KUDRYASHOVA v. RUSSIA

THIRD SECTION

DECISION

Application no. 9441/11
Svetlana Aleksandrovna KUDRYASHOVA
against Russia

The European Court of Human Rights (Third Section), sitting on 23 March 2021 as a Committee composed of:

Darian Pavli, President,
Dmitry Dedov,
Peeter Roosma, judges,
and Olga Chernishova, Deputy Section Registrar,

Having regard to the above application lodged on 20 January 2011,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Ms Svetlana Aleksandrovna Kudryashova, is a Russian national, who was born in 1950 and lives in the Moscow Region. She was represented before the Court by Mr S.V. Lapikhin, a lawyer practising in Moscow.

The Government were represented by Mr M. Galperin, the Representative of the Russian Federation to the European Court of Human Rights.

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicant is the mother of Mr I.K., who died as a result of the events described below.The circumstances of the caseEvents of 4 October 2003

On 4 October 2003 after midnight the applicant’s son was driving his car on highway “Moscow – Rostov-on-Don” in the Domodedovo District, the Moscow Region. At some point he stopped in the middle lane of the highway, which had three lanes in either direction. It appears that something was wrong with the car’s suspension and, having neither turned the warning lights on nor set the emergency warning triangle, he got out of the car to check it.

At around this time Mr O. and Mr N. were driving their cars in the middle lane of the same highway. Mr N.’s car followed Mr O.’s car in the direction of the latter’s summer house. This section of the highway had no road lighting. Mr O. saw a stopped car standing in the middle of the road and the applicant’s son next to it. Trying to avoid the accident, he steered to the right. Following Mr O.’s car, Mr N. saw Mr O.’s breaking lights go on and his steering to the right. He then saw the stopped car in his lane and quickly steered to the left. Having noticed a man on the left side of the stopped car, he applied emergency brake. According to Mr N., the man then suddenly rushed towards his car which led to a collision.

At approximately 12.20 a.m. on 4 October 2003 the applicant’s son was hit by Mr N.’s car and he died of the injuries sustained at the scene of the accident.Criminal proceedings in respect of the applicant’s son death

The investigating authorities immediately examined the scene, collected and described pieces of evidence and drafted a scheme of the accident.

(a)   First round of investigation

On 6 October 2003 the Domodedovo Department of the Interior instituted a criminal investigation into the road accident and commissioned various expert examinations in connection with the events.

Forensic examination of the applicant’s son’s body completed on 16 October 2003 established that he had died of serious head trauma as a result of the road accident. It also concluded that at the moment of the accident he had been moving.

Technical expert examination no. 2466/14 completed on 24 December 2003 established that, given the technical characteristics of Mr N.’s car and the circumstances of the accident, he “could not have avoided hitting the applicant’s son”.

The investigating authorities also questioned Mr N., Mr O. and the passengers of the two cars.

On 6 January 2004 the criminal proceedings were discontinued on account of lack of evidence of a crime. The investigation examined the evidence from the scene of the accident as well as expert examinations and witness statements and concluded that Mr N. had not exceeded the speed limits or otherwise breached any traffic rules and that the accident resulted from Mr I.K.’s own careless behaviour.

(b)   Second round of investigation

On 23 January 2004, upon the applicant’s appeals in which she disagreed with the above conclusions and requested additional expert examinations, the Domodedovo Prosecutor’s Office quashed the decision of 6 January 2004, having referred to the need to clarify the findings of the forensic examination by carrying out an additional forensic examination.

According to the findings of the additional forensic examination, conducted on unspecified dates, it was not possible to establish conclusively whether at the moment of the collision the applicant’s son was moving or standing still.

On 28 February 2004 the Domodedovo Department of the Interior again discontinued the criminal proceedings with essentially the same conclusions as in the decision of 6 January 2004.

(c)   Third round of investigation

On unspecified date this decision was quashed by the prosecutor, who reacted to the applicant’s appeals, in which she insisted that the factual findings were erroneous.

On 1 November 2004 an additional technical expert examination was ordered and thereafter the investigation was suspended.

On 1 March 2005, upon the completion of the additional technical expert examination, the investigation was resumed.

On 28 July 2005 the investigation was discontinued another time, as the expert examinations were incapable of elucidating the circumstances of the accident any further. The applicant appealed to a court.

On 26 December 2005 the Domodedovo Town Court quashed the decision of 28 July 2005 on the ground that certain documents were missing in the investigation file and that in the decision the investigator allegedly failed to address the findings of certain expert examinations.

(d)   Subsequent proceedings

According to the applicant, in the course of the following years the investigation was again discontinued on 2 June and 4 October 2006, 28 December 2007 and 28 December 2008 on account of lack of corpus delicti in Mr N.’s actions. However, all these decisions were subsequently quashed either by the prosecutor or the court on account of the incompleteness of the investigation.

On 13 January 2009 the Domodedovo Department of the Interior again discontinued the criminal proceedings for lack of evidence of a crime in the actions of Mr N. According to the decision, Mr N. was not criminally responsible of the accident as he took all the measures to avoid the collision but, in the circumstances of the case, it appeared impossible. At the same time the applicant’s son, having left his car in the middle of the highway without the required alarm signalling being set up, violated the road safety rules.

(e)   Court proceedings in respect of the decision of 13 January 2009

On 21 April 2010 the applicant appealed against the investigator’s decision of 13 January 2009.

By the decision of 28 May 2010 the Domodedovo Town Court upheld the investigator’s decision as being lawful and well-founded.

On 7 June 2010 the applicant appealed against the first-instance decision.

On 22 July 2010 the Moscow Regional Court upheld the decision. It found that the first-instance court had rightly endorsed the investigator’s findings and that the decision to discontinue the criminal proceedings had been lawful.Tort proceedings

On 21 April 2010 the applicant instituted civil proceedings against Mr N. before the Lyubertsy Town Court claiming 1,000,000 roubles (RUB, around EUR 25,000) in respect of non-pecuniary damage and RUB 165,159 in respect of pecuniary damage.

On 19 July 2010 the Lyubertsy Town Court granted the applicant’s claim with reference to the strict liability rule in Articles 1079 and 1083 of the Civil Code. In particular, the court refused to consider as relevant the reference to the applicant’s son’s allegedly negligent behaviour during the accident and found Mr N. responsible for the damage caused. Mr N. lodged an appeal.

On 5 October 2010 the Moscow Regional Court partially upheld this decision. It reduced the award in respect of non-pecuniary damage to RUB 300,000 (around EUR 7,150).

On 23 December 2010 the parties informed the first instance court that they had reached friendly settlement and that the applicant agreed to withdraw her claims against an undertaking by Mr N. to pay her the funerary expenses of RUB 50,000 (around EUR 1,250). By a court decision taken on the same date the court upheld the friendly settlement. The decision was not appealed against by the parties and came into force accordingly.Relevant domestic law and practiceCriminal law

Causing death by negligence is a criminal offence in the Russian Federation. The sanctions in respect of the said offence include: (1) up to two years’ unpaid work; (2) up to two years limitation of liberty, (3) up to two years’ community service; or (4) up to two years’ imprisonment (Article 109 of the Russian Criminal Code).Civil law

Russian civil law (Articles 1079 and 1083 of the Russian Civil Code) provides for strict liability of a driver who caused a road traffic accident resulting in an injury or death. No proof of fault is required. In the event of gross negligence on the part of the victim and absence of fault on the part of the driver the amount of compensation imposed on the latter will be reduced. Complete refusal of compensation is not allowed. The driver may be released from liability only if he or she proves that the accident was caused by an act of providence or the intentional conduct of the victim.

COMPLAINTS

The applicant complained that the investigation into her son’s death had been ineffective as it had lasted unreasonably long, having been repeatedly discontinued and resumed, and failed to take into account and duly asses the results of all the expert examinations conducted. She also complained that the award of non-pecuniary damage had been too low.

THE LAW

The applicant complained that the investigation into the road traffic accident resulting in her son’s death had not been effective and that the sums awarded to her by the domestic courts were insufficient.

The Court will examine these grievances under Articles 2 and 13 of the Convention, which read, in so far as relevant, as follows:

Article 2

“1.  Everyone’s right to life shall be protected by law.”

Article 13

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”Submissions by the parties

The Government disagreed with the applicant. In their view, the Russian authorities had taken all the measures to establish the circumstances of Mr I.K.’s death, which was done within the framework of the fully-fledged criminal investigation. They also underlined that the civil remedy available to the applicant at the national level had proved useful, as it enabled her to obtain a compensation for the damage sustained. They also maintained that given the friendly settlement reached between the applicant and Mr N. she was not in the position to criticize the domestic courts in respect of the amounts.

The applicant maintained her complaint. She considered that the inquiry conducted by the authorities had not been thorough, as the criminal investigation had been too long and the conclusions regarding the circumstances of the accident had been erroneous.The Court’s assessment

The Court reiterates the principles set out in its case-law concerning the authorities’ procedural obligation in circumstances concerning death caused as a result of road traffic incidents (see Nicolae Virgiliu Tănase v. Romania [GC], no. 41720/13, §§ 157-71, 25 June 2019).

The Court notes that it is not in dispute that the applicant’s son died in a traffic accident which took place on 4 October 2003 and that the authorities promptly reacted by inspecting the scene and bringing a fully-fledged criminal investigation into these events.

Despite the applicant’s criticism of the quality and the duration of these proceedings, the Court is satisfied that the investigation proceeded at a good pace, promptly collecting the relevant pieces of evidence from the scene of the accident and the witnesses. It is furthermore clear from the case-file that the investigation made a solid assessment of the circumstances of the case already in its first decision of 6 January 2004 and that the subsequent additional investigative actions added little to these findings, which remained essentially unchanged throughout the proceedings. Observing the conduct of the proceedings, the Court finds that their overall length of five years and three months does not indicate the lack of diligence of the authorities, but was mainly attributable to the applicant’s insistent disagreement with the outcome of the investigation, which prompted the authorities to react and order additional expert examinations to try further to elucidate the circumstances of the case. Overall, the Court finds no indication that the reaction of the investigative authorities in respect of the accident fell short of the requirements of Article 2 of the Convention.

The Court further notes that it is not in dispute between the parties that the applicant successfully pursued the civil proceedings against Mr N., eventually reaching a friendly settlement regarding the final amount of damages to be paid and waiving her claims against Mr N. in connection with the accident.

Having regard to the above combination of criminal and civil remedies available to the applicant in the present case, the Court is satisfied that the respondent Government complied with its positive obligation to set up an effective judicial system which could determine the cause of death and bring those responsible to account for it (see, by contrast, Tikhomirova v. Russia, no. 49626/07, §§ 29-31, 3 October 2017).

Having regard to the foregoing, the Court considers that the applicant’s complaints must be rejected as manifestly ill‑founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 22 April 2021.

{signature_p_2}

Olga ChernishovaDarian Pavli
Deputy RegistrarPresident

 

Full & Egal Universal Law Academy