FIFTH SECTION
CASE OF NIKOLAY VOLKOGONOV AND IGOR VOLKOGONOV v. UKRAINE
(Application no. 40525/05)
JUDGMENT
STRASBOURG
28 November 2013
This judgment is final. It may be subject to editorial revision.
In the case of Nikolay Volkogonov and Igor Volkogonov v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Boštjan M. Zupančič, President,
Ann Power-Forde,
Helena Jäderblom, judges,
and Stephen Phillips, Deputy Section Registrar,
Having deliberated in private on 5 November 2013,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 40525/05) 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, Mr Nikolay Viktorovich Volkogonov and Mr Igor Nikolayevich Volkogonov (“the applicants”), on 29 October 2005.
2. The applicants, who had been granted legal aid, were represented by Mr A.A. Kristenko, a lawyer practising in Kharkiv. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr N. Kulchytskyy, from the Ministry of Justice.
3. On 27 September 2012 the application was communicated to the Government.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
4. The applicants were born in 1955 and 1991 respectively and live in Molodyozhnoye.
A. First episode
5. On 17 January 2001 at 9 p.m. police officer S. accompanied by another police officer, Z. and, a private person, P. entered the first applicant’s house and claimed that he was to appear before a civil court. According to the first applicant, he asked officer S. to present his authority to act on the court’s behalf, to stop disturbing his family and to leave his home. In reply officer S. several times punched the first applicant in the face and chest.
6. The same day the first applicant called an ambulance. The doctor diagnosed the first applicant as having high blood pressure. According to the first applicant they also recorded concussion and bruises on his face. According to the case-file materials, in particular the decisions of the domestic courts, the doctor of ambulance could not recollect seeing any injuries on the applicant’s face during that visit.
7. On 18 January 2001 the first applicant’s wife wrote a complaint to the Simferopol District Prosecutor’s Office (the SDPO) requesting them to investigate the allegedly unlawful actions of officer S.
8. On 19 January 2001 the first applicant underwent a forensic medical examination which found two bruises, one on his right shoulder and another near his left eye. These injuries were classified as minor bodily injuries.
9. On 2 February 2001 the SDPO refused to institute criminal proceedings against officer S. The first applicant complained to the Prosecutor’s Office of the Autonomous Republic of Crimea (the Crimea Prosecutor’s Office), which quashed the above decision on 7 March 2001 for incompleteness of the investigation.
10. On 20 March 2001 the SDPO again refused to institute criminal proceedings against officer S. This decision was quashed by the Simferopol Central District Court (the District Court) on 25 February 2002 for failure to explain the origin of the injuries of the first applicant.
11. Between April 2002 and August 2005 the prosecutor eleven times refused to institute criminal proceedings against officer S. and all these decisions were quashed by the higher prosecutors or the court for failure to conduct all necessary investigative actions.
12. On 13 January 2003 the first applicant lodged a civil claim in the Simferopol Zaliznychnyy District Court against the Simferopol District Police Department seeking compensation for non-pecuniary damage caused by the unlawful actions of officer S. According to the applicant the claim was not examined.
13. On 20 December 2003 police officer S. died in a traffic accident.
14. On 8 September 2005 the SDPO refused again to institute criminal proceedings against officer S. for lack of corpus delicti in his actions.
15. On 22 March 2006 the District Court quashed the decision of the SDPO for incompleteness of the investigation.
16. On 27 April 2006 the Court of Appeal of the Autonomous Republic of Crimea (the Crimea Court of Appeal) overruled the decision of the first-instance court and rejected the first applicant’s complaint. It noted that the investigator had conducted all necessary activities and the first applicant’s complaints were unsubstantiated. The court noted that it had not been established that officer S. inflicted any bodily harm on the first applicant. It also noted that the doctor, who had seen the first applicant on 17 April 2001, could not confirm any bodily injuries and that bruises on the soft tissue of the applicant’s face had been recorded only on 19 April 2001. The court noted that police officer S. had been invited to the house by the first applicant’s mother who wanted the first applicant to be summoned in civil proceedings concerning the division of property after the death of the first applicant’s father. The first applicant’s mother also denied any violence by officer S. towards the applicant. Furthermore, officer S. had died and therefore it was impossible to question him further. There were no independent witnesses who could confirm that the first applicant had been injured.
17. On 26 June 2006 the Supreme Court upheld the decision of the appellate court.
B. Second episode
18. On 25 October 2005 Mrs V, who was the wife of the first applicant and the mother of the second applicant, was hit by a car driven by Mr B. and died as a result. Mr B. called the ambulance and waited for the authorities to arrive. The police examined the car and the scene of accident with a forensic expert and in the presence of the first applicant. The police further questioned Mr B. and his passenger, Mr S. Police investigator Sl. asked Mr B. to take a alcohol test which showed that Mr B. was sober.
19. On 26 October 2005 the forensic medical examination of Ms V. began.
20. On 31 October and 22 November 2005 police investigator Sk. further examined the scene of accident.
21. On 17 November the police ordered a forensic examination of the scene of the traffic accident.
22. On 29 November 2005, in the light of that inquiry, the police refused to institute criminal proceedings into the road traffic accident which had caused the death of Ms V. This decision of the police was cancelled by the Simferopol Prosecutor’s Office on the same day. The prosecutor instructed the police investigator to complement the case-file with a forensic medical expert report, to establish and question eyewitnesses to the accident, and to conduct technical expert examination to establish how the accident happened.
23. Between December 2005 and February 2006 the police conducted a number of investigative actions, including forensic examinations and questioning.
24. On 25 February 2006 a criminal investigation was instituted into the accident. The applicants maintained an investigation was begun only on 16 March 2006.
25. According to the first applicant, in April 2006 the second applicant was admitted to a psychiatric hospital as a result of the accident.
26. In March and April 2006 the police made further investigative steps, including additional technical forensic examination.
27. On 25 April 2006 police investigator Gr. decided to terminate the criminal proceedings, having found no corpus delicti in the actions of Mr B. during the accident.
28. On 11 May 2006 the decision of 25 April 2006 was quashed by the Simferopol Prosecutor’s Office and the criminal case was remitted for further investigation. The prosecutor ordered additional technical examinations, which were carried out in June 2006.
29. On 8 June 2006 the police investigator closed the criminal case. This decision was quashed by the Simferopol Prosecutor’s Office on 22 June 2006.
30. On September 2006 the investigator ordered another technical examination which was conducted in December 2006.
31. On 28 December 2006 the investigator closed the case again. That decision was quashed on 11 January 2007 by the Simferopol Prosecutor’s Office.
32. In July 2007 the investigator further questioned additionally Mr B. and ordered another technical expert examination which was ready on 27 September 2007.
33. On 17 November 2007 the police investigator closed the criminal case. That decision was quashed by the Simferopol Prosecutor’s Office on 23 November 2007.
34. Between December 2007 and January 2009 investigator Gr., later replaced by investigator Mk., further questioned a number of witnesses and ordered two more technical expert examinations.
35. On 20 January 2009 the investigator terminated the criminal proceedings for lack of corpus delicti in the actions of Mr B.
36. On 26 January 2009 the first applicant challenged the decision of 20 January 2009 to the Simferopol Kyivskiy District Court
37. On 29 April 2009 the Simferopol Kyivskiy District Court quashed the decision of the Crimea Police Department to close the criminal case concerning the death of Ms V. and indicated that the investigators had failed to follow the instructions previously given to them when the case had been returned for further investigation.
38. On 1 June 2009 the investigation was resumed.
39. Between June 2009 and November 2011 police investigator Mg., later replaced by police investigator Kr. and then by police investigator Gr., questioned a number of witnesses, ordered several technical and medical expert examinations and conducted a further reconstruction of the events at the scene of accident.
40. On 10 January 2010 the first applicant lodged a civil claim with the Simferopol Zaliznychnyy District Court against the Simferopol District Police Department and the State Treasury seeking moral damages for the ineffective investigation of the death of his wife Ms V.
41. On 20 August 2010 the Simferopol Zaliznychnyy District Court rejected the civil claim as unsubstantiated. This decision was upheld by the Crimea Court of Appeal and the Higher Specialised Civil and Criminal Court respectively on 8 November and 30 December 2010.
42. On 12 October 2010 the applicants were recognised as aggrieved parties in the case and, on 13 October, as civil claimants.
43. On 17 November 2011 the investigator instituted criminal proceedings against Mr B. for a violation of road traffic rules which caused death.
44. On 28 November 2011 the criminal case against Mr B. was transferred to the Simferopolsky District Court.
45. On 23 December 2011 the district court held a preparatory hearing, during which the applicants lodged civil claims which the defendant did not oppose. It was established that Mr B. had driven a car with a technical fault to the left brake, of which Mr B. must have been aware. Driving in the dark he saw Ms V., who was crossing the road and tried to stop the car, but due to the above technical deficiency, the car turned right, left the road and hit Ms V. who, by that time, was no longer on the road. The defendant Mr B. admitted his guilt and asked to benefit from an amnesty as he had three minor children. The court allowed Mr B.’s request and amnestied him on the ground that he had three minor children, that the crime had been committed unintentionally, that he had been sober at the time of the accident and had not left the scene of the accident. The court did not examine the civil claims of the applicants.
46. On 14 February and 6 November 2012 respectively the Crimea Court of Appeal and the Higher Specialised Civil and Criminal Court upheld the decision of the first instance court.
47. There is no information as to whether the applicants resubmitted their civil claims within separate proceedings.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
48. The applicants complained that the investigation into the road traffic accident that caused death of their next of kin (§§ 18 – 47 above) had been lengthy and ineffective. They relied on Articles 2 and 13 of the Convention.
49. 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 Igor Shevchenko v. Ukraine, no. 22737/04, § 38, 12 January 2012). This provision, in so far as relevant, reads as follows:
“1. Everyone’s right to life shall be protected by law...”
A. Admissibility
50. The Court notes that this complaint 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
51. The applicants considered investigation into the death of Ms V. ineffective and unreasonably long. They considered that the case was not so complex as to take so long to be determined. They further noted the numerous remittals of the criminal case for further investigation and contended that the failure of the police to follow the instructions given by the prosecutor proved that the investigation was not conducted with the necessary diligence. They further considered that the investigative authorities had excluded them from the process of investigation and ignored their complaints and motions, and in addition they had been recognised as aggrieved parties only five years after the accident. Their civil claim against the police for ineffective investigation was rejected.
52. The Government maintained that the domestic authorities had done everything possible to establish the circumstances of the traffic accident which had caused the death of Ms V. In particular, the authorities had demonstrated due diligence and initiative in investigating the accident. The Government noted that immediately after the accident the investigative authorities took a number of important steps to establish the facts of the case, including examination of the scene of accident, medical and technical forensic examinations and questioning of the driver and passenger of the car which had hit Ms V. They noted that the investigation had conducted a large number of complex forensic examinations which took a lot of time. The Government considered that the numerous remittals of the case for additional investigation did not mean that the investigation was ineffective, because the investigators followed all instructions of the prosecutors and took all necessary investigative actions. The Government further maintained that the applicants were sufficiently involved in the proceedings, they participated in some investigative actions and one of the technical forensic examinations had been conducted upon the motion of the first applicant. They concluded that as a result of the investigation Mr B. was found responsible for violation of road traffic rules causing death and that the domestic authorities had established all the circumstances of death of Ms V.
53. The Court reiterates that Article 2 does not concern only deaths resulting from the use of force by agents of the State. In the first sentence of its first paragraph it lays down a positive obligation on the Contracting States to take appropriate steps to safeguard the lives of those within their jurisdiction. That obligation applies in the context of any activity in which the right to life may be at stake, including deaths resulting from road traffic accidents, and calls for an effective judicial system which can determine the cause of death and bring those responsible to account (see Anna Todorova v. Bulgaria, no. 23302/03, § 72, 24 May 2011, with further references).
54. The State’s obligation under Article 2 of the Convention will not be satisfied if the protection afforded by domestic law exists only in theory; above all, it must also operate effectively in practice and that requires a prompt examination of the case without unnecessary delays (see Šilih v. Slovenia [GC], no. 71463/01, § 195, ECHR 2009-...).
55. In line with the above, while the identification and punishment of those responsible for a death and the availability of compensatory remedies to the applicant are important criteria in the assessment of whether or not the State has discharged its Article 2 obligation (see, among other authorities, Rajkowska v. Poland (dec.), no. 37393/02, 27 November 2007, and Fedina v. Ukraine, cited above, §§ 66-67), in a number of recent cases before the Court the finding of a violation has largely been based on the existence of unreasonable delays and a lack of diligence on the part of the authorities in conducting the proceedings, regardless of their final outcome (see, for example, Šilih v. Slovenia [GC], cited above, § 211; Dvořáček and Dvořáčková v. Slovakia, no. 30754/04, § 70, 28 July 2009; and Antonov v. Ukraine, no. 28096/04, §§ 50-51, 3 November 2011).
56. The Court has stated on a number of occasions that, although the right to have third parties prosecuted or sentenced for a criminal offence cannot be asserted independently, an effective judicial system, as required by Article 2, may, and under certain circumstances must, include recourse to the criminal law. However, if the infringement of the right to life or to physical integrity was not caused intentionally, the positive obligation imposed by Article 2 to set up an effective judicial system does not necessarily require the provision of a criminal-law remedy in every case (see Vo v. France [GC], no. 53924/00, § 90, ECHR 2004‑VIII).
57. The Court also underlines that it would be inappropriate and contrary to its subsidiary role under the Convention to attempt to establish the facts of this case on its own, duplicating the efforts of the domestic authorities, which are better placed and equipped for that purpose (see, for example, McShane v. the United Kingdom, no. 43290/98, § 103, 28 May 2002). Following its well‑established practice, it will confine its examination of this application to an evaluation of the domestic investigation into the matter as regards its overall compliance with the aforementioned standards.
58. Turning to the facts of the present case, the Court notes that, having learned about the violent death of Mr V., the authorities instituted criminal proceedings and took a number of measures aimed at discharging their positive obligation under Article 2 of the Convention. A number of investigative actions, including an on-site reconstruction of the events, questioning, and various forensic examinations, were conducted during the following months. The fact that the authorities, having established the facts of the case and the criminal liability on the part of the driver in a final and binding decision of the court, amnestied him does not render the investigation ineffective. In particular, once the criminal liability of Mr B. was established by the judicial decision, it was open for the applicants to resubmit their claims for damages with a civil court, which they apparently have not done.
59. At the same time, the Court observes that the accident and the death of Ms V. occurred in October 2005, whereas the final decision concerning Mr B.’s liability was taken in November 2012 – more than seven years later. It notes that despite the substantial number of investigative measures taken, the investigation was criticised by the national authorities themselves for a lack of efficiency (see paragraph 38 above). Furthermore, the criminal proceedings in question were marked by numerous referrals for additional investigation caused, inter alia, by the investigator’s failure to follow the instructions of the supervisory authorities (ibid). The criminal proceedings in question were also marked by numerous changes of investigator and an unusually high number of repeated expert examinations. It may be that in certain circumstances a repeated expert examination might be required to clarify the circumstances of the case. In the present case, however, the fact that the same type of forensic examination was ordered several times (see paragraphs 23, 26, 28, 30, 32 and 39 above) within the same criminal case suggests a lack of a comprehensive approach to the collection of evidence during the pre-trial investigation phase. The Court considers that a delay of seven years in bringing to accountability the person responsible for the death of the applicants’ next of kin was incompatible with the State’s obligation under Article 2 of the Convention to carry out an effective investigation of suspicious deaths.
60. There has therefore been a violation of the procedural limb of Article 2 of the Convention in the present case.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
61. The first applicant complained under Articles 3, 8 and 13 of the Convention that on 17 January 2001 police officer S. had come to his home and beaten him and the domestic authorities had failed to investigate that incident. He further complained under Article 6 § 1 that the domestic courts had failed to examine his civil claim against the police, by which he sought compensation for the actions of police officer S. against the first applicant. Both applicants complained that the protracted investigation into the death of Ms V. caused them serious moral suffering in breach of Article 3 of the Convention.
62. The Court finds that the applicants’ submissions and the case-file materials in its possession do not disclose any appearance of a violation of the above provisions. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
63. 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
64. The applicants claimed 100,000 euros (EUR) each in respect of non-pecuniary damage.
65. The Government considered those claims excessive.
66. The Court awards the applicants jointly EUR 6,000 in respect of non-pecuniary damage.
B. Costs and expenses
67. The applicants also claimed UAH 75,040.10 (approximately EUR 6.867) for the costs and expenses incurred before the Court, comprising UAH 74,923.20 for legal representation and UAH 116.90 in respect of postal expenses.
68. The Government objected to the amount claimed for legal costs. They noted that the lawyer represented the applicant for very short period of time and that the communicated issue was of a straightforward nature. They considered that the amount was exaggerated and should be rejected. At the same time, they left the issue of compensation for postal expenses to the Court’s discretion.
69. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the applicants EUR 1,500 for legal representation, less the sum of EUR 850 received by way of legal aid, plus any value-added tax that may be chargeable to the applicant. It also awards in full the claimed amount of postal expenses. Thus, the Court awards the applicants EUR 661 (EUR 650 for legal costs and EUR 11 in respect of the postal expenses).
C. Default interest
70. 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 procedural limb of Article 2 of the Convention 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 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:
(i) EUR 6,000 (six thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 661 (six hundred and sixty-one euros), plus any tax that may be chargeable to the applicants, 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 applicants’ claim for just satisfaction.
Done in English, and notified in writing on 28 November 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen PhillipsBoštjan M. Zupančič
Deputy RegistrarPresident
Full & Egal Universal Law Academy