Communicated on 24 February 2020
Published on 16 March 2020
FIFTH SECTION
Application no. 62545/15
Vasyl Adamovych FIYALO
against Ukraine
and 3 other applications – see appended list
STATEMENT OF FACTS
The facts of the cases, as submitted by the applicants, may be summarised as follows.Fiyalo v. Ukraine (no. 62545/15)
The circumstances of the case
On 15 October 2004 the applicant was riding a bicycle and, allegedly, was hit by a minibus which was passing him. The applicant was taken to a hospital and diagnosed with a closed traumatic brain injury, a closed linear skull cap fracture in the frontal area, and brain contusion. The doctor concluded that the applicant had sustained severe head injuries. The applicant was treated in the hospital until 2 November 2004. On 7 December 2004 he was readmitted to a hospital where he underwent in-patient treatment until 31 December 2004.
On 19 October 2004, 7 March and 28 November 2005, and 11 April 2006 the police, having conducted pre-investigation inquiries, refused to open criminal proceedings against the minibus driver for lack of constituent elements of crime, finding that there had been no evidence that the applicant or his bicycle had any physical contact with the minibus in the accident. Those decisions were quashed by the supervising prosecutors as unsubstantiated and additional inquiries were ordered. Certain police officers were disciplined for failure to assemble evidence related to the accident.
On 1 August 2007 criminal proceedings were instituted against the minibus driver for breach of traffic rules resulting in injuries to the applicant.
On 14 December 2008 the applicant was given victim status. Expert opinions were ordered.
Subsequently, on several occasions the proceedings were discontinued and reopened. On each of these occasions the courts consistently referred to the need for further and more thorough investigation and recognised the lack of diligence in its conduct. The last decision to reopen the investigation was taken on 10 July 2012. In that regard disciplinary proceedings were instituted several times during that period against the investigators for procedural violations, namely for their failure to ensure a proper investigation of the accident.
On 12 March 2013 the investigative authorities ordered an additional forensic medical examination of the applicant’s injuries.
On 21 October 2014 the forensic medical experts found that the applicant had sustained a closed traumatic brain injury, a subarachnoid haemorrhage and facial injuries (nose wound, bruises and soft tissue injury). The experts did not confirm the skull fracture, diagnosed earlier, for lack of objective data in that regard.
On 25 November 2015 the experts additionally found that these injuries could have resulted from a fall from a bicycle given that no mechanical damage had been found on the minibus or the applicant’s bicycle.
On 11 April 2017 criminal proceedings against the minibus driver were discontinued on the grounds of absence of any crime. The investigator concluded that the applicant had sustained bodily injuries on his own as a result of falling from the bicycle owing to his negligence.
The applicant appealed this decision.
On 15 November 2017 the Rivne Local Court of Rivne Region dismissed the applicant’s appeal. On 27 November 2017 the Rivne Regional Court of Appeal upheld the previous decision. This decision was final and not open to appeal.Goloborodko v. Ukraine (no. 17860/17)
The circumstances of the case
On 3 March 2012 the applicant sustained numerous injuries in a traffic accident. He was a passenger in the car, driven by his son, which collided with another car driven by G.
On 10 March 2012 the police instituted criminal proceedings against the applicant’s son in respect of the violation of traffic safety rules which caused bodily injuries to the applicant.
On 11 April 2012 the applicant was given victim status.
On 7 May 2012 a forensic medical examination was carried out on the applicant. It was concluded that the applicant had sustained a closed abdominal injury, multiple bruises and wounds on his head, damage to his teeth, and dislocation of his left hip.
Numerous investigative measures, including several on-the-spot investigations of the events, questioning of the applicant, his son and the witnesses, several forensic technical expert examinations, were taken between March 2012 and December 2015. On several occasions the case had been circulating between the prosecuting authorities and courts because of the need to conduct an additional investigation. Notably, on 28 February 2014 the Nedryhayliv Local Court of Sumy Region, in remitting the case for additional investigation, found that the case file in fact indicated the need to investigate the role of the other driver, G.
On 14 August 2015 the Romny Local Court of Sumy Region acquitted the applicant’s son of the charges against him due to a lack of constituent elements of crime. On 3 December 2015 this decision was quashed by the Sumy Regional Court of Appeal and the case was remitted for a fresh trial.
On 13 May 2017 the Romny Local Court of Sumy Region again acquitted the applicant’s son of the charges against him due to a lack of constituent elements of crime. This decision was upheld on 23 November 2017 by the Sumy Regional Court of Appeal.
On 6 April 2018, upon the applicant’s complaint, new criminal proceedings were instituted in connection with the traffic accident. Their outcome is unknown.Yans v. Ukraine (no. 13261/18)
The circumstances of the case
On 14 October 2006 the applicant was crossing a road and was hit by a car driven by Mr K. The applicant was taken to a hospital where he remained in a coma for three days. He sustained serious head injuries and leg fractures which followed several surgical interventions and long-term medical treatment.
On 17 October 2006 a criminal investigation was opened.
On 27 November 2006 a forensic medical examination was carried out on the applicant. According to the expert findings, the applicant had sustained an open traumatic brain injury, brain contusion, intracranial haemorrhages, fracture of the cranium bones and the base of the skull, and wounds to the parietal and occipital skull areas, closed fractures of both of the left shin bones.
On 5 January 2007 the applicant was given victim status.
Between January 2008 and September 2019, on a number of occasions criminal proceedings were terminated for lack of constituent elements of crime and subsequently resumed on account of ineffectiveness and incompleteness of the investigation. In that regard disciplinary proceedings were instituted against the investigator for procedural violations.
The domestic courts pointed to the numerous contradictions in the witnesses’ statements and in the results of the four technical expert examinations conducted between October 2007 and October 2012. In its last decision of 19 September 2019 the court concluded that further investigation was required due to the investigator’s failure to carry out all the required investigatory measures in order to fully determine the circumstances of the case.
The investigation is ongoing.Burlytskaya v. Ukraine (no. 49680/18)
The circumstances of the case
On 11 December 2009 the applicant, her husband (Mr K.) and another passenger travelled by car and collided with another car, driven by Mr G. As a result of the accident, the applicant sustained bodily injuries and was taken to hospital. She was diagnosed with compressive fractures of the sixth thoracic vertebra and bruises to her left knee and ankle. Following the accident, she underwent treatment in the hospital between 14 and 31 December 2009.
On 24 December 2009 the investigator refused to institute criminal proceedings for lack of constituent elements of crime after finding that Mr G., in violating traffic rules, had only committed an administrative offence. The investigator also noted that the criminal case did not contain the results of the medical examinations of all persons involved in the traffic accident. In this regard forensic medical examinations were ordered. On 20 July 2010 the prosecutor quashed the latter decision and ordered further pre-investigation inquiries.
On 22 July 2010 criminal proceedings were opened.
Between 14 and 30 March 2011 a forensic medical examination was carried out on the applicant. The experts found that the above injuries were of medium severity leading to a long-term health disorder exceeding twenty-one days.
On 15 April 2011 the applicant was granted victim status in the proceedings.
On 2 April 2012 Mr G. was charged with the crime of violation of traffic rules resulting in inflicting injuries of medium gravity.
On 12 February 2013 the Volchanskyy Local Court found Mr G. guilty of the crime he had been charged with and exempted him from criminal liability, because the limitation period had expired. The court also ordered Mr G. to pay the applicant 143,556.05 Ukrainian hryvnias (UAH), (about 13,416 euros (EUR)) in compensation for pecuniary damage.
On 9 July 2013 the Kharkiv Regional Court of Appeal set aside that judgment and remitted the case for additional investigation, considering that the principal facts relating to the traffic accident had not been properly investigated.
Between December 2014 and August 2018, on a number of occasions, criminal proceedings were terminated for lack of constituent elements of crime and subsequently resumed on account of ineffectiveness and incompleteness of the investigation, whereupon further investigations were ordered.
The investigation is ongoing.
COMPLAINTS
The applicants complain under various provisions of the Convention that the criminal investigations of the traffic accidents in which they were injured have not been effective.
QUESTIONS TO THE PARTIES
1. Does Article 2 of the Convention apply to the present cases (see Nicolae Virgiliu Tănase v. Romania [GC], no. 41720/13, §§ 134-145)? If so, has the State complied with the procedural requirements of that Article to carry out an effective investigation?
2. Is Article 6 § 1 of the Convention under its civil head applicable to the criminal proceedings in the present cases? If Article 6 is applicable, did the domestic proceedings comply with the requirement of reasonable length?
The Government are invited to provide the material on criminal, disciplinary and civil proceedings as well as all relevant medical documents (records) in relation to the applicants’ allegations.
APPENDIX
No.
Application no.
Case name
Lodged on
Applicant
Year of Birth
Place of Residence
Nationality
Represented by
1
62545/15
Fiyalo
v. Ukraine
04/12/2015
Vasyl Adamovych FIYALO
1959
Veresneve
Ukrainian
Mikhail Aleksandrovich TARAKHKALO
2
17860/17
Goloborodko v. Ukraine
23/02/2017
Mykola Vasylyovych GOLOBORODKO
1960
Romny
Ukrainian
Dmytro Dmytrovych MENKO
3
13261/18
Yans v. Ukraine
28/02/2018
Igor Volodymyrovych YANS
1981
Kharkiv
Ukrainian
4
49680/18
Burlytskaya v. Ukraine
28/09/2018
Natalya Vasilyevna BURLYTSKAYA
1974
Kharkiv
Russian
Sergey Sergeyevich MEDVEDEV
Full & Egal Universal Law Academy