European Court of Human Rights

FIFTH SECTION

Application no. 35493/10
Iryna Volodymyrivna BUCHYNSKA
against Ukraine
lodged on 30 May 2010

STATEMENT OF FACTS

THE FACTS

The applicant, Mrs Iryna Volodymyrivna Buchynska, is a Ukrainian national who was born in 1980 and lives in Zhytomyr.

A.  The circumstances of the case

On 7 August 2002 two men, at least one of them wearing a mask, entered the applicant’s flat and demanded that she surrender her money and jewellery. They threatened to kill her baby son and strangled her three-year old daughter until she fell unconscious and threw her on the floor. After having taken the valuables from the flat, one of the men put a pistol in the applicant’s ear and fired a shot. Subsequently, they left the flat. The applicant survived with a bullet in her head; however, she sustained a permanent neurological disability and was designated Category 2 disabled.

On the day of the assault the Zhytomyr police instituted criminal proceedings on suspicion of assault and robbery.

In January 2003 the applicant orally informed the investigator responsible for her case that she suspected O.M., her cousin, of having participated in the robbery, as his voice reminded her of that of the masked assaulter.

According to the applicant, despite oral assurances, her submissions were left without any follow-up.

On 31 March 2003 the investigation was suspended for lack of any leads as to assaulters’ identity. The applicant was not informed of this decision.

On 24 June 2003 the applicant and other members of her family complained to the Zhytomyr Regional Prosecutor’s Office about the length of the investigation and the failure of the police officers to react to the applicant’s suspicions with respect to O.M.

On 25 July 2003 the Zhytomyr Regional Prosecutor’s Office informed the complainants that the proceedings had been suspended since 31 March 2003. On the same date the Prosecutor’s Office revoked the suspension decision, noting that the measures taken to identify the perpetrators had not been comprehensive, and transferred the case to the Korolyovsky District Prosecutor’s Office of Zhytomyr for supervising further investigative activities.

On 4 August 2003 the applicant and other members of her family complained to the General Prosecutor’s Office of inactivity on the part of the investigative authorities.

On an unspecified date the General Prosecutor’s Office informed the applicant that the necessary actions would be taken to facilitate the investigation of her case.

On 4 September 2003 O.M. was arrested and remanded in custody. On the same date he confessed to his participation in the crime and identified O.T. as his accomplice.

On 5 September 2003 O.T. was arrested. He denied his involvement in the crime and maintained that on the relevant date he had been in Moscow, Russia.

On the same date O.M. participated in a reconstruction of the crime scene and described the sequence of events.

On 6 September 2003 a confrontation was conducted between the applicant and O.M. On the same date the applicant identified O.T. as the second perpetrator during an identification parade.

On an unspecified date the police seized a gold chain from O.M., identified by the applicant and her parents as that stolen from the applicant’s flat.

On 13 October 2003 the case was reclassified as that of an attempted aggravated murder.

On an unspecified date O.M. retracted his confession alleging that it had been given under duress.

In January 2004 O.M. and O.T. were released from custody for want of evidence of their involvement in the crime and on 23 June 2004 the criminal proceedings against them were discontinued.

On 6 July 2005 the General Prosecutor’s Office informed the applicant that following her complaints of inactivity on the part of the investigative authorities, the case had been transferred to the Vinnytsya Regional Prosecutor’s Office for further investigation.

On 11 November 2005 the applicant was provided with a copy of the decision to discontinue criminal proceedings against O.M. and O.T. and informed of her right to appeal against it to the Vinnytsya Regional Prosecutor.

On 15 December 2005 the Vinnytsya Regional Prosecutor’s Office informed the applicant, in response to her complaints, that on 2 December 2005 the above decision had been revoked as ill-founded and the case had been transferred for further investigation.

On 27 August 2007 the General Prosecutor’s Office acknowledged, in response to the applicant’s complaint, that the case had been unnecessarily delayed.

On 6 September 2007 the case was transferred to the Vinnytsya police for further investigation. The proceedings are currently pending and the perpetrators have not been identified.

On numerous occasions the applicant and other members of her family complained to various authorities of inactivity on the part of the investigative authorities and insisted that O.M. and O.T. had been the applicant’s assaulters. In addition, they complained that some items of physical evidence had been lost or misplaced by the police and demanded access to the case file to formulate their complaints and procedural requests more precisely. In their responses, the authorities assured them that necessary unspecified actions were underway, although some pieces of evidence had in fact been either lost or misplaced. They further informed the complainants that the case-file materials were confidential while the investigation was ongoing and that access to them would be possible only upon completion of the investigation.

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 that the investigation into her attempted murder and robbery has been lengthy and ineffective and that on account of the authorities’ failure to complete it, she has been unable to reclaim her stolen property or seek compensation for it. She invokes Articles 2, 3, 6 and 13 of the Convention and Article 1 of Protocol No. 1 in respect of her complaints.

QUESTION TO THE PARTIES

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 the applicant’s wounding effective within the meaning of Article 2 of the Convention?