CASE OF VOLOVOD v. UKRAINE

FIFTH SECTION

CASE OF VOLOVOD v. UKRAINE

(Application no. 527/07)

JUDGMENT

STRASBOURG

21 May 2015

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

In the case of Volovod v. Ukraine,

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

Vincent A. De Gaetano, President,
Ganna Yudkivska,
André Potocki, judges,
and Milan Blaško, Deputy Section Registrar,

Having deliberated in private on 21 April 2015,

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

PROCEDURE

1. The case originated in an application (no. 527/07) 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 Nikolay Yemelyanovich Volovod (“the applicant”), on 24 November 2006.

2. The Ukrainian Government (“the Government”) were represented by their Agent, Ms Olga Davydchuk.

3. On 17 February 2011 notice of the application was given to the Government.

THE FACTS

4. The applicant was born in 1929 and lives in Krasnyy Liman. He had a son, V., who lived in Severodonetsk, Lugansk Region.

5. On the evening of 11 August 2002, V. was sitting in the courtyard of the apartment block in which he lived. At about 7.45 p.m. a man approached V., shot him in the head, and ran away. Several people witnessed the incident. V. died an hour later in hospital.

6. On the same date the police instituted a criminal investigation into the murder and questioned the eyewitnesses, who stated that the killer had been 25-30 years old and around 175-180 centimetres tall. He had been wearing sunglasses, dark jeans, a red T-shirt and a cap.

7. On the same date the police examined the crime scene, found the bullet and sent it for forensic examination, and collected fingerprints and biological material.

8. On 12 August 2002 the police searched V.’s apartment and questioned his wife, T. She did not know who might have wanted to kill V. or for what reason. He never spoke to her about his business or other activities.

9. On the same date the forensic experts established that V. had been shot with a TT pistol.

10. On 13 August 2002 the police questioned K.Y., who had previously stolen money from V., and established that he had an alibi for the period of time when V. had been murdered. His fingerprints did not match those found on the crime scene. The police thus concluded that K.Y. was not involved in the murder.

11. On the same date the police questioned employees of the bar owned by V., who stated that on 10 August 2002 P. – a member of the criminal gang led by a certain Bo. – had been looking for the applicant’s son. P. was 25-30 years old and 180 centimetres tall.

12. The Severodonetsk Prosecutors’ Office established that P. had been wanted by the police since 1999 as they suspected that he had killed a certain L. with a TT pistol on Bo.’s instructions. The Office concluded that P. might have been involved in V.’s murder and declared P. and Bo. wanted.

13. On 14 August 2002 the police recognised T. as an injured party to the proceedings. The next day, it identified the telephone numbers from which V. had received calls on the day of his death and proceeded to identify the names and whereabouts of the people who had called him.

14. On 16 August 2002, V.’s business partner K. was questioned. He stated that Bo. had threatened V. with violence. On the same date a list of Bo.’s acquaintances was drawn up which included P. (see paragraph 11 above), Lu., Kl., Lit., Kr. and R.

15. In August 2002 the police established that there was no match between the fingerprints of Kl., Lit., Kr. and P. and those found on and near the crime scene. The police searched Lit.’s home and seized his clothes. The clothes were later destroyed, not being needed as evidence.

16. On 23 and 26 August 2002 the police searched the apartments of V.’s acquaintances, but found no evidence that they might have been involved in his murder.

17. On 27 August 2002 K. was questioned again. He said that a certain Vo. and Bu. both worked for Bo. After V.’s murder, Bo. had called K. and had threatened that he would be “broken”.

18. The police searched Vo.’s home, but found no evidence of his involvement in V.’s killing.

19. On 5 September 2002 the police showed the eyewitnesses several persons suspected of the murder, including Vo. The witnesses did not recognise the man who had shot V. amongst them.

20. By 2 October 2002 the police had identified and questioned everyone who had called V. on 10 and 11 August 2002. There was no evidence that any of them had been involved in the murder.

21. Later in October 2002, the police found the TT pistol with which V. had been killed in the possession of a certain Sh. The latter explained that he had bought the gun in September 2002 from A., a boy aged under 18.

22. The police questioned A., who stated that he had found the gun and some sunglasses on 12 August 2002 near garages in Lisichansk Town. He had subsequently sold the gun to Sh.

23. The police questioned the owners of the garages and individuals living near the garages. None of them had seen who had left the gun near the garages. There was no evidence that the boy, Sh., or the garage owners had known Bo. or V. or had had a motive for killing V.

24. On 22 October 2002 the police questioned Lit., who said that he knew nothing about the murder.

25. During November 2002 the police continued questioning V.’s acquaintances and checking whether their biological material and fingerprints matched those found at the crime scene.

26. On 14 November 2002 the police collected blood and saliva from Lu. and a certain Buk., whom the eyewitnesses had seen near the crime-scene on 11 August 2002. They also questioned Lu., who stated that on 11 August 2002 he had been in hospital, where many people had seen him. Lu. did not know anything about the murder.

27. The forensic medical examination established that both Lu. and Buk. might have smoked one of the cigarettes found near the crime scene.

28. On 22 November 2002 the police organised an identity parade and showed Sh. to the eyewitnesses of the murder. However, they did not identify him as the man who had shot V.

29. On 25 February 2003 the police suspended the investigation on the grounds that it had proved impossible to establish who had committed the murder.

30. On 5 August 2003 the investigation was resumed but suspended again on 8 August 2003.

31. On 27 October 2003 the Lugansk Regional Prosecutor quashed the decision to suspend the investigation, observing that it was necessary to carry out “additional investigative measures”. However, he did not specify what those measures were. The case was sent to the Severodonetsk Prosecutors’ Office for further investigation.

32. On 27 November 2003 the police arrested Bo. within the framework of the investigation into the murder of L. (see paragraph 12 above). In December 2003 it questioned Bo. in connection with the death of V. He stated that V. had been his friend, and he had known nothing about his killing.

33. In 2004 the Severodonetsk Prosecutors’ Office examined a number of witnesses who had been questioned earlier and collected information about people who had stayed in hotels in Severodonetsk on 11 and 12 August 2002.

34. On 29 September 2004 the prosecutors prepared a plan of additional investigative measures to be carried out. In particular, they suspected that V. had been involved in illegal metal trafficking and proposed finding his partners in that business. It was also planned to question Ly. with whom the applicant’s son had had “tense relations”, and to find and question Lu., Li. and R.

35. On an unspecified date the prosecutors questioned Ly. and K. and found no evidence that they had been involved in V.’s murder. K. and several other of V.’s acquaintances who were questioned by the police denied that the applicant’s son had been involved in any illegal business, including metal trafficking.

36. On 25 May 2005 the Severodonetsk Prosecutors’ Office suspended the investigation, stating that despite all the measures taken it had proved impossible to find V.’s killer.

37. On 2 August 2005 the police arrested P. within the framework of investigation into the death of L. (see paragraphs 11 and 12 above).

38. On 12 August 2005 the Severodonetsk Prosecutors’ Office resumed the investigation into the death of V. because it was planned to question P., Li., R. and Bu.

39. On 2 September 2005 the police compared P.’s fingerprints to those collected at the crime scene and found that they did not match.

40. On 15 October 2005 it showed P.’s photo to the eyewitnesses of V.’s killing. They were unable to say whether it was P. who had shot V. because the murder had occurred a long time before.

41. The Severodonetsk Prosecutors’ Office informed the police that since July 2005 a certain F. had been wanted for killing H. with a TT pistol in the Lugansk Region. The prosecutors instructed the police to check whether F. could have been involved in V.’s murder. The police informed the prosecutors that it would look into F.’s involvement in the killing after establishing his whereabouts.

42. On 27 October 2005 the Severodonetsk Prosecutors’ Office instructed the Lisichansk Prosecutors’ Office to find and question Kl., R., Kr., and Li.

43. On 3 November 2005 the Severodonetsk Police questioned P., who stated that he had been living in Moldova in 2000-2003 and had not been involved in V.’s murder.

44. On 13 November 2005 the Lisichansk Police stated that R. and Li. had not been found at their permanent places of residence.

45. In November 2005 the Lisichansk Police questioned Kl., who stated that he did not know V. or anything about his murder. He had heard about Bo., but had not known him personally.

46. On 15 November 2005 the Lisichansk Police informed the Severodonetsk Police that it could not question Li. and R. because their whereabouts were unknown. Kr. could not be questioned because he was in prison. No further steps were taken to find and question Li., R., and Kr.

47. On 22 December 2005 the police questioned Bo., who said that V. had been his friend and denied that he was involved in the murder.

48. On 8 August 2006 the Severodonetsk Prosecutors’ Office suspended the investigation but resumed it on 19 July 2007 and transferred the case to the Severodonetsk Police.

49. On 21 August 2007 the Lugansk Regional Police Directorate noted that not all the necessary measures had been taken in order to investigate V.’s murder and ordered that the investigation be accelerated. The Severodonetsk Police were ordered to: i) show photos of F. to the eyewitnesses; ii) search the homes of R., Lu. and Li.; iii) investigate whether Sh. might have been involved in V.’s murder; iv) continue to search for persons who might have been involved in the murder.

50. On 2 June 2008 the Severodonetsk Police suspended the investigation, stating that it had proved impossible to find V.’s killer. On 1 September 2008 the proceedings were resumed but were suspended once again on 30 September 2008.

51. On 29 May 2009 the Lugansk Regional Prosecutor’s Office quashed the decision of 30 September 2008, stating that not all the necessary measures had been taken in order to investigate the murder. The case was submitted to the Severodonetsk Prosecutors’ Office for further investigation.

52. On 10 September 2009 the Severodonetsk Prosecutors’ Office suspended the investigation stating that it had proved impossible to identify the killer.

53. On 27 January 2010 the higher prosecutors quashed that decision, and ordered the Severodonetsk Prosecutors’ Office to carry out further investigative measures.

54. On 11 February 2010 the Severodonetsk Prosecutors’ Office gave instructions to find and question V.’s parents and wife.

55. On 3 March 2010 the police questioned the applicant, who stated that he did not know who had killed his son.

56. On 15 March 2010 the prosecutors suspended the investigation, stating that it had proved impossible to find the killer of the applicant’s son. The applicant was informed on 23 March 2010.

57. On unspecified dates the applicant asked the authorities to inform him about the progress of the investigation. He received the following replies.

58. On 9 December 2002 the Severodonetsk Prosecutor’s Office informed him that the police had found and examined the crime weapon and were looking for Bo.’s acquaintances. On 26 December 2003 the prosecutors informed the applicant that the police had questioned Bo. in connection with V.’s murder. On 25 February 2005 the prosecutors informed the applicant that they were looking for Bo.’s acquaintances.

THE LAW

59. The applicant complained that although the investigation had been pending for a lengthy period of time, his son’s killer had not been identified and punished. The Court considers that this complaint falls to be examined under the procedural limb of Article 2 of the Convention which reads, in so far as relevant as follows:

“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.”

A. Admissibility

60. 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

61. The applicant maintained his complaint.

62. The Government submitted that the authorities had taken all possible steps to identify V.’s killer. Although the applicant had not asked to be recognised as an injured party to the proceedings, the authorities had informed him about the progress of the investigation.

63. The Court has held on numerous occasions that an obligation to investigate “is not an obligation as to result, but as to means”: not every investigation should 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 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 persons responsible will risk falling foul of the standard (see, for example, Assenov and Others v. Bulgaria, 28 October 1998, §§ 102 et seq., Reports 1998-VIII, and Mikheyev v. Russia, no. 77617/01, §§ 107 et seq., 26 January 2006). Nevertheless, the nature and degree of scrutiny which satisfy the minimum threshold of the investigation’s effectiveness depend on the circumstances of the particular case. They must be assessed on the basis of all relevant facts and with regard to the practical realities of investigation work (see Velcea and Mazăre v. Romania, no. 64301/01, § 105, 1 December 2009).

64. The Court has examined a number of applications against Ukraine concerning the obligation to investigate under Article 2 of the Convention (see Lyubov Efimenko v. Ukraine, no. 75726/01, 25 November 2010; Antonov v. Ukraine, no. 28096/04, 3 November 2011; Merkulova v. Ukraine, no. 21454/04, 3 March 2011; Igor Shevchenko v. Ukraine, no. 22737/04, 12 January 2012; and Kachurka v. Ukraine, no. 4737/06, 15 September 2011). In those cases it found a violation of that provision mainly on account of the failure of investigating authorities to conduct a thorough and timely investigation.

65. As regards the present case, the Court observes that the investigating authorities responded promptly to the information about V.’s death and initiated the preliminary investigation without delay (compare and contrast Antonov, cited above). The initial investigative measures, such as the crime‑scene examination, collection of evidence, interviewing the eyewitnesses and the forensic expert examination point to the authorities’ willingness and ability to establish the circumstances of the incident (compare and contrast Kachurka, cited above). The police quickly found the crime weapon and made sufficient effort to establish to whom it belonged (see paragraphs 21‑23 above).

66. Moreover, shortly after the crime, the investigating authorities established that Bo. had threatened the applicant’s son and that P., a member of Bo.’s criminal gang, had been looking for V. on the eve of the murder (see paragraph 11 above). As soon as their whereabouts were established, the police had questioned P. and Bo. but found no evidence that they might have been involved in the murder. In particular, the eyewitnesses did not identify P. as the person who had shot V. (see paragraph 40 above).

67. The Court notes that the investigation was suspended on several occasions. However, the authorities supervising the investigation had ordered its resumption and had indicated the measures which the investigative bodies were to carry out in order to complete it.

68. On the whole, it cannot therefore be said that the authorities did not act with reasonable diligence in investigating the circumstances of the applicant’s son’s death, or that they failed to take any important steps to establish the facts behind that tragedy. The Court is mindful of the fact that the applicant did not suggest what other measures the authorities could have taken to investigate the matter.

69. The Court further notes that – unlike V.’s wife – the applicant never asked to be recognised as an aggrieved party in the proceedings. Notwithstanding this fact, the authorities had informed him about the progress of the investigation in response to his requests (see paragraph 58 above). The Court finds no reason to doubt that the applicant was involved in the proceedings to the extent necessary to safeguard his legitimate interests in the case.

70. In the light of all the foregoing, the Court finds that there has been no violation of the procedural limb of Article 2 of the Convention in the present case.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;

2. Holds that there has been no violation of the procedural limb of Article 2 of the Convention.

Done in English, and notified in writing on 21 May 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Milan BlaškoVincent A. De Gaetano
              Deputy RegistrarPresident

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