AS TO THE ADMISSIBILITY OF
by Klavdiya Mykolayivna LOBACH
The European Court of Human Rights (Fifth Section), sitting on 22 September 2009 as a Chamber composed of:
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
Mykhaylo Buromenskiy, ad hoc judge,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 26 January 2002,
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 applicant, Ms Klavdiya Mykolayivna Lobach, is a Ukrainian national who was born in 1934 and lives in the village of Vodoslavka, Kherson region, Ukraine. She was represented before the Court by Ms N. Petrova, a lawyer practising in Kyiv. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev, from the Ministry of Justice.
The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
At around 4 p.m. on 30 December 2000 the applicant’s husband was found dead in his home.
The same day the Novotroitskiy District Prosecutor’s Office (“the DPO”) instituted proceedings into the murder and ordered a forensic medical examination.
On 30 and 31 December 2000 thirteen neighbours, relatives and friends of the deceased were questioned.
On 31 December 2000 the forensic examination concluded that the applicant’s husband had received multiple bodily injuries and had been strangled. His death had occurred during the night of 29 to 30 December 2000.
On 2 January 2001 the DPO questioned a further witness and issued a search warrant in respect of Mr S. and Mr D.
On 4 January 2001 Mr D. was interrogated.
On 5 January 2001 five more witnesses were questioned.
On 8 January 2001 the DPO ordered the forensic examination of footprints and fingerprints that had been found at the scene of the crime. The examination reports were completed on 10 January (for the footprints) and 31 January 2001 (for the fingerprints).
On 9 January 2001 two more witnesses were questioned.
On 10 January 2001 Mr D. was interrogated and a reconstruction was held.
On 15 January 2001 the investigator granted the applicant aggrieved party status. The applicant was questioned as the aggrieved party.
On 16 January 2001 Mr D was identified by two witnesses as a person who had asked about the deceased’s place of residence on the eve of the crime – 28 December 2000.
On 17 January 2001 the investigator decided not to prosecute Mr D. for murder and robbery as he had an alibi for the time of murder. However, the investigator nevertheless considered that Mr D., who had arrived at the village with a certain Mr R. and Mr K. on 28 December 2000 and had enquired about the deceased’s place of residence, had to have been aware that this information was wanted by Mr R. and Mr K. for an illegal purpose, such as burglary. Mr D. was therefore charged with complicity in burglary.
On 18 January 2001 Mr D. was questioned as an accused.
On 20 January 2001 the investigator arranged for the formal identification of a pair of running shoes by two witnesses, who testified that they belonged to Mr K.
On 25 January 2001 another footprint examination was ordered. It was completed on 12 February 2001 and established that one of the footprints at the scene of the crime had been left by a sports shoe belonging to Mr K.
On 12 February 2001 the investigator issued resolutions to bring charges against Mr K. and Mr R. of murder for financial gain. The prosecutor issued an arrest warrant with respect to Mr K. and Mr R. and placed them on a wanted list.
On 27 February 2001 the investigation was suspended since the whereabouts of the suspects were unknown.
On 22 March 2001 the investigator ordered a search of Mr K.’s home. The search was carried out the same day.
On 12 June 2001 the investigator issued a warrant to monitor the telegraphic and postal correspondence of Mr K.’s relatives. On 14 June 2001 the warrant was sent to the Head of the Genichesk Post Office.
On 3 August 2001 five more witnesses were questioned.
On 19 August 2001 Mr R. surrendered voluntarily to the prosecutor and was interrogated. At the same day the investigator decided to discontinue the criminal proceedings against Mr R for burglary and murder for lack of evidence. However, on 4 December 2001 that decision was quashed.
According to the applicant, on the advice of the investigator, she paid 500 United States dollars to a lawyer G. to represent her in the proceedings but never signed a formal agreement with the lawyer.
On 16 October 2001 the Novotroitsky District Court of Kherson examined the case against Mr D. and remitted it for additional investigation; it instructed the investigator to arrange a confrontation between Mr K. and Mr R. Mr D. was released on condition that he did not abscond. The applicant was not present at the hearing but the lawyer G. acted on her behalf, allegedly without her authorisation.
On 19 October 2001 the Novotroitsky District Prosecutor’s Office appealed against the decision of 16 October 2001. They maintained, in particular, that it was not possible to arrange for a confrontation between Mr D. and Mr K. since Mr K. had absconded.
On 11 December 2001 the Kherson Regional Court upheld the decision of the Novotroitsky District Court.
On 30 December 2001 an additional medical forensic examination was ordered. The report was completed by 23 January 2002.
On 11 January 2002 Mr R. was interrogated again. On the same day the investigator decided not to initiate criminal proceedings against Mr R. for destruction or damage of property with intent.
On 16 January 2002 Mr D. was interrogated further and a confrontation was staged between him and Mr R.
On 23 February 2002 the investigator decided not to pursue the prosecution of Mr R. on the ground that he had an alibi for the murder that was supported by five witnesses. According to Mr R. on the eve of the murder Mr D. had asked him to take Mr K. and Mr D. to the village where the applicant’s husband lived. He had done so. He had waited for them for fifteen minutes and then taken them back to the town of Genichensk. Mr R. denied, and there was no evidence to the contrary, that he had been aware of the true intentions of Mr D. and Mr K. with respect to the applicant’s husband.
On 30 April 2002, owing to changes in the procedural legislation that required any arrest order to be approved by the court, the investigator submitted a request to the Novotroitskyy District Court for a warrant for Mr K’s arrest. On 3 May 2002 the court ordered Mr K. to be taken into custody as a preventive measure.
On 16 June 2002 the proceedings were suspended since the accused’s whereabouts were unknown. Thereafter the investigation was suspended and resumed several times.
By a letter of 6 June 2003 the applicant was informed that Mr D. had absconded and that the criminal proceedings against him were suspended.
Owing to changes in the legislation on criminal procedure, on 17 December 2003 the investigator requested authorisation from the Kherson Regional Court of Appeal to survey the telegraphic and postal correspondence of Mr K.’s relatives and friends. On 18 December 2003 the court issued the authorisation.
On 22 June 2004 the investigator issued a resolution for Mr K’s property to be seized. The investigator reported, however, that Mr K. had no property.
By a letter of 31 August 2005 the Kherson Regional Prosecutor’s Office informed the applicant that they were still looking for Mr K., who had been identified as a suspect. The investigators also checked the possible involvement of Mr R. and Mr D. in the murder of the applicant’s husband, but as their was no proof of their guilt, the Novotroitsky Prosecutor’s Office declined to prosecute them and the Kherson Regional Prosecutor’s Office upheld its decisions.
By a letter of 19 October 2005 the Kherson Regional Prosecutor’s Office informed the applicant that the law-enforcement authorities were still looking for Mr K. and that the decisions to close the criminal proceedings against Mr R. and Mr D. were well-founded
The investigator systematically issued orders to establish Mr K.’s whereabouts on 4 April 2002, 15 June 2002, 19 September 2003, 28 April 2004, 1 September 2004, 9 September 2004, 1 March 2005, 15 April 2005, 27 April 2005, 17 September 2005, 14 October 2005, and 15 November 2005.
The applicant complained of a failure to investigate the criminal case, to prosecute Mr D. and Mr R. for the murder of her husband and to locate Mr K. She considered the investigators and courts to have been biased and corrupt. She relied on Article 2 of the Convention and Article 1 of Protocol No. 1.
The applicant further complained that her children had not been recognised as aggrieved parties in the case, that materials in the case-file had been falsified and that she had not been summoned to attend the court hearing of 16 October 2001, while the lawyer she had paid to represent her had done so without a form of authority. She also complained that the courts’ decisions of 16 October and 11 December 2001 to release Mr D. were unlawful and of the length of the proceedings.
“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.”
“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.”
The Government considered that the investigation in the present case had satisfied the procedural requirements of Article 2 of the Convention. They submitted that the domestic authorities had taken all necessary steps to investigate the circumstances of the applicant’s husband’s death. The authorities had conducted five forensic examinations, interrogated thirty-nine witnesses and within one and a half months had identified a person the considered to have been responsible for the death. Thereafter, they had taken the measures necessary to find Mr K.
The applicant considered that all three suspects had been involved in her husband’s murder and criticised the domestic authorities for their failure to prosecute Mr R. and Mr D. for murder. She further alleged that the authorities had not taken sufficient measures to look for Mr K. She claimed that the law-enforcement and judicial bodies had been biased and corrupt.
The Court reiterates that for the purpose of Article 2 the investigation must be effective in the sense that it is capable of leading to the identification and punishment of those responsible (Oğur v. Turkey [GC], no. 21594/93, § 88, ECHR 1999 III). This is not an obligation of result, but of means. The authorities must have taken the reasonable steps available to them 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.
There is also a requirement of promptness and reasonable expedition implicit in this context (see Yaşa v. Turkey, 2 September 1998, §§ 102-104, Reports of Judgments and Decisions 1998 VI; Çakıcı v. Turkey [GC], no. 23657/94, §§ 80, 87 and 106, ECHR 1999 IV). It must be accepted that there may be obstacles or difficulties which prevent progress in an investigation in a particular situation. However, a prompt response by the authorities may generally be regarded as essential in maintaining public confidence in their maintenance of the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts (see, in general, McKerr v. the United Kingdom, no. 28883/95, §§ 108-115, ECHR 2001 III, and Avşar v. Turkey, no. 25657/94, §§ 390-395, ECHR 2001 VII (extracts)).
Turning to the facts of the present case, the Court notes that the domestic authorities acted promptly at the initial stage of investigation and identified possible perpetrators within a few days. The fact that the measures taken to establish the location of the principal suspect have failed so far does not render them ineffective. As to the other two suspects, the domestic authorities, after taking into account the relevant interests of the respective parties, proceeded in a manner that does not give rise to an arguable claim under Articles 2 and 13 of the Convention. Both Mr. D. and Mr R. had alibis and the authorities, having taken different investigating steps, including forensic examinations and interviews, did not find any evidence of their participation in the murder of the applicant’s husband. As to the applicant’s allegations of bias and corruption on the part of the law-enforcement and judicial authorities, she has not demonstrated that she took sufficient steps to raise these complaints before the appropriate authorities at the domestic level. Furthermore, these allegations are not supported by any evidence.
In view of the foregoing, the Court considers that no appearance of a violation of the requirements of Articles 2 and 13 can be observed in the circumstances of the case, as the authorities have conducted an effective investigation into the circumstances surrounding the death of the applicant’s husband and could not be said to be responsible for undermining effectiveness of any other remedy that may have existed, including civil remedies.
It follows that this complaint is manifestly ill-founded and must be dismissed in accordance with Article 35 §§ 3 and 4 of the Convention.
“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing within a reasonable time by [a] ... tribunal...”
The Government noted that despite being granted aggrieved-party status, the applicant had never lodged any civil claim either within the criminal proceedings or separately.
The applicant did not make any comments.
The Court reiterates that the Convention does not confer any right of “private revenge”. Thus, the right to have third parties prosecuted or sentenced for a criminal offence cannot be asserted independently. Nevertheless, an issue may arise regarding the victim’s exercise of the right to bring civil proceedings in domestic law, even if only to secure symbolic reparation or to protect a civil right such as the right to a “good reputation” (see Perez v. France [GC], no. 47287/99, § 70, ECHR 2004 ...).
Given that the applicant has not availed herself of the possibility to join the proceedings as a civil party, the Court finds that there is no element of a civil claim in this aspect of the case, which accordingly must be rejected as being incompatible ratione materiae with the provisions of the Convention, pursuant to Article 35 §§ 3 and 4 of the Convention.
As to the applicant’s complaint about the alleged failure of the authorities to grant aggrieved-party status to her children, it should be noted that the latter neither made any complaints themselves nor authorised the applicant to do so on their behalf. It follows that this complaint must be rejected as being incompatible ratione personae with the provisions of the Convention.
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
The Government noted that it could not be held responsible for damages caused to the applicant’s property by the actions of a private person. They maintained that, since she had failed to establish any arguable claim for compensation at the domestic level, she could not assert that she had a property for the purposes of Article 1 of Protocol No. 1. They further maintained that the State had not upset the balance between the private interests of the applicant in receiving compensation for damage and the public interest in protecting public order by investigating an offence. They added that the State had complied with its positive obligations and had taken reasonable measures to find the accused. They had also attempted to seize the accused’s property but had found nothing.
The applicant considered that the State authorities had failed to investigate the criminal case effectively and that they had ordered the seizure of Mr K.’s property only after a long delay by which point he had had ample time to dispose of it.
In so far as the applicant complained of delays in searching for Mr K.’s property, the Court notes that, as mentioned above, she did not formulate any compensation claims at the domestic level. Therefore, the authority was not responsible for the delays in securing her non-existent civil claim. Furthermore, the applicant also failed to complain about any such delay to relevant domestic authorities. Therefore, this complaint must be rejected globally as manifestly ill-founded.
Even assuming that the applicant had formulated her compensation claim at the domestic level and that the State had positive obligations under Article 1 of Protocol No. 1, which may have included an obligation to carry out some form of effective official investigation (see Novoseletskiy v. Ukraine, no. 47148/99, § 103, ECHR 2005 II (extracts), the Court notes that its findings under Articles 2 and 13 are equally pertinent to the present complaint given that it relates to the same set of proceedings. Therefore this complaint is also manifestly ill-founded.
For these reasons, the Court unanimously
Declares the application inadmissible.
Claudia Westerdiek Peer