CASE OF GOLOBORODKO AND OTHERS v. UKRAINE

FIFTH SECTION

CASE OF GOLOBORODKO AND OTHERS v. UKRAINE

(Application no. 17860/17 and 3 others –

see appended list)

JUDGMENT

STRASBOURG

30 November 2023

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

In the case of Goloborodko and Others v. Ukraine,

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

 Mārtiņš Mits, President,
 Kateřina Šimáčková,
 Mykola Gnatovskyy, judges,

and Viktoriya Maradudina, Acting Deputy Section Registrar,

Having deliberated in private on 9 November 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.

THE LAWJOINDER OF THE APPLICATIONS

4.  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 Convention

5.  The applicants complained of the ineffective investigation into deaths of their relatives or life-threatening accidents without involvement of State agents. They relied on Articles 2, 6 and 13 of the Convention.

6.  The Court, which is the master of the characterisation to be given in law to the facts of the cases, finds that the complaints at issue fall 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 (see Igor Shevchenko v. Ukraine, no. 22737/04, § 38, 12 January 2012).

7.  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 cases 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 circumstances of the life-threatening accident, and who, if anyone, was responsible. The specific shortcomings are indicated in the appended table.

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

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 CONVENTION

13.  Regard being had to the documents in its possession and to its case‑law (see, in particular, Basyuk v. Ukraine, cited above, §§ 74-80), the Court considers it reasonable to award the sums indicated in the appended table and to reject the remainder of the applicant’s claims for just satisfaction in application no. 17860/17.

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;

(c)  Dismisses the remainder of the applicant’s claims for just satisfaction in application no. 17860/17.

Done in English, and notified in writing on 30 November 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Viktoriya Maradudina Mārtiņš Mits
 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 per applicant

(in euros)[1]

Amount awarded for costs and expenses per application

(in euros)[2]   

17860/17

23/02/2017

Mykola Vasylyovych GOLOBORODKO

1960

Menko Dmytro Dmytrovych

Romny

On 03/03/2012 the applicant suffered several injuries in a traffic accident while being a passenger in a car driven by his son, which collided with another car driven by G. Forensic medical examination later determined that the injuries were categorised as "moderate" (tooth damage and dislocation of his left hip) and "minor" (a closed abdominal injury and multiple bruises and wounds).

On 10/03/2012 criminal proceedings were initiated against the applicant’s son for violating traffic safety rules that resulted in bodily injuries to the applicant, and the next day, the applicant was granted victim status.

On 23/08/2012 the police refused to initiate criminal proceedings against the other driver, G.

Between March 2012 and December 2015, various investigative measures were undertaken, including on-the-spot checks, questioning of the applicant, his son, and witnesses, and multiple forensic technical expert examinations. The case had been transferred between prosecuting authorities and courts due to the necessity for additional investigations. On 28/02/2014 the court remitted the case for further investigation as it contained conflicting expert reports and the role of the other driver, G., had to be examined.

On 14/08/2015 the first-instance court acquitted the applicant’s son due to the absence of constituent elements of the alleged crime. On 03/12/2015 that decision was quashed on appeal, and the case was remitted for a fresh examination.

On 13/05/2017 the court again acquitted the applicant’s son for lack of constituent elements of the crime, and that decision was upheld on 23/11/2017 by the Sumy Regional Court of Appeal.

On 06/04/2018 following the applicant’s complaint, new criminal proceedings were initiated in relation to the traffic accident. On 24/04/2019 the police terminated the proceedings due to the expiration of the limitation period for the pre-trial investigation. The applicant was not granted victim status within those proceedings, and he was not notified of their termination.

Failure to check different versions of events (Yuriy Slyusar v. Ukraine, no. 39797/05, §§ 86- 87, 17 January 2013);

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).

3,000

250   

3977/19

28/12/2018

Galyna Petrivna KRUPA

1975

Bordyuk Mykhaylo Yosypovych

Chervonograd

On 14/01/2011 at around 1.40 a.m. the applicant’s son S. sustained injuries in the course of a conflict in a bar. Later that day S. died in his parents’ flat. The police instituted criminal proceedings on account of hooliganism committed by a group of people in the bar fight on 24/01/2011. Between 2011 and 2013 numerous refusals of the investigative authorities to open separate proceedings on account of S.’s death were quashed. During that period a number of forensic examinations were conducted which reached contradictory conclusions as to the cause of S.’s death. On 20/06/2013 the police instituted criminal proceedings on account of the death. The applicant was only granted the victim status in 2017 after the Stryy Local Court of Lviv Region had ordered the authorities to do it. The proceedings were terminated several times and later re-opened due to deficiencies in the investigation, such as the failure to perform all investigative actions ordered by the prosecutor. In March-April 2018 the investigator additionally questioned some witnesses, and on 04/06/2018 again terminated the criminal proceedings due to the lack of all the elements of the crime. On 01/10/2018 the latter investigator’s decision was quashed, and the proceedings are still pending.

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);

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

no genuine attempt by the investigating authorities to carry out a thorough investigation (Lyubov Efimenko v. Ukraine, no. 75726/01, §§ 76-80, 25 November 2010; Yuriy Slyusar v. Ukraine, no. 39797/05,§§ 84-88, 17 January 2013);

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; Zubkovav. Ukraine, no. 36660/08, § 40, 17 October 2013),

applicant’s rights as a victim were not properly safeguarded (Sergey Shevchenko v. Ukraine, no. 32478/02, § 74, 4 April 2006; Masneva

v. Ukraine, no. 5952/07, § 56, 20 December 2011; Prynda v. Ukraine, no. 10904/05, § 56, 31 July 2012).

6,000

250   

4018/21

30/12/2020

Nadiya Mykhaylivna TROSHCHYLOVA

1959

Kret Oleg Igorovych

Lviv

On 22/06/2015 G. hit the applicant’s son, T., in the face and knocked him down on the concrete floor. G. was working as a security in a night club, where the incident took place. On the next day T. died while on the same day G. went to work abroad. On 03/08/2015 an indictment was issued, and G. was put on a wanted persons’ list; there is no indication that any steps were taken by the authorities to establish his whereabouts. On 07/06/2016, i.e., on the same day G. returned to Ukraine of his own accord, he was served with the notice of charges (Article 119 of Criminal Code, reckless homicide) and on 15/06/2016 the case was remitted for trial.

On 07/02/2018 the trial court found G. guilty of reckless homicide, sentenced him to three years’ imprisonment but relieved him of serving the penalty against the two years’ probation. G.’s sincere repentance and active assistance to the investigation were considered by the court as mitigating circumstances for the purpose of the sentencing. By the same court decision, the applicant’s civil claim was granted in part.

Arguing that the sentence did not correspond to the severity of the crime and the personality of the accused, the prosecutor and the applicant appealed. On 21/11/2018 the appellate court quashed the above sentence and sentenced G. to three years’ custodial restraint. The case then was examined by the Supreme Court.

On 25/07/2019 the Supreme Court quashed the sentence as too lenient and remitted the case to the appellate court for re-examination. The Supreme Court pointed out that the appellate court had not properly addressed the arguments by the prosecutor and the applicant that the punishment did not correspond to the gravity of the crime. It also noted that the appellate court had not entirely considered the circumstances of the crime.

On 15/08/2019 the case was remitted to the appellate court and on 07/07/2020, following the G.’s request, the appellate court terminated the proceedings since the five-year statutory limitation period for criminal liability had run out. One year of G.’s absence, i.e. from 03/08/2015 till 07/06/2016, was not excluded from the calculation of that five-year period in the absence of any evidence that G. had attempted to evade justice. The court also explained that a civil claim may be lodged in separate civil proceedings.

On 05/08/2020 the Supreme Court refused to examine the applicant’s appeal on the points of law against the appellate court decision of 07/07/2020, in the absence of evidence of any violations of the criminal law.

Failure of the authorities to take all necessary actions for the establishment of a suspect’s whereabouts in good time (Merkulova v. Ukraine,no. 21454/04, § 58, 3 March 2011).

6,000

250   

51923/21

05/10/2021

Lesya Mykhaylivna VELGAN

1971

Mytsyk Oleg Volodymyrovych

Lviv

On 30/05/2018 the applicant’s daughter went missing; in July 2018 the applicant’s son informed the police about her disappearance and the criminal proceedings were instituted. On 30/08/2018 a body was discovered and on the same day the criminal proceedings were instituted. Only in October 2018 the applicant by chance learned about the discovered body and applied to the police; it was established that the body belonged to her daughter. The proceedings into disappearance and into alleged murder were terminated and reopened on several occasions (e.g., on 21/11/2018 and 27/07/2019 both due to lack of a criminal offence). On 05/09/2019 an investigative judge allowed the applicant’s request and quashed the resolution of 27/07/2019 on termination of the criminal proceedings. The judge specifically underlined that the investigator had failed to carry out all necessary investigative actions, in particular, to study the information provided by the mobile operators (which is kept for 3 years). The applicant lodged requests to carry out certain investigative actions but later found out they were missing in the casefile. The case file also missed documents which would show that any investigative actions were conducted. The applicant lodged several applications challenging inactivity of the investigators. It appears that the proceedings are still pending.

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

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);

no genuine attempt by the investigating authorities to carry out a thorough investigation (Lyubov Efimenko v. Ukraine, no. 75726/01, §§ 76-80, 25 November 2010; Yuriy Slyusar v. Ukraine, §§ 84-88,17 January 2013),

investigation criticised by the national authorities themselves for lack of efficiency (Prynda v. Ukraine,no. 10904/05, § 56, 31 July 2012; Pozhyvotko v. Ukraine,no. 42752/08, § 40, 17 October 2013),

progressive deterioration/loss of evidence (Antonov v. Ukraine, no. 28096/04, § 50, 3 November 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.

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