (Kachurka v. Ukraine, no. 4737/06, § 52, 15 September 2011)
6,000
250
19052/19
27/03/2019
Volodymyr Leonidovych GRYTSENKO
1961
Rybiy Sergiy Mykolayovych
Dnipro
On 21/03/2015 V, the sister of Mr Grytsenko (“the first applicant”) and the mother of Ms Fomina (“the second applicant”), died after she had been hit by a car. The driver, P., was initially questioned as a witness and participated in that capacity in an investigative experiment and two technical examinations. On 29/05/2015 P. was charged with a violation of the traffic rules resulting in death. Within the criminal-proceedings framework, the applicants filed two civil claims seeking compensation: the first applicant claimed UAH 22,051 for pecuniary damage, while the second applicant sought UAH 400,000 for non-pecuniary damage. On 28/07/2015 the second applicant withdrew her civil claim following a compensation agreement reached with P. In accordance with the agreement, the second applicant received from P. UAH 240,000 (equivalent of approximately EUR 9,620) as compensation and agreed not to pursue any further claims or complaints against P. During questioning, the second applicant stated that she had given UAH 20,000 from the aforementioned sum to the first applicant. On 27/10/2017 the third technical examination established no guilt of P. in the accident. As a result, on 24/01/2018 the prosecutor decided to dismiss the charges. In addition, he referred to the inadmissibility of evidence obtained during P.’s involvement as a witness, as well as of the results of the second investigative experiment allegedly forged by the investigator. The applicants pursued prosecution, but on 05/02/2018 P. was acquitted. On 23/05/2018 the appellate court quashed the acquittal and remitted the case for a new examination, having, in particular, noted the lower court’s examination of important evidence in the applicants’ absence. The case is currently pending before the first-instance court.
numerous shortcomings in collection of evidence (Basyuk v. Ukraine, no. 51151/10, § 67, 5 November 2015),
no genuine attempt by the investigating authorities to carry out a thorough investigation (Yuriy Slyusar v. Ukraine, no. 39797/05, §§ 84-88, 17 January 2013; Lyubov Efimenko v. Ukraine, no. 75726/01, §§ 76-80, 25 November 2010),
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)
6,000
250
19130/19
27/03/2019
Iryna Mykolayivna FOMINA
1985
6,000
250
5142/22
11/01/2022
Andriy Anatoliyovych MATVIYENKO
1974
Lebid Lyudmyla Mykolayivna
Kyiv
On 28/08/2012 the applicant’s father M. sustained fatal injuries in a road accident, in which a car driven by K. collided with a car driven by Vl., where M. was a passenger. According to S., who witnessed the accident, K. was intoxicated and had crossed into oncoming traffic and collided with Vl.’s car.
On the same day the investigating authorities opened proceedings into the incident. On 29/08/2012 the applicant was granted victim status in the proceedings.
A forensic medical examination of K.’s alleged intoxication was completed with a delay, as the investigator had initially failed to provide the experts with information about the collection of K.’s blood. The forensic technical examination report issued on 15/11/2012 concluded that K.’s car had collided with V.’s car in the first right lane of the oncoming traffic. The forensic medical examination report issued on 14/12/2012 concluded that K. was not intoxicated. Another forensic medical examination report issued on 25/07/2013 concluded that K. had a brain pathology that could have led to the loss of consciousness while driving.
On 28/01/2014 the investigating authorities terminated the proceedings due to the lack of evidence of a crime, with the main reasons being the absence of signs of intoxication and K.’s brain pathology.
On 22/09/2014 the Kyiv City Court of Appeal quashed this decision and ordered to re-open the proceedings. The court instructed the investigating authorities to address the testimony of S., the circumstances of K.’s blood and urine collection on the day of the accident, and K.’s overall ability to drive with a brain pathology.
Between 2013 and 2016 three additional forensic technical examination reports were issued which concluded that K.’s car collided with V.’s car in the first right lane of the oncoming traffic.
During 2016 and 2017 the investigator and the prosecutor assigned to the proceedings were replaced following the applicant’s complaints about poor progress of the investigation.
On 12/07/2018, for the second time, the investigating authorities terminated the proceedings given the lack of evidence of the crime.
On 05/09/2018 the Shevchenkivskyy Local Court of Kyiv quashed this decision and ordered re-opening of the proceedings.
On 06/02/2019 the Prosecutor General’s Office confirmed that the investigation was ineffective and replaced the investigator and the prosecutor assigned to it.
In 2019 and 2020 an additional forensic medical examination of K.’s condition could not be completed since the investigator had twice failed to provide experts with the requested documentation.
On 31 December 2021 investigative authorities terminated the proceedings given the lack of evidence of the crime. On 3 February 2022 the Shevchenkivskyy District Court of Kyiv quashed this decision and ordered re-opening of the proceedings.
It appears, that the pre-trial investigation in on-going.
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),
repeated remittals of the case for additional investigation owing to the insufficiency of the measures taken by the investigators (Antonov v. Ukraine, no. 28096/04, § 50, 3 November 2011),
unusually high number of repeated forensic examinations (Basyuk v. Ukraine, no. 51151/10, § 68, 5 November 2015),
numerous shortcomings in collection of evidence (Basyuk v. Ukraine, no. 51151/10, § 67, 5 November 2015),
lack of thoroughness and promptness which undermined the authorities’ ability to establish the circumstances of the case (Igor Shevchenko v. Ukraine, no. 22737/04, § 60, 12 January 2012; Zubkova v. Ukraine, no. 36660/08, § 40, 17 October 2013),
failure to check different versions of events (Yuriy Slyusar v. Ukraine, no. 39797/05,
§§ 86-87, 17 January 2013),
insufficient measures during the preliminary stage of the investigation (Kachurka v. Ukraine, no. 4737/06, § 52, 15 September 2011)
6,000
250
[1] Plus any tax that may be chargeable to the applicants.
[2] Plus any tax that may be chargeable to the applicants.