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DUDNYK v. UKRAINE - 17985/04 [2009] ECHR 2052 (10 December 2009)
URL: http://www.bailii.org/eu/cases/ECHR/2009/2052.html
Cite as:
[2009] ECHR 2052
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FIFTH
SECTION
CASE OF DUDNYK v. UKRAINE
(Application
no. 17985/04)
JUDGMENT
STRASBOURG
10 December 2009
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Dudnyk v.
Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Renate
Jaeger,
Karel Jungwiert,
Rait Maruste,
Mark
Villiger,
Mirjana Lazarova Trajkovska,
judges,
Mykhaylo Buromenskiy, ad hoc judge,
and
Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 17 November 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 17985/04) 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 Kateryna Vasylivna
Dudnyk (“the applicant”), on 8 May 2004.
The
Ukrainian Government (“the Government”) were represented
by the Deputy Minister of Justice, Mrs V. Lutkovska.
The
applicant alleged, in particular, that the investigation into the
circumstances leading to the death of her son had been ineffective.
On
10 November 2008 the President of the Fifth Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
1. Investigation into the applicant’s son’s
death
The
applicant was born in 1959 and lives in Chapayivka.
On
30 May 2000 an unidentified individual broke the skull of I.D., the
applicant’s son, in the corridor of a dormitory at Cherkasy
Technological University.
On
7 June 2000 the Prydniprovsky district police department of Cherkasy
initiated criminal proceedings into a suspected offence of inflicting
grievous bodily harm.
On
8 June 2000 I.D. died without regaining consciousness. Subsequently
the investigation amended the characterisation of the suspected
offence to inflicting grievous bodily harm resulting in death.
On
25 July and 15 August 2000 the Prydniprovsky district prosecutor’s
office advised the investigation as to various procedural steps to be
taken.
As
no leads concerning the perpetrator had been picked up by
25 September 2000, the police suspended the investigation.
On
1 February 2001, following complaints by the applicant’s
family, the Prydniprovsky district prosecutor’s office annulled
the decision to suspend the proceedings, finding that the police had
not fully complied with the requirements of the applicable procedural
law and had also failed to comply with the instructions issued by the
prosecutor’s office on 25 July and 15 August 2000.
On
5 April 2001 the applicant was granted leave to join the proceedings
as an injured party and a civil claimant.
On
15 June 2001 the Cherkasy regional prosecutor’s office
acknowledged to the applicant’s family that the investigation
had been beset by unnecessary delays for which it could not provide a
plausible explanation. Moreover, the investigator in charge of the
case had been subjected to disciplinary action on account of serious
procedural omissions. The prosecutor’s office also informed the
applicant’s family that progress in the case had twice been
discussed at recent staff meetings and assured her that the
investigation would be closely monitored.
On
20 September and 27 November 2001 the applicant’s family
received further similar acknowledgments from the Cherkasy regional
prosecutors’ office and the Ministry of the Interior.
By
a letter of 5 December 2001 the General Prosecutor’s Office
acknowledged to the applicant’s family that the investigation
into the circumstances leading to I.D.’s death had been
perfunctory as the instructions given by the prosecutor’s
office had not been carried out in full. They further informed the
applicant’s family that they had instructed the Cherkasy
regional prosecutor’s office as to the specific steps to be
taken and had advised that the case should be transferred to an
experienced investigator.
On
14 December 2001 the case was transferred for investigation to the
Cherkasy regional police department.
On
several occasions (on 19 May and 6 December 2002, 17 March 2003
and 23 October 2004) the investigation was suspended on account of a
failure to pick up any leads as to the perpetrator’s identity.
These
decisions were annulled by the supervising prosecutors (on
22 November and 20 December 2002, 18 April 2003 and 12 January
2009 respectively), with reference to the inadequacy of the measures
taken.
On
several occasions (in particular, on 7 May and 1 July 2003 and 20
October 2004) the prosecutor’s office and the Ministry of the
Interior acknowledged to the applicant’s family that the
investigative work aimed at identifying the person responsible for
I.D.’s wounding had been inadequate. In October 2004 the
Prydniprovsky district prosecutor’s office further proposed
that the police department carry out an official internal
investigation into the reasons for the inadequate performance. No
information regarding the outcome of this internal investigation has
been provided by the parties.
On
20 September 2005 and 25 December 2008 the Cherkasy Regional
Department of the Ministry of Interior studied the case-file and gave
additional instructions to the investigative authorities. On
12 January 2009 the Prosecutor of the Prydniprovskyy
District of Cherkasy quashed the investigator’s order of 23
October 2004 to suspend the investigation and formal proceedings were
resumed.
Overall,
in the course of the investigation the law-enforcement authorities
carried out forty-seven interviews, one confrontation and two
line-ups. They further ordered two medical expert assessments.
The
criminal proceedings are currently pending.
2. Civil proceedings
On
25 May 2003 the applicant’s family instituted civil proceedings
in the Prydniprovsky District Court of Cherkasy seeking damages from
Cherkasy Technological University for failure to ensure security in
its dormitory, thus leading to I.D.’s wounding and death.
On
1 October 2003 the Prydniprovsky District Court dismissed this claim,
having found that I.D. had been injured through no fault of the
University. On 20 November 2003 and 17 August 2004 the Cherkasy
Regional Court of Appeal and the Supreme Court of Ukraine
respectively upheld this judgment.
II. RELEVANT DOMESTIC LAW
The
relevant provisions of the Constitution and the Code of Criminal
Procedure can be found in the judgment in the case of Sergey
Shevchenko v. Ukraine (no. 32478/02, §§ 36-39,
4 April 2006).
THE LAW
I. ALLEGED INEFFECTIVENESS OF THE INVESTIGATION
The
applicant complained that the investigation into her son’s
fatal wounding had not been effective. She invoked Articles 2, 6 § 1,
8 and 13 of the Convention.
The
Court, which is master of the characterisation to be given in law to
the facts of the case (see, as a recent authority, Castravet v.
Moldova, no. 23393/05, § 23, 13 March 2007)
considers that the complaints at issue fall to be examined under
Article 2 of the Convention, which is the relevant provision and
reads as follows:
“1. Everyone’s right to life
shall be protected by law...”
A. Admissibility
The
Government submitted no observations concerning the admissibility of
the above complaint.
The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties’ submissions
The
applicant alleged that the authorities had failed to take the actions
necessary to identify the perpetrator and to bring him to justice.
The
Government contested that argument. They noted that the investigation
had entailed a number of procedural measures, including questioning
of witnesses, a confrontation, line-ups and ordering of medical
expert assessments. They further noted that the proceedings were
still pending and that a number of measures were still under way.
2. General principles
The Court reiterates that the obligation to protect
the right to life under Article 2 of the Convention, read in
conjunction with the State’s general duty under Article 1 of
the Convention to “secure to everyone within [its] jurisdiction
the rights and freedoms defined in [the] Convention”, also
requires by implication that there should be some form of effective
official investigation when individuals have been killed as a result
of the use of force (see, mutatis mutandis, Kaya v. Turkey,
19 February 1998, § 86, Reports of Judgments
and Decisions 1998-I). The essential purpose of such an
investigation is to secure the effective implementation of the
domestic laws which protect the right to life. What form of
investigation will achieve this purpose may vary in different
circumstances. However, whatever mode is employed, the authorities
must act of their own motion once the matter has come to their
attention. They cannot leave it to the initiative of the next of kin
either to lodge a formal complaint or to take responsibility for the
conduct of any investigatory procedure (see, for example, mutatis
mutandis, İlhan v. Turkey [GC], no. 22277/93, §
63, ECHR 2000-VII). 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 Gongadze v. Ukraine, no. 34056/02, § 176,
ECHR 2005-XI).
There
is also a requirement of promptness and reasonable expedition
implicit in this context (see Yaşa v. Turkey, 2 September
1998, §§ 102-04, Reports 1998-VI, and 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
in investigating the use of lethal force or a disappearance may
generally be regarded as essential in ensuring 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 terms,
McKerr v. the United Kingdom, no. 28883/95, §§
108-15, ECHR 2001-III, and Avşar v. Turkey, no. 25657/94,
§§ 390-95, ECHR 2001-VII).
3. Application of these principles to the present case
The Court observes that the investigation at issue in
the present case, initiated in June 2000, is still pending, as the
identity of the perpetrator and the circumstances surrounding the
fatal wounding of the applicant’s son have not been
established.
Confining their submissions to reporting the number of
interviews, line-ups and expert assessments, the Government did not
provide any pertinent documents or any detailed information as to who
was questioned, what versions of the incident were explored and what
information was received as a result of the measures taken. Based on
the available materials the Court cannot conclude that the measures
reported were comprehensive and exhaustive.
In the meantime, the Court notes that while the
investigators attempted on numerous occasions to suspend the
proceedings on account of the failure to pick up any leads, these
decisions were repeatedly quashed by the supervising authorities, who
referred to additional measures which could reasonably be taken. As
is clear from the case file materials, these instructions were not
always followed and the delays in the investigation significantly
diminished the prospect of its success and completion. Furthermore,
the domestic authorities themselves acknowledged to the applicant’s
family on a number of occasions that the measures taken within the
framework of the proceedings had not been comprehensive and that the
investigation had been seriously flawed.
In
the light of these circumstances the Court concludes that the State
authorities did not take all the measures which could be reasonably
expected of them to carry out an effective investigation into the
facts surrounding the wounding and death of the applicant’s
son.
There
has accordingly been a violation of the procedural limb of Article 2
of the Convention.
II. ALLEGED UNFAIRNESS OF THE CIVIL PROCEEDINGS
The
applicant further complained under Article 6 § 1
of the Convention that the civil proceedings she brought against
Cherkasy Technological University had been unfair, in particular
because the domestic judicial authorities had erred in their
assessment of the facts and their application of the law.
Having
carefully examined the applicant’s submissions in the light of
all the material in its possession and in so far as the matters
complained of are within its competence, the Court finds that they do
not disclose any appearance of a violation of the rights and freedoms
set out in the Convention. In particular, the Court reiterates that
the applicant enjoyed the right to adversarial proceedings involving
the interested parties. Within the framework of the proceedings she
was able to adduce all the necessary arguments in order to defend her
interests, and the judicial authorities gave them due consideration.
It
follows that this part of the application should be declared
inadmissible as being manifestly ill-founded, pursuant to Article
35 §§ 3 and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
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.”
The
applicant did not submit a claim for just satisfaction within the
time-limit allotted to her for this purpose. Accordingly, the Court
considers that there is no call to award her any sum on that account.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the complaint concerning the
effectiveness of the investigation into the applicant’s son’s
fatal wounding admissible and the remainder of the application
inadmissible;
Holds that there has been a violation of Article
2 of the Convention.
Done in English, and notified in writing on 10 December 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
