European Court of Human Rights

FIFTH SECTION

Application no. 42752/08
Nataliya Mykolayivna POZHYVOTKO and

Mariya Mykolayivna POZHYVOTKO
against Ukraine
lodged on 5 August 2008

STATEMENT OF FACTS

THE FACTS

The first applicant, Ms Natalya Mykolayivna Pozhyvotko, and the second applicant, Ms Mariya Mykolayivna Pozhyvotko, are Ukrainian nationals who live in Nosivka. Their application was lodged on 5 August 2008.

A.  The circumstances of the case

Mr Volodymyr Pozhyvotko was the husband of the first applicant and the son of the second applicant.

1.  Circumstances of death of the applicant’s relative

In the evening of 12 October 2004 Volodymyr Pozhvotko was shot dead in a local bar.

2.  Official investigation

On 12 October 2004 Nosivskyy District Prosecutor’s Office opened an investigation in connection with the murder.

During the night of 12-13 October 2004 an investigator of the prosecutor’s office, together with experts, witnesses and police officers, carried out an on-site inspection, including photographing and videotaping the scene of crime. Two pistols, cartridges, a bullet and other items were found and seized.

On 7 February 2005 L. wrote a confession that he shot the victim dead when the latter threatened him and his friends.

In March 2005 the applicants were informed that the suspect had been arrested but subsequently released for lack of evidence of his involvement.

Following the applicants’ complaints, in July 2005 the case was referred to Chernihiv Regional Prosecutor’s Office for further investigation.

On 30 August 2005 the newly-assigned investigator found that the on-site inspection report did not specify to whom the pistols might have belonged; the video records and photographs of the scene of crime had not been included in the case file; the whereabouts of one of the pistols (brand name TT) were unknown.

On 5 September 2005 the forensic bureau informed the investigator that they had never been requested to carry out any fingerprint analysis as regards the TT pistol, the video records or the photographs after the analysis had been given back to the investigator then in charge.

On 1 November 2005 the investigator stated that the missing pistol had been found in storage at the local police station, while the video records and the photographs of the scene of the crime could not be found.

On 20 September 2006 the investigation was closed for the reason that the perpetrator (L.) was acting in self-defence.

On 5 June 2006 that decision was quashed by a local court, which found that most of the investigative actions, in particular the on-site inspection and expert examinations, had been carried out unprofessionally and with violations of procedural rules; the video records and photographs of the scene of crime could not be found; and the investigation had not been comprehensive, as certain witnesses had not been questioned.

In August 2007 the case was referred to the Chernihiv Regional Police Department for further investigation.

In November 2008 the case was referred to the Sumy Regional Prosecutor’s Office for further investigation.

On several occasions throughout the investigation the authorities admitted that the investigation had not been prompt and appropriate.

The proceedings are pending.

3.  Other proceedings related to the case

(a)  The applicants also instituted civil proceedings against law-enforcement authorities, claiming that they had failed to investigate the murder of their relative properly and seeking compensation for non-pecuniary damage sustained. The courts rejected their claim, noting that the action or inaction on the part of the investigating bodies should be challenged in a different jurisdiction; the applicants were not entitled to claim compensation for non-pecuniary damage; and in any event they had not proved that any such damage had been sustained. The final decision was taken by the Supreme Court on 2 June 2008.

(b)  The applicants requested that an investigation be opened concerning the disappearance of the harvest of sunflower seeds which allegedly belonged to Volodymyr Pozhyvotko and had been entrusted to his business companions. The authorities refused to open an investigation, after finding that there was no evidence that Volodymyr Pozhyvotko had ever owned the harvest and that the matter was of a civil-law nature.

COMPLAINTS

1.  The applicants complain that the investigation of the circumstances of their relative’s death was not effective for the purpose of Article 2 of the Convention: the investigation was defective and excessive in time; they had no appropriate access to all the materials in the file and could not effectively participate in the proceedings.

2.  The applicants complain under Article 13 of the Convention that they had no effective remedies in respect of their complaint under Article 2 of the Convention.

3.  The applicants also complain of violations of Articles 14 and 17 of the Convention on account of ineffectiveness of the investigation.

4.  The applicants complain under Article 6 of the Convention that the outcome of the compensation proceedings against law-enforcement authorities was unfair.

5.  The applicants complain under Articles 6, 13, 17 of the Convention and Article 1 of Protocol No. 1 that the harvest of sunflower seeds which had belonged to the deceased applicants’ relative was unlawfully appropriated by his business colleagues.

QUESTIONS TO THE PARTIES

1.  Having regard to the procedural protection of the right to life, were the domestic proceedings in the present cases in breach of Article 2 of the Convention?

2.  Did the applicants have effective access to the case file regarding the investigation of the circumstances of their relative’s death (see Oleksiy Mykhaylovych Zakharkin v. Ukraine, no. 1727/04, §§ 71-74, 24 June 2010)?

3.  Are there any safeguards for ensuring compliance of the investigation authority with the instructions given by the higher-level prosecutor or a court along with a remittal of the case for additional investigation?

4.  Did the applicants have at their disposal effective domestic remedies for their complaints under Article 2, as required by Article 13 of the Convention?

The Government are invited to provide:

(a)  a chronological list of pre-investigative, investigative, and judicial actions taken in respect of the applicants’ complaints under the Convention;

(b)  copies of the relevant documents concerning respective domestic proceedings.