CASE OF KHOLODKOV AND KHOLODKOVA v. UKRAINE

FIFTH SECTION

CASE OF KHOLODKOV AND KHOLODKOVA v. UKRAINE

(Application no. 29697/08)

JUDGMENT

STRASBOURG

7 May 2015

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

In the case of Kholodkov and Kholodkova v. Ukraine,

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

Boštjan M. Zupančič, President,
Helena Jäderblom,
Aleš Pejchal, judges,
and Milan Blaško, Deputy Section Registrar,

Having deliberated in private on 14 April 2015,

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

PROCEDURE

1. The case originated in an application (no. 29697/08) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Ukrainian nationals, spouses Mr Valeriy Yuryevich Kholodkov (“the first applicant”) and Mrs Lidiya Ivanovna Kholodkova (“the second applicant”), residing in Donetsk, on 26 May 2008.

2. The Ukrainian Government (“the Government”) were represented by their Agents, then Mrs V. Lutkovska and Mrs O. Davydchuk.

3. On 9 November 2011 the application was communicated to the Government.

4. On 7 May 2013 the first applicant died. The second applicant expressed the wish to pursue the application in his stead.

THE FACTS

THE CIRCUMSTANCES OF THE CASE

5. On 18 May 2002 Vitaliy Kholodkov, the applicants’ adult son, was found dead in his office with a gunshot wound to his head. Having examined the site and questioned potential witnesses, the Kuibyshevskiy District Police in Donetsk noted that some of his personal belongings, including two mobile telephones, were missing.

6. On the same date the Kuibyshevskiy District Prosecutor’s Office in Donetsk instituted criminal proceedings into the incident.

7. On 22 and 23 May 2002 the first and the second applicants respectively were admitted to the proceedings as injured parties.

8. On a number of occasions the applicants complained to various authorities that the investigation was ineffective. They maintained, in particular, that their son had been the victim of a contract killing and insisted that several persons, including A. S., his former business partner, could have ordered his murder. They also identified that their son’s missing mobile telephones had been appropriated by certain S.O. and V.R. They demanded that these persons be arrested and questioned as the potential contract killers.

9. On 20 December 2002 the District Prosecutor’s Office suspended the investigation referring to lack of any useful leads.

10. On 21 April 2003 this decision was quashed and the investigation was resumed.

11. On 4 August 2004 the Donetsk Regional Prosecutor’s Office developed an action plan to verify the applicants’ allegations concerning deficiencies in the investigation. The parties did not provide any documents concerning the implementation of that action plan.

12. On 26 November 2004 an investigator with the Donetsk Regional Prosecutor’s Office suspended the proceedings referring to lack of any useful leads.

13. On 12 March 2005 this decision was quashed by the supervising prosecutor and the proceedings were resumed.

14. On 11 November 2005 V.R. (indicated by the applicants as a potential contract killer of their son) was placed on the wanted list as a potential suspect.

15. On 17 June 2008 the case was transferred to the Donetsk Regional Police Department for further investigation.

16. On 4 December 2008 the Donetsk Regional Police Department informed the first applicant, in response to his complaint concerning the protractions in the investigation, that they had identified a potential suspect. However, as his whereabouts were unknown, it was impossible to take any further actions in relation to the case.

17. On 25 February 2010 the General Prosecutor’s Office responded to the applicants’ complaint concerning ineffectiveness in the conduct of the investigation by mentioning that two officers from the Kuibyshevskiy District Police Department had been under disciplinary investigation on account of their purported failure to take necessary measures for the collection of evidence in the initial phase of the proceedings.

18. On 6 May 2010 the Donetsk Regional Prosecutors’ Office confirmed the above information. The parties did not inform the Court concerning the outcome of the disciplinary proceedings at issue.

19. In September 2011 the police arrested V.R. and a certain O.B., who confessed of having beaten Vitaliy Kholodkov in his office on 17 May 2002. O.B. also divulged that he had fired a gun while struggling with Vitaliy Kholodkov.

20. On 14 November 2011 the prosecutor’s office instituted criminal proceedings against A.S. (earlier indicated by the applicants as a potential organizer of Vitaliy Kholodkov’s killing) on suspicion of having contracted O.B. and V.R. to assault Vitaliy Kholodkov.

21. On 12 December 2011 A.S., O.B. and V.R. were committed to stand criminal trial before the Kuibyshevskiy District Court in Donetsk.

22. On 16 January 2013 the District Court convicted A.S. of having contracted O.B. and V.R. to assault Vitaliy Kholodkov. It also convicted O.B. of having assaulted and killed him and V.R. of having participated in the assault and having stolen the victim’s belongings.

23. On 23 April 2013 this judgment was quashed on appeal by the Donetsk Regional Court of Appeal and the case was remitted for a retrial.

24. The parties have not informed the Court concerning further progress in the case.

THE LAW

I. AS TO THE LOCUS STANDI OF THE SECOND APPLICANT IN RESPECT OF THE COMPLAINTS OF THE FIRST APPLICANT

25. The first applicant died on 7 May 2013, while the case was pending before the Court. It has not been disputed that the second applicant (his spouse) is entitled to pursue the application on his behalf and the Court sees no reason to hold otherwise (see, among other authorities, Prynda v. Ukraine, no. 10904/05, § 44, 31 July 2012). However, reference will still be made to both applicants throughout the ensuing text.

II. THE ALLEGED INEFFECTIVENESS AND THE LENGTH OF THE INVESTIGATION INTO THE DEATH OF THE APPLICANTS’ SON

26. The applicants complained that the investigation into the circumstances of their son’s violent death had been ineffective and the relevant criminal proceedings had lasted an unreasonably long time. They relied on Articles 2, 6 and 13 of the Convention.

27. The Court, which is 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, which is the relevant provision (see, e.g., Dudnyk v. Ukraine, no. 17985/04, § 27, 10 December 2009). This provision, in so far as relevant, reads as follows:

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

A. Admissibility

28. The Government did not comment on the admissibility of the present aspect of the case.

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

B. Merits

30. The applicants alleged that the State authorities had fallen short of their obligation to protect their son’s right to life. In particular, the proceedings concerning identification of those responsible for his death were unreasonably delayed and marked by numerous deliberate omissions. Foremost, the investigative authorities took no reasonable measures to pursue promptly and diligently the leads given to them by the applicants, including the leads to V.R. and A.S., who were eventually committed to stand trial as potential perpetrators some ten years after Vitaliy Kholodkov’s death.

31. The Government alleged that they had duly discharged their Convention duties in the applicants’ case. In particular, the investigation was thorough and the police had employed an ample array of means to collect the necessary evidence and explore various hypothesis, including those proposed by the applicants. The potential perpetrators had been identified and brought to trial.

32. The Court reiterates that the obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention” requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force (see, mutatis mutandis, Kaya v. Turkey, 19 February 1998, § 86, Reports of Judgments and Decisions 1998-I). The essential purpose of such an investigation is to secure the effective implementation of the domestic laws which protect the right to life. What form of investigation will achieve this purpose may vary in different circumstances. However, whatever mode is employed, the authorities must act of their own motion once the matter has come to their attention. They cannot leave it to the initiative of the next of kin either to lodge a formal complaint or to take responsibility for the conduct of any investigatory procedure (see, for example, mutatis mutandis, İlhan v. Turkey [GC], no. 22277/93, § 63, ECHR 2000-VII). This is not an obligation of result, but of means. The authorities must have taken all reasonable steps to secure the evidence concerning the incident. Any deficiency in the investigation which undermines its ability to establish the cause of death or the persons responsible will risk falling foul of this standard (see Gongadze v. Ukraine, no. 34056/02, § 176, ECHR 2005-XI).

33. There is also a requirement of promptness and reasonable expedition implicit in this context (see Yaşa v. Turkey, 2 September 1998, §§ 102-04, Reports 1998-VI, and Çakıcı v. Turkey [GC], no. 23657/94, §§ 80, 87 and 106, ECHR 1999-IV). It must be accepted that there may be obstacles or difficulties which prevent progress in an investigation in a particular situation. However, a prompt response by the authorities in investigating the use of lethal force or a disappearance may generally be regarded as essential in ensuring public confidence in their maintenance of the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts (see, in general terms, McKerr v. the United Kingdom, no. 28883/95, §§ 108-15, ECHR 2001-III, and Avşar v. Turkey, no. 25657/94, §§ 390-95, ECHR 2001-VII).

34. Turning to the facts of the present case, the Court notes that the body of the applicants’ son with a firearm head injury was found on 18 May 2002. As of April 2013 (some eleven years later) the criminal proceedings with the aim to identify and bring to justice those responsible for his violent death had still been pending before the first-instance tribunal. Viewing the materials on file in light of its settled jurisprudence (see, e.g., Mikhalkova and Others v. Ukraine, no. 10919/05, §§ 44-47, 13 January 2011; Merkulova v. Ukraine, no. 21454/04, §§ 52-62, 3 March 2011; Igor Shevchenko v. Ukraine, no. 22737/04, §§ 57-62, 12 January 2012; Sergiyenko v. Ukraine, no. 47690/07, §§ 51-53, 19 April 2012 and Yuriy Slyusar v. Ukraine, no. 39797/05, §§ 85-86, 17 January 2013) the Court considers that the Government in the present case have not provided sufficient justification for such an important delay and have not shown that the authorities had done everything in their power to ensure prompt and comprehensive action in collecting evidence, locating and bringing to justice of the persons responsible for the death of the applicants’ son.

35. There has accordingly been a violation of the procedural limb of Article 2 of the Convention.

III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

36. In her observations in response to those of the Government, the second applicant additionally invoked Article 3 of the Convention to the facts of the present case without providing any details.

37. Having considered the second applicant’s submissions in the light of all the material in its possession, the Court finds that, in so far as the matters complained of are within its competence, they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention.

38. It follows that this part of the application must be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

39. 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.”

A. Damage

40. The applicants claimed a global sum of 100,000 euros (EUR) in respect of pecuniary and non-pecuniary damage and costs and expenses.

41. The Government submitted that the claim was exorbitant and unsubstantiated.

42. The Court does not discern any causal link between the violation found and the pecuniary damage alleged. On the other hand, it recognizes that the applicants must have suffered anguish and distress on account of the events leading to the finding of the violation in the present case. Ruling on an equitable basis, it awards EUR 6,000 in respect of non-pecuniary damage to be paid to the second applicant.

B. Costs and expenses

43. The applicants did not formulate a separate claim under this head. However, they presented copies of receipts for postal expenses incurred in connection with the correspondence with the Court for the total amount of 193 hryvnias (UAH) and copies of other receipts relating to burial and other unidentifiable expenses.

44. The Government did not comment on this aspect of the claim.

45. Regard being had to the documents in its possession and to its case-law, the Court considers it reasonable to award the sum of EUR 20 to be paid to the second applicant in respect of the correspondence expenses.

C. Default interest

46. 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,

1. Declares the complaint concerning the ineffective investigation of Vitaliy Kholodkov’s death admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 2 of the Convention;

3. Holds

(a) that the respondent State is to pay the second applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 6,000 (six thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 20 (twenty euros), plus any tax that may be chargeable to the second applicant, in respect of costs and expenses;

(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;

4. Dismisses the remainder of the claim for just satisfaction.

Done in English, and notified in writing on 7 May 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Milan BlaškoBoštjan M. Zupančič
              Deputy RegistrarPresident

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