CASE OF ZUBKOVA v. UKRAINE

FIFTH SECTION

CASE OF ZUBKOVA v. UKRAINE

(Application no. 36660/08)

JUDGMENT

STRASBOURG

17 October 2013

FINAL

17/01/2014

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Zubkova v. Ukraine,

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

Mark Villiger, President,

Angelika Nußberger,

Boštjan M. Zupančič,

Ganna Yudkivska,

André Potocki,

Paul Lemmens,

Aleš Pejchal, judges,
and Claudia Westerdiek, Section Registrar,

Having deliberated in private on 24 September 2013,

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

PROCEDURE

1. The case originated in an application (no. 36660/08) 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, Ms Nina Antonovna Zubkova (“the applicant”), on 3 July 2008.

2. The applicant, who had been granted legal aid, was represented by Mr M. Tarakhkalo, a lawyer practising in Kharkiv. The Ukrainian Government (“the Government”) were represented by their Agent, Mr N. Kulchytskyy.

3. The applicant alleged under Article 2 of the Convention that the authorities had failed to carry out an effective investigation of the accident which had caused the death of her son.

4. On 14 December 2011 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1937 and lives in the city of Kharkiv.

6. On 18 May 2002 Mr Igor Zubkov, the applicant’s son (born in 1961), was riding a bicycle and collided with a minibus at a crossroads in Kharkiv.

7. On the same day the police examined the scene of the accident and prepared a vehicular accident inspection report, taking relevant measurements. They also questioned the driver of the minibus and his passenger.

8. On 20 May 2002 the applicant’s son died as a result of his injuries.

9. On 21 May 2002 the local police instituted criminal proceedings in respect of the violation of traffic safety rules which had resulted in the victim’s death. In the subsequent period a number of investigative measures were taken, including questioning witnesses, staging a reconstruction of events, and conducting expert examinations.

10. On 25 September 2002 a police investigator terminated the criminal proceedings for lack of corpus delicti in the actions of the minibus driver. The investigator also noted that the accident was caused by the cyclist himself.

11. On 25 October 2002 the Kharkiv City Prosecutor’s Office quashed that decision, finding that it had been taken prematurely. It noted, in particular, that in the course of the investigation the attesting witnesses, who had been present during the examination of the scene of the accident and the preparation of the vehicular accident inspection report, had to be questioned; that a statement by the victim’s relatives contesting the veracity of that report had to be annexed to the file and examined; and that an additional auto-technical expert examination (автотехнічна експертиза) had to be conducted.

12. Following the additional investigative measures, on 18 April 2003 the police investigator terminated the criminal proceedings for lack of corpus delicti in the actions of the minibus driver. The investigator concluded that the accident had taken place as a result of the negligent and careless behaviour of the cyclist.

13. On 14 May 2003 the supervising prosecutor quashed that decision, noting, inter alia, that the instructions given by the Kharkiv City Prosecutor’s Office had not been followed in full. The investigation was resumed.

14. On 15 September 2003 the police investigator terminated the criminal proceedings, finding that the additional investigation did not disclose any elements of a criminal offence on the part of the minibus driver who could not avoid colliding with the cyclist.

15. On 5 November 2003 a supervising prosecutor quashed that decision, finding that not all the investigative measures had been taken in order to carry out a full, comprehensive and objective examination of the circumstances of the case. He specified that it would be necessary to question witnesses and carry out an auto-technical expert examination of the bicycle.

16. On 26 February 2004 the police investigator, having taken the additional investigative measures, concluded that there had been no corpus delicti in the actions of the minibus driver. The investigation was therefore closed.

17. On 1 July 2004 the supervising prosecutor quashed that decision and ordered a further investigation. He noted, in particular, that it would be necessary to carry out new reconstructions of events and a more thorough auto-technical expert examination.

18. Following the additional investigative measures, on 24 January 2005 the criminal proceedings were terminated for lack of corpus delicti in the actions of the minibus driver.

19. On 14 February 2005 the supervising prosecutor quashed that decision, noting that it had been taken prematurely. He instructed the investigator to examine the arguments advanced by the victim’s relatives, who disagreed with the results of the expert examinations.

20. On 11 September 2006 the police investigator found that there had been no elements of a criminal offence on the part of the minibus driver and that therefore the criminal proceedings had to be terminated.

21. On 23 October 2006 the supervising police authorities, having regard to the arguments advanced by the victim’s relatives, quashed that decision as having been taken prematurely, and ordered a further investigation.

22. By a decision of 30 December 2007 the investigation was closed once again for lack of corpus delicti. The investigator found that the minibus driver did not violate any traffic rules and could not avoid colliding with the cyclist. On 11 March 2008 the applicant was sent a copy of that decision.

23. On 30 March 2012 the applicant challenged the decision of 30 December 2007 before the Kyivskyy District Court of Kharkiv (“the District Court”).

24. On 24 April 2012 the District Court dismissed the complaint as unfounded. The applicant appealed against that decision.

25. On 24 May 2012 the Kharkiv Regional Court of Appeal quashed the decision of 24 April 2012 and remitted the case to the District Court for a fresh examination. The court of appeal noted in particular, that the conclusions reached by the investigator had not been properly substantiated by the material in the criminal case file and that the District Court had failed to give appropriate reasons for dismissing the applicant’s complaint.

26. On 11 July 2012 the District Court quashed the decision of 30 December 2007 as unsubstantiated and ordered a further investigation. The District Court specified that during the investigation, it would be necessary to scrutinise the arguments put forward by the applicant, to assess the statements of certain witnesses properly and to carry out another auto-technical expert examination. The parties did not inform the Court whether that decision became final. Nor did they inform the Court about any further steps taken in the investigation.

II. RELEVANT DOMESTIC LAW

27. Under Article 28 of the Code of Criminal Procedure of 28 December 1960 (in force at the relevant time), a person who sustained damage as a result of a criminal offence could lodge a civil claim against an accused at any stage of criminal proceedings before the beginning of the consideration of the case on the merits by a court. A civil claimant in criminal proceedings was exempt from the court fee for the lodging of a civil claim.

28. The other relevant provisions of domestic law can be found in the judgment of Muravskaya v. Ukraine (no. 249/03, §§ 35 and 36, 13 November 2008).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

29. The applicant complained that the domestic authorities had failed to carry out an effective investigation of the accident which had caused the death of her son. She relied on 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. ... ”

A. Admissibility

30. The Government contended that in as much as the application related to the alleged failure of the investigative authorities to comply with the instructions of the supervising authorities, that part of the application was manifestly ill-founded.

31. The applicant disagreed and maintained that the application was admissible.

32. The Court considers 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

1. The submissions by the parties

33. The applicant maintained that the investigation had been ineffective, since important procedural measures had not been carried out promptly and properly. The instructions by the supervising authorities had not been followed in full and the investigation had not been comprehensive and thorough, which had resulted in wrong conclusions in the case being reached.

34. The Government argued that the law-enforcement bodies had taken all the necessary procedural measures in order to investigate the circumstances of the death of the applicant’s son effectively. They contended that there was nothing to suggest that the investigation had been protracted or ineffective. They further noted that it was not until 30 March 2012 that the applicant decided to challenge the decision of 30 December 2007 in court, despite having received a copy of it in March 2008. The Government therefore insisted that the relevant period of inactivity was imputable to the applicant and should not be taken into account when assessing the effectiveness and length of the investigation conducted by the domestic authorities.

2. The Court’s assessment

35. The Court reiterates that the first sentence of Article 2 of the Convention requires the States, in particular, to put in place a legislative and administrative framework designed to provide effective deterrence against threats to the right to life in context of any activity, whether public or not, in which the right to life may be at stake (see, among other authorities, Öneryıldız v. Turkey [GC], no. 48939/99, §§ 89-90, ECHR 2004-XII; Kalender v. Turkey, no. 4314/02, § 51, 15 December 2009; and Krivova v. Ukraine, no. 25732/05, § 44, 9 November 2010). In case of a life-threatening injury or death, the above obligation calls for an effective independent judicial system to ensure enforcement of the aforementioned legislative framework by providing appropriate redress (see, for example, Anna Todorova v. Bulgaria, no. 23302/03, § 72, 24 May 2011). This obligation also applies in the context of designing a framework for protection of life from road traffic accidents (see, for example, Al Fayed v. France (dec.), no. 38501/02, §§ 73-78, 27 September 2007; Rajkowska v. Poland (dec.), no. 37393/02, 27 November 2007; Railean v. Moldova, no. 23401/04, § 30, 5 January 2010).

36. 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 (see, for example, Perez v. France [GC], no. 47287/99, § 70, ECHR 2004-I). 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).

37. In principle, the States should have the discretion to decide how a system for the enforcement of a regulatory framework protecting the right to life must be designed and implemented. What is important, however, is that whatever form the investigation takes, the available legal remedies, taken together, must amount to legal means capable of establishing the facts, holding accountable those at fault and providing appropriate redress. Any deficiency in the investigation, undermining its ability to establish the cause of the death or those responsible for it, may lead to the finding that the Convention requirements have not been met (see Antonov v. Ukraine, no. 28096/04, § 46, 3 November 2011).

38. Turning to the present case, the Court notes that the Government did not contend that the applicant could effectively pursue the matter outside the framework of the criminal investigation (compare Sergiyenko v. Ukraine, no. 47690/07, §§ 40 and 42, 19 April 2012). Moreover, given that the Code of Criminal Procedure afforded a joint examination of criminal responsibility and civil liability arising from the same culpable actions, the Court considers that in the circumstances of the present case the applicant reasonably relied on the procedures provided for by that Code. The Court will therefore confine itself to examining whether the criminal investigation into the death of the applicant’s son satisfied the criteria of effectiveness required by Article 2 of the Convention (see Antonov, cited above, §§ 47-49; Igor Shevchenko v. Ukraine, no. 22737/04, §§ 56-62, 12 January 2012 and Prynda v. Ukraine, no. 10904/05, § 54, 31 July 2012).

39. In this regard, the Court notes that following the traffic accident the authorities took a significant number of procedural measures aimed at discharging their positive obligation under Article 2 of the Convention. The fact that the authorities did not establish any criminal liability on the part of the minibus driver does not render the investigation ineffective.

40. At the same time, the Court notes that between 2002 and 2006 the investigative authorities adopted numerous decisions discontinuing the investigation. Those decisions were, however, quashed by the supervising authorities, who considered that the investigation had been incomplete and that further steps were required. The repetition of such remittal orders discloses a serious deficiency in criminal investigation (see Oleynikova v. Ukraine, no. 38765/05, § 81, 15 December 2011). It is relevant to note that in ordering additional investigations, the supervising authorities specified, inter alia, that additional measures were necessary in order to carry out a comprehensive investigation of the case, namely questioning of the witnesses, expert examinations, a reconstruction of events, and an examination of the arguments advanced by the victim’s relatives. The facts of the case therefore suggest that the investigative authorities did not take all the necessary steps in order to carry out a thorough investigation which would be compatible with the Convention requirements.

41. Even though there was a long period of inactivity on the part of the applicant, as suggested by the Government, the overall length of the criminal proceedings, while they were pending before the domestic authorities, does not appear to be justified. The Court notes in particular that, while the accident took place on 18 May 2002, the last decision to close the investigation – which was later challenged by the applicant – was taken only on 30 December 2007 and notified on 11 March 2008, that is almost six years after the accident. In this regard, the Court reiterates that the effectiveness of an investigation implies a requirement of promptness and reasonable expedition. Even where there may be obstacles or difficulties which prevent progress in an investigation in a particular situation, a prompt response by the authorities is vital in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts (see Šilih v. Slovenia [GC], no. 71463/01, § 195, 9 April 2009). Moreover, with the lapse of time the prospects that any effective investigation can be undertaken will increasingly diminish.

42. The foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of the procedural limb of Article 2 of the Convention.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

43. 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

44. The applicant claimed 35,000 euros (EUR) in respect of non-pecuniary damage.

45. The Government submitted that this claim was excessive and unsubstantiated.

46. The Court considers that the applicant must have suffered anguish and distress on account of the facts giving rise to the finding of a violation in the present case, that cannot be made good by a finding of a violation alone. Ruling on an equitable basis, the Court awards the applicant EUR 9,000 in respect of non-pecuniary damage.

B. Costs and expenses

47. The applicant, who had been granted legal aid, claimed EUR 2,553.60 for the costs and expenses incurred before the Court. She asked that any award in respect of this claim be paid directly into the bank account of her representative.

48. The Government submitted that this claim was excessive.

49. 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, in addition to the legal aid granted, the sum of EUR 500 for costs and expenses for the proceedings before the Court. The latter amount is to be paid directly into the bank account of the applicant’s representative (see, for example, Hristovi v. Bulgaria, no. 42697/05, § 109, 11 October 2011, and Singartiyski and Others v. Bulgaria, no. 48284/07, § 54, 18 October 2011).

C. Default interest

50. 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 the procedural limb of Article 2 of the Convention;

3. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 9,000 (nine thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 500 (five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be paid into the bank account of the applicant’s representative;

(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 applicant’s claim for just satisfaction.

Done in English, and notified in writing on 17 October 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Claudia WesterdiekMark Villiger
RegistrarPresident

 

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