FIFTH SECTION
CASE OF LYSENKO AND OTHERS v. UKRAINE
(Application no. 41399/15 and 2 others –
see appended list)
JUDGMENT
STRASBOURG
6 June 2024
This judgment is final but it may be subject to editorial revision.
In the case of Lysenko and Others v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Carlo Ranzoni, President,
Mārtiņš Mits,
María Elósegui, judges,
and Viktoriya Maradudina, Acting Deputy Section Registrar,
Having deliberated in private on 16 May 2024,
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 under Article 3 of the Convention about the authorities’ failure to investigate the ill-treatment inflicted on them by private parties.
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.
THE LOCUS STANDI OF MRs OKSANA VALERIYIVNA SIRODZHA IN APPLICATION NO. 41399/156. The Court notes that the applicant died on 11 June 2016, while the case was pending before the Court. The applicant’s daughter, Mrs Oksana Valeriyivna Sirodzha, has requested to pursue the application on her father’s behalf. The Court normally permits the next of kin to pursue an application, provided they have a legitimate interest, where the original applicant died after lodging the application with the Court (see Murray v. the Netherlands [GC], no. 10511/10, § 79, 26 April 2016; Malhous v. the Czech Republic (dec.) [GC], no. 33071/96, ECHR‑XII; and Larionovs and Tess v. Latvia (dec.), nos. 45520/04 and 19363/05, § 172, 25 November 2014). The Court considers that Mrs Sirodzha has a legitimate interest in pursuing the application on behalf of her late father and that respect for human rights as defined in the Convention and the Protocols thereto requires a continuation of the examination of the case (see, among other authorities, Maylenskiy v. Russia, no. 12646/15, 4 October 2016). However, reference will still be made to the applicant throughout the present text.
ALLEGED VIOLATION OF ARTICLE 3 of the Convention7. The applicants complained of the ineffective investigation into ill-treatment inflicted by private parties. They relied, expressly or in substance, on Article 3 of the Convention.
8. The Court notes at the outset that the violent treatment in question fell within the scope of Article 3 of the Convention. The Court reiterates that Article 3 of the Convention requires that the authorities conduct an effective official investigation of alleged ill‑treatment, even if such treatment has been inflicted by private individuals (see M.C. v. Bulgaria, no. 39272/98, § 151, ECHR 2003‑XII, and Denis Vasilyev v. Russia, no. 32704/04, § 99, 17 December 2009). The minimum standards of effectiveness laid down by the Court’s case-law include the requirements that the investigation must be independent, impartial and subject to public scrutiny, and that the competent authorities must act with exemplary diligence and promptness (see, mutatis mutandis, Menesheva v. Russia, no. 59261/00, § 67, ECHR 2006-III).
9. The procedural requirements of Article 3 go beyond the preliminary investigation stage when the investigation leads to legal action being taken before the national courts: the proceedings as a whole, including the trial stage, must meet the requirements of Article 3. This means that the domestic judicial authorities must on no account be prepared to let the physical or psychological suffering inflicted go unpunished. This is essential for maintaining the public’s confidence in, and support for, the rule of law and for preventing any appearance of the authorities’ tolerance of or collusion in unlawful acts (see, mutatis mutandis, Okkalı v. Turkey, no. 52067/99, § 65, ECHR 2006 XII (extracts)).
10. Reviewing the facts of the present case in the light of those principles, the Court considers that the authorities, who were empowered to open and conduct a criminal investigation, did not make a genuine attempt to take a prompt and thorough examination of the matter, establish the facts and, if necessary, bring those responsible to account. The specific shortcomings are indicated in the appended table.
11. In the leading case of Muta v. Ukraine (no. 37246/06, 31 July 2012) the Court already found violations in respect of issues, similar to those in the present case.
12. 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.
13. These complaints are therefore admissible and disclose a breach of Article 3 of the Convention under its procedural limb.
APPLICATION OF ARTICLE 41 OF THE CONVENTION14. Regard being had to the documents in its possession and to its case‑law (see, in particular, Pobokin v. Ukraine, no. 30726/14, 6 April 2023), the Court considers it reasonable to award the sums indicated in the appended table to the applicants in applications nos. 2637/17 and 42164/21 and rejects any additional claims raised by the applicant in application no. 2637/17. As concerns the applicant in application no. 41399/15, the Court makes no award since the applicant’s heir failed to submit just satisfaction claims in accordance with Rule 60 of the Rules of Court.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
Decides to join the applications;Decides that Ms O. V. Sirodzha, the daughter of the applicant in application no. 41399/15, has locus standi in the proceedings;Declares the applications admissible;Holds that these applications disclose a breach of Article 3 of the Convention concerning the ineffective investigation into the ill-treatment inflicted by private parties;Holds(a) that the respondent State is to pay the applicants in applications nos. 2637/17 and 42164/21, 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. 2637/17.Done in English, and notified in writing on 6 June 2024, 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 3 of the Convention
(ineffective investigation into ill-treatment inflicted by private parties or in circumstances that exclude 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]
41399/15
11/08/2015
Valeriy Mykolayovych LYSENKO
1963
Deceased in 2016.
Heir: OksanaValeriyivna Sirodzha
On 31/07/2011 a private individual, S., hit the applicant in the face, causing him medium bodily injuries.
On 04/08/2011 the applicant requested the police to open criminal proceedings into the incident. On 12/12/2011 the proceedings were opened. The applicant claimed that the investigator had lacked impartiality since the chief of the police was a close relative of S. On 27/03/2013 the investigator terminated the proceedings for lack of evidence of a crime. On 05/06/2013 the termination decision was quashed as premature since the investigator had taken no steps to establish the actual circumstances in which the injuries upon the applicant had been inflicted, as well as the persons involved, and had not properly assessed the evidence in the case. Later, on several occasions, the applicant requested the investigator to question the witnesses in the case, but to no avail. On 19/07/2013, 03/04/2014, 19/01/2015, 02/04/2015 and 25/06/2015 the prosecutor ordered the investigator to question the witnesses, as requested by the applicant, but again to no avail. The applicant then challenged the inactivity of the investigator before the court. On 05/09/2013, 24/06/2014 and 06/07/2015 the court acknowledged the investigator’s inactivity and ordered the latter to consider the applicant’s requests.
Upon the applicant’s claim, on 26/12/2014 the court ordered to open criminal proceedings into the inactivity of the investigator, noting that the latter had substantially delayed the investigation. On 27/12/2014 the proceedings were opened. An internal investigation was carried out, and the investigator was disciplined as a result. On 20/02/2015, 21/04/2015, 28/07/2015 and 27/08/2015 the proceedings were terminated for lack of evidence of a crime. Subsequently, on 24/03/2015, 10/06/2015, 17/08/2015 and 21/09/2015, respectively, those termination decisions were quashed. On 29/10/2015 the proceedings were again terminated for lack of evidence of a crime.
On 11/06/2016 the applicant died.
Ultimately, on 05/07/2017 the investigator terminated the proceedings into the applicant’s injury for lack of evidence of a crime.
On 27/08/2018 the applicant’s next of kin, Mrs Oksana Sirodzha, informed the Court that she wished to pursue her father’s application. She also informed the Court that there had been no progress in the applicant’s case.
failure to take the necessary steps to investigate the case thoroughly (Skorokhodov v. Ukraine, no. 56697/09,
§§ 34-35, 14 November 2013);
groundless decisions to close or suspend the case (Aleksandr Nikonenko
v. Ukraine, no. 54755/08, § 45,
14 November 2013);
overall protracted character of the investigation and court proceedings (Muta
v. Ukraine, no. 37246/06, § 65,
31 July 2012);
shortcomings recognised by the national authorities themselves (Muta
v. Ukraine, no. 37246/06, § 65,
31 July 2012).
-
-
2637/17
30/12/2016
Olga Kostyantynivna SITENKO
1949
Fokiy
Bogdan Vasylyovych
Chernivtsi
On 30/04/2006 the applicant had a fight with her sister-in-law, D., who allegedly hit the applicant in the head with a hoe.
Subsequently on several occasions the applicant’s request to institute criminal investigation was rejected. On 06/06/2006 a forensic medical examination established that the applicant had sustained bodily injuries of medium severity. On 03/07/2007 the criminal proceedings were initiated into the incident. On 24/11/2007 the applicant lodged a civil claim in criminal case, seeking compensation of pecuniary and non-pecuniary damages. On 09/12/2008 a local court terminated the criminal proceedings and exempted D. from criminal liability due to the lack of social danger posed by the crime.
On 17/02/2009 the court of appeal quashed the latter decision and remitted the case to the first-instance court for fresh consideration. On 16/09/2009 the local court once again exempted D. from the criminal liability on the ground that the staff of the enterprise had vouched for her. On 24/11/2009 the court of appeal set aside that decision and remitted the case for further investigation.
On 30/10/2010 a forensic medical examination was ordered, which was completed only in 05/12/2013. Instructions were given by the prosecutor’s office to conduct investigative and procedural actions within a reasonable time. On 03/05/2015 disciplinary proceedings were initiated against the investigators for their ineffective investigation of the case and instructions were given to conduct the criminal investigation within a reasonable time. By a letter of 09/07/2018 the investigator informed the applicant that the pre-trial investigation in her case was ongoing. Also, on 20/07/2018 the investigating judge allowed the applicant’s lawyer’s complaint against the investigator’s failure to consider his motions and ordered him to take the necessary actions.
On 26/02/2019 the applicant lodged a civil claim against D. within the criminal proceedings, seeking pecuniary and non-pecuniary damages. On 01/10/2019 the local court following the prosecutor’s petition terminated the criminal proceedings against D. owing to the expiry of the limitation period for criminal liability. D. pleaded guilty and was dispensed from the criminal liability. On 14/11/2019 the court of appeal upheld the decision of a local court. On 21/02/2020 the Supreme Court refused to admit the applicant’s appeal on points of law.
failure to take the necessary steps to investigate the case thoroughly (Skorokhodov v. Ukraine, no. 56697/09,
§§ 34-35,
14 November 2013);
overall protracted character of the investigation and court proceedings (Muta
v. Ukraine, no. 37246/06, § 65,
31 July 2012);
shortcomings recognised by the national authorities themselves (Muta
v. Ukraine, no. 37246/06, § 65,
31 July 2012)
3,000
250
42164/21
09/08/2021
Mykola Volodymyrovych BOBROVSKYY
1966
On 26/10/2012 the applicant sustained minor bodily injuries in a shop, allegedly after being hit twice by L. (a blow to the applicant’s nose area and an additional blow to his face, causing the applicant to fall and hit his head against a radiator).
On 18/01/2013 criminal proceedings were initiated upon the fact of inflicting light bodily injuries that led to a short-term health disorder. The criminal proceedings were later terminated on numerous occasions due to the testimony of two witnesses, who claimed that L. had simply fallen on the applicant. The courts overturned these decisions and criticised the police for their handling of the case, including their failure to question the shop assistant and ambulance doctors, conduct face-to-face interviews, examine the crime scene, and provide sufficient reasoning for their decisions. On 30/09/2020 the criminal proceedings were terminated due to the statute of limitations. On 12/02/2021 the Supreme Court found no reason to review the case.
failure to take the necessary steps to investigate the case thoroughly (Skorokhodov v. Ukraine, no. 56697/09,
§§ 34-35, 14 November 2013);
groundless decisions to close or suspend the case (Aleksandr Nikonenko
v. Ukraine, no. 54755/08, § 45,
14 November 2013);
shortcomings recognised by the national authorities themselves (Muta
v. Ukraine, no. 37246/06, § 65,
31 July 2012)
3,000
-
[1] Plus any tax that may be chargeable to the applicants.
[2] Plus any tax that may be chargeable to the applicants.