CASE OF RYZHENKO v. UKRAINE
(Application no. 55902/11)
30 July 2015
This judgment is final but it may be subject to editorial revision.
In the case of Ryzhenko v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Boštjan M. Zupančič,
Aleš Pejchal, judges,
and Milan Blaško, Deputy Section Registrar,
Having deliberated in private on 7 July 2015,
Delivers the following judgment, which was adopted on that date:
1. The case originated in an application (no. 55902/11) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Ms Olena Prokopivna Ryzhenko (“the applicant”), on 23 August 2011.
2. The applicant was represented by Ms T.I. Lezhukh, a lawyer practising in Kyiv. The Ukrainian Government (“the Government”) were represented by their then Agent, Mr N. Kulchytskyy, of the Ministry of Justice.
3. On 27 February 2012 the applicant died. Her children and heirs, Ms Olga Mykolayivna Potsiluyko and Mr Oleksandr Mykolayovych Ryzhenko, who also acted as her successors in the domestic proceedings, expressed the wish to pursue the application.
4. On 12 November 2012 the application was communicated to the Government.
I. THE CIRCUMSTANCES OF THE CASE
5. On 13 October 2008 the applicant’s son, Mr Ry., was found dead in the pond which he had been guarding as a night watchman.
6. On the following day a post-mortem examination was completed. It concluded that Mr Ry. had drowned. A number of bruises and sores were discovered on his chest. The expert assessed those injuries as insignificant and considered that they had been inflicted by blunt hard objects.
7. During the period from October 2008 to February 2013 the police refused to institute criminal proceedings in respect of the death fifteen times. All those rulings were quashed by the prosecution authorities or the courts for superficiality and incompleteness of the investigation undertaken.
8. On 7 February 2013, following the entry into force of the new Code of Criminal Procedure in November 2012, the case was registered in the Unified Register of Pre-Trial Investigations.
9. Thereafter the police terminated the criminal investigation twice having found that there was no indication of a homicide. Both those decisions were quashed.
10. As of April 2014 the pre-trial investigation was ongoing.
II. RELEVANT DOMESTIC LAW
I. AS TO THE LOCUS STANDI OF Ms POTSILUYKO AND Mr RYZHENKO
12. The Court notes that on 27 February 2012 the applicant died while the case was pending before the Court. It has not been disputed that Ms Potsiluyko and Mr Ryzhenko, the applicant’s children and heirs, are entitled to pursue the application on her behalf and the Court sees no reason to hold otherwise (see, among other authorities, Prynda v. Ukraine, no. 10904/05, § 44, 31 July 2012). For the sake of convenience, the Court will continue to refer to Ms O.P. Ryzhenko as “the applicant” throughout the ensuing text.
II. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
13. The applicant complained that the investigation of the circumstances of her son’s death had been lengthy and ineffective. She referred to Articles 6 and 13 of the Convention.
14. The Court, which is master of the characterisation to be given in law to the facts of the case, finds that the complaint at issue falls to be examined under Article 2 of the Convention, which is the relevant provision (see, e.g., Dudnyk v. Ukraine, no. 17985/04, § 27, 10 December 2009). This provision, in so far as relevant, reads as follows:
“1. Everyone’s right to life shall be protected by law...”
15. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
16. The applicant alleged that the State authorities had fallen short of their obligation to effectively investigate the death of her son, which had taken place in suspicious circumstances.
17. The Government submitted that the State had duly discharged its Convention duties in the present case. They maintained that the national authorities had taken all the necessary steps in order to collect the evidence and to establish the circumstances of the death in question.
18. The Court reiterates that where death occurs under suspicious circumstances, leaving room for allegations to be made of the intentional taking of life, the State must ensure some form of effective official investigation (see, among other authorities, Pozhyvotko v. Ukraine, no. 42752/08, § 38, 17 October 2013). This is not an obligation of result, but of means. The authorities must have taken all reasonable steps to secure the evidence concerning the incident. Any deficiency in the investigation which undermines its ability to establish the cause of death or the persons responsible will risk falling foul of this standard (see Muravskaya v. Ukraine, no. 249/03, § 41, 13 November 2008).
19. The effectiveness of an investigation implies a requirement of promptness and reasonable expedition. Even where there may be obstacles or difficulties which prevent progress in an investigation in a particular situation, a prompt response by the authorities is vital in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts (see Šilih v. Slovenia [GC], no. 71463/01, § 195, 9 April 2009). Moreover, with the lapse of time the prospects that any effective investigation can be undertaken will increasingly diminish.
20. Turning to the present case, the Court notes that the investigation into the death of the applicant’s son continued for more than five and a half years and brought no tangible results. Moreover, the facts suggest that for that considerable period of time there was no genuine attempt on the part of the investigative authorities to establish the truth. Thus, between October 2008 and April 2014 the investigative authorities adopted seventeen decisions refusing to open a criminal investigation or discontinuing the investigation. All those decisions were, however, quashed by the supervising authorities, who considered that the investigation had not been thorough and that further procedural measures were required (see paragraphs 7-9 above).
21. The Court has already examined a number of cases against Ukraine with similar factual circumstances and concluded that the repetition of such remittal orders discloses a serious deficiency in the criminal investigation (see, for example, Oleynikova v. Ukraine, no. 38765/05, § 81, 15 December 2011, and Prynda, cited above, § 56). The aforementioned problem has manifested itself in the present case too.
22. The Court therefore concludes that in the present case the Ukrainian authorities failed to provide an effective and timely investigation of the circumstances of the applicant’s son’s death as required by Article 2 of the Convention.
23. There has accordingly been a breach of Article 2 of the Convention under its procedural limb.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
24. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
25. The applicant’s successors, Ms Potsiluyko and Mr Ryzhenko (see paragraph 3 above) claimed 100,000 euros (EUR) in respect of pecuniary and non-pecuniary damage.
26. The Government contested that claim as exorbitant and unsubstantiated.
27. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards Ms Potsiluyko and Mr Ryzhenko EUR 6,000 jointly in respect of non-pecuniary damage.
B. Costs and expenses
28. In the absence of any claim under this heading, the Court makes no award.
C. Default interest
29. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Holds that Ms Potsiluyko and Mr Ryzhenko have standing to continue the present proceedings in the applicant’s stead;
2. Declares the application admissible;
3. Holds that there has been a violation of Article 2 of the Convention under its procedural limb;
(a) that the respondent State is to pay Ms Potsiluyko and Mr Ryzhenko, within three months, EUR 6,000 (six thousand euros) jointly, plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
5. Dismisses the remainder of the claim for just satisfaction.
Done in English, and notified in writing on 30 July 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Milan Blaško Boštjan
Deputy Registrar President