CASE OF MUSINA AND OTHERS v. UKRAINE

 

 

FIFTH SECTION

CASE OF MUSINA AND OTHERS v. UKRAINE

(Application no. 48419/16)

 

 

 

 

 

 

JUDGMENT
 

STRASBOURG

26 March 2026

 

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

In the case of Musina and Others v. Ukraine,

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

 María Elósegui, President,
 Andreas Zünd,
 Mykola Gnatovskyy, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 48419/16) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 9 August 2016 by four Ukrainian nationals listed in the appended table, (“the applicants”), who were represented by Mr M. Tarakhkalo, Ms O. Chilutyan and Mr Y. Chekarov, lawyers practising in Kyiv;

the decision to give notice of the application to the Ukrainian Government (“the Government”), represented by their Agent, Ms M. Sokorenko;

the parties’ observations;

 

Having deliberated in private on 5 March 2026,

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

SUBJECT MATTER OF THE CASE

1.  The case concerns the applicants’ complaint under Article 2 of the Convention about the death of their relative, A.M. (the first and the second applicants’ son, the third applicant’s brother and the fourth applicant’s father), while he was under the control of the State, and the alleged ineffectiveness of the investigation.

2.  In April 2014 A.M., then 40 years old, was called up for military service following the announcement of a special military mobilisation. As confirmed by several medical examinations, he was in good health.

3.  In March 2015 A.M. was scheduled to be discharged from the army. Although the order on his discharge was dated 25 March 2015, A.M. stayed in the military unit for several days more in order to finalise all the formalities (see paragraph 18 below).

4.  At about 11 p.m. on 27 March 2015 the patrol discovered, near the gasmask distribution tent some 20 metres from the central checkpoint, a heavily drunk soldier lying on the ground with his upper and lower limbs tied up. He had had a gag in his mouth but had managed to remove it and to call for help. The guards liberated him and let him go towards the casern, without being able to obtain any explanations. As it was later established, the drunk soldier was V.S.

5.  At about 6.10 a.m. on 28 March 2015 the patrol found A.M. dead inside the same tent. His wrists had been tied behind his back with two plastic hose clamps and his feet had been tied with a piece of an electric cable to one of the tent poles. A.M.’s mouth was covered by adhesive tape. Once it was taken off, a textile gag fell out of his mouth.

6.  On the same date a criminal investigation was launched into murder in respect of the “sudden death” of A.M. However, the relevant entry in the Unified State register of pre-trial investigations contained a note which stated that there was no indication of a violent death. The military authorities’ position was that at the time of his death, A.M. had no longer been in service and thus the military command lacked power to investigate his death. The investigation was therefore entrusted to the Novomoskovsk city police.

7.  Also on 28 March 2015 the Dnipropetrovsk garrison military prosecutor’s office launched an investigation into possible omissions by the military unit’s staff in so far as the access, control and security of its territory were concerned. It is not clear which investigative measures were taken. It is only known that on 30 June 2015 the investigation was discontinued owing to absence of any indication of a criminal offence.

8.  During an inspection of the scene on 28 March 2015, A.M.’s wristwatch was found outside the tent. A sniffer dog picked up a scent from the crime scene, headed towards the checkpoint, reached the fence and lost the scent.

9.  On the same date several soldiers, including those involved in the patrol on 27 and 28 March 2015, were questioned. They claimed not to have noticed anything out of order, apart from having seen a few drunk comrades and the incident with V.S. (see paragraph 4 above). The latter was also questioned. He submitted that on 27 March 2015 he had been drinking alcohol with A.M. and two “unidentified” soldiers. V.S. alleged that he did not remember all the events. He only submitted that an “unidentified” soldier had put a gag in his mouth. Two of the soldiers questioned submitted that they had been drinking alcohol with A.M. and V.S. until about 2 p.m. on 27 March 2015 and did not know what had happened thereafter.

10.  On 30 March 2015 a death certificate was issued, according to which A.M. had died of acute coronary insufficiency.

11.  On 10 April 2015 a forensic medical expert examination report confirmed that conclusion. It stated that A.M.’s death had been caused by coronary insufficiency exacerbated by heavy alcohol intoxication. The expert noted that A.M. had sustained minor bodily injuries (namely sores and bruises on his mouth and cheeks) before his death, but that there was no causal link between those injuries and his death. It was also observed that there was dried soil around and inside the nostrils and on the mouth.

12.  On 16 June 2015 the criminal investigation unit drew up a report that the military unit’s management had refused to provide information as to who had been present in the territory of the military unit on 27 and 28 March 2015.

13.  On 27 June 2015 the Novomoskovsk police department discontinued the investigation on account of absence of any indication of a criminal offence. With reference to the expert report of 10 April 2015 (see paragraph 11 above), the investigator held that A.M. had died of coronary insufficiency exacerbated by alcohol intoxication. Furthermore, it was noted that there had been no injuries on the body or any indications suggesting a violent death.

14.  On 6 July 2015 the Novomoskovsk city prosecutor’s office quashed the above-mentioned decision as premature and unlawful. On the same date the first and the second applicants were granted the procedural status of victims and were questioned in that capacity.

15.  On 20 November 2015 an additional forensic medical expert examination was carried out with a view to establishing whether there had been any causal link between the tying of A.M.’s hands and feet and his death. The expert reiterated the previous conclusion as to the cause of the death (see paragraphs 10 and 11 above). It was further noted that the forensic examination of the body had not established any injuries or other indications of a violent death. The expert therefore concluded that there was no causal link between the fact that A.M. had had his wrists and feet tied and his death.

16.  On 27 November 2015 the Dnipropetrovsk regional prosecutor’s office carried out an operational meeting with the Novomoskovsk police department. It was observed that the instructions given to the investigator by several prosecution officials in charge had not been complied with and that the investigation had been undermined by a number of serious omissions.

17.  In early January 2016 a forensic cytological expert examination was carried out in respect of the hose clamps and the cable used for tying up A.M., the adhesive tape and the gag, the contents under his fingernails and the wristwatch found near the tent. No DNA material was found. Although there was blood on the adhesive tape and the gag, the expert found it impossible to determine whether it belonged to A.M. because no blood samples had been provided for examination. Furthermore, there were some skin cells under A.M.’s fingernails, but they were unsuitable for any further analysis.

18.  On 18 June 2016 the military unit’s acting commander, R.K., was questioned for the first time. He submitted that A.M. had stayed in the military unit beyond 25 March 2015 in order “to hand over his position”. R.K. claimed that he neither knew who could have tied up A.M. and V.S. nor suspected anybody. Lastly, he emphasised that the military unit was a secure facility operating under a strict access control regime, which ruled out the presence of any unauthorised individuals.

19.  On 30 November 2016 the investigator discontinued the investigation once again. His ruling was identical to that of 27 June 2015 (see paragraph 13 above). On 3 March 2017 that ruling, too, was quashed on similar grounds as before (see paragraph 14 above).

20.  On 30 March 2017 the same investigator, who, following numerous complaints by the applicant, had been disciplined on several occasions for the poor quality of the investigation, gave another decision to terminate the investigation, the wording of the decision being identical to that of 27 June 2015, with only one new sentence added, stating that the additional forensic medical examination had found the absence of any causal link between the tying up of A.M. and his death.

THE COURT’S ASSESSMENT         Preliminary matter

21.  The first and the second applicants died while the proceedings before the Court were ongoing. The third and the fourth applicants expressed a wish to pursue the application both in their own stead and on behalf of the late applicants.

22.  Regard being had to its relevant case-law (see, for example, Taganova and Others v. Georgia and Russia, nos. 18102/04 and 4 others, §§ 168-75, 17 December 2024), the Court accepts that the third and the fourth applicants, who are a son and a granddaughter of the deceased applicants, have standing to pursue the application on behalf of the latter.

       ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

23.  The applicants complained that the State had failed to comply with its obligations under both the substantive and the procedural limbs of Article 2 of the Convention.

   Admissibility

24.  The Government submitted that the applicants had not exhausted domestic remedies, given that they had not claimed damages in respect of the death of A.M. and had not challenged the investigator’s decision of 30 March 2017 to discontinue the investigation.

25.  The applicants argued that A.M. had died in circumstances that were clearly violent within the territory of a military unit and that the circumstances of his death had never been elucidated. They emphasised that they had repeatedly complained of the ineffectiveness of the investigation, but no improvements had followed. The applicants also submitted that claiming damages would be meaningless, since the authorities had persistently maintained that the death had been due to natural causes.

26.  The Court has held that civil proceedings alone, which do not involve the identification or punishment of an alleged perpetrator, cannot be taken into account in the assessment of the State’s compliance with its procedural obligations under Article 2 of the Convention, and, moreover, those obligations cannot be satisfied merely by awarding damages (see Al-Skeini and Others v. the United Kingdom [GC], no. 55721/07, § 165, ECHR 2011).

27.  Accordingly, the Court rejects the Government’s objection of non-exhaustion in so far as it concerns the applicants’ failure to lodge a claim for damages.

28.  As regards the remaining part of the Government’s objection concerning the applicants’ failure to challenge the discontinuation of the investigation of 30 March 2017, the Court considers that it raises issues which are closely linked to the question of the effectiveness of the investigation. It therefore joins the Government’s objection to the merits of the applicants’ complaint under the procedural limb of Article 2 of the Convention.

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

   Merits     The parties’ submissions

30.  The applicants argued that the domestic investigation into the circumstances of A.M.’s death had been undermined by serious omissions and deficiencies. They laid the responsibility for their relative’s death with the State. The applicants submitted, in particular, that the authorities had failed to provide a plausible explanation for A.M.’s death, which had occurred while he had been under their control.

31.  The Government referred to the reportedly natural cause of the death and to the fact that, according to the available documents, A.M. had been discharged from the army. They argued on those grounds that no responsibility of the State had been engaged. The Government pointed out that numerous investigative measures had been carried out. They contended that, therefore, the investigation had been in compliance with the Article 2 requirements.

     The Court’s assessment

32.  The Court considers it appropriate to start its examination on the merits by first addressing the procedural limb of the applicants’ complaint under Article 2 of the Convention, namely whether or not the criminal investigation into the circumstances of A.M.’s death was effective, and then turning to the substantive limb, namely the question of whether the State can be held responsible for the death (see A.P. v. Austria, no. 1718/21, § 136, 26 November 2024, and Petrosyan v. Armenia, no. 51448/15, § 120, 9 January 2025).

   Procedural limb

33.  The applicable general principles have been summarised in, in particular, Mustafa Tunç and Fecire Tunç v. Turkey ([GC], no. 24014/05, §§ 169‑82, 14 April 2015).

34.  The Court notes that, although a criminal investigation into A.M.’s death was launched without delay, it was based on the premise that “there was no indication of a violent death” (see paragraph 6 above). The fact that A.M. had his upper and lower limbs tied and his mouth gagged and covered by adhesive tape, however, strongly suggests the opposite. It was the domestic authorities’ duty to shed light on all the circumstances surrounding A.M.’s death, notably the violence he had been subjected to. They, however, left that important question unanswered, which in itself was a flaw serious enough to render the investigation ineffective (compare Manukyan v. Armenia [Committee], no. 2303/12, §§ 14-15, 21 June 2022).

35.  The Court further takes note of the fact that the investigation was entrusted to the local police, that is, to an authority independent of anyone likely to be implicated in the events within the military unit. However, the police could hardly achieve any meaningful progress in their investigation, given that the military unit had refused to provide them with any information as to who had been present there at the time of A.M.’s death (see paragraph 12 above). Furthermore, the unit’s acting commander, who was questioned for the first time more than one year after the events, plainly denied knowing anything of relevance or suspecting anybody, at the same time ruling out the presence of any unauthorised individuals within the military unit (see paragraph 18 above).

36.  The Court also notes that the crucial forensic evidence was not secured and processed properly. It observes, in particular, that a forensic cytological expert examination of the hose clamps and the cable used to tie up A.M., the adhesive tape and the gag, the contents under his fingernails and the wristwatch found near the tent was carried out only in January 2016 (that is, more than nine months after A.M.’s death – see paragraph 17 above). Its results turned out to be of little value to the investigation, given that no DNA material could be collected, the skin cells found under A.M.’s fingernails were unsuitable for analysis and, in the absence of A.M.’s blood sample being at the expert’s disposal, it was impossible to determine whether the blood on the adhesive tape and the gag belonged to A.M.

37.  Furthermore, the criminal investigation into A.M.’s death was discontinued on three occasions on identical grounds (see paragraphs 13, 19 and 20 above), including after the domestic authorities themselves had admitted that “the instructions given to the investigator by several prosecution officials in charge had not been complied with and that the investigation had been undermined by a number of serious omissions” (see paragraph 16 above). The Court has held on many occasions that the repetition of such remittal orders discloses a serious deficiency in criminal investigation (see, for example, Oleynikova v. Ukraine, no. 38765/05, § 81, 15 December 2011, and Vyacheslavova and Others v. Ukraine, nos. 39553/16 and 6 others, § 389, 13 March 2025).

38.  In the light of the foregoing considerations, the Court concludes that the domestic authorities failed to carry out an adequate and effective investigation into the circumstances surrounding the death of the applicant’s relative. It accordingly holds that there has been a violation of Article 2 under its procedural limb and dismisses the relevant Government’s objection, which was previously joined to the merits (see paragraph 28 above).

   Substantive limb

39.  In the context of persons undergoing compulsory military service, the Court has emphasised on many occasions that, as with persons in custody, conscripts are within the exclusive control of the authorities since any events in the army lie wholly, or in large part, within the exclusive knowledge of the authorities. It is therefore the authorities’ duty to protect its military servicemen and to account for any injuries or deaths occurring in the army (see Mosendz v. Ukraine, no. 52013/08, § 92, 17 January 2013, and Boychenko v. Russia, no. 8663/08, § 77, 12 October 2021). Furthermore, the States are expected to set high professional standards among military personnel and ensure that military servicemen meet the requisite criteria (see Abdullah Yılmaz v. Turkey, no. 21899/02, §§ 56-57, 17 June 2008, and Hovhannisyan and Nazaryan v. Armenia, nos. 2169/12 and 29887/14, § 122, 8 November 2022).

40.  The Court notes that A.M. was found dead within a military unit, where he had apparently been finalising the administrative formalities related to his discharge from the army (see paragraphs 3 and 5 above). In other words, the events surrounding his death lay within the exclusive knowledge of the authorities.

41.  The Court has already concluded that the domestic investigation was seriously deficient and that it left unanswered a number of important questions, notably regarding the violence suffered by A.M. before his death (see paragraphs 34-38 above). It follows that the authorities cannot be regarded as having discharged their obligation to provide a satisfactory and convincing explanation for the death of the applicants’ relative, which occurred while he was under their control (compare Ohanjanyan v. Armenia, no. 70665/11, §§ 158-60, 25 April 2023).

42.  There has accordingly been a substantive violation of Article 2 of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

43.  The third and fourth applicants claimed 50,000 euros (EUR) each in respect of non-pecuniary damage and jointly claimed EUR 6,300 in respect of costs and expenses incurred before the Court, the latter to be paid directly into Mr Tarakhkalo’s bank account.

44.  The Government contested those claims.

45.  The Court considers it appropriate to award to each of the third and fourth applicants EUR 10,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.

46.  Furthermore, having regard to the documents in its possession and to its case‑law, the Court considers it reasonable to award EUR 2,800 for costs and expenses, plus any tax that may be chargeable to the applicants. At the applicants’ request, the amount awarded under this head should be paid directly into the bank account of Mr M. Tarakhkalo (see, for example, Khlaifia and Others v. Italy [GC], no. 16483/12, § 288, 15 December 2016).

47.  The Court further 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,Holds that the third and fourth applicants have standing to pursue the application in the first and second applicants’ stead;Joins the Government’s preliminary objection concerning the exhaustion of domestic remedies on account of the applicants’ failure to challenge the discontinuation of the investigation on 30 March 2017 to the merits of the applicants’ complaint under the procedural limb of Article 2 of the Convention and, having examined it, dismisses it;Declares the application admissible;Holds that there has been a violation of Article 2 of the Convention under its procedural limb;Holds that there has been a violation of Article 2 of the Convention under its substantive limb;Holds  that the respondent State is to pay the third and fourth applicants, 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:  EUR 10,000 (ten thousand euros) to each applicant, plus any tax that may be chargeable, in respect of non-pecuniary damage;  EUR 2,800 (two thousand eight hundred euros) to the applicants jointly, plus any tax that may be chargeable to them, in respect of costs and expenses, to be paid directly into the account of their representative, Mr M. Tarakhkalo;  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 applicants’ claim for just satisfaction.

Done in English, and notified in writing on 26 March 2026, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 

 Martina Keller María Elósegui
 Deputy Registrar President

 

 

APPENDIX

List of applicants:

No.

Applicant’s name

Year of birth

Place of residence / other relevant information

 

Alla Ivanivna MUSINA

1952

Died in 2023

 

Volodymyr Oleksiyovych MUSIN

1951

Died in 2021

 

Roman Volodymyrovych MUSIN

1978

Vilnohirsk

 

Vladyslava Andriyivna SEMENYUK (before 28 October 2023: MUSINA)

1998

Pyatykhatky

 

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