FIFTH SECTION
Applications nos. 10558/11 and 28218/11
Lyubov Petrivna KOSMATA against Ukraine
and Lyudmyla Anatoliyivna KOSMATA against Ukraine
lodged on 2 February 2011 and 12 April 2011 respectively
STATEMENT OF FACTS
The applicant in the first case (the first applicant) is Ms Lyubov Petrivna Kosmata, who was born in 1953. The applicant in the second case (the second applicant) is Ms Lyudmyla Anatoliyivna Kosmata, who was born in 1975. Both applicants are Ukrainian nationals and live in Mykolayiv. They are represented before the Court by Mr V.G. Belik, a lawyer practising in Mykolayiv.
The facts of the cases, as submitted by the applicants, may be summarised as follows.
The applicants are respectively mother and sister of Mr K. who had been working for company O. (a mill).
On 4 March 2006 when Mr K. was repairing an extruder in the mill, someone switched on the electricity, which set the machinery in motion and resulted in serious injuries to Mr K.
On 9 March 2006 Mr K. died in hospital of the injuries.
On 10 March 2006 an ad hoc committee was set up by the Mykolayiv Regional Department of Labour Inspectorate to investigate the circumstances of the death of Mr K.
On 14 March 2006 the Mykolayiv Tsentralnyy District Prosecutor’s Office (the District Prosecutor’s Office) refused to institute criminal proceedings into the death of Mr K.
On 7 April 2006 the ad hoc committee found that Mr K. had been registered as unemployed, it had been planned that he would start working as a staff member of company O. only in April 2006 and meanwhile had some kind of agreement to provide services to company O. Under this agreement he had not been obliged to contribute to a work insurance scheme. The committee concluded that the labour relations between Mr K. and company O. needed to be established in a court given that the nature of the contract between the above parties was unclear. On this ground the committee decided not to conduct an investigation and to refer the materials to the local administration and local prosecutor’s office.
On 20 November 2006 the Mykolayiv Zavodsky District Court, upon the applicants’ claim, established that the contract between Mr K. and company O. had been a labour contract and ordered the Mykolayiv Regional Department of Labour Inspectorate to organise an investigation into the circumstances of the death of Mr K.
On 22 March 2007 the Mykolayiv Regional Court of Appeal upheld the judgment of the first-instance court of 20 November 2006.
On 12 June 2008 the committee, which had been established in execution of the judgment of 20 November 2006, gave its conclusions as to the circumstances of the death of Mr K. The committee considered that the accident was not work-related. According to their conclusions Mr K. was not asked to repair the extruder and was even prohibited from doing so, furthermore he was drunk and was injured as a result of his own negligence.
In 2009 the first applicant challenged the above conclusion in the administrative courts but to no avail. The courts noted that it was open to the applicant to lodge a civil claim.
On 24 December 2009 the Mykolayiv Regional Prosecutor’s Office quashed the decision of the District Prosecutor’s Office of 14 March 2006 on the ground that the conducted inquiry had not been complete.
On 11 January and 6 February 2010 the District Prosecutor’s Office repeatedly refused to institute criminal proceedings into the death of Mr K. Those decisions were quashed by the Mykolayiv Regional Prosecutor’s Office respectively on 22 January and 17 September 2010.
On 16 February 2011 the District Prosecutor’s Office refused to institute criminal proceedings into the death of Mr K. once again.
On 1 March 2011 the Mykolayiv Regional Prosecutor’s Office quashed the decision of the District Prosecutor’s Office of 16 February 2011 and instituted criminal proceedings against the managers of the company O. for breach of labour regulations causing death. The prosecutor noted in particular that the previous enquiries had been superficial and many conclusions, including those of the ad hoc committee, had been based on assumptions.
On 16 March 2011 the first applicant was recognised as an aggrieved party in the criminal proceedings.
According to the latest available information the investigation is still pending.
COMPLAINTS
The applicants complain under Article 2 of the Convention that the State failed to investigate effectively the circumstances which led to death of their next of kin.
QUESTION TO THE PARTIES
Having regard to the procedural protection of the right to life (see paragraph 104 of Salman v. Turkey [GC], no. 21986/93, ECHR 2000-VII), was the investigation in the present case by the domestic authorities in breach of Article 2 of the Convention?
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