FIFTH SECTION
Application no. 40429/08
Igor Valentinovich PRILUTSKIY against Ukraine
lodged on 31 July 2008
STATEMENT OF FACTS
The applicant, Mr Igor Valentinovich Prilutskiy, is a Ukrainian national, who was born in 1960 and lives in Donetsk.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
In the night of 30 September 2006 the applicant’s son took part in “Auto Quest”, a car racing game, in the city of Donetsk. According to the rules of the game the participants were divided into teams, each team was given a car and had to best perform the tasks given by the organisers.
The applicant’s son was included in a team of four persons. P., a member of the applicant’s son’s team, had to drive the car. During the game P. exceeded the speed limits, failed to control the car and collided with a pillar. As a result of the accident, all the passengers including the applicant’s son died.
On 1 October 2006 the Donetsk Region Police Department opened an investigation in connection with the traffic accident.
On 3 October 2006 the applicant was admitted to the proceedings as a victim.
On 19 February 2007, in reply to the applicant’s enquiry concerning the investigation, the Donetsk City Prosecutor’s Office informed the applicant that the case was complicated and the police had to order various expert examinations; the activities of the organisers of the car racing game were also being examined by the police; the results of the investigations would be provided to the applicant in due course.
On 23 February 2007 the Donetsk Region Police Department informed the applicant that the case was complicated and required a number of investigative measures. The applicant was further explained that, in accordance with Article 217 of the Code of Criminal Procedure, he would be able to study the materials of the case file after the completion of the investigation.
On 9 November 2007 the applicant requested to be given access to the case file. The investigator in charge of the criminal case refused the request noting that such access would be provided after the completion of the investigation.
On 24 October 2008, in reply to the applicant’s complaint about the ineffectiveness of the investigation, the Donetsk Region Prosecutor’s Office noted that the criminal case was investigated in accordance with the requirements of the Code of Criminal Procedure and there had been no grounds to recuse the investigator from the criminal proceedings. The applicant was also informed that, according to the forensic psychiatric examination, P. had developed a mental illness and required compulsory medical treatment. As to the applicant’s access to the file, it would be granted after the completion of the investigation.
On 4 February 2009 the investigator informed the applicant that the investigation had been completed and that he could study the case file. On the same day the applicant began to study the file.
On 5 February 2009, when the applicant had not examined all the materials of the criminal case, the case file was referred to the Kuybashevskyy District Court of Donetsk (“the first-instance court”) in order to determine whether it was appropriate to apply compulsory medical measures in respect of P.
On 11 April 2009 the Donetsk Region Police Department informed the applicant that the investigator in charge of the criminal case had not violated the applicant’s right to study the case file and that he could examine the relevant materials at the court. It was further noted that P. had developed a mental illness and thus he could not be held liable for the traffic accident; instead compulsory measures of medical treatment could be applied to him.
On 15 March 2010 the chairman of the Donetsk Region Council of Judges requested the chairman of the first-instance court to ensure prompt consideration of the criminal case. He noted that the court hearings had been adjourned on many occasions and the length of the proceedings had not been reasonable.
On 8 June 2011 the first-instance court found that P. had committed a crime by violating traffic safety rules which resulted in the death of the applicant’s son and two other passengers. The court noted that, according to the forensic psychiatric examination reports of 10 July 2007 and 28 February 2011, P. understood and controlled his actions at the time of the accident but later he developed a mental illness; at the time of the examinations, P. suffered from organic brain impairment, amnestic syndrome; because of this illness P could no longer realise and control his actions and needed to be provided with compulsory medical treatment, namely compulsory ambulatory psychiatric assistance. The court, having regard to these medical reports, ordered the compulsory medical measures suggested.
The applicant appealed claiming that he was a doctor by profession and could clearly see that the medical findings were wrong. He provided detailed analysis of the medical evidence and requested that it be reviewed. He further complained of breach of procedural rules arguing that P. had never been brought to the court room for the hearings.
On 6 September 2011 the Donetsk Region Court of Appeal remitted the appeal to the first-instance court as it had not been prepared in accordance with the procedural rules. In particular, the appeal did not formulate the specific requests to the court of appeal.
On 22 September 2011 the judge of the first-instance court provided a time-limit for the applicant to amend his appeal accordingly. Following the amendments introduced by the applicant, the case was referred to the court of appeal.
The proceedings are pending.
B. Relevant domestic law
Code of Criminal Procedure of 28 December 1960
The relevant provisions of the Code can be found in the in the judgment of Oleksiy Mykhaylovych Zakharkin v. Ukraine, no. 1727/04, §§ 41, 42 and 44, 24 June 2010).
COMPLAINTS
1. The applicant complains under Article 2 of the Convention that the State failed to take appropriate steps to protect the life of his son in a life-threatening situation.
2. The applicant complains under Articles 2 and 13 of the Convention that the criminal proceedings in connection with the death of his son were ineffective.
QUESTIONS TO THE PARTIES
1. Was there a positive obligation of the State under Article 2 of the Convention to take specific regulatory and preventive measures to safeguard the life of the applicant’s son in the circumstances of the present case? Were the authorities aware of the car race before the event? Did the State authorities possess any information on the frequency of this kind of entertainment in Donetsk and other cities?
The Government are invited to provide relevant material in support of their submissions.
2. Having regard to the procedural protection of the right to life, was the investigation in the present case by the domestic authorities in breach of Article 2 of the Convention? What were the results of the inquiries and/or investigations in respect of the organisers of the entertainment?
Did the applicant have effective access to the case file regarding the investigation of the accident (see Oleksiy Mykhaylovych Zakharkin v. Ukraine, no. 1727/04, §§ 71-74, 24 June 2010)?
The Government are invited to provide:
(a) a chronological list of pre-investigative, investigative, and judicial measures taken in respect of the accident;
(b) copies of the relevant documents concerning respective domestic proceedings (including the forensic psychiatric examination reports in respect of P.).
The Government are also invited to specify whether P. was examined by the courts in person when determining the issue of his compulsory medical treatment.
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