CASE OF SHIYANOV v. UKRAINE

FIFTH SECTION

CASE OF SHIYANOV v. UKRAINE

(Application no. 12552/09)

JUDGMENT

This version was rectified on 22 August 2016

under Rule 81 of the Rules of Court.

STRASBOURG

2 June 2016

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

In the case of Shiyanov v. Ukraine,

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

André Potocki, President,
Ganna Yudkivska,
Síofra O’Leary, judges,
and Milan Blaško, Deputy Section Registrar,

Having deliberated in private on 10 May 2016,

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

PROCEDURE

1. The case originated in an application (no. 12552/09) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Yuriy Grigoryevich Shiyanov[1] (“the applicant”), on 6 February 2009.

2. The applicant, who had been granted legal aid, was represented by Mr A.A. Kristenko, a lawyer practising in Kharkiv. The Ukrainian Government (“the Government”) were represented by their Acting Agent, most recently Ms Olga Davydchuk.

3. On 4 February 2010 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4. The applicant was born in 1951 and lives in Kremenchuk.

5. On 19 June 1998 the applicant’s 17-year-old daughter, M., was found dead in a field in the Kharkiv region. Her body was naked and had numerous injuries.

6. According to the information submitted by the Government, on 20 June 1998 a post mortem was carried out. It established that M. had been strangled and that her body had been dragged to the place where it had been discovered. There was no indication that she had been raped. She had not been pregnant. Nor had she been under the influence of alcohol or drugs.

7. On 22 June 1998 the Kharkiv inter-district prosecutor’s office opened a criminal case in respect of the murder.

8. On 24 June 1998 the applicant was admitted to the proceedings as an aggrieved party.

9. On 28 June 1998 the police inspected the scene of the crime. They discovered the remnants of a fire and two plastic bags not far from the place where M.’s body had been found. Samples of the coal and the bags were collected as material evidence.

10. On 30 June 1998 another examination of the crime scene was carried out and the following objects were found: some matches, two cigarette ends, two plastic bags, a burnt notepad with some notes written by M. (her parents identified her handwriting later). Furthermore, the police discovered the burnt remains of a calendar, some tampons, a student ID with a stamp containing the word “Law” (M. was a student at the Kharkiv Law Academy), and a lighter.

11. On 24 August 1998 a forensic cytological examination established that it was not M. who had smoked the cigarettes.

12. On 1 October 1998 the police seized one of M.’s shoes, which had been discovered by a villager at some distance from the crime scene.

13. On 18 January 1999 a witness stated that on the evening of 18 June 1998 she had twice seen a beige car belonging to a certain B., with two male passengers and a girl resembling M., near the crime scene. The witness also submitted that B. had apparently had the car seat covers changed shortly thereafter.

14. On 14 April 1999 the investigator in the case instructed the police to verify whether B. and his two passengers of 18 June 1998 could have been involved in the murder and to identify the girl who had been seen with them. The police questioned those seen in the car and concluded that sufficient grounds did not exist to treat them as suspects. As regards an inspection of the car and the covers of the seats, it appears that none was carried out at the time as the investigator had to order one again on 22 February 2010. That belated inspection produced no tangible results.

15. The investigation of M.’s murder has been unsuccessful. Between 1998 and 2010 it was suspended at least thirteen times for failure to establish who had committed the murder. At least five of those decisions were quashed as premature and as not based on a comprehensive investigation. In the remaining instances the investigation was resumed without any further details being given in the respective decisions. At least four times (in particular, in 1998, 2001 and 2009) the investigator complained to his supervisors that his instructions to the police had not been complied with. In particular, on 20 January 2009 the investigator, when instructing the police to undertake certain investigative measures, noted that earlier instructions to that effect, given in 2000, had not been followed up. Overall, throughout the period in question, the investigator’s instructions to the police remained the same: to identify all the possible witnesses to the murder and to verify whether any of M.’s acquaintances, or any people with a criminal record living nearby, could have been involved in it.

16. The applicant submitted numerous complaints to the prosecution authorities about the length and ineffectiveness of the investigation. He also put forward his own version of events and mentioned the names of several people whom he suspected of being involved in the crime. He was informed on at least four occasions that there had indeed been omissions in the investigation and that the police officers responsible had been disciplined. As regards the applicant’s requests for access to the case file, they were rejected on the grounds that under the applicable procedural legislation, an aggrieved party could only have such access after the pre-trial investigation had been completed.

17. The applicant also brought a civil claim against the prosecution authorities, but courts at three levels of jurisdiction found against him.

18. There is no information in the case file about any developments in the investigation after 2010.

II. RELEVANT DOMESTIC LAW AND PRACTICE

19. The relevant domestic law is quoted and summarised in Gongadze v. Ukraine (no. 34056/02, §§ 147-149, ECHR 2005‑XI), and Sergey Shevchenko v. Ukraine (no. 32478/02, §§ 36-39, 4 April 2006).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

20. The applicant complained under Article 2 of the Convention that the investigation into the death of his daughter had been ineffective. This provision, in so far as relevant, reads as follows:

“1. Everyone’s right to life shall be protected by law ...”

A. Admissibility

21. The Court notes that the application 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

22. The applicant alleged that the State authorities had fallen short of their obligation to protect his daughter’s right to life. In particular, the investigation aimed at identifying those responsible for her violent death had been unreasonably long and marked by numerous omissions and deficiencies.

23. The Government contended that they had duly discharged their Convention duties in the applicant’s case. The fact that the people responsible for his daughter’s death had not been found could not, as such, be held against them. In particular, the investigation had been thorough and the police had employed an ample array of means to collect the necessary evidence.

24. The Court reiterates that Article 2 of the Convention requires by implication that there should be some form of effective official investigation when individuals have died as a result of the use of force. The essential purpose of such an investigation is to secure the effective implementation of the domestic laws which protect the right to life. This is not an obligation of result, but of the means. Not every investigation will necessarily be successful. However, it should in principle be capable of leading to the establishment of the facts of the case and to the identification and punishment of those responsible. Thus, the investigation must be thorough. This means that the authorities must always make a serious attempt to find out what happened, and should not rely on hasty or ill-founded conclusions to close their investigation or as the basis of their decisions. They must take all the reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony and forensic evidence. Any deficiency in the investigation which undermines its ability to establish the cause of injuries or the identity of the people responsible will risk falling foul of the standard (see, for example, Menson v. the United Kingdom (dec.), no. 47916/99, ECHR 2003‑V, and Yuriy Slyusar v. Ukraine, no. 39797/05, §§ 76-78 and 82, 17 January 2013, with further references).

25. It is not in dispute in the present case that the authorities had an obligation to carry out an effective investigation into the circumstances of the murder of the applicant’s daughter. The Court considers that they failed to discharge that duty for the following reasons.

26. The Court observes that the initial examination of the crime scene took place nine days after M.’s body had been discovered (see paragraphs 5 and 9 above). That measure was not only unacceptably delayed, but also perfunctory and incomplete, as two days later the police discovered a number of M.’s partially burnt belongings there, as well as the ends of some cigarettes that had been smoked by an unidentified person (see paragraphs 10 and 11 above). Furthermore, three and a half months after the incident, one of the villagers found a shoe belonging to M. nearby. In the Court’s opinion, that is another indication of the inadequacy of the inspection of the crime scene and surrounding area carried out by the police. Lastly, the Court does not lose sight of the fact that shortly after M.’s death the investigator received information that certain people had been seen nearby at the relevant time in a car and that subsequently the covers of the seats had been changed in that car. It took the authorities more than ten years to inspect the car in question, when such a measure was by that time pointless (see paragraphs 13 and 14 above).

27. The Court further notes that the investigation was suspended on numerous occasions. The subsequent resumptions appear not to have been based on any new information or evidence warranting additional investigative measures, but rather on the failure of the police to comply with the investigator’s earlier instructions (see, in contrast, Volovod v. Ukraine [Committee], no. 527/07, §§ 67 and 68, 21 May 2015).

28. Overall, the investigation into the violent death of the applicant’s daughter lasted for more than twelve years (there is no information on any developments after 2010) and produced no tangible results.

29. Accordingly, the Court cannot but conclude that the authorities did not act with reasonable diligence in investigating the circumstances of the death of the applicant’s daughter and that they failed to take all reasonable steps to establish the facts behind that tragedy.

30. The Court has already found violations of Article 2 of the Convention in other cases against Ukraine based on similar facts (see, for example, Muravskaya v. Ukraine, no. 249/03, §§ 46-49, 13 November 2008; Dudnyk v. Ukraine, no. 17985/04, §§ 34-38, 10 December 2009; Serdyuk v. Ukraine [Committee], no. 61876/08, §§ 36-39, 12 March 2015; and Kholodkov and Kholodkova v. Ukraine [Committee], no. 29697/08, §§ 34 and 35, 7 May 2015). Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case.

31. There has accordingly been a violation of Article 2 of the Convention under its procedural limb.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

32. 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

33. The applicant claimed 5,000,000 euros (EUR) in respect of non‑pecuniary damage.

34. The Government submitted that the claim was exorbitant and unsubstantiated.

35. The Court recognises that the applicant must have suffered anguish and distress on account of the events leading to the finding of the violation in the present case. Ruling on an equitable basis, it awards him EUR 8,000 in respect of non-pecuniary damage.

B. Costs and expenses

36. The applicant also claimed EUR 1,000 for the costs and expenses incurred before the Court.

37. The Government noted that the applicant had already received a sufficient sum under this head by way of legal aid from the Council of Europe.

38. According to the Court’s case-law, an applicant is entitled to reimbursement of his 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, it observes that the applicant failed to present an agreement on legal fees with his lawyer or an approved timesheet of the legal work performed before the Court. In light of this and regard being had to the fact that the applicant has already been given legal aid, the Court gives no award under this head (see Saviny v. Ukraine, no. 39948/06, § 77, 18 December 2008).

C. Default interest

39. 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 application admissible;

2. Holds that there has been a violation of Article 2 of the Convention under its procedural limb;

3. Holds

(a) that the respondent State is to pay the applicant, within three months, EUR 8,000 (eight thousand euros) in respect of non‑pecuniary damage plus any tax that may be chargeable, to be converted into the national 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 amount 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 applicant’s claim for just satisfaction.

Done in English, and notified in writing on 2 June 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Milan BlaškoAndré Potocki
Deputy RegistrarPresident

[1]. Rectified on 22 August 2016: the name was “Mr Viktor Grigoryevich Shiyanov”.

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