FIFTH SECTION
CASE OF MYKHAYLYK AND OTHERS v. UKRAINE
(Applications nos. 32972/20 and 4 others –
see appended list)
JUDGMENT
STRASBOURG
10 October 2024
This judgment is final but it may be subject to editorial revision.
In the case of Mykhaylyk and Others v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Kateřina Šimáčková, President,
Mykola Gnatovskyy,
Artūrs Kučs, judges,
and Viktoriya Maradudina, Acting Deputy Section Registrar,
Having deliberated in private on 19 September 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 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, or life-threatening accidents involving the applicants or their 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. In respect of some of the applications, the Court has taken note of the military events since 24 February 2022 in Ukraine and of their consequences. For the purposes of the examination of the present case, it considered that it was not necessary to determine whether the respondent State may be held responsible for the procedural failings which might have occurred after that date; indeed, a violation of the procedural limb of Article 2 of the Convention was found in relation to the period preceding the outbreak of hostilities, for the reasons set out in the appended table below (see, for the same approach, Burgas v. Ukraine [Committee], no. 8976/07, § 39, 18 December 2018).
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 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.
Done in English, and notified in writing on 10 October 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Viktoriya Maradudina Kateřina Šimáčková
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]
32972/20
17/07/2020
Oleg Stanislavovych MYKHAYLYK
1974
Tarakhkalo Mykhaylo Oleksandrovych
Kyiv
On 22/09/2018 the applicant, a civil activist, was shot at and wounded by unknown persons. Criminal proceedings were initiated on charges of an attempted murder. On 23/09/2018 the proceedings were directed against three suspects. The applicant was granted the victim status and questioned. Two days later all suspects were arrested and charged. Between September 2018 and March 201, various forensic examinations were conducted, witnesses were questioned, and other investigative actions took place. On 22/11/2018 suspect G. was placed under house arrest. The same measure was applied to the second suspect on 21/06/2019. However, on 10/10/2019, the court refused to extend house arrest for the suspects. On 11/01/20219, while the applicant was undergoing treatment in Germany, the bullet was removed from his lungs and sent to the Munich City Prosecutor’s Office. On 10/01/2019 Ukrainian investigative authorities requested German authorities to recover evidence (a bullet). German authorities responded by only providing the applicant’s medical records and bullet photos. As a result, the criminal proceedings were suspended on 21/08/2019. They were subsequently sporadically renewed and suspended again. The decision to suspend proceedings consistently cited the failure of the German authorities to provide the bullet removed during the applicant’s surgery.
On 28/09/2020 the investigators sent a request for the international legal assistance to Germany. They asked German specialists to carry out an expert examination of the bullet which had been removed from the applicant’s body and to send it to Ukraine together with materials regarding the applicant’s medical care. Only medical documentation was sent from Germany to Ukraine. On 16/09/2021 the pre-trial investigation was again suspended awaiting the execution of the request for international legal assistance.
According to the Ukrainian Government, on 05/11/2021 the prosecution sent another request to Germany and asked to send the bullet to Ukraine together with procedural documents regarding the removal of the bullet (the Government did not provide any document to confirm this statement). This request, according to the Government, remains unfulfilled to date.
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
38083/20
18/08/2020
Taras Andriyovych GLYNKA
1965
Dudurych Igor Volodymyrovych
Uzhgorod
On 27/02/2014 the applicant sustained several injuries in a road traffic accident. According to a medical report, they were classified as bodily injuries of moderate severity. On the same day, an investigation into the accident was initiated. As no investigative action was taken, on 30/10/2014 the applicant lodged a complaint with the relevant authorities. In a reply on 20/11/2014, the police informed the applicant that the instructions had been given to the investigator. According to the applicant, a forensic medical examination of his injuries was only ordered on 23/04/2015, but was not carried out, as the case file had not been submitted to the respective authorities. The applicant filed several complaints against the investigator’s inaction with the prosecutor’s office. In response, the applicant was informed that an additional forensic examination had been ordered and the necessary instructions had been given to the investigating authorities. In one of the letters, the prosecutor’s office also pointed out to the violation of the law by the investigators regarding the unreasonable delay in the investigation. The applicant also repeatedly challenged the investigator’s inaction before the court. He argued, in particular, that, despite his numerous requests, the investigator had not provided him with information on the progress of the criminal investigation. On 23/12/2016 the investigating judge allowed his complaints and ordered the investigator to provide the applicant with the information on the progress of the case.
It was only in June 2017 that X., who had been involved in the accident, was officially notified of suspicion of committing a criminal offence and the same day the indictment was sent to the trial court. As follows from the documents, the investigation established X.’s responsibility for the accident, leading to a court decision awarding compensation to the applicant of material damage. On an unspecified date, the applicant was awarded compensation of non-pecuniary damage (UAH 5,000), compensation of pecuniary damages (UAH 2,562) and court costs (UAH 2,227). The insurance company also allegedly paid the applicant an insurance compensation of UAH 50,000. On 26/02/2018 the trial court terminated criminal proceedings as time-barred and exempted X. from criminal liability. This decision was upheld by the Court of Appeal on 12/02/2019 and by the Supreme Court on 24/02/2020.
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 (Pozhyvotko
v. Ukraine, no. 42752/08,
§ 40, 17 October 2013; Prynda v. Ukraine,
no. 10904/05, § 56, 31 July 2012),
lack of thoroughness and promptness in the investigation of the circumstances of the applicant’s 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 (Yuriy Slyusar v. Ukraine, no. 39797/05,
§§ 84-88, 17 January 2013; Lyubov Efimenko
v. Ukraine, no. 75726/01,
§§ 76-80, 25 November 2010).
6,000
250
48418/21
22/09/2021
Lyubov Oleksandrivna PEDAN
1949
On 01/05/2012 the applicant’s son sustained severe injuries in a road accident, resulting in a second-degree disability. On 10/05/2012 a criminal case was initiated in connection with the incident.
On 05/02/2013 Ch., a driver of one of the vehicles involved in the accident, was served with a notice of suspicion for violating traffic rules while driving under the influence of alcohol. On 13/09/2013 Ch. was officially charged, and a bill of indictment was submitted to a trial court. On 23/01/2014 the applicant’s son passed away, allegedly because of the injuries related to the accident.
In the following years, the bill of indictment was repeatedly returned to the prosecutor as the trial court pointed numerous procedural deficiencies, for instance: on 28/11/2013 the court found that the bill of indictment did not contain a clear conclusion as to the degree of injuries sustained by the victim, and there was no information as to the parties’ having studied the casefile; on 17/11/2016 the court found that the prosecutor had failed to provide a clear description of the events in the case and had breached the procedure of disclosure of the documents to the court which could have impacted the fairness of the trial; on 19/06/2017 the court found that the prosecutor had failed to properly fill in the information about the victim and his representative (the applicant).
In the meantime, on 31/03/2015 the trial court ordered an additional forensic medical expertise. In result, the trial court started only consideration of the case in October 2018. Afterwards, the case also faced retrial due to the recusal of the judges and the expiration of their mandates.
Ultimately, on 16/05/2023 the trial court discontinued the criminal proceedings due to the statute of limitations and relieved Ch. from criminal liability. The court of appeal upheld the decision, having only amended the part related to the costs and expenses.
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 (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
-
57174/21
11/11/2021
Vasyl Vasylyovych LABACH
1988
Svitlana Ivanivna LABACH
1968
Samulyak Mykhaylo Yuriyovych
Ternopil
On 11/06/2020 a wheel disconnected from a moving truck and killed Mr L, walking on the roadside. The two applicants are Mr L.’s son and widow.
Criminal proceedings were instituted against K. (the driver of the truck) on account of a breach of road traffic rules or operation of a vehicle that caused death. They were terminated but the decision on termination of the proceedings was quashed by a court in order to eliminate controversies between the conclusion of a forensic examination and an advisory opinion of an expert provided by the applicants. The investigator’s decision of 31/03/2021 to terminate the criminal proceedings was upheld by a local court on 16/04/2021 and by a court of appeal on 12/05/2021. It was concluded that the K.’s guilt in violation of the traffic rules was not established and he could not be criminally liable for Mr L.’s death. The appeal court noted that the pre-trial investigation had not established any signs of the over-exploitation of the vehicle and there were no reasons to re-qualify the criminal proceedings under any other provision of the Criminal Code. The applicants’ claim that the investigation was not effective because (i) the forensic examination had not covered all issues, such as reasons for the metal’s erosion; (ii) the investigator should have assessed the evidence not only concerning the guilt of the truck’s driver, but also his obligations as the owner of the truck concerning the proper maintenance of the truck and the guilt of the expert who had issued a conclusion about the satisfactory technical condition of the truck.
By the decision of 20/05/2022 a local court awarded to the applicants compensation for the non-pecuniary damage in the amount of 100,000 Ukrainian hryvnas (UAH) per person (approx. 2,400 euros (EUR)) to be paid by the driver, while part of the compensation for non-pecuniary damage in the amount of UAH 28,338 (approx. EUR 700) per person had already been paid by the insurance company.
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).
6,000
250
52819/22
27/10/2022
Patricia BURDUJA
1995
Chirtoacă Ilie
Chisinau
According to the applicant, a Moldova national, her husband ran a business in Ukraine. On 29/11/2020 her husband was found dead near his car with numerous injuries. A criminal case was opened in connection with murder (intentional grievous bodily harm that caused the death of the victim under part 2 of Article 121 of Criminal Code of Ukraine). On the same day, after an autopsy, the investigating authorities concluded that the applicant’s husband’s injuries could have been caused by a traffic accident. They changed the classification of a crime to the violation of the traffic safety rules by the husband, which led to his death (part 2 Article 286 of CCU). According to the documents in the case file, the police questioned Y., who was a business partner of the applicant’s husband and the owner of the land where his body was found. According to him, that night they had drunk alcohol together in his farm, and later the applicant’s husband had decided to go to the store to buy more alcohol. Y. had stayed in the house and had fallen asleep, and in the morning, he had found his friend dead. Other witnesses made statements different from those of Y. According to their testimony, that evening there had been several men in the farm, and they had all been drinking alcohol. Later, the applicant’s husband, Y. and his driver K. had had a conflict, and the latter had beaten the applicant’s husband.
After a series of investigative actions and interrogations of witnesses, the police established that the death was caused by injuries inflicted by a third party. On 10/12/2020 the police again reclassified charges to those of the criminal offence under part 2 of Article 121 of the Criminal Code. On 16/12/2020 the police questioned Y. again. He changed his previous testimony. He stated that there had been several men on his farm that night (some of his employees and his driver, K.) and that they had all been drinking alcohol together. Then a conflict had happened between his employees and the applicant’s husband. According to Y., the conflict had arisen from the applicant’s husband’s provocative and aggressive behaviour. After the incident they had all stayed overnight in the Y’s house. The applicant’s husband had allegedly refused to enter the Y’s house and had slept in K’s car. In the morning they had discovered the applicant’s husband dead on the ground near K’s car.
On 18/12/2020 the police interrogated the Y’s driver, K. He confirmed most of the testimony given by Y. and pointed to one of the employees, D., who had been involved in the conflict. He claimed that it was D. who wanted to kill the applicant’s husband because he had damaged his car and injured him. Later K. and D. were both questioned during a joint interrogation but gave different statements. On 21/12/2020, during the interrogation, one of the witnesses, E., also indicated that on the night of the incident he had received a call from Y. urging him to come and delete all the video recordings from the cameras installed on his farm. Since then, a set of different forensic examinations was carried out.
The applicant filed several complaints with the prosecutor’s office about the ineffectiveness of the investigation. The applicant argued, in particular, that despite the obvious evidence, no results of the investigation had been achieved and no suspects had been identified.
In its response, the Regional Prosecutor’s Office of Kherson informed the applicant that a number of investigative actions had been carried out, including witness interrogations and numerous forensic examinations. Also, some disciplinary measures had been applied to the investigator dealing with the case and instructions had been given in order to speed up the investigation. In its last letter to the applicant on 28/09/2022 the prosecutor’s office notified the applicant that it was not currently possible to provide additional information on the progress of the investigation due to the temporary occupation of the Kherson region by the Russian Federation.
Insufficient measures during the preliminary stage of the investigation (Kachurka
v. Ukraine, no. 4737/06,
§ 52, 15 September 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),
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),
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)
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.