Communicated on 8 January 2015
FIFTH SECTION
Application no. 11596/11
Sergiy Mykhaylovych GUMENYUK and Lidiya Stepanivna GUMENYUK against Ukraine
and 4 other applications
(see list appended)
STATEMENT OF FACTS
The applicants’ names and the dates of lodging of their applications are set out in the appendix.
The circumstances of the cases
The facts of the cases, as submitted by the applicants, may be summarised as follows.
1. Application no. 11596/11
On 20 August 2001 the applicants’ 18-years old son was beaten to death in a fight which took place between several persons after a dance event in a local village club. Criminal proceedings were instituted into this incident.
Following their complaints, on several occasions in 2002-2003 the applicants were informed by the Zhytomyr Regional Prosecutor’s Office that the investigation into the incident had been protracted and marked with shortcomings, and that disciplinary proceedings had been instituted against an investigation officer in charge of the investigation.
Later the case was several times transferred to a court but was returned back because of the deficiency of the investigation.
Finally, on 4 October 2010 the Novograd-Volynskyy Local Court sentenced Sh. to seven years’ imprisonment for infliction of grievous bodily harm which caused death of the applicants’ son. This decision was quashed by a higher court and the case remitted for a fresh court examination.
On 12 July 2012 the same first instance court found Sh. guilty of infliction of grievous bodily harm which caused death, sentenced him to eight years’ imprisonment but discharged him from serving his sentence because of the limitation period had expired. The court also awarded the applicants 208,098 Ukrainian hryvnias (UAH) (at the material time around 20,600 euros) in compensation for pecuniary and non-pecuniary damage and ordered the court expenses to be paid by Sh. The court found that Sh., being drunk, knocked the applicants’ son down, sat on him and punched him. The court referred to various evidence collected in 2001-2004 and to testimonies given by witnesses in court hearings. At a court hearing Sh. had testified that he had not beaten the applicants’ son as described but there had been other persons who had also beaten him. Several witnesses testified that they did not remember the events clearly but that the applicant’s son had been also beaten by other persons.
On 13 November 2012 the Zhytomyr Regional Court of Appeal upheld the first instance court decision. On 21 December 2012 the Higher Specialised Court in Civil and Criminal Matters rejected the applicants’ request for leave for appeal in cassation for failure to comply with procedural requirements.
It is unclear whether the applicants received the awarded amount of damages.
2. Application no. 59704/11
On 26 May 2004 the applicants’ father and S. had a quarrel in the yard of an enterprise where the applicants’ father worked. As a result the applicants’ father received a head injury in unclear circumstances. He died four days later in a hospital without regaining consciousness.
According to a forensic-medical examination of 30 May 2004, the cause of the applicants’ father’s death was a closed craniocerebral injury – basal skull fracture – which is typical for falling down.
On 24 June 2004 criminal proceedings were instituted upon suspicion of infliction of grievous bodily harm on the applicants’ father. Between 2004 and 2007 the proceedings were several times terminated and later re‑opened.
Forensic examinations conducted in August and November 2004 concluded that the blood on a hammer and on a metal can, which had been seized from S.’s car, could belong both to the applicants’ father and to S.
On 15 April 2005 the Khmelnytskyy Regional Forensic-Medical Examinations Bureau concluded that the applicants’ father had head injuries which could have appeared as a result of being hit on his head and later falling down.
On 18 January 2007 the Khmelnytskyy Local Court remitted the case for additional investigation. In a court hearing S. explained that he had not beaten the applicants’ father and that the later had been running away and had fallen down. The court noted a number of investigative actions that were to be performed such as questioning of hospital personnel, search for possible witnesses of the conflict and an additional forensic-medical examination.
Additional forensic-medical examinations were performed in 2009.
On 17 March 2011 the Khmelnytskyy Local Court found S. guilty of unintentional murder and terminated the criminal proceedings in the case as time-barred.
3. Application no. 52601/12
On 2 March 2011 the applicants’ daughter together with two other persons was found dead in a house. The official reason for a death was poisoning with carbon monoxide. The applicants, however, state that their daughter was killed since her head was blue and the bed and clothes were covered with blood.
On 5 March 2011 the Sarnenskyy District Police Office refused to institute criminal proceedings into the applicants’ daughter’s death stating that the official reason of death was poisoning with carbon monoxide. This decision as well as numerous further refusals was quashed, in particular by a court, and the case remitted for additional investigation. The court noted that the decision to refuse institution of criminal proceedings was taken without proper examination of the circumstances of the case.
On 17 December 2012 criminal proceedings into the alleged murder of the applicant’s daughter were instituted.
In May 2014 the applicants’ daughter’s body was exhumed.
By a letter of 2 September 2014 the Rivne Regional Prosecutor’s Office informed the first applicant that the proceedings were still pending.
4. Application no. 12450/13
On 17 March 2011 the applicant’s brother, a police officer, died allegedly following poisoning with ethylene glycol.
On 4 April 2011 the Golosiyivskyy District Prosecutor’s Office refused to institute criminal proceedings into his death since there was no evidence of crime. This decision as well as three further refusals was quashed by a court and the case remitted for additional investigation.
In particular, on 21 March 2012 the Golosiyivskyy District Court found that the refusals to institute criminal proceedings had been already twice quashed by a court; however, the available witnesses’ contradictory testimonies had not been properly evaluated.
On 9 April 2012 the Golosiyivskyy District Prosecutor’s Office again refused to institute criminal proceedings. The witnesses had testified that they had been drinking with the applicant’s brother on the eve of his death and did not know where he could have taken the poison. It was impossible to collect more information since “the events in question had occurred long ago”.
5. Application no. 19294/13
On 1 October 2004 B. inflicted grievous bodily harm on the applicant’s son. On 12 October 2004 the applicant’s son died in a hospital. On 9 November 2004 a police investigator decided not to institute criminal proceedings against B.
On 14 January 2005 a prosecutor quashed the decision of 9 November 2004 and instituted criminal proceedings against B. The police officer who initially decided not to institute criminal proceedings was disciplined.
On 20 July 2005 B. was charged with causing grievous bodily harm leading to death and released on an undertaking not to abscond.
According to the applicant, on 5 October 2005 B. bought an airplane ticket for Chicago and on an unspecified date left Ukraine.
On 4 April 2006 the Ternopil Local Court ordered B.’s arrest. In June 2006 an international search for him was initiated.
On 24 October 2012 the General Prosecutor’s Office informed the applicant that B. was in the United States of America. He had changed his family name and thus had been able to leave Ukraine. Further progress in the case could not be achieved since there was no extradition treaty between Ukraine and the United States.
COMPLAINTS
In all applications the applicants complain under Article 2 of the Convention about ineffective investigation of their relatives’ death. Some of them also cite in this respect Articles 6 and 13 of the Convention.
QUESTION TO THE PARTIES
Having regard to the procedural protection of the right to life, was the investigation in the present cases by the domestic authorities in breach of Article 2 of the Convention (see Muravskaya v. Ukraine, no. 249/03, 13 November 2008)?
Appendix
No
Application No
Lodged on
Applicant
Date of birth
Place of residence
Represented by
11596/11
08/02/2011
Sergiy Mykhaylovych GUMENYUK
02/03/1961
Zakrynychchya village
Lidiya Stepanivna GUMENYUK
30/07/1959
Zacrynychchya village
59704/11
14/09/2011
Yuliya Boleslavovna LUTSISHINA
16/09/1978
Khmelnitskiy
Vitaliy Boleslavovich KARPETS-VOLKOVINSKIY
27/09/1969
Khmelnitskiy
52601/12
15/08/2012
Mykola Ivanovych KOPYSHCHYK
21/08/1955
Klesiv
Nina Ustymivna KOPYSHCHYK
23/07/1960
Klesiv
Vasyl Ivanovych KHARCHUK
12450/13
11/02/2013
Valentyna Volodymyrivna PERESUNKO
03/10/1979
Paris
Vasyl Vasylyovych ENEDI
19294/13
01/03/2013
Petr Kornilovich STEFANISHIN
10/03/1941
Ternopol
Mikhail Aleksandrovich TARAKHKALO
Full & Egal Universal Law Academy