European Court of Human Rights

 

FIFTH SECTION

CASE OF MANDRYKA v. UKRAINE

(Application no. 12991/10)

 

 

 

 

 

 

JUDGMENT

STRASBOURG

13 January 2022

 

This judgment is final but it may be subject to editorial revision.

In the case of Mandryka v. Ukraine,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

          Lətif Hüseynov, President,
          Lado Chanturia,
          Arnfinn Bårdsen, judges,
and Viktoriya Maradudina, Acting Deputy Section Registrar,

Having deliberated in private on 9 December 2021,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in an application against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 17 February 2010.

2.  The applicant was represented by Mr E. Markov, a lawyer practising in Geneva.

3.  The Ukrainian Government (“the Government”) were given notice of the application.

THE FACTS

4.  The applicant’s details and information relevant to the application are set out in the appended table.

5.  The applicant complained of the ineffective investigation into the death of her son, who died in a road traffic accident.

THE LAW

I.        ALLEGED VIOLATION OF ARTICLE 2 § 1 of the Convention

6.  The applicant complained of the ineffective investigation into the death of her son in a traffic accident. She relied on Articles 2, 3 and 13 of the Convention.

7.  The Court, which is the master of the characterisation to be given in law to the facts of the case, finds that the complaints at issue fall to be examined under Article 2 of the Convention (see Igor Shevchenko v. Ukraine, no. 22737/04, § 38, 12 January 2012). This provision, in so far as relevant, reads as follows:

Article 2 § 1

“1.  Everyone’s right to life shall be protected by law.”

8.  The Court notes at the outset that the present case falls to be examined from the perspective of the State’s obligation to conduct an effective investigation under the procedural limb of Article 2 of the Convention. The relevant general principles concerning the effectiveness of the investigation were summarised in Mustafa Tunç and Fecire Tunç v. Turkey [GC] (no. 24014/05, §§ 169-82, 14 April 2015). In particular, once the investigative obligation is triggered, compliance with the procedural requirement of Article 2 is assessed on the basis of several essential parameters: the adequacy of the investigative measures, the promptness of the investigation, the involvement of the deceased person’s family, and the independence of the investigation. These elements are inter‑related and each of them, taken separately, does not amount to an end in itself (ibid., § 225).

9.  Moreover, this is not an obligation of results to be achieved but of means to be employed. The Court accepts that not every investigation is necessarily successful or comes to a conclusion coinciding with the claimant’s account of events. However, it should, in principle, be capable of leading to the establishment of the facts of the case and, if the allegations prove to be true, to the identification and punishment of those responsible (see Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 71, ECHR 2002-II).

10.  In the leading cases of Kachurka v. Ukraine, no. 4737/06, 15 September 2011, Pozhyvotko v. Ukraine, no. 42752/08, 17 October 2013, and Basyuk v. Ukraine, no. 51151/10, 5 November 2015, the Court has already found violations in respect of issues similar to those in the present case.

11.  Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Reviewing the facts of the present case in the light of these principles established in its case-law (see paragraphs 7-9 above), and despite the Government’s objection as to the difficulty to obtain the full case-file from the applicant’s case, the Court considers that the documents submitted by the applicant are sufficient for it to conclude that the investigation was marked by various shortcomings, which had undermined the ability of the investigating authorities to establish the circumstances surrounding the death of the applicant’s son, and who, if anyone, was responsible. The specific shortcomings are indicated in the appended table. Having regard to its case-law on the subject and the materials before it, the Court considers that in the instant case the investigation failed to meet the criteria of effectiveness.

12.  These complaints are therefore admissible and disclose a breach of Article 2 of the Convention under its procedural limb.

II.     REMAINING COMPLAINTS

13.  The applicant also raised other complaints under the Convention.

14.  The Court has examined the application and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto.

It follows that this part of the application must be rejected in accordance with Article 35 § 4 of the Convention.

III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

15.  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.”

16.  Regard being had to the documents in its possession and to its case‑law (see, in particular, Basyuk, cited above, §§ 74-80), the Court considers it reasonable to award the sums indicated in the appended table.

17.  The Court further considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.      Declares the complaints concerning the ineffective investigation into the death of the applicant’s son admissible and the remainder of the application inadmissible;

2.      Holds that these complaints disclose a breach of Article 2 § 1 of the Convention;

3.      Holds

(a)  that the respondent State is to pay the applicant, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

Done in English, and notified in writing on 13 January 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

      Viktoriya Maradudina                                             Lətif Hüseynov
    Acting Deputy Registrar                                                President

 

APPENDIX

Application raising complaints under Article 2 § 1 of the Convention

(ineffective investigation into death, caused by private parties or in circumstances that exclude involvement of State agents)