European Court of Human Rights

FIFTH SECTION

Application no. 42279/08
Liliya Kirillovna MASHCHENKO
against Ukraine

STATEMENT OF FACTS

THE FACTS

The applicant, Mrs Liliya Kirillovna Mashchenko, is a Ukrainian national who was born in 1938 and lives in Sevastopol. She is represented before the Court by Mr R.Y. Martynovskiy, a lawyer practising in Sevastopol.

A.  The circumstances of the case

On 20 June 2003 Ivan Mashchenko, the applicant’s husband, was found dead in a garage cooperative complex. The site was examined by police the same day.

On 30 June 2003 the Gagarinskiy District Prosecutors’ Office of Sevastopol found no grounds for instituting criminal proceedings into the circumstances of Ivan Mashchenko’s death, finding that it had happened by accident. It specifically stated that Ivan Mashchenko had been drinking vodka with his friend D., the owner of one of the garages, and had accidentally fallen, injuring his head. The forensic assessment established that the death was the result of a head injury.

Having been apprised of this decision on 3 September 2003, the applicant appealed against it in the Gagarinskiy District Court of Sevastopol. She noted in particular that the prosecutors’ office had never questioned her as part of their inquiry, had never informed her of the progress of the proceedings, had not studied Ivan Mashchenko’s medical file and had examined the location where the death had occurred in a perfunctory manner.

On 26 February 2004 the court revoked the Prosecutors’ Office’s decision, directing the case for further inquiry. The court found, in particular, that the investigation had failed to question important witnesses, including the applicant and the ambulance staff, who had arrived following Ivan Mashchenko’s fall, and had failed to reconcile discrepancies between the statements of various persons questioned. The court further noted that the exact reason for Ivan Mashchenko’s death should be verified, as according to some documents he had died of a head injury, while according to others it had been a heart attack.

On 30 April 2004 the Gagarinskiy District Prosecutors’ Office took a fresh decision not to institute criminal proceedings. On 5 July 2004 this decision was revoked by the Gagarinskiy District Court, which found that its instructions had not been fulfilled.

After several inquiries, which remained unanswered, on 29 July 2005 the Sevastopol Prosecutor informed the applicant that on 5 January 2005 it had been decided not to institute criminal proceedings into her husband’s death and that the above decision had subsequently been quashed. The applicant was not provided with a copy of either decision.

On 8 August 2005 the Gagarinskiy District Prosecutors’ Office took a fresh decision not to institute criminal proceedings. The applicant was not provided with a copy.

In response to the applicant’s requests for a copy of the decision of 8 August 2005, on 20 October 2005 she was provided with a copy of the earlier decision of 5 January 2005, which had subsequently been quashed.

On 24 May 2006 the Gagarinskiy District Court revoked the decision of 8 August 2005 and remitted the case for further investigation, noting that no meaningful investigative actions had been taken since its last decision.

Between June 2006 and November 2007 three more decisions not to institute criminal proceedings were taken (on 16 August 2006, 14 May 2007 and 8 June 2007). All of them were subsequently revoked (on 10 April, 31 May and 22 November 2007) with reference to failure of the authorities to fulfil the court’s earlier instructions and to take all measures warranted under the circumstances at issue.

On 21 December 2007 the Gagarinskiy District Court sent the case file to the Gagarinskiy District Prosecutors’ Office for further investigation.

On an unspecified date the applicant requested an update on the progress of the proceedings.

On 11 February 2008 the Gagarinskiy District Prosecutors’ Office informed her that the case had been archived.

On 14 March 2008 a new decision not to institute criminal proceedings was taken, the text of which was largely identical to the previous one.

On 6 May 2008 the Gagarinskiy District Court revoked the above decision and ordered a further investigation.

On 13 June 2008 the Gagarinskiy District Prosecutors’ Office took a fresh decision not to institute criminal proceedings, which the applicant appealed against.

According to the case file materials, no final decision in the investigation of the circumstances of the applicant’s husband’s death has been taken.

B.  Relevant domestic law

The relevant provisions of the Constitution of Ukraine and the Code of Criminal Procedure of Ukraine can be found in the judgment in the case of Sergey Shevchenko v. Ukraine (no. 32478/02, §§ 36-39, 4 April 2006).

COMPLAINTS

The applicant complains under Articles 2, 6 and 13 of the Convention that the investigation of the circumstances of her husband’s death has been ineffective.

She also complains under Article 3 of the Convention that her disrespectful and indifferent treatment by the investigating authorities has caused her suffering.

QUESTIONS TO THE PARTIES

1.  Having regard to the procedural protection of the right to life (see Kiliç v. Turkey, no. 22492/93, § 78, ECHR 2000-III), was the investigation into the circumstances of Ivan Mashchenko’s death effective within the meaning of Article 2 of the Convention?

2.  Has the manner, in which the State authorities responded to the applicant’s inquiries and treated her procedural requests, been such as to constitute inhuman or degrading treatment, in breach of Article 3 of the Convention?