Communicated on 1 December 2014
FIFTH SECTION
Application no. 65898/11
Larysa Volodymyrivna DENYSOVA against Ukraine
and five other applications
STATEMENT OF FACTS
1. Application no. 65898/11
Larysa Volodymyrivna DENYSOVA
Lodged on 13/10/2011
THE FACTS
The applicant and her deceased brother owned a flat in Kyiv. The applicant’s brother lived there with his life companion. The applicant lived at a different address. The applicant’s brother suffered from epilepsy.
On 25 April 2008 the life companion found the applicant’s brother unconscious in the flat. She called an ambulance. Upon arrival, the doctors found that the man was dead. They also noted that the applicant’s brother was drunk and considered that he died from ischemic heart disease.
On 2 May 2008 the Pecherskyy District Police Department of Kyiv (“the Police Department”) refused to open criminal proceedings into the death of the applicant’s brother. The applicant appealed against that decision arguing that her brother had been killed.
On 13 October 2009 the Pecherskyy District Court of Kyiv (“the District Court”) dismissed the applicant’s complaint against the decision of 2 May 2008.
On 4 November 2009 the Kyiv Court of Appeal upheld the decision of the first-instance court.
On 31 August 2010 the Supreme Court quashed the decisions of the lower courts noting that there had been no medical evidence regarding the applicant’s ischemic illness before the day of his death, the link between the swelling on his brain documented in the post-mortem examination had not been explained and the other evidence indicating possible murder had not been had not been assembled properly.
On an unspecified date the pre-investigation enquiries were reopened.
On 25 February 2011 the Police Department refused to open criminal proceedings into the alleged murder. According to the decision, the medical evidence suggested that the applicant’s brother was drunk at the time of his death and there had been no evidence that he might have been killed.
The applicant appealed against that decision.
On 4 August 2011 the District Court quashed the decision of 25 February 2011 as unsubstantiated and ordered further pre-investigation enquiries.
On 6 January 2012 the Police Department refused to open criminal proceedings concerning the alleged murder of the applicant’s brother.
On 23 January 2012 the deputy district prosecutor quashed that decision as unsubstantiated.
COMPLAINTS
The applicant complains under Articles 2, 3 and 13 of the Convention that the investigation of her brother’s death has not been effective.
QUESTION TO THE PARTIES
Having regard to the procedural protection of the right to life, were the domestic proceedings in the present case in breach of Article 2 of the Convention?
\* MERGEFORMAT 2. Application no. 8347/12
Mykhaylo Mykolayovych SHEPELENKO
and Galyna Yaroslavivna SHEPELENKO
Lodged on 24/01/2012
THE FACTS
On 18 June 1997 A., the applicants’ son (born in 1982), died in a traffic accident. Allegedly, on that day D. forced A. to sit in the car and travel with him. A. was a minor and could not resist. When driving the car, D. exceeded speed limits and the car turned over. The applicants’ son died from the injuries sustained.
On 20 June 1997 the police instituted criminal proceedings into the death of the applicants’ son. D. was charged with violation of traffic safety rules causing the death of the victim.
On 24 June 1998 one of the applicants lodged a civil claim seeking damages for the death of the son. On an unspecified date the other applicant also lodged a civil claim for damages. The claims were joined to the criminal case file.
In July 1998 the case was referred to the Ivanivka District Court for consideration on the merits (“the District Court”).
On 20 January 1999 the District Court put D. on the list of wanted persons noting that he had failed to appear for the court hearings. The court ordered his placement in custody.
On 23 March 2010 D. was arrested.
On 14 May 2010 the District Court released D. from criminal responsibility under the Amnesty Act 1998. The civil claims were left without consideration on the merits.
The applicants appealed.
On 26 August 2010 the Odesa Court of Appeal upheld the District Court’s decision to release D. from criminal responsibility. As regards the civil claims, it noted that they had to be considered by the District Court in accordance with the civil procedure.
On 22 September 2011 the Higher Specialised Court for Civil and Criminal Matters found that the decisions of the lower courts were lawful and substantiated.
In March 2012 the civil claims of the applicants were pending before the District Court.
COMPLAINTS
1. The applicants complain under Articles 2 and 6 § 1 of the Convention that the investigation and further court proceedings concerning the circumstances of their son’s death have not been effective; the courts failed to establish the facts properly and apply domestic law correctly.
2. The applicants complain under Article 5 § 1 of the Convention that their son was forcefully placed in the car by D. and there was no effective investigation of this allegation.
3. The applicants complain under Article 6 § 1 of the Convention that their civil claims have not been examined by the domestic authorities for a considerable period of time.
QUESTIONS TO THE PARTIES
1. Having regard to the Court’s jurisdiction ratione temporis and the principles of procedural protection of the right to life, were the domestic proceedings in the present case in breach of Article 2 of the Convention?
2. Did D. contact domestic authorities in the period when he was on the list of wanted persons? The Government are invited to provide relevant information and supporting documents.
3. Is Article 5 § 1 of the Convention applicable in the present case? Was the State under a positive obligation to ensure the effective examination of the applicants’ allegations under Article 5 § 1? Has it complied with that obligation?
4. Did the domestic authorities deal with the applicants’ civil claims in compliance with Article 6 § 1 of the Convention as regards the requirements of access to court and reasonable length of proceedings?
5. Did the applicants have access to an effective compensatory remedy in accordance with Article 13 of the Convention?
3. Application no. 22207/12
Valentina Vasilyevna DRAZMAN and others
Lodged on 3/04/2012
THE FACTS
The first applicant (Valentina Drazman) is D.’s mother. The third applicant (Irina Drazman) is D.’s daughter. The second applicant (Nikolay Logachev) is L.’s father.
On 3 May 2001 G. drove a car and struck L. (a minor girl) who was walking in the street. L. died from the injuries sustained. Two passengers in the car, including D., died as well. The other two passengers were injured but remained alive.
On 4 May 2001 the police instituted criminal proceedings against G. for having violated traffic safety rules causing deaths of victims.
On an unspecified date the first and the second applicants lodged civil claims which were joined to the criminal case file.
On 10 April 2002 the criminal proceedings were terminated for lack of corpus delicti in the actions of G.
On 15 April 2002 that decision was quashed as unsubstantiated and further investigation was ordered.
In letter of 5 June 2002 the police authorities informed the applicants that the police officers who had caused delays in the criminal proceedings had been disciplined.
In November 2002 the case was referred to the Kupyansk District Court of Kharkiv Region (“the District Court”) for consideration on the merits. During the trial the District Court ordered technical expert examination to remove the inconsistencies in the evidential basis.
On 20 August 2010 the District Court found that the charges against G. were unsubstantiated and acquitted him. The civil claims of the first and the second applicants were dismissed without consideration.
On 3 February 2011 the Kharkiv Regional Court of Appeal quashed the decision of 20 August 2010 and remitted the case for a new trial.
On 20 May 2011 the third applicant was admitted to the proceedings as a civil claimant.
On 17 June 2011 the District Court terminated the criminal proceedings against G. as time-barred.
On 8 September 2011 the Kharkiv Regional Court of Appeal quashed the decision of 17 June 2011 and remitted the case for a new trial.
On 21 December 2011 the District Court found that G. violated traffic safety rules; however, he had to be released from punishment due to the expiry of time-limit for criminal responsibility. The District Court further partly allowed the civil claims of the first and the second applicants.
On 15 March 2012 the Kharkiv Regional Court of Appeal quashed that decision and terminated the criminal proceedings as time-barred. It noted that the applicants were entitled to pursue their civil claims in the course of a separate set of civil proceedings.
On 19 June 2012 the Higher Specialised Court for Civil and Criminal Matters upheld the decision of 15 March 2012.
COMPLAINTS
1. The applicants complain under Articles 2 and 6 § 1 of the Convention that the investigation and further court proceedings concerning the circumstances of their relatives’ deaths have not been effective; the courts failed to establish the facts properly and apply domestic law correctly.
2. The applicants complain under Article 6 § 1 of the Convention that their civil claims have not been examined by the domestic authorities for a considerable period of time.
QUESTIONS TO THE PARTIES
1. Having regard to the procedural protection of the right to life, were the domestic proceedings in the present case in breach of Article 2 of the Convention?
2. Did the domestic authorities deal with the applicants’ civil claims in compliance with Article 6 § 1 of the Convention as regards the requirements of access to court and reasonable length of proceedings?
3. Did the applicants have access to an effective compensatory remedy in accordance with Article 13 of the Convention?
4. Application no. 65055/12
Lyudmyla Vasylivna STABROVSKA
Lodged on 2/10/2012
THE FACTS
The applicant and her son (born in 1982) lived in Kyiv.
On 22 July 2006 the applicant’s son left home and never returned.
On that day a young man was found injured and unconscious lying in a street of Kyiv. Allegedly, the injuries were caused by his fall from the building. The man was taken to a hospital where on 29 July 2006 he died. According to the post-mortem examination, the man died from a serious craniocerebral injury.
On 31 July 2006 the applicant complained to the police about the disappearance of her son.
On 18 September 2006 the unclaimed body of the man found in the street was buried at a municipal cemetery.
In March 2007 the applicant was invited by the police to see the picture of the man found in the street. The applicant found that that man very much resembled her son.
Following the exhumation of the buried body of the man found in the street, the forensic medical experts conducted two DNA examinations. On 14 July 2008 they concluded with 98.73% certainty that it was the body of the applicant’s son.
On more than ten occasions between 2006 and 2012 the police and the prosecutor’s office, following the pre-investigation enquiries, refused to open criminal proceedings in connection with the disappearance and death of the applicant’s son. Those decisions were quashed as unsubstantiated by the supervising prosecutors and the courts and further pre-investigation enquiries were ordered. According to the last decision of 9 August 2012, the Podilskyy District Prosecutor’s Office of Kyiv refused to open criminal proceedings in connection with the death of the applicant’s son. According to the decision, the man found in the street was further identified as the applicant’s son; he could have sustained fatal injuries from his fall; there had been no evidence of violent actions against him and no elements of crime could be established on account of that incident.
COMPLAINT
The applicant complains under Articles 2 of the Convention that there has been no effective investigation of the circumstances of her son’s disappearance and death.
QUESTION TO THE PARTIES
Having regard to the procedural protection of the right to life, were the domestic proceedings in the present case in breach of Article 2 of the Convention?
5. Application no. 75485/12
Svetlana Andreyevna BUDAYEVA
Lodged on 27/07/2012
THE FACTS
On 28 May 1993 the applicant’s son (born in 1977), driving a motorcycle with two passengers, collided with a police car in a street in Odesa. Next day he died in the hospital from the injuries sustained.
On 4 June 1993 the Kyivskyy District Prosecutor’s Office of Odesa instituted criminal proceedings into the death of the applicant’s son.
On 25 December 1993 G., the police officer, who was driving the police car, was subjected to a written obligation not to abscond.
On 3 January 1994 the Kyivskyy District Prosecutor’s Office of Odesa lifted the above preventive measure in respect of G.
On 2 May 1995 the Prymorskyy District Prosecutor’s Office of Odesa instituted criminal proceedings against G. for negligent killing of another police officer on that day.
On 19 August 1996 pre-trial detention was ordered in respect of G.
On 21 November 1996 G. was put on the list of wanted persons.
On 24 October 2005 the head of the criminal investigation unit of Odesa Regional Police Department informed the applicant that G. was still being searched by the police. Following the internal police inquiry it had been established that the search measures had not been appropriate and the police officers in charge had been disciplined.
On 11 November 2008 the deputy head of the criminal investigation unit of Odesa City Police Department informed the applicant that following the internal police inquiry it had been established that the search measures had not been appropriate and the police officers in charge of those measures had been disciplined.
On 24 September 2009 G. was arrested.
On 14 April 2010 the Kyivskyy District Court of Odesa found, in respect of the incident with the applicant’s son, that G. had violated traffic safety rules, exceeded his powers, left the applicant’s son in danger and that all these actions resulted in the death of the latter. The court sentenced G. to eight years’ imprisonment with three years’ driving ban and five years’ prohibition to occupy posts in law-enforcement authorities. The court also partly allowed the applicant’s civil claim for damages.
On 2 December 2010 the Odesa Regional Court of Appeal quashed the judgment of 14 April 2010 as unfounded and remitted the case to the prosecutor to organise additional investigation of the case. The court of appeal noted, inter alia, that the available evidence indicated that G. might have acted deliberately in order to stop the motorcycle and his actions might not have been properly classified under the domestic law. The court also considered that the search measures had been inappropriate taking into account the unrefuted G.’s statement that he had always lived in his apartment in Russia and had known nothing about his search in Ukraine.
On 23 August 2011 the Prymorskyy District Court of Odesa found, in respect of the incident with the applicant’s son, that G. had violated traffic safety rules and exceeded his powers and that these actions resulted in the death of the applicant’s son. The court then released the applicant from punishment due to the expiry of the time-limit for the criminal responsibility. The defendant was released from custody on that day.
On 24 January 2012 the Odesa Regional Court of Appeal quashed that judgment and remitted the case to the first-instance court for fresh examination.
In December 2012 the case was pending before the first-instance court.
COMPLAINTS
1. The applicant complains under Articles 2 and 13 of the Convention that the investigation and further court proceedings concerning the circumstances of her son’s death have not been effective.
2. The applicant complains under Article 6 § 1 of the Convention that her civil claims for damages have not been determined for a considerable time.
QUESTIONS TO THE PARTIES
1. Having regard to the Court’s jurisdiction ratione temporis and the principles of procedural protection of the right to life, were the domestic proceedings in the present case in breach of Article 2 of the Convention?
2. Did the domestic authorities deal with the applicant’s civil claims in compliance with Article 6 § 1 of the Convention as regards the requirements of access to court and reasonable length of proceedings?
3. Did the applicant have access to effective compensatory remedy in accordance with Article 13 of the Convention?
6. Application no. 42595/14
Nadiya Sergiyivna BOZHENKO
Lodged on 10/07/2014
THE FACTS
On 12 February 2004 two buses collided at the bus station and the applicant’s husband (born in 1948), walking nearby, was seriously injured. On the same day he died from the injuries sustained.
On 13 February 2004 the Kupansk Town Police Department instituted criminal proceedings into the death of the applicant’s husband. L., one of the bus drivers, was charged with violation of traffic safety rules causing death of person.
On 16 February 2006 the case was referred to the Kupyansk Town Court for consideration on the merits. The applicant introduced civil claim for damages which was joined to the criminal case.
During the trial in 2006 and 2007 the Kupyansk Town Court ordered two technical expert examinations.
On 17 July 2009 the Kupyansk Town Court found L. guilty of having violated traffic safety rules which caused the death of the applicant’s husband. The court released L. from criminal punishment under the Amnesty Act 2008. The court also partly allowed the applicant’s civil claim.
On an unspecified date the Kharkiv Regional Court of Appeal quashed that judgment and remitted the case to the first-instance court for fresh examination.
On 13 March 2013 the Kupyansk Town Court remitted the case to the Kharkiv Regional Prosecutor’s Office for additional investigation.
On 25 March 2014 the Kupyansk Prosecutor’s Office opened another set of criminal proceedings against P., the driver of the second bus, on account of the death of the applicant’s husband.
On 26 May 2014 the Kupyansk Town Court terminated the criminal proceedings against L., the driver of the first bus, as time-barred.
COMPLAINTS
1. The applicant complains under Articles 2 and 13 of the Convention that the investigation and further court proceedings concerning the circumstances of her husband’s death have not been effective.
2. The applicant complains under Article 6 § 1 of the Convention that her civil claims for damages have not been determined for a considerable time.
QUESTIONS TO THE PARTIES
1. Having regard to the procedural protection of the right to life, were the domestic proceedings in the present case in breach of Article 2 of the Convention?
2. Did the domestic authorities deal with the applicant’s civil claims in compliance with Article 6 § 1 of the Convention as regards the requirements of access to court and reasonable length of proceedings?
3. Did the applicant have access to effective compensatory remedy in accordance with Article 13 of the Convention?
REQUESTS AS REGARDS THE OBSERVATIONS:
1. With respect to each application the Government are invited to provide:
(a) a chronological list of pre-investigative, investigative, and judicial measures taken in respect of the applicants’ complaints communicated to the parties;
(b) copies of the relevant documents concerning the respective domestic proceedings.
2. With respect to applications where the questions are put under Articles 6 and 13 of the Convention, the Government are invited to provide information and documents concerning the date of introduction of the civil claims by the applicants and the decisions taken on them by the domestic authorities.
3. The Government are invited to submit separate observations for each application.
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