FIFTH SECTION
CASE OF KENTESH AND BORODYNYA v. UKRAINE
(Applications nos. 44244/19 and 26300/22)
JUDGMENT
STRASBOURG
18 January 2024
This judgment is final but it may be subject to editorial revision.
In the case of Kentesh and Borodynya 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 14 December 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 LAW
JOINDER OF THE APPLICATIONS4. 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 Convention5. The applicants complained of the ineffective investigation into the deaths of their relatives, which had not resulted from involvement of State agents. They relied, expressly or in substance, on Article 2 § 1 of the Convention.
6. 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 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).
7. 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).
8. 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, and who, if anyone, was responsible. The specific shortcomings are indicated in the appended table.
9. 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 case.
10. 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.
11. 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 CONVENTION12. 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.
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 the deaths of the applicants’ relatives, which had not resulted from the 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.
Done in English, and notified in writing on 18 January 2024, 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]
44244/19
13/08/2019
Nataliya Olegivna KENTESH
1960
Mytsyk Oleg Volodymyrovych
Lviv
On 01/12/2005 the body of the applicant’s son was discovered in his flat. On 11/12/2005, 03/04/2006 and 28/04/2006 a prosecutor refused to open a criminal investigation into the death for lack of evidence of the crime. On 25/03/2006, 14/04/2006 and 26/05/2006, respectively, those refusals were quashed as they were premature and were adopted without all the circumstances of the case having been examined. The decisions identified a number of additional investigative actions to be carried out (inspection of the scene, interrogation of witnesses and experts, verification of the applicant’s and witnesses’ accounts and elimination of inconsistencies therein, initiation of additional forensic examinations, request of information about phone calls made to the victim’s phone, etc.). On 15/08/2006 criminal proceedings into incitement to suicide were finally opened. The applicant was granted a victim status. On 31/07/2009, 18/06/2010 and 23/04/2012 an investigator terminated the proceedings for lack of evidence of the crime. On 03/09/2009, 15/07/2010 and 22/06/2012, respectively, those termination decisions were quashed as premature due to the failure to conduct all possible and necessary investigative actions. The prosecutor identified a number of additional investigative actions to be carried out (establishing the exact location of objects in the flat where the victim was found, interrogation of witnesses, elimination of inconsistencies in the witnesses’ accounts, confrontation between the applicant and the witnesses, initiation of additional forensic examinations, etc.).
On 30/12/2015 the offence was reclassified to murder, although no one was charged. On 18/07/2019 an additional medical forensic examination was ordered. The investigation is 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),
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),
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)
6,000
250
26300/22
02/04/2022
Oleksandr Grygorovych BORODYNYA
1955
Khekalo Vitaliy Mykhaylovych
Kyiv
On 21/12/2012 the body of the applicant’s daughter, O., was found near the multiapartment building in Kyiv, where she had lived. On the same day the Darnytskyi District Police Department of Kyiv (DDPD) launched a criminal investigation on account of an incitement to suicide. According to the applicant, V., who had an affair with O. and had allegedly abused other women, killed his daughter. According to the forensic medical examination of 03/01/2013, the death of O. had been caused by a fall from a height and her feet had been the first part of her body to touch the ground. On 10/12/2013 the investigation was terminated because of the lack of evidence of the crime. On 20/02/2017 the investigative judge set that decision aside and ordered the re-opening of the investigation upon the applicant’s complaint. He noted that the investigator had not attempted to identify any suspects, had not enforced the seizure warrants, and had not ordered
a forensic medical examination.
On 23/11/2018 the Kyiv Prosecutor’s Office declared the previous investigation carried out by the DDPD ineffective and ordered further investigation to be carried out by the Solomyanskyi District Police Department of Kyiv. On the same day the investigation of O.’s death had been joined with the investigation of a car arson, also allegedly caused by V., as he had had an affair with the car’s owner, Z. On 17/03/2021 the group of prosecutors supervising the investigation had been substituted by another group due to the complexity of the case. As it appears from the available case-file materials, the investigation is still pending.
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),
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),
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, no. 39797/05,
§§ 84-88, 17 January 2013).
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.