FIFTH SECTION
DECISION
Application no. 68433/12
Galyna Stepanivna DIDYK
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 19 January 2016 as a Committee composed of:
André Potocki, President,
Ganna Yudkivska,
Síofra O’Leary, judges,
and Milan Blaško, Deputy Section Registrar,
Having regard to the above application lodged on 10 October 2012,
Having deliberated, decides as follows:
THE FACTS
The applicant, Ms Galyna Stepanivna Didyk, is a Ukrainian national, who was born in 1956 and lives in Lviv. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr B. Babin, of the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 12 April 2007, at around 12.30 p.m., the applicant talked to her son, D., on the telephone for the last time. He told her that he was in the town of Stryy with his friend, K.
During the morning of 13 April 2007 K. visited the applicant and told her that he and D. had spent the evening of 12 April 2007 drinking alcohol in the “Cocktail” bar in Stryy. At around midnight they had left the bar and walked down the street trying to hail a taxi. After about twenty minutes D. had retired behind a bush in order to relieve himself. At that moment police officers G., B., and P. who were passing in their car had apprehended K., and handed him over to police officers Iv. and Kal. who had taken him to Stryy police station, where he spent the rest of the night. In the morning of 13 April 2007 K. had been released and travelled back to Lviv. K. did not know what had happened to D. in the meantime.
Still in the morning on 13 April 2007 a certain Pod. found a corpse in the local river, around one kilometre away from the “Cocktail” bar. On the same day Stryy prosecutors and forensic experts examined the body and the place where it had been found; they then sent the body to the Stryy morgue for forensic examination, which revealed that the unknown man had drowned at around 1 or 2 a.m. on 13 April 2007. He had bruises and fractures of the ribs and collarbone, which had been inflicted no later than one hour before he had drowned.
Still on 13 April 2007 Stryy Prosecutor Office instituted pre-investigation inquiry into the death of the unknown man.
On 14 April 2007 the applicant, her daughter S., and K. – who still did not have any news about D.’s fate – went to Stryy to look for him. They showed his photograph to staff at the “Cocktail” bar and at Stryy police station. The policemen at the station said that they had never seen D., and the police records did not contain any record of D. having been detained by the Stryy police.
On 16 April 2007 the applicant visited Stryy morgue and found D.’s body; she was told that it had been discovered by Pod. on 13 April 2007.
On 19 April 2007 the Stryy Prosecutor’s Office questioned Par. and Sam., employees at the “Cocktail” bar. They said that during the evening of 12 April 2007 D. and K. had spent several hours in the bar drinking alcohol. At around midnight they had asked Sam. to call them a taxi and had left the bar. Later the taxi company had called Sam. and had told her that the taxi driver had arrived to the bar but had not found D. and K. there. Sam. and Par. stated that D. and K. had not talked to anyone while they had been in the bar; there had been no fights or quarrels in the bar during the night of 12/13 April 2007.
A forensic examination of D.’s corpse conducted on 20 April 2007 revealed a blood alcohol level of 4.35 ‰ and a urine alcohol level of 2.18 ‰.
On 23 April 2007 the Stryy Prosecutor’s Office refused to launch a criminal investigation into D.’s death, stating that he had been drunk and had drowned because he had fallen into the river. On the same day the applicant’s daughter S. was informed of that decision.
On the same day the Stryy District Prosecutor quashed that decision and ordered a further inquiry.
On 4 May 2007 the Stryy Prosecutor’s Office questioned the applicant, who said that she had talked to D. on 12 April 2007 and to K. on 13 April 2007. K. had told her that he and D. had been drinking in the “Cocktail” bar and that K. had subsequently been apprehended by the police, while D. had disappeared.
On 7 May 2007 the Stryy Prosecutor’s Office questioned K., who stated that at around midnight on 12 April 2007 he and D. had left the bar and had walked down the road trying to hail a taxi. He added that after D. had parted from him to go to the toilet, K. had been apprehended by police officers B., G., and P., who worked at Stryy police station. They had handed him over to police officers Iv. and Kal., who worked at the same police station. Iv. and Kal. had put K. in their car and had taken him to a hospital in order to assess whether or not he was drunk; from there they had taken him to Stryy police station. At the station K. had spent several hours in the office of police officer Ik. At around 7 a.m. on 13 April 2007 Ik. had released K. At that point, K. had not known D.’s whereabouts, but he assumed that he had returned to Lviv or had also been detained by the police.
The Stryy Prosecutor’s Office established that T., Py., Ma., Ch., Zh., and Rat. had been socialising at the “Cocktail” bar on the evening of 12 April 2007. Zh. and Rat. had left the bar at around 10 p.m. or 11 p.m., while the rest of them had left at around midnight. None of the said persons worked for the police or any other law-enforcement organ.
On 4 July 2007 the Stryy Prosecutor’s Office questioned T., who stated that he had been in the bar with his friends on the night in question and had not seen any quarrels or fights there. T. was shown a photo of D. but said that he had never seen him before.
On 6 July 2007 Ma. was questioned and gave a statement similar to that of T. He said that he had arrived at the bar in his car.
On the same day the Stryy Prosecutor’s Office questioned police officer Kal., who stated that during the night of 12 to 13 April 2007 he and his colleague Iv. had been patrolling the streets of Stryy in a car. At around 1 a.m. B., G., and P. had handed K. over to them; they had apprehended him, on the street because he had been drunk and disorderly. Kal. and Iv. had taken K. to hospital and after that to the office of Ik. at Stryy police station.
On 9 July 2007 the Stryy Prosecutor’s Office questioned K., who confirmed his previous statement.
On 10 July 2007 the Stryy Prosecutor’s Office questioned police officer B., who said that K. had been alone when B., G. and P. had apprehended him. K.’s clothes had been clean (thus, it was unlikely that K. could have thrown D. into the river or fallen into the river with him). B. stated that during the night of 12 to 13 April 2007 he had seen a group of men, including Y., quarrelling near the bar.
Also on 10 July 2007 K. was questioned and said that when he and D. had been leaving the bar, they had seen a group of men quarrelling, but had not approached them.
On 13 July 2007 the Stryy Prosecutor’s Office questioned K., who confirmed his previous statement.
On 14 July 2007 the Stryy Prosecutor’s Office questioned Iv., who confirmed the statement of B.
On the same day the Stryy Prosecutor’s Office questioned police officer Vad., who had been patrolling the streets of Stryy during the night of 12 to 13 April 2007. He said that during that night he had seen several men, including Mart., quarrelling near the bar. He was shown D.’s photograph but stated that he had never seen him.
On 15 July 2007 B. confirmed his previous statement.
On 17 July 2007 the Stryy Prosecutor’s Office questioned Y. He said that during the night of 12 to 13 April 2007 he had been sitting and drinking alcohol near the bar with his friend Mart., who was a police officer and had been wearing his uniform at the time. At around 11 p.m. Y. had quarrelled with a certain Bog. while Mart. stood nearby. During the quarrel Y. had seen two police cars pull up nearby. Mart. had talked to the policemen in the cars; the policemen had then left. After that Dj. and one of Bog.’s friends had walked away with Bog. Y. and Mart. had also left. When shown D.’s photograph, Y. said that he had never seen him before.
On the same date the Stryy Prosecutor’s Office questioned Mart., who confirmed Y.’s statement and also stated when shown D.’s photograph that he did not recognise him.
On 3 August 2007 the Stryy Prosecutor’s Office questioned police officer G. He stated that around midnight during the night of 12 to 13 April 2007 he, B., and P. had apprehended a young man who was very drunk and had handed him over to Kal. and Iv. Later, at around 1 a.m., he had seen a group of men quarrelling near the “Cocktail” bar. When shown D.’s photograph, G. said that he did not recognise him.
Police officer P. was questioned on the same day and gave a statement similar to that of G.
On 15 August 2007 Bog. was questioned. He confirmed that Y. had quarrelled with him in the presence of Mart. during the night of 12 to 13 April 2007. When shown D.’s photograph, Bog. said that he did not recognise him.
On 4 September 2007 the applicant asked the Stryy Prosecutor’s Office to institute criminal investigation into the death of her son.
On 17 September 2007 the Stryy Prosecutor’s Office ordered an additional examination of D.’s body, which was completed on 25 October 2007 and established that D.’s injuries had been inflicted by blunt objects when he had still been alive.
On 29 September 2007 the applicant wrote a letter to the Lviv Regional Prosecutor’s Office saying that she had been informed that G., P., and Mart. had beaten her son and had thrown him into the river. She did not indicate the source of this information.
On 7 December 2007 the Stryy District Prosecutor instituted criminal proceedings into infliction of bodily injuries on D. and sent the case to Stryy police station for investigation. On 11 December 2007 the applicant was informed of this decision.
On 17 December 2007 investigator A. from Stryy police station took over the investigation.
On 25 December 2007 investigator A. suspended the investigation, stating that it was impossible to identify the perpetrator of the injuries to the applicant’s son.
On 3 January 2008 the Stryy District Prosecutor quashed that decision and ordered the resumption of the investigation.
On 15 January 2008 the applicant was recognised as a victim in the proceedings.
On 22 January 2008 A. questioned the applicant, who confirmed her previous statement. She also noted that local Stryy residents had told her that D. had fought with police officers B., P., and G. near the bar.
On 31 January 2008 the applicant asked the Lviv Regional Prosecutor’s Office to investigate the case because, according to her, the police officers working at Stryy police station had been involved in D.’s death.
On 5 February 2008 the applicant complained to the Lviv Regional Prosecutor’s Office that, according to the information that she had received, during the time that D. had been in the bar, a group of police officers had been socialising there. They had beaten D. and had thrown him into the river. The Lviv Regional Prosecutor’s Office questioned B., P., G., Kal., and Iv., who confirmed their previous statements. On 11 February 2008 A. questioned Par., who stated that she had not seen anyone wearing a police uniform in the bar during the night that D. and K. had been there. Moreover, she had not seen anyone fighting in the bar.
On 13, 14, 15 and 16 February 2008 A. questioned people whose homes were located near the bar. None of them said that they had seen a fight near the bar during the night of 12 to 13 April 2007.
A certain Kor. said that at around 1 a.m. on 13 April 2007 he had seen two drunk young men who had left the bar and had been trying to flag down cars.
On 18 and 19 February 2008 A. questioned B., G., and P., who confirmed their previous statements.
On 11 February 2008 A. questioned Py., who confirmed the statement of T.
On 26 and 27 February 2008 more people whose homes were located near the bar were questioned.
On 6 March 2008 A. questioned Ik., who said that during the night of 12 to 13 April 2007 he had been in his office at Stryy police station. At around 1 or 2 a.m. Kal. and Iv. had brought a very drunk K. to Ik.’s office. Ik. had fined K. for being drunk on the street. In the morning he had released K.
On 11 March 2008 an additional forensic examination of D.’s body was ordered. It lasted until 9 April 2008 and confirmed the findings of the previous examinations.
Still on 11 March 2008 Kal. was questioned again and confirmed his previous statement.
On 12 March 2008 Mart. was questioned. When shown D.’s photograph, Mart. said that he did not recognise him
On 17 March 2008 Vad. was questioned; he said that he had not seen D.
On 20 March 2008 the Lviv Regional Prosecutor’s Office – noting that, according to the applicant’s submissions, the Stryy police could have been involved in D.’s death – ordered the Stryy Prosecutor’s Office to take over the investigation. It also ordered the Stryy Prosecutor’s Office to investigate whether Mart., B., P., G., Kal., and Iv. could have been involved in D.’s death.
On 4 April 2008 the Stryy Prosecutor’s Office asked the Stryy Court for permission to obtain information regarding phone calls which D. had received on 12-13 April 2007.
On 8 April 2008 the Stryy Prosecutor’s Office held a confrontation between K. and Ik., who confirmed their previous statements.
On 18 April 2008 the Lviv Regional Prosecutor’s Office ordered the Drogobych Prosecutor’s Office to take over the investigation.
On 16 May 2008 the Drogobych Prosecutor’s Office questioned the applicant, who confirmed her previous statements.
On 28 May 2008 the Drogobych Prosecutor’s Office questioned Ik., who confirmed his previous statements.
In May 2008 the Drogobych Prosecutor’s Office questioned the medical experts who had examined D.’s body.
On 5 June 2008 the Drogobych Prosecutor’s Office held a confrontation between the applicant and one of the forensic experts who had examined D.’s body on 13 April 2007.
On 11 June 2008 a forensic expert and the applicant examined the place where D. had been found.
On 10 July 2008 the Drogobych Prosecutor’s Office held a confrontation between K. and the applicant. K. said that in April 2007 he had told the applicant that D. might have been detained by the police, but that this had been only his assumption and that it had been unsupported by any evidence. The applicant stated that S. had told her that K. had said that during the night of 12 to 13 April 2007 he had seen a group of police officers socialising in the bar.
On 21 July 2008 the mobile telephone operator company of whom D. had been a customer provided the Stryy Prosecutor’s Office with a log of D.’s phone calls on the night of 12 to 13 April 2007.
On 29 July 2008 a reconstruction of events was conducted by the Drogobych Prosecutor’s Office.
On 5 August 2008 the Drogobych Prosecutor’s Office questioned police officer B. who said that he had not been socialising at the bar while D. had been there.
On 9 August 2008 the Lviv Regional Prosecutor’s Office questioned the applicant. She said that K. had told her that several policemen had been socialising in the bar during the night on which her son had died. She believed that D. had fought with one of those policemen. She also believed that he had already been dead when he had been thrown into the river.
On 8 September 2008 a confrontation was held between the applicant and Par. The latter maintained that there had been no fights in the bar during the night in question. The applicant said that K. had told her that “serious” people had been socialising in the bar while D. and K. had been there, and she concluded that those “serious” people had in fact been policemen.
On 11 September 2008 the Drogobych Prosecutor’s Office questioned Py. and Ma. They said that they had not seen any police officers in the bar during the night of 12 to 13 April 2007.
On 25 September 2008 a confrontation was held between the applicant B. and Mart., who confirmed their previous statements.
In October 2008 a confrontation was held between the applicant and Vad., Rat., T., Kal., G., P., Ma., Py, Ch., and Zh.
On 9 October 2008 the forensic experts who had examined the body on 13 April 2007 and in Stryy morgue were questioned by the Drogobych Prosecutor’s Office; the experts noted that there were no signs of the body having been dragged along the ground.
On 8 December 2008 a confrontation was held between S. and K. K. said that in April 2007 he had told S. that during the night of 12 to 13 April 2007 he had seen several men socialising in the “Cocktail” bar and had concluded that they had been police officers. He could not explain why he had drawn that conclusion. K. said that he and D. had not talked to anyone after they had left the bar.
On 29 December 2008 Iv. was questioned and confirmed his previous statement.
On 29 January 2009 a confrontation was held between the applicant and Bog., who confirmed his previous statement. On 9 February 2009 a confrontation was held between the applicant and Dj., who confirmed the statement of Bog.
On 3 March 2009 a confrontation was held between the applicant and Y., who confirmed his previous statement.
On 27 June 2009 the Drogobych Prosecutor’s Office refused to institute criminal proceedings in respect of the alleged involvement of Stryy policemen in D.’s death and concluded that the applicant’s allegations in this respect were unsubstantiated. On the same day the Drogobych Prosecutor’s Office terminated its investigation into D.’s bodily injuries.
On 17 February 2010 Drogobych Town Court upheld the decision of the Drogobych Prosecutor’s Office not to institute criminal proceedings against the policemen. On the same date the court ordered the Drogobych Prosecutor’s Office to resume its investigation into D.’s injuries.
On 18 May 2010 Ik. was questioned again and confirmed his previous statements.
On 2 September 2010 the Drogobych Prosecutor’s Office noted that the applicant had repeatedly alleged that her son had been killed by Stryy policemen, but that those allegations were unsubstantiated
From October to December 2010 the Lviv Regional Prosecutor’s Office studied the case file and after that returned it to the Drogobych Prosecutor’s Office, which resumed its investigation into D.’s injuries.
On 23 November 2010 K. and Ma. were questioned and confirmed their previous statements.
In January 2011 Dj. was questioned and confirmed his previous statements.
On 21 March 2012 Ma. was questioned and confirmed his previous statements.
On 27 April 2012 Py. was questioned and confirmed his previous statements.
On 10 November 2012 a confrontation was held between K. and G. On the same date a confrontation was held between K. and P.
The applicant submitted before the Drogobych Prosecutor’s Office that during the night of 12 to 13 April 2007 an unnamed police officer had beaten her son, put him in a car belonging to Ma., transported him to the river and thrown him into the water.
On 25 May 2013 Ma. was questioned again. He said that he had owned a car at the time in question, but that in October 2007 he had sold it to unknown people. The Drogobych Prosecutor’s Office began a search for the car and the people who had bought it.
On 14 December 2013 P. was questioned again and confirmed his previous statements.
On 23 February 2014 a confrontation was held between the applicant and Y. On the same day a confrontation was held between Ma. and Y., who confirmed their previous statements.
On 20 March 2014 a confrontation was held between the applicant and G., B., and Mart., who confirmed their previous statements. On the same day a confrontation was held between B., P., and K.
As of December 2014 the investigation remained pending.
COMPLAINT
The applicant complained, invoking Article 13 of the Convention, that the investigation into the death of her son was lengthy and ineffective, and that the police officers involved in his death had not been punished.
THE LAW
The applicant complained under Article 13 of the Convention about length and ineffectiveness of the investigation. She also complained that the police officers involved in D.’s death had not been punished. The Court which is master of characterisation to be given in law to the facts of the case considers that the present complaint falls to be examined under 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.”
The applicant maintained her complaints and stated that her rights under Articles 2, 3 and 13 of the Convention had been violated.
The Government stated that the investigation into the death of the applicant’s son complied with the requirements of the Convention.
The Court reiterates that the lack of conclusions of any given investigation does not, by itself, mean that it was ineffective: an obligation to investigate “is not an obligation of result, but of means”. Not every investigation should necessarily be successful or come to a conclusion which coincides 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, Mikheyev v. Russia, no. 77617/01, § 107, 26 January 2006 with further reference). 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 this standard (see, among many authorities, Mustafa Tunç and Fecire Tunç v. Turkey [GC], no. 24014/05, § 174, 14 April 2015). There must be a sufficient element of public scrutiny, although it may vary from case to case, and the relatives of the victim must be involved in the proceedings to the extent necessary to safeguard their legitimate interests. For an investigation into a death to be effective, it may generally be regarded as necessary for the persons responsible for carrying out the investigation to be independent of those implicated in the events. This means not only a lack of hierarchical or institutional connection but also practical independence (see Fedorchenko and Lozenko v. Ukraine, no. 387/03, § 43, 20 September 2012). The adequacy of the degree of independence is assessed in the light of all the circumstances, which are necessarily specific to each case (see Mustafa Tunç and Fecire Tunç v. Turkey [GC], cited above, § 223).
The Court notes that the Stryy Prosecutor’s Office responded promptly to the information about D.’s death and initiated a pre-investigation inquiry into it on the day when his body was discovered. The initial investigative measures, such as the crime-scene and corpse examinations carried out by experts, point to the investigative authorities’ willingness and ability to establish the circumstances of the incident. Shortly after D.’s body had been discovered the Stryy Prosecutor’s Office identified and questioned persons who had seen D. on the night during which he had died.
The applicant stated before both the national authorities and the Court that police officers working at Stryy police station had been involved in her son’s death and the car belonging to Ma. had been used to transport his body to the river. The Court reiterates that the applicable standard of proof under Article 2 is that of “beyond reasonable doubt” (see, for example, Karsakova v. Russia, no. 1157/10, § 49, 27 November 2014). In the instant case the documents before the Court contain no evidence in support of the above hypothesis put forward by the applicant. Nevertheless, it is notable that the policemen B., G., P. and Mart. – whom the applicant suspected of having beaten D. – were never involved in the investigation in their professional capacity. Most of the time the investigation was conducted by the Stryy and Drogobych Prosecutor’s Offices. It is true that investigator A., who conducted the investigation between 7 December 2007 and 20 March 2008, worked at Stryy police station where B., G., P. and Mart. also worked. It remains unknown whether A. had any hierarchical links with them, but the mere fact that they all were colleagues does not constitute a sufficient reason for the Court to conclude that A. had been biased. No evidence of his lack of impartiality can be found in the case file. It is also noteworthy that the prosecutors examined the applicant’s allegations concerning the involvement of the Stryy police in her son’s death and found them to be unsubstantiated.
The Court observes that for about eight months, until December 2007, D.’s death was investigated exclusively in the framework of pre-investigation inquiry. The Court reiterates that in a number of cases it found that this investigative procedure did not comply with the principles of an effective remedy because the enquiring officer can take only a limited number of procedural steps within that procedure at a point where victims have no formal status, thus excluding their effective participation in the procedure (see Skorokhodov v. Ukraine, no. 56697/09, § 34, 14 November 2013). However, in the present case there is no indication that the absence of formal criminal investigation before December 2007 prevented the authorities from taking any investigative measures which would be reasonable in the circumstances.
The Court further observes that the applicant was recognised as a victim in the proceedings only in January 2008 – that is to say, nine months after D.’s death. However, it does not follow from her submissions that before then she wished but was prevented from participating in the proceedings to the extent necessary to safeguard her legitimate interests.
On the whole, it cannot be suggested that the authorities did not act with reasonable diligence in investigating the circumstances of the death of the applicant’s son, or that they failed to take any important steps to establish the facts of that case. In the light of the foregoing, the Court finds that the application is manifestly ill-founded and must be rejected, in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 11 February 2016.
Milan BlaškoAndré Potocki
Deputy RegistrarPresident
Full & Egal Universal Law Academy