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FIFTH SECTION

CASE OF DRAZMAN AND OTHERS v. UKRAINE

(Applications nos. 22207/12 and 2 others)

JUDGMENT

STRASBOURG

29 June 2023

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

In the case of Drazman and Others v. Ukraine,

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

Carlo Ranzoni, President,
Mattias Guyomar,
Mykola Gnatovskyy, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the applications (nos. 22207/12 and 2 others) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") by the applicants listed in the appended table ("the applicants") on the various dates indicated therein;

the decision to give notice of the applicants' complaints concerning the failure of the national authorities to effectively investigate three separate road traffic accidents in which the applicants' relatives have died to the Ukrainian Government ("the Government"), represented by their Agent, most recently Ms M. Sokorenko, and to declare the remainder of application no. 43998/12 inadmissible;

the parties' observations;

Having deliberated in private on 8 June 2023,

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

SUBJECT MATTER OF THE CASE

1. The present applications concern allegations under Article 2, Article 6 § 1 and Article 13 of the Convention of ineffective investigations into the deaths of the applicants' relatives in three separate road-traffic accidents.

2. The applicants' details and the relevant facts are set out in the appended table.

THE COURT'S ASSESSMENT

JOINDER OF THE APPLICATIONS

3. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.

ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

4. The applicants complained that the investigations into the deaths of their relatives in road-traffic accidents had been ineffective and lengthy. They relied on Article 2, Article 6 § 1 and Article 13 of the Convention.

5. The Court, which is 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).

6. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

7. The general principles concerning the State's positive obligation to conduct an effective investigation under the procedural limb of Article 2 in the context of a traffic accident are described in Nicolae Virgiliu Tănase v. Romania ([GC], no. 41720/13, §§ 158-71, 25 June 2019).

8. The Court notes that in the present case the authorities immediately became aware of the incidents in question. From that moment they should have made all reasonable efforts, given the practical realities of investigation work, including having in place the necessary resources, to ensure that on-site and other relevant evidence was collected promptly and with sufficient thoroughness to secure the evidence and to eliminate or minimise any risk of omissions that might later undermine the possibility of establishing facts and of holding the person(s) responsible accountable (ibid., § 162). However, the Court considers that those investigations, contrary to the above-mentioned requirements and the Government's arguments, had substantial shortcomings in their preliminary stages and, from the information available, it does not appear that structured investigations took place after criminal proceedings had been instituted.

9. Reviewing the facts of the present case, the Court considers that the investigations were characterised by having been repeatedly discontinued and reopened. The investigations lacked thoroughness. They also included a high number of repeated expert examinations, some of which were carried out many years after the incidents. As a result of the insufficiency of the measures taken by the investigators, including the failure to take the necessary measures for securing evidence, the cases were on multiple occasions remitted for additional investigations, which inevitably prolonged proceedings and caused the deterioration of important evidence. In addition, in application no. 44005/12, despite the presence of several eyewitnesses at the scene of the accident, the investigating authorities initially acknowledged that they had not been identified and subsequently that the eyewitnesses had not been properly questioned, and also that there were substantial shortcomings in the record of the accident. Furthermore, on multiple occasions the criminal proceedings in the case to which this application relates were suspended without any reasonable grounds.

10. As a result, criminal proceedings which had lasted between ten and twelve years were terminated as time-barred and the perpetrators were exempted from any criminal liability on account of the expiry of the limitation period.

11. The Court notes that in separate subsequent civil proceedings against the alleged perpetrators, which in themselves were not lengthy, the applicants were awarded damages for the death of their relatives. In those proceedings the civil courts relied on, inter alia, the conclusions reached by the criminal courts (see, among other authorities, Sergiyenko v. Ukraine, no. 47690/07, § 52, 19 April 2012, and Basyuk v. Ukraine, no. 51151/10, §§ 67-68, 5 November 2015). However, the mere result of those proceedings, being favourable to the applicants, could not remedy the substantial shortcomings of the preceding criminal proceedings, which concern the core of the applicants' grievances under the Convention. Furthermore, the Court notes that in the case of Antonov v. Ukraine (no. 28096/04, § 42, 3 November 2011), which likewise concerned a non-intentional infringement of the right to life in the context of a road traffic accident, the Government admitted that they had an obligation to conduct, on their own initiative, an official investigation of the circumstances of the death and to take all reasonable measures to establish the relevant facts, including the extent to which the driver had possibly been at fault in respect of negligent driving. The Government did not argue otherwise in the present case. In addition, they have not explicitly pleaded that the orders for damages in the applicants' favour were to be regarded sufficient in the context of the State's obligation under Article 2 of the Convention.

12. In view of the above, the Court considers that the national authorities failed, in the circumstances of the cases, to comply with the State's obligation under the procedural limb of Article 2 of the Convention (see Antonov v. Ukraine, cited above, §§ 50-51; Igor Shevchenko, cited above, §§ 56-60; and Basyuk, cited above, §§ 56-71).

13. There has therefore been a violation of the procedural limb of Article 2 of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

14. The applicants in application no. 22207/12 claimed 100,000 euros (EUR) in respect of non-pecuniary damage. In application no. 44005/12 the applicant claimed EUR 50,000 in respect of non-pecuniary damage, while in application no. 43998/12 the applicant did not submit a claim for just satisfaction.

15. Regard being had to the documents in its possession and to the approach taken in similar Ukrainian cases (see, in particular, Basyuk, cited above; Nikolay Volkogonov and Igor Volkogonov v. Ukraine [Committee], no. 40525/05, 28 November 2013; and Zorina and Others v. Ukraine [Committee], nos. 20295/07 and 3 others, 14 February 2019), the Court finds it reasonable to make a joint award of EUR 6,000 to the first and third applicants and an award of the same amount to the second applicant in application no. 22207/12 and the applicant in application no. 44005/12, in respect of non-pecuniary damage.

16. The Court rejects the remainder of the respective applicants' claims in applications nos. 22207/12 and 44005/12 in respect of non-pecuniary damage. It further notes that none of the applicants made any claim in respect of pecuniary damage.

17. The applicants did not submit a claim for costs and expenses. Accordingly, the Court will not award them any sum on that account.

18. The Court 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,

Decides to join the applications;
Declares the applications admissible;
Holds that there has been a violation of Article 2 of the Convention under its procedural limb in respect of the complaints concerning the ineffective investigations into the deaths of the applicants' relatives;
Holds

(a) that the respondent State is to pay the applicants, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 6,000 (six thousand euros), plus any tax that may be chargeable, jointly to the first and third applicants and an award of the same amount to the second applicant in application no. 22207/12 in respect of non-pecuniary damage;

(ii) EUR 6,000 (six thousand euros) plus any tax that may be chargeable, to the applicant in application no. 44005/12 in respect of non-pecuniary damage;

(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;

Dismisses the remainder of the applicants' claims for just satisfaction in applications nos. 22207/12 and 44005/12.

Done in English, and notified in writing on 29 June 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Martina Keller Carlo Ranzoni
Deputy Registrar President

APPENDIX

1. Application no. 22207/12

by Ms Valentina Vasilyevna Drazman ("the first applicant")

Ukrainian national born in 1947 and residing in Kharkiv

Mr Nikolay Nikolayevich Logachev ("the second applicant")

Ukrainian national born in 1969 and residing in Kupyansk

Ms Irina Dmitriyevna Drazman ("the third applicant")

Ukrainian national born in 1994 and residing in Kharkiv

represented by Mr Volodymyr Borysovych Glushchenko and Ms Nataliia Gennadiivna Okhotnikova

Lodged on 3 April 2012

Background to the case and domestic proceedings

1. Circumstances of the incident:

(i) The first and third applicants are D.'s mother and daughter respectively. The second applicant is L.'s father;

(ii) 3/05/2001 - G. was driving a car which left the road and hit L., a minor, who was walking along the street. She died from her injuries. Two passengers in the car, including D., died as well. Another two passengers sustained injuries but survived. Police officers arrived the same day at the scene of the accident to inspect it and draw up preliminary reports.

2. Course of the criminal investigation and its findings:

(i) 4/05/2001 - criminal proceedings were instituted against G. for breach of traffic safety rules causing a person's death;

(ii) 8/06/2001 - the first applicant; and on 12/06/2001 - the second applicant lodged claims for compensation in connection with the above-mentioned criminal proceedings;

(iii) 10/04/2002 - the criminal proceedings instituted against G. were discontinued on account of the absence of corpus delicti in his actions. On 15/04/2002 that decision was quashed as unsubstantiated;

(iv) 17/10/2002 - after one remittal, the indictment was approved by the prosecutor and the case was sent to court for consideration. Beforehand, the investigating authorities had informed the applicants that the initial stage of the investigation had been beset by delays and that no measures for securing evidence had been taken. More specifically, the initial examination of the scene had been conducted at night-time and no additional examination during the day had been carried out; the vehicle had not been properly examined and the damage to it had not been recorded; the investigator had not taken any decision as regards the vehicle, which was later found in G.'s garage, partly disassembled; the investigating authorities had essentially relied on the statements of the attesting witnesses, who had only been questioned for the first time some five months after the accident; and the expert examination of the vehicle to determine the speed at which the car had been travelling at the time of the accident had not been carried out. They also informed the applicant that the investigators who had been held responsible for the ineffective investigation of the accident had been disciplined;

(v) between 23/07/2003 and 29/03/2010 three additional expert examinations of the vehicle were conducted. During that time, several court hearings were adjourned for various reasons, including on account of a judge being on sick leave and the failure of the parties to appear in court;

(vi) between 20/08/2010 and 8/09/2011 the case was remitted on two occasions;

(vii) 20/05/2011 - the Kupyanskyy Local Court of Kharkiv Region allowed the third applicant to join the criminal proceedings as a civil party;

(viii) 21/12/2011 - the same court found G. guilty as charged;

(ix) 15/03/2012 - the Kharkiv Regional Court of Appeal quashed that judgment, discontinued the criminal proceedings as time-barred and exempted G. from criminal liability. It did not decide on the applicants' claims for compensation;

(x) 19/06/2012 - the Higher Specialised Civil and Criminal Court upheld the judgment.

3. Civil proceedings concerning compensation:

(i) 27/07/2012 - the applicants lodged civil claims against G. in separate civil proceedings, seeking compensation in respect of pecuniary and non-pecuniary damage caused by the deaths of their relatives;

(ii) 19/03/2013 - the Kharkiv Regional Court of Appeal upheld the first-instance judgment of 6/12/2012, in which each applicant was awarded 200,000 Ukrainian hryvnias (UAH - the equivalent of 25,000 euros (EUR) at the time) in respect of non-pecuniary damage, to be paid by G. The courts relied, inter alia, on the conclusions reached by the criminal courts in the applicants' case.

2. Application no. 43998/12

by Mr Sergiy Valeriyovych Papochkin

Ukrainian national born in 1968 and residing in Sumy

Lodged on 4 July 2012

Background to the case and domestic proceedings

1. Circumstances of the incident:

(i) 7/04/2000 - the applicant's minor son, K., was walking across a road in the vicinity of a bus station when he was hit by a car being driven by G. The latter was on a business trip and the car belonged to his employer, a private company, S. According to G., while he was driving, another car had been travelling on his right-hand side; when that car had come to a halt, a boy had unexpectedly appeared and had been running quickly across the street from the right to the left side; as soon as G. had seen the boy, he had stopped the car, but could not avoid the accident. K. died on the spot from multiple injuries sustained in the accident. The police officers arrived the same day at the scene of the accident to inspect it and draw up preliminary reports.

2. Course of the criminal investigation and its findings:

(i) 10/04/2000 - a criminal investigation into the accident was initiated, on account of an aggravated breach of traffic rules;

(ii) 19/04/2000 - the applicant was given victim status;

(iii) between 10/06/2000 and 11/05/2011 - 22 expert examinations, including 12 expert examinations of the vehicle, were conducted; on numerous occasions the criminal proceedings were discontinued and subsequently those decisions were quashed by the prosecutors and the courts as unsubstantiated and premature and further investigative measures were ordered, for the following reasons: (a) 11/08/2000 - the identity of the driver of the car being driven next to G.'s car at the time of the accident had not been established; (b) 11/08/2003 - a comprehensive medical expert examination and examination of the vehicle was required in order to identify certain witnesses; (c) 03/01/2005 - there were disparities between the expert examinations of the vehicle; (d) 05/01/2007 - the identification of other witnesses to the accident was necessary; (e) 29/10/2008 and 25/08/2009 - the investigator had not questioned all the experts, as was necessary to reconcile the conclusions of the expert examinations; in particular, there was dispute as to whether G. could have avoided the collision with K.; (f) 27/04/2010 - there remained much disagreement about the circumstances of the accident, and in particular some important witness statements had not been taken into consideration;

(iv) 2/06/2011 - the applicant lodged a civil claim, seeking compensation from S. (G.'s employer) in respect of the damage he had sustained following the death of his son;

(v) 6/06/2011 - the indictment against G. was issued;

(vi) 6/02/2012 - the Zarichnyi District Court of Sumy found G. guilty of a breach of traffic rules, which had resulted in the death of the applicant's son, but exempted G. from criminal liability, because the statutory limitation period had expired; the court also ordered G.'s employer to pay the applicant compensation in respect of the damage. On 17/05/2012 the judgment was upheld on appeal;

(vii) 29/01/2013 - the Higher Specialised Civil and Criminal Court amended the classification without changing the charges, reasoning that the case should be classified under the previous Criminal Code of Ukraine (1960), which had been in force at the time of the events in question. It also upheld the finding that G. be exempted from criminal liability, because of the expiry of the limitation period. At the same time, it quashed the part of the judgment concerning compensation and remitted the case for fresh consideration in civil proceedings.

3. Civil proceedings concerning compensation :

(i) 17/07/2013 - the Zarichnyi District Court of Sumy awarded the applicant the sum of UAH 500,000 in respect of non-pecuniary damage and UAH 5,318 in respect of pecuniary damage, to be paid by S.; on 29/08/2013 the judgment was upheld on appeal;

(ii) 20/11/2013 - the Higher Specialised Civil and Criminal Court quashed the decision of 29/08/2013 and remitted the case to the Court of Appeal for fresh consideration;

(iii) 29/01/2014 - the Sumy Regional Court of Appeal upheld the decision of 17/07/2013 in the part regarding the pecuniary damage sustained by the applicant and varied the decision in the part regarding non-pecuniary damage, awarding him UAH 200,000 (EUR 17,000 at the material time); the court relied on, inter alia, the conclusions reached by the criminal courts in the applicant's case;

(iv) 18/02/2014 - the Higher Specialised Civil and Criminal Court refused to accept the applicant's appeal on points of law for consideration, considering it ill-founded.

3. Application no. 44005/12

by Mr Ivan Petrovych Radchenko

Ukrainian national born in 1946 and residing in Kremenchuk

Lodged on 5 July 2012

Background to the case and domestic proceedings

1. Circumstances of the incident:

(i) 23/08/2001 - a certain K., while driving a car, swerved into the oncoming lane, where a car, driven by Z., was approaching. In order to avoid a collision, Z. crossed into the oncoming lane and tried to stop his car, but collided with a lorry and hit the applicant's wife, R., who was standing at a bus stop. R. died on the spot from the injuries sustained. Police officers arrived the same day at the scene of the accident to inspect it and to draw up preliminary reports.

2. Course of the criminal investigation and its findings:

(i) 1/09/2001 - the criminal investigation into the accident was initiated, on account of an aggravated breach of traffic rules;

(ii) 13/09/2001 - the applicant was given victim status in the criminal proceedings;

(iii) 26/11/2001 - the investigating authorities acknowledged that the investigation of the case had been beset by delays; eyewitnesses at the scene of the accident had not been identified, and no steps had been taken to establish their identities;

(iv) 20/03/2002 - the applicant lodged a civil claim against K. in the criminal proceedings, seeking compensation;

(v) 26/03/2002 - K. was charged with a breach of traffic rules that had caused R.'s death;

(vi) 26/03/2002 - an investigator refused to pursue a criminal investigation in respect of Z.;

(vii) 30/08/2002 - the indictment against K. was issued and was sent for consideration to the Kremenchuk Local Court of Poltava Region;

(viii) 11/08/2005 - the Kremenchuk Local Court of Poltava Region acquitted K., reasoning that he had been driving the car within the confines of the bus stop and had intended to park his car, and that it was Z. who had unreasonably turned left and swerved into the oncoming lane;

(ix) 18/11/2005 - the Poltava Regional Court of Appeal quashed the previous verdict and remitted the case to the prosecutor for additional investigation. It reasoned that the version of events suggested by K. and Z. had been questionable and that the investigator had not conducted all necessary measures to establish the circumstances of the accident and to eliminate disparities; it also found that the refusal to initiate a criminal investigation in respect of Z. had been premature;

(x) 5/10/2006 - Z. was charged with a breach of traffic rules causing a person's death;

(xi) 5/10/2006 - an investigator discontinued the criminal proceedings against K., reasoning that the latter had not been responsible for the accident and that it was Z. who, by driving at a speed of 150 kph, had caused the incident;

(xii) 27/03/2007 - Z. was put on a wanted list; furthermore, the investigation was suspended twice, pending the establishment of his whereabouts, the last such decision being quashed as unlawful and premature on 12/05/2008;

(xiii) 20/05/2008 - a prosecutor quashed the decision of 26/03/2002 as regards the refusal to initiate a criminal investigation in respect of Z., and that of 5/10/2006 as regards the termination of criminal proceedings against K.; a prosecutor reasoned that those decisions had been premature, given that the statements of key witnesses had not been verified; it had also been necessary to conduct further expert examinations;

(xiv) between 7/02/2009 and 4/01/2010 the criminal proceedings were suspended three more times, pending the establishment of Z.'s whereabouts;

(xv) 4/02/2010 - the last decision to suspend the proceedings was quashed, because Z.'s whereabouts had been established;

(xvi) 26/10/2010 - a prosecutor quashed the decision of 27/03/2007, whereby Z. had been put on a wanted list, because there was no information that the investigating authorities had taken all the necessary measures to establish his whereabouts; at the material time Z. had had a permanent place of residence and a place of work; there was nothing to indicate that, once he had been charged, Z. had failed to appear before an investigator after being notified;

(xvii) 16/12/2011 - the Kremenchuk Local Court of Poltava Region discontinued the criminal proceedings as time-barred and exempted K. and Z. from criminal liability, because the statutory limitation period had expired; that decision was upheld on appeal on 23/02/2012;

(xviii) 28/04/2012 - the Higher Specialised Civil and Criminal Court refused to accept the applicant's appeal on points of law for examination, because the applicant had failed to invoke any relevant grounds for opening cassation proceedings.

3. Civil proceedings concerning compensation:

(i) In March 2012 the applicant lodged a claim against K. and Z. in separate civil proceedings, claiming compensation in respect of pecuniary and non-pecuniary damage caused by the death of his wife;

(ii) 4/02/2013 - the Avtozavodskyi District Court of Kremenchuk awarded the applicant UAH 6,900 (EUR 652 at the time) in respect of pecuniary damage and UAH 40,000 (EUR 3,783 at the time) in respect of non-pecuniary damage, to be paid jointly by K. and Z.; the court relied, inter alia, on the conclusions reached by the criminal courts in the applicant's case;

(iii) 25/03/2013 - the Poltava Regional Court of Appeal varied the last-mentioned decision in the part concerning the amount awarded in respect of non-pecuniary damage, instead awarding the applicant the sum of UAH 60,000 (EUR 5,700 at the time) in that respect, and upheld the remainder of the decision.