FIFTH SECTION
CASE OF MUTYEVA AND OTHERS v. UKRAINE
(Applications nos. 77217/17 and 4 others –
see appended list)
JUDGMENT
STRASBOURG
18 July 2024
This judgment is final but it may be subject to editorial revision.
In the case of Mutyeva 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 27 June 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.
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 deaths or life-threatening accidents without 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 summarized 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 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.
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 cases.
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. It notes, in particular, that in application no. 77217/17, effectiveness of the investigation was already irretrievably undermined by September 2013 and, therefore, the Court’s findings in the present judgment concern only that period (see, Burgas v. Ukraine, no. 8976/07, §§ 45 and 46, 18 December 2018 [Committee]).
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. As regards application no. 13261/18, in particular, the Court, in view of the documents submitted by the applicant, decides to award the full amount requested by the applicant as just satisfaction for non-pecuniary damage and part of the costs and expenses and dismisses the remainder of his claims.
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.
Dismisses the remainder of the applicant’s (in application no. 13261/18) claims for just satisfaction.Done in English, and notified in writing on 18 July 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 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]
77217/17
02/09/2013
Natalya Viktorovna MUTYEVA
1976
Zayets Sergiy Anatoliyovych
Irpin
On 29/11/2011 the applicant’s mother
A. was found dead on her property.
A. had several cuts on the left wrist and forearm, a shard of glass was found nearby. A forensic medical examination determined that A. had died of blood loss due to the above-mentioned wounds. Concluding that A. had committed suicide, on 08/12/2011 the police decided not to institute criminal proceedings as no offence had been committed. The prosecutor’s office overruled that decision as based on incomplete enquiries; it identified measures to be taken to complete it. It notably stated that an additional interview had to be conducted with the forensic medical expert as to whether the fatal cuts could be inflicted with the glass shard found on the scene and as to the origin of the injuries A. had had on her head and of the haematomas she had had elsewhere on her body (apparently on the knee).
There has accordingly been a failure to conduct the investigation effectively which materialised by 13/09/2013 and by that date the possibility of conducting an effective investigation had been undermined.
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),
extended pre-investigation inquiries (Yukhymovych
v. Ukraine, no. 11464/12,
§ 67, 17 December 2020).
6,000
250
13261/18
28/02/2018
Igor Volodymyrovych YANS
1981
Levchenko Viktoriya Oleksiyivna
Kharkiv
On 14/10/2006 the applicant was crossing a road and was hit by a car driven by K. The applicant was taken to a hospital where he remained in a coma for three days.
He sustained serious head injuries and leg fractures, which called for several surgical interventions and long-term medical treatment.
On 17/10/2006 a criminal investigation was opened. On 27/11/2006 a forensic medical examination was carried out. According to the expert findings, the applicant had sustained an open traumatic brain injury, brain contusion, intracranial haemorrhages, fracture of the cranium bones and the base of the skull, and wounds to the parietal and occipital skull areas, closed fractures of both of the left shin bones. On 05/01/2007 the applicant was given victim status. On 22/10/2008 a civil court approved a friendly settlement between the applicant and the perpetrator, K. Between January 2008 and September 2019, on a number of occasions criminal proceedings were terminated for lack of constituent elements of crime and subsequently resumed on account of ineffectiveness and incompleteness of the investigation. In that regard disciplinary proceedings were instituted against the investigator for procedural violations. The domestic courts pointed at numerous contradictions in the witnesses’ statements and in the results of the four technical expert examinations conducted between October 2007 and October 2012; they also criticised the investigator’s failure to take any steps to investigate the case properly. According to the State Register of Court Decisions, on 06/10/2020 the court delivered its latest decision quashing the investigator’s decision to terminate the criminal proceedings. The court found that the investigator had not conducted all necessary investigative actions and had failed to execute the instructions of the previous court decision of 19/09/2019. The investigation appears to be still ongoing.
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),
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),
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),
numerous shortcomings in collection of evidence (Basyuk v. Ukraine,
no. 51151/10, § 67,
5 November 2015).
4,500
55
54958/18
03/11/2018
Oleg Valeriyovych TROTS
1962
Kovalyova Oleksandra Sergiyivna
Sofiyiska Borshchagivka
On 13/11/2010 the applicant’s son was shot dead while hunting. On 18/11/2010 the police instituted criminal proceedings. On an unspecified date, T., one of the hunters, fully admitted his guilt.
On 10/12/2010 T. was notified of suspicion of unintentional killing. On 29/06/2011 an indictment was sent to a court.
The applicant argued that it was probable that his son had been killed by another hunter, not T. In July and October 2014, and January 2015 additional forensic examinations were performed.
On 04/08/2015 a local court found T. guilty of unintentional killing. As it appears from the Unified Register of Court Decisions, on 12/10/2015 an appellate court ordered a repeated forensic examination upon the applicant’s request. It reasoned that the conclusions of several previous examinations conducted during the pre-trial investigation and trial were incomplete and contained some contradictions.
On 13/02/2017 the appellate court confirmed the finding of T.’s guilt but quashed the verdict and exempted T. from criminal responsibility due to the expiration of the statute of limitations. The appellate court noted that i) although it had not been accurately established that the buckshot extorted from the applicant’s son’s body had been shot from T.’s rifle, there had been sufficient evidence to establish T.’s guilt of unintentional killing beyond reasonable doubt, namely T.’s confession, T.’s and other witnesses’ pre-trial statements and in‑court testimony and the crime scene re‑enactment and inspection reports; ii) T.’s and other witnesses’ statements coincided as to the essential circumstances of the crime committed; iii) while some discrepancies in T.’s and other witnesses’ statements referred to by the applicant could not be eliminated with the passage of time, those discrepancies did not affect the correct finding of T.’s guilt beyond reasonable doubt; iv) no objective evidence had been identified to confirm the applicant’s assumptions about another possible cause of his son’s death; v) since over 5 years had elapsed between the commission of the crime and the final verdict, the statute of limitations had expired.
On 25/04/2018 the Supreme Court upheld the appellate court’s decision (received by the applicant on 08/05/2018).
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),
progressive deterioration/loss of evidence (Antonov
v. Ukraine, no. 28096/04,
§ 50, 3 November 2011).
6,000
250
26679/20
16/06/2020
Vitaliy Igorevych MARTYNYUK
1978
Mytsyk Oleg Volodymyrovych
Lviv
On 14/01/2013 S. drove a car with six passengers (including the applicant) when it overturned while performing a manoeuvre in excess of the allowed speed. On the same day criminal proceedings were instituted on account of a breach of the road traffic rules, resulting in medium bodily injuries to four passengers. On 31/01/2013 and 11/02/2013, medical examinations were ordered; according to the reports, the applicant sustained medium bodily injuries. On 07/02/2013 the applicant was granted victim status. On 28/02/2013 S. was notified of suspicion of having committed a crime (it was stated therein that S. had driven the car without a driver’s license and under the influence of alcohol). Between 15/03/2013 and 20/06/2013, the investigation was suspended due to S.’s medical treatment. Disagreeing with the established degree of gravity of sustained injuries, the applicant requested another forensic examination, but it was refused. On 09/07/2013 a bill of indictment was drawn up against S. On 11/07/201, the case was referred for trial. On 28/10/2013 the applicant asked the court to appoint a forensic vehicle examination (which was not conducted at the pre-trial stage); the court allowed the request, and on 07/03/2014 the conclusion was submitted to the court. On 02/06/2014 S. was convicted as charged; the applicant’s civil claim was granted in part. On 16/12/2014 the court of appeal quashed the verdict since the court examined the case in the absence of the applicant despite his request to postpone it and remitted the case for fresh consideration to the first instance court. On 25/03/2015 the applicant filed a request to appoint a forensic medical examination, arguing that the previous one reached the wrong conclusions. The request was granted, and on 12/06/2015 the experts concluded that the applicant sustained severe bodily injuries as a result of the accident; on 03/11/2015 the prosecutor notified the suspect of a new act of indictment. On 28/02/2017 the first instance court returned the bill of indictment to the prosecutor for the elimination of shortcomings (in particular, due to the incorrect qualification of S.’s acts conditioned by the incorrect establishment of the severity of the applicant’s injuries). On 28/04/2017 the case was sent for trial. On 12/03/2021 the trial court delivered a verdict that was not appealed. The court found S. guilty of the breach of road traffic rules, resulting in severe bodily injuries.
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 (Pozhyvotko
v. Ukraine, no. 42752/08,
§ 40, 17 October 2013; Prynda v. Ukraine,
no. 10904/05, § 56, 31 July 2012),
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).
6,000
250
6861/23
18/01/2023
Oleksandr Vasylyovych FORTUNA
1951
Yamkovyy Vladyslav Ivanovych
Kryvyyy Rig
On 11/11/2008 the applicant sustained grave bodily injuries in a road accident, being a passenger in one of the cars which collided; two people died as a result of that accident. On 12/11/2008 criminal proceedings commenced. The applicant filed a civil claim within criminal proceedings against an accused, Ch. (one of the drivers).
By a judgment of 20/12/2010, a trial court found Ch. guilty. However, on 26/04/2011 an appellate court quashed that judgment and remitted the case for reconsideration to the trial court, having found insufficiency of the investigative actions, in particular, failure to carry out an additional forensic auto-technical examination reproducing the events in question. In the following years, the court suspended the proceedings and returned the case to the investigator for additional investigation several times as the latter did not execute the court orders in full. On 23/01/2014 the appellate court decided to inform the prosecutor of the region and the Prosecutor General of Ukraine about the delay in the criminal proceedings due to inactivity of the investigator.
On 22/05/2019 the trial court decided to terminate the criminal proceedings and absolve Ch. from the criminal liability due to expiration of the statutory limitation period. The civil claim remained undecided, so the applicant filed a separate claim for damages before a civil court. On 23/02/2022 the civil court granted the applicant’s claim partly and ordered Ch. to pay the pecuniary and non-pecuniary damages.
An appellate court changed the judgment slightly, having corrected the total amount of the award to 323,686 Ukrainian hryvnas (8,942 euros).
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),
no genuine attempt by the investigating authorities to carry out a thorough investigation (Yuriy Slyusar v. Ukraine,
no. 39797/05, §§ 84-88,
17 January 2013; Lyubov Efimenko v. Ukraine,
no. 75726/01, §§ 76-80,
25 November 2010),
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 (Pozhyvotko
v. Ukraine, no. 42752/08,
§ 40, 17 October 2013; Prynda v. Ukraine,
no. 10904/05, § 56, 31 July 2012).
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.