FIFTH SECTION
Application no. 22826/11
Viktoriya Oleksandrivna MALITSKA
against Ukraine
lodged on 1 April 2011
STATEMENT OF FACTS
The applicant, Ms Viktoriya Oleksandrivna Malitska, is a Ukrainian national, who was born in 1970 and lives in Kyiv.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 17 June 2004 the applicant’s nine-years-old son, D.K., was hit by the lorry of Mr P., who left the scene of the accident. The child died from the injuries sustained before the arrival of an ambulance.
On 22 June 2004 the Dniprovskyy District Police Department of Kyiv opened a criminal investigation in respect of the fatal traffic accident. The ruling referred to the following established facts: Mr P.’s car had hit D.K. and the boy had died of his injuries at the scene. At the same time, the investigation was “into the fact of the accident”, without any charges being brought against Mr P.
On 7 July 2004 the applicant was assigned victim status in the proceedings.
On 20 July 2004 a post-mortem established D.K.’s injuries and the cause-effect relation between the accident and his death.
On 23 October 2007 a forensic expert examination was conducted on the basis of the case file. It confirmed the earlier findings as to the cause of D.K.’s death.
On 24 April 2009 the investigator issued a ruling refusing to institute criminal proceedings against Mr P. on suspicion of having left D.K. in danger following the accident. Mr P.’s assertions that he had not seen his hit were found plausible, and there was therefore no case to be examined.
On 4 March 2009 the prosecutor opened a criminal case against Mr P. on suspicion of a breach of traffic rules by a vehicle’s driver which had caused the victim’s death. As a preventive measure pending trial, Mr P. was placed under an obligation not to leave the town.
On 28 October 2009 the prosecution approved the bill of indictment and referred the case for trial.
On 5 November 2009 the Dniprovskyy District Court of Kyiv (“the Dniprovskyy Court”) conducted the first hearing at which it amnestied Mr P. In deciding so, the court referred to the non-intentional nature of the offence in question punishable with up to ten years’ imprisonment, as well as to the fact that Mr P. had a minor child. Accordingly, it terminated the proceedings. As to the applicant’s civil claim (lodged on 5 June 2009 in the framework of the criminal proceedings), the court ruled that it should be left unexamined.
On 12 April 2010 the Kyiv City Court of Appeal quashed that ruling and remitted the case back to the first-instance court for fresh examination.
On 12 January 2011 the Dniprovskyy Court reaffirmed its earlier findings and amnestied again Mr P.
On 11 April 2011 the Kyiv City Court of Appeal upheld that ruling.
On 20 December 2011 the Higher Specialised Civil and Criminal Court also upheld the lower courts’ decisions. As regards the applicant’s complaint about the dismissal of her civil claim without examination on merits, the court noted that it remained open to her to initiate separate civil proceedings if she wished so.
B. Relevant domestic law and practice
The relevant domestic legal provisions can be found in the judgment in the case of Antonov v. Ukraine, no. 28096/04, §§ 31-33, 3 November 2011.
COMPLAINTS
Relying on Articles 2 § 1 and 6 § 1 of the Convention, the applicant complains about the length and alleged unfairness of the criminal proceedings, as well as the dismissal of her civil claim without examination on merits and inability to obtain compensation.
QUESTIONS TO THE PARTIES
1. 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?
2. Under the circumstances of the present case, could a separate civil claim have been able to remedy the situation for the procedural obligation under Article 2 to be considered met? The Government are invited to submit relevant case-law of the national judicial authorities.
3. Did the applicant have at her disposal an effective domestic remedy for her Article 2 complaint, as required by Article 13 of the Convention?
4. Was the length of the proceedings in the present case in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?
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