Published on 6 May 2024
FOURTH SECTION
Applications nos. 76981/14 and 83945/17
Iryna Vitaliyivna KOSTAKOVA against Russia and Ukraine
and Yuriy Mykolayovych KOSTAKOV against Ukraine
lodged on 12 December 2014 and 4 December 2017 respectively
communicated on 15 April 2024
SUBJECT MATTER OF THE CASES
The applications concern the disappearance and subsequent death of the applicants’ husband and son, K.
K. was a senior soldier of the Ukrainian Armed Forces serving in the zone of the so-called “anti-terrorist operation (ATO)”. On 22 November 2014 he went missing during a transfer from one military unit to another, allegedly while he was on the territory controlled by Ukraine. According to the applicants, K. had conflicts with various authorities, including the police, for criticising their actions on social networks, and was last seen being handcuffed at a checkpoint controlled by one of the Ukrainian police battalions. The complaints about K.’s disappearance were brought before the Security Service of Ukraine, the General Prosecutor’s Office and the police.
On 1 December 2014 the first applicant received the following message from an unidentifiable phone number: “You should search for your husband at the bottom of the water storage basin, there are thousands of unaccounted bodies there”. The next day a criminal investigation into the possible murder of K. was launched.
On 2 June 2015 a body was found in a forest near Volnovakha, Donetsk region, which was later identified as that of K. It had around twenty firearms wounds in the skull. Handcuffs were also found near the body.
In July 2015 the first applicant filed a complaint to the Russian investigating authorities who responded that she should address her complaint to the Ukrainian authorities instead.
On 20 November 2018 the second applicant died. Almost immediately after that, the first applicant expressed her wish to pursue his application before the Court.
According to the information submitted by the first applicant in September 2023, as of December 2020 the investigation conducted by the Ukrainian authorities was ongoing without any results.
Since March 2022 the town of Volnovakha, where the investigation was being carried out, has been occupied by Russian troops.
Referring expressly or in substance to Articles 2, 3 and 5 of the Convention, the first applicant complains that K. was captured, taken a prisoner, tortured and executed by the separatist militants of the so-called “Donetsk People’s Republic”. She also complains under Article 2 of the Convention about the failure to investigate her husband’s death. She further alleges that the inability to contact her husband at that time also caused her suffering in breach of Article 3 of the Convention. Finally, the first applicant complains under Article 13 that the authorities of both Ukraine and Russia failed to secure her Convention rights.
The second applicant complained in his application that his son had been killed by agents of the Ukrainian State and that there had been no effective investigation into those events in breach of Articles 2 and 13 of the Convention. He also complained that the aforementioned circumstances, as well as the long-lasting (for more than seven months) uncertainty about his son K.’s fate and the prolonged (for more than three months) failure to return the latter’s body, had allegedly caused him suffering in breach of Article 3 of the Convention.
QUESTIONS TO THE PARTIES
1. Do the alleged violations of the Convention fall within the jurisdiction of the respondent Governments within the meaning of Article 1 of the Convention (see, in this connection, Ukraine and the Netherlands v. Russia (dec.) [GC], nos. 8019/16, 43800/14 and 28525/20, §§ 695-97, 30 November 2022)?
2. Has K.’s right to life, ensured by Article 2 of the Convention, been violated in the present case?
Having regard to the procedural protection of the right to life (see Salman v. Turkey [GC], no. 21986/93, § 104, ECHR 2000-VII), have the domestic authorities of the respondent Governments conducted effective investigations into K.’s killing with a view to clarifying the circumstances of the killing and identifying the perpetrators?
3. Was K. subjected to torture or inhuman or degrading treatment in breach of Article 3 of the Convention?
Have the domestic authorities of the respondent Governments conducted effective investigations into the applicants’ allegations of ill-treatment?
4. Was K. deprived of his liberty in breach of Article 5 § 1 of the Convention?
5. Have the applicants been subjected to inhuman treatment in breach of Article 3 of the Convention on account of their mental suffering stemming from the uncertainty during K.’s initial disappearance and also from the alleged prolonged failure to return to them his body?