LOVYGINY v. UKRAINE - 22323/08 (Judgment (Merits and Just Satisfaction) : Court (Fifth Section)) [2016] ECHR 562 (23 June 2016)

In the case of Lovyginy v. Ukraine,

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

          Angelika Nußberger, President,
          Khanlar Hajiyev,
          Erik Møse,
          Faris Vehabović,
          Síofra O’Leary,
          Carlo Ranzoni, judges,
          Sergiy Goncharenko, ad hoc judge,
and Claudia Westerdiek, Section Registrar,

Having deliberated in private on 31 May 2016,

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

PROCEDURE

1. The case originated in an application (no. 22323/08) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Ukrainian nationals, Mr Anatoliy Yevgenyevich Lovygin and Mrs Galina Ivanovna Lovygina (“the applicants”), on 18 April 2008.

2. The applicants, who were granted legal aid, were represented by Messrs A. Kristenko, A. Tarasov and S. Kirichenko, lawyers practising in the cities of Kharkiv and Kherson. The Ukrainian Government (“the Government”) were represented most recently by their Acting Agent, Ms O. Davydchuk of the Ministry of Justice.

3. The applicants alleged, in particular, that the State, through its organisation and execution of the police training exercise at which their son was killed, had failed to protect his right to life and that they had had no effective remedy in respect of this complaint.

4. On 18 March 2013 the application was communicated to the Government. Mrs Ganna Yudkivska, the judge elected in respect of Ukraine, was unable to sit in the case (Rule 28 of the Rules of Court). Accordingly, the President of the Fifth Section decided to appoint Mr Sergiy Goncharenko to sit as an ad hoc judge (Article 26 § 4 of the Convention and Rule 29 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicants were born in 1938 and 1939 respectively and live in the city of Kherson, Ukraine.

A. Police training exercise on 14 January 2000

6. On 14 January 2000 a police training exercise was conducted in accordance with an operational plan entitled “Sirena” (оперативний план «Сирена») (hereinafter “Operation Sirena”). During the exercise the applicants’ son, a police officer at the material time, played the role of a criminal for the purposes of the exercise and was accidentally shot dead by another police officer.

7. Operation Sirena for the Kherson Region was approved in 1999 by the police, civil and military authorities of that region on the basis of order No. 230 (classified) of 24 April 1998 of the Ministry of the Interior (see paragraph 66 below). The plan set out the steps to be taken and the procedure to be followed in the event of a search for and the arrest of armed or other dangerous criminals, including those who had escaped from detention.

8. A senior traffic police inspector, L., following instruction no. 20/10-33 of 9 January 2000 issued by the Kherson Regional Department of the Ministry of the Interior (Управління Міністерства внутрішніх справ в Херсонській області) (“the Kherson Regional Department”) and pursuant to an order from a senior traffic police officer, Kos., drafted a training exercise for traffic police officers in the city of Kherson and the village of Antonivka in the context of Operation Sirena.

9. The one-page training scenario stipulated that the training was to take place on 14 January 2000 between 10 a.m. and 5 p.m. At 10 a.m. a police office on duty was to circulate information that armed criminals had hijacked a car and that Operation Sirena had been launched. The scenario stipulated that, in addition to the police officer who would drive the car, there should also be in the car a second police officer, O., who would observe the actions of police patrol officers. The hijacked car would be followed by a second car containing a police officer, Ts., who would film the exercise. The scenario was approved on 13 January 2000 by a deputy head of the Kherson Regional Department, S.

10. Senior traffic police officer Kos., who on 14 January 2000 was the acting head of the Traffic Police Department, later stated in the course of the criminal investigation that traffic police officers had been given prior notice of the training exercise on the day that it was held.

11. At 10.30 a.m. on 14 January 2000 a senior traffic police officer, So., briefed traffic police officers O., Ts., Ku., Sh. and the applicants’ son about the training. At 10.50 a.m. L. instructed a traffic police officer on duty to give the police unit on duty («чергова частина») prior notice of the training exercise and to issue a “lookout alert”.

12. At 10.56 a.m. a police officer on duty, P., was informed by a traffic police unit that two unknown armed criminals had hijacked a car and were moving in the direction of Tavriyskyy, a Kherson residential neighbourhood. He communicated this information to the patrol cars, to the city’s district police stations and to the head of the Kherson Regional Department. Two or three minutes later P. received additional information that the above-mentioned alert was part of a training exercise being conducted under Operation Sirena. According to the findings of the subsequent internal police investigation (see paragraph 19 below), P. forwarded that additional information to the head of the Kherson Regional Department, who instructed P. to pass it on to the city’s district police stations. It was established by the police internal investigation that P. failed to do so.

13. Having been informed of the alleged hijacking, Os., the First Deputy of the Dniprovskyy district police office, issued appropriate instructions to four police officers and placed them at various posts. In particular, police officer K. was placed, together with a traffic police officer, Ko., in the vicinity of the Antonovskyy Bridge over the River Dnipro.

14. The car containing the “criminals” (played by the applicants’ son and police officer Ku.) passed the aforementioned post without being stopped. According to Ko., his radio transmitter had not been working properly and he had left his post in order to inform the traffic police office in charge that the hijacked car had passed their post. Later Ko. testified that he had given K. prior notice of the training exercise. After Ko. had left, police officer Ts., who was in the second car and was filming the exercise, switched off his camera (see paragraph 26 below).

15. Traffic police officer O., who was an observer in the “hijacked” car, instructed the applicants’ son, who was driving, to drive by the post again. This time, police officer K. stopped the car, released his gun’s safety catch, and ordered the applicants’ son and police officer Ku. to get out of the car. While searching the applicants’ son, K. pulled the trigger since the applicants’ son had allegedly made a sudden movement. The applicants’ son was fatally wounded and died on the way to hospital.

16. The applicants submitted a copy of the video recording of the training exercise. However, the part containing the shooting incident involving the applicants’ son was missing. The original video recording has been lost (see paragraph 46 below).

B. Internal inquiry undertaken by the Ministry of the Interior and subsequent decisions

17. On 15 January 2000 the Kherson Regional Board of the Ministry of the Interior adopted a decision by which it was concluded that the “extraordinary event” («надзвичайна подія») of 14 January 2000 had taken place because of low professional standards on the part of the police; K.’s failure to assess properly the “extraordinary circumstances” («екстремальні умови»), ignorance of the steps to be taken when arresting a suspect and failure to properly handle his weapon; and the irresponsible attitude of senior police officers towards the organisation of the training exercise. It was decided, inter alia, to dismiss K., O., P., Os. and A.

18. On 16 January 2000 the head of the Kherson Regional Department, I., approved the findings of an internal investigation conducted following the death of the applicants’ son.

19. The conclusion of that investigation provides, in so far as relevant, as follows:

“The inspection established that:

In accordance with instruction no. 20/10-33 of 9 January 2000 issued by the Kherson Regional Department of the Ministry of Interior ..., L. ... drafted a training scenario for traffic police personnel ... When doing so he did not take into consideration the provisions of Operation Sirena ... [It] is pointless and not efficient to conduct training only for the traffic police officers of Kherson and Antonivka.

The procedure for the conduct of the training was not comprehensively set out; [failures included]:

- the failure to stipulate an itinerary for the car containing the “criminals”;

- the failure to provide for the necessary number of observers ...

In their turn, the senior officers of the Kherson Regional Traffic Police ... acted in a perfunctory and irresponsible manner ..., did not properly study the scenario and did not correct its shortcomings...

Moreover, no training instructor was appointed and the heads of services and subdivisions involved in the training were not informed of the details of the scenario.

The deputy head of the Department ..., S. - approved the above-mentioned scenario on 13 January 2000 without correcting its shortcomings...

So., a lieutenant-colonel, ... briefed those police officers who were due to participate in the training but failed to notify the head of the Department of the time of the training and did not personally supervise the progress of the training ...

P. ... was briefed by the traffic police unit on duty that two unknown armed criminals had hijacked a car and were moving in the direction of Tavriyskyy [a residential neighbourhood of Kherson]. Two or three minutes later he was informed that this information was part of a training scenario being conducted under Operation Sirena. P. informed the head of the Department about it and was instructed to inform the Kherson district police stations accordingly. P., acting incompetently and ignoring those instructions, ... failed to inform the officers on duty at the district police stations about the ongoing training but only circulated descriptions of the criminals.

... G., the head of the police unit on duty at the Department, ... was informed by P. about the training exercise being held by the traffic police; G. ordered P. to follow prior practice but ... failed to supervise him.

...

The senior officers of the Dniprovskyy District Police Department, Os. and A. ... negligently and lackadaisically implemented Operation Sirena ...

... instead of two police officers, who were to have been provided with transport and communication devices under Operation Sirena, ... only one police officer, K., was placed at the post, together with a traffic police officer, Ko. The latter states that he [gave] K. [prior notice of] the training ...

At the same time K. and Ko. failed to properly regulate the traffic and to block the road ...

Police officer O. ... failed to assess the situation in a timely manner, exhibited negligence and carelessness and, despite the fact that K. had released his gun’s safety catch, in blatant breach of order no. 230 of the Ministry of the Interior, failed to stop the progression of events which led to a police officer’s death.

That extraordinary event became possible because of:

- irresponsibility, insufficient professional standards, and incompetence in the conception and drafting of the training scenario ... on the part of police officer L.;

- the formalistic and irresponsible approach to the planning and organising of the practical training ..., lack of cooperation with the regional police, and low level of supervision of subordinates on the part of the regional traffic police management (police officers Kos. and So.);

- the negligence of official duties, formalistic approach to the organisation of the training (and the lack of supervision of its conduct), ... and failure to introduce comprehensive measures aimed at the prevention of extraordinary events on the part of police officer S.;

- the low level of professionalism, irresponsible attitude to official duties, and disregard of instructions issued by the head of the Department on the part of the assistant to the head of the unit on duty (police officer P.);

- the indifference and lack of supervision of the professional activities of his subordinates on the part of police officer G.;

...

- the irresponsibility, negligent and indifferent attitude towards the performance of tasks assigned during the training and failure to take precautions in respect of the personal security of the police officers on duty on the part of police officer O.;

- the low level of professional training and inability to act [appropriately] in extraordinary circumstances ... on the part of police officer K.”

20. As a result, it was concluded that police officers K., O., P., Os. and A. should be dismissed and that the dismissal of police officer S. should be initiated before the Ministry of the Interior. It was further proposed to discipline a number of the other police officers involved. The investigation concluded that the senior police officers involved had failed to properly train their personnel to act in emergency circumstances.

On 17 January 2000 the Ministry of the Interior issued an order which noted that even though safety and the prevention of death and injury in respect of police officers were priorities in police activities, there had been a number of serious shortcomings in the organisation and conduct of the training exercise, which had led to the incident in question. It was noted, inter alia, that since the beginning of his service with the Dniprovskyy District Police Office in November 1999 K. had not attended the relevant theoretical instruction classes. The Ministry also concluded that the police officers involved had failed to properly organise the training.

It was further noted that by order No. 17 of 16 January 2000, issued by I., the head of the Kherson Regional Department, Os., A., P., O., and K. had been dismissed and other police officers disciplined. For the most part, that decision was approved by the Ministry of the Interior. However, it was decided not to dismiss but rather to demote Os. and A. and to reprimand I.

C. Criminal proceedings against K.

23. On 14 January 2000 the Dniprovskyy District Prosecutor’s Office of Kherson (“the District Prosecutor’s Office”) instituted criminal proceedings in respect of the incident. On the same day it was decided to assign the case to three investigating officers and to conduct a forensic medical examination of the body of the applicants’ son. In particular, the expert was asked to determine what injuries were on the corpse.

24. On 15 January 2000 a forensic medical expert concluded that the applicants’ son had a gunshot wound to the chest and scratches on the left side of the face, possibly sustained when he fell down.

25. In the course of the investigation K. pleaded guilty. His testimonies regarding the events of 14 January 2000 coincided with the facts as described in paragraphs 13-15 above.

26. The testimony of different police officers involved in the organisation and conduct of the training exercise included, inter alia, the following:

- P. testified that the “orders in force” had not required that information about the training be circulated;

- the head of the police unit on duty at the Kherson Regional Department (начальник чергової частини штабу Управління МВС), G., testified that he had instructed P. to “comply with the Sirena plan, in accordance with the existing instructions”. G. also submitted that the police unit on duty had only received the training scenario on 15 January 2000 that is the day after the training exercise. It had been impossible to involve only the traffic police in the training since Operation Sirena had required joint action, involving both the police and the traffic police;

- S., a deputy head of the Kherson Regional Department, testified that there had been no legal instruments governing the conduct of police training under Operation Sirena. S. stated that the police officer who had ordered the implementation of the training had been supposed to instruct police officers on duty as to what information should be given to the district police stations. S. stated that the training scenario had been discussed with Kos., who had told S. that the scenario had been approved by the head of the Kherson Regional Department;

- police officer O. testified that the district police stations must have been aware of the training exercise. This information should have been circulated, together with a “lookout alert”;

- police officer A. testified that nobody in the Dniprovskyy District Police Office had been aware of the training exercise;

- police officer Ku. testified that he and the applicants’ son had been “aware that the police officers [would] have guns with live rounds”;

- traffic police officer Ko. testified that he had told K. about the training;

- police officer Ts. testified that he had stopped filming after traffic police officer Ko. had left (see paragraph 14 above), since he had “not known that the car would make a second attempt to pass this post”.

27. During a confrontation held between K. and traffic police office Ko., the latter insisted that he had informed K. about the training.

28. In the course of the investigation a number of other investigating measures were conducted, including a forensic ballistics examination and a reconstruction of events.

29. On 13 July 2000 the Dniprovskyy District Court (“the Dniprovskyy Court”), in the absence of the applicants, terminated the criminal proceedings against K. under the Amnesty Act, since he was the father of a minor and should thus not be liable to serve a punishment. It was noted that this decision was not subject to appeal.

30. On 3 April 2009 the Dniprovskyy Court rejected as unsubstantiated an application lodged by the second applicant on March 2009 for the renewal of the time-limit in respect of an appeal against the decision of 13 July 2000. On 19 May 2009 the Kherson Regional Court of Appeal upheld this decision. The court noted that although the second applicant had been absent from the court hearing on 13 July 2000, she had been aware of that decision since at least 2004 and had received a copy of it on 23 January 2008 at the latest.

D. Criminal proceedings regarding the organisation and conduct of the training exercise

31. In June 2000 the District Prosecutor’s Office refused to institute criminal proceedings against other police officers involved in the organisation and conduct of the training exercise. In particular, on 7 and 8 June 2000 the District Prosecutor’s Office refused to institute criminal proceedings against L., O., Kos., So., S., A., Ost. and G. in the absence of any evidence of a crime, given that there had been no causal link between their actions and the death of the applicants’ son.

32. On 27 and 28 June 2000, citing the same reasons, the District Prosecutor’s Office refused to institute criminal proceedings against P. and O. On 18 August 2000 those decisions were quashed by the Kherson Regional Prosecutor’s Office and the case was remitted for additional investigation.

33. On 1 September 2000 the District Prosecutor’s Office instituted criminal proceedings in respect of the alleged negligence on the part of the Kherson Regional Department police officers involved in the organisation and conduct of the training exercise.

34. On 30 October 2000 the District Prosecutor’s Office terminated the proceedings. It noted that, according to a Kherson Regional Department senior police officer, the legal instruments of the Ministry of the Interior had not stipulated that police officers should have been informed about the training. Such training was to be conducted under realistic conditions. It was further noted that no obligation to inform colleagues about the training exercise had been part of the duties of any police officer on duty.

35. On 28 November 2000 the Kherson Regional Prosecutor’s Office quashed that decision and remitted the case for additional investigation. It noted that the investigation had not been thorough and that the decision taken had been unsubstantiated. In particular, it had not been established whether there had been a causal link between the shortcomings on the part of the police officers and the death of the applicants’ son. It had also not been established which legal instruments regulated police training exercises.

36. By a letter of 29 December 2000 the Kherson Regional Department informed the District Prosecutor’s Office that, under (classified) order No. 230 of the Ministry of the Interior (see paragraph 66 below), the relevant skills were “to be mastered during training [conducted] under realistic conditions”. At the same time the relevant legal instruments did not specify any procedure for the conduct of training exercises.

37. On the same day the District Prosecutor’s Office terminated the criminal proceedings.

38. On 12 February 2001 the Kherson Regional Prosecutor’s Office quashed that decision, citing the failure to fully comply with the decision of 28 November 2000. The recommenced proceedings were again terminated on 29 March 2001. It was noted in the latter decision that the constituent elements of a crime (“negligence”) under Article 167 of the Criminal Code included failure to perform properly or at all certain duties. However, in the absence of any regulations governing procedure for the conduct of training exercises under Operation Sirena, the duties of the police officers involved in such training had not been defined. Moreover, there had been no causal link between the actions of the Kherson Regional Department police officers and the death of the applicants’ son, since the latter had died following K.’s mishandling of firearms. It was concluded that there was no indication of any crime in the actions of the police officers.

39. On 1 April 2004 the General Prosecutor’s Office quashed the decision of 29 March 2001. It was noted that the decision to terminate the criminal proceedings had been “premature and unlawful”. In particular, during the investigation it had not been clarified whether there had been a possibility to equip the police officers with blank cartridges and why O. had not intervened to prevent K. firing his gun after seeing that its safety catch had been released.

40. On 25 April 2004 the District Prosecutor’s Office again terminated the proceedings. When questioned again, O. stated that he had not known that K.’s gun had been loaded. Moreover, K. should have been aware that a training exercise was in progress. The tragic incident had happened within seconds, so O. had not had the possibility of preventing it. P. testified that, “under the Department’s instructions regarding the ‘Sirena’ training plan”, it had not been his responsibility to circulate the information that the announcement about the car hijacking was part of a training exercise. As to whether blank cartridges could have been used for the training exercise, the head of the Kherson Regional Department staff, D., testified that the regional police senior officers had decided to use live rounds for the training. The investigation concluded that the applicants’ son had died as a result of the mishandling of firearms on the part of K.

41. On 21 September 2004 the Kherson Regional Prosecutor’s Office quashed this decision and remitted the case for additional investigation. It was noted that a number of investigative actions had yet to be undertaken and a number of issues had yet to be clarified. In particular, the plans for the training exercise and Operation Sirena had to be seized and it had to be clarified who had briefed K. and why K. had been alone at his post. It was also noted that order No. 230 was not classified and should therefore be added to the case materials.

42. In January 2005 the applicants’ relatives testified that at the funeral of the applicants’ son they had noted that make-up had been applied to the applicants’ son’s face to cover a hole in his head. An ambulance doctor testified that he had not examined the body in detail since it had been evident that the applicants’ son had died after being shot.

43. On 20 January 2005 the investigating authorities decided to exhume the body.

44. On 24 March 2005 a forensic medical examination of the body of the applicants’ son was ordered because the applicants insisted that their son had not been accidentally shot but rather killed by either being hit on the head with a gun or shot in the head because he had possessed information regarding unlawful activity on the part of other police officers. They stated that the body had had a large haematoma on the head and there had been a crack in the skull.

45. After the forensic medical examination of the body of the applicants’ son, a forensic expert concluded that the crack in the skull of the applicants’ son had appeared during the initial forensic medical examination.

46. On 25 January 2006 the Deputy Prosecutor of the Kherson Regional Prosecutor’s Office upheld the conclusions of an internal investigation into the loss of the original video recording of the training exercise. It was proposed to discipline the investigating officer, I., who, between April 2004 and April 2005, had lost the video.

47. On 10 February 2006 it was again decided to terminate the criminal proceedings in the absence of any evidence of a crime. A deputy head of the Kherson Regional Department, T., submitted that the police officers had not been informed about the training exercise since, under (classified) order No. 230 of the Ministry of the Interior, police training should be conducted under conditions as realistic as possible. There were no legal instruments of the Ministry of the Interior stipulating the procedure for the conduct of training exercises and there was no obligation to inform police officers when any such training was being conducted. Consequently, the scope of duties of those involved in the training conducted under Operation Sirena had not been defined.

48. On 8 September 2006 the Suvorovskyy District Court (“the Suvorovskyy Court”) quashed this decision and remitted the case for additional investigation, since the prosecutor’s office had failed to take into account the fact that some police officers had been disciplined. The court also observed that “all necessary and possible investigative actions had not been undertaken”.

49. On 14 November 2006 the Kherson Regional Court of Appeal quashed the decision of 8 September 2006 and upheld the decision of 10 February 2006. The court concluded that the circumstances of the case had been investigated comprehensively and that the Suvorovskyy District Court had, in particular, failed to specify which facts had not been examined by an investigating officer.

50. The second applicant appealed against the decision of 14 November 2006 in cassation. She stated that the court of appeal had failed to examine the factual circumstances of the case and that many aspects of the case remained unclear (whether there had been an obligation to inform the police officers about the training, what did the “near-reality” conditions mean etc.), therefore, the first instance court decision had been well-grounded and should not had been quashed. On 31 January 2008 the Supreme Court of Ukraine dismissed the second applicant’s appeal. It found that the applicant’s arguments about unlawfulness and lack of reasoning of the second instance court decision had been unsubstantiated. In particular, the court of appeal correctly concluded that the investigation had been comprehensive while the first instance court had failed to give reasons for the need for additional investigation.

E. Compensation and other proceedings

51. On 16 October 2000 a lump-sum insurance payment in the amount of 18,270 Ukrainian hryvnias (UAH) (at the material time around 3,894.68 euros (EUR)) was paid jointly to the applicants and to their son’s widow and daughter pursuant to section 23 of the Police Act (see Lovygina v. Ukraine (dec.), no. 16074/03, 22 September 2009).

52. According to the Government, between 2002 and 2013 a total of UAH 21,320 (around EUR 2,558) was paid to the applicants in financial aid and the first applicant was furnished with a washing machine, construction materials for a house renovation and a table for a computer.

1. Proceedings on compensation for non-pecuniary damage inflicted by the death of the applicants’ son

53. The applicants instituted proceedings against the Kherson Regional Department claiming compensation for damage inflicted by their son’s death. On 13 October 2000 the Suvorovskyy District Court awarded them UAH 23,600 (around EUR 5,000) as compensation for non-pecuniary damage. This decision was quashed and the case remitted for fresh consideration.

54. On 26 September 2001 the same court awarded the applicants UAH 20,000 (around EUR 4,000). On 15 January 2002 the Kherson Regional Court of Appeal upheld that decision. However, on 21 October 2002 the Supreme Court of Ukraine quashed it and dismissed the applicants’ claim, finding that, after having accepted a full insurance payment, the applicants no longer had a valid compensation claim. The parties did not submit copies of the applicants’ claim and the domestic courts’ decisions.

2. Proceedings on compensation in respect of the ineffectiveness of the investigation

55. In March 2006 the applicants instituted proceedings against the prosecutor’s offices at various levels. The applicants complained that the investigation into their son’s death had been ineffective and claimed compensation for non-pecuniary damage.

56. On 8 September 2006 the Suvorovskyy District Court, examining the case under administrative procedure, found for the applicants. The court found that the investigation had lasted for six years and that on four occasions the Kherson Regional Prosecutor’s Office had quashed the decisions of the District Prosecutor’s Office terminating those proceedings. The court concluded that the case had been investigated improperly, with numerous breaches of the law, and awarded the applicants compensation.

57. On 23 January 2007 the Kherson Regional Court of Appeal quashed that decision and remitted the case for fresh consideration by the first-instance court.

58. After declining several times to consider the applicants’ case because of their failure to comply with procedural requirements, on 6 February 2008 the Komsomolskyy District Court (“the Komsomolskyy Court”) decided to terminate the proceedings, ruling that the applicants’ claim for damages should have been lodged under a civil procedure. On 24 December 2008 the Odessa Administrative Court of Appeal upheld this decision. The applicants appealed in cassation.

59. On 10 March 2011 the Higher Administrative Court upheld the above decisions and held that the applicants should have complained to a higher prosecutor about the allegedly unlawful actions of the lower prosecutor.

60. In April 2009 the applicants lodged a claim under civil procedure with the Komsomolskyy Court against the Kherson Prosecutor’s Office, claiming compensation for damage resulting from an ineffective investigation. On 22 April 2009 the court dismissed that claim on the ground that the applicants should have lodged their claim under administrative procedure. On 20 July 2009 the Kherson Regional Court of Appeal upheld that ruling. The applicants did not appeal against those rulings.

3. Proceedings against the Ministry of the Interior

61. In February 2009 the second applicant instituted administrative proceedings in the Kherson Regional Administrative Court against the Ministry of the Interior and the Kherson Regional Department, complaining that their conduct relating to the organisation of the police training of 14 January 2000 had been unlawful. It is not clear whether she claimed any compensation in this respect.

62. On 26 June 2009 the Kherson Regional Administrative Court found against the second applicant. The court noted that the death of the second applicant’s son had been investigated several times; K. had been found guilty but amnestied, criminal proceedings against other police officers had been terminated in the absence of evidence of any crime, and police officers S. and I. had been disciplined. Moreover, the second applicant’s son had died in 2000, but the second applicant had only lodged her claim against the Ministry and the Kherson Regional Department in 2009.

63. On 4 January 2010 the Odessa Administrative Court of Appeal dismissed an appeal lodged by the second applicant, ruling that it had been lodged out of time. On 16 November 2010 the Higher Administrative Court of Ukraine upheld that ruling.

F. The applicants’ previous application before this Court

64. On 1 April 2003 the applicants lodged an application before this Court complaining that termination of the proceedings against K. had been in breach of the State’s positive obligation under Article 2 of the Convention to conduct an effective independent investigation into their son’s death. They also invoked Article 6 § 1 of the Convention complaining about the outcome of the proceedings in respect of their claim for compensation (see paragraph 54 above).

65. On 18 October 2005 the Court by a Committee decision declared their complaints inadmissible (application no. 15439/03).

II. RELEVANT DOMESTIC LAW

A. Order No. 230 (classified) («для службового користування») of the Ministry of the Interior of Ukraine of 24 April 1998 “On the adoption of regulations [...] in the event of a search for and the arrest of armed and other criminals especially dangerous to society” (“the Order”)

66. Pursuant to paragraphs 2.1 and 6.7 of the text of the Order that was submitted by the Government, the operational staff of the Ministry of the Interior was to conduct at least once every six months training exercise under “near-reality” conditions. When special means were to be employed, the employees of the bodies of internal affairs were to exercise caution and bear in mind the circumstances and the goal of such training, while minimising the risk to life and health.

B. Police Act, 1990

67. Section 23 of the Act, in force at the material time, provided as follows:

Article 23. State insurance and compensation for damage in case of death or injury of policemen

“Every policeman is subject to state compulsory insurance equivalent to the amount 10 years of his salary in his last position to be paid from the corresponding budgets as well as funds received in accordance with contracts with ministries, institutions, enterprises, and organizations ...

In the event of the death of a policeman while acting in his official capacity a lump sum in the amount of the equivalent of 10 years of his salary as well as a monthly pension in the amount of his salary in his last position shall be paid to his family members.

The right to obtain accommodation shall be reserved for the family of the deceased policeman. This accommodation shall be granted within three months to that family as a matter of priority.

Children of the deceased policeman under the age of majority or his dependants reserve the right to be granted benefit payments in connection with accommodation, public utilities, fuel ...”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

68. The applicants complained that the police had failed to ensure the safety of the participants in the training exercise which had resulted in their son’s death and which they claimed, moreover, was intentional. The applicants further complained that the investigation into alleged negligence on the part of police officers had been very lengthy and inefficient. They invoked Article 2 of the Convention, which, in so far as relevant, reads as follows:

“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law ...”

A. Admissibility

1. The parties’ submissions

(a) The Government

69. The Government stated that the applicants’ complaints regarding the failure to protect their son’s life were unsubstantiated.

70. The Government submitted that the police officers involved in the organisation and conduct of the training had been disciplined or criminally prosecuted, in compliance with the requirements of Article 2 of the Convention to ensure, where lives have been lost in circumstances potentially engaging the responsibility of the State, an adequate response so that the legislative and administrative framework set up to protect the right to life is properly implemented and any breaches of that right are repressed and punished (see Öneryıldız v. Turkey [GC], no. 48939/99, § 91, ECHR 2004-XII).

71. Three police officers had been dismissed, six police officers downgraded and three police officers reprimanded. The police officer K. had been found guilty of “unintentional killing” (“вбивство з необережності”) but amnestied because he was the father of a minor. The applicants had not appealed against that ruling within the prescribed time-limit and had only asked for that time-limit to be renewed nine years later. The applicants had received financial assistance from the State (see paragraphs 51-52 above). No causal link had been established by the national investigative bodies between the death of the applicant’s son and the actions of those police officers who had organised, supervised and conducted the training (see, conversely, Gorovenky and Bugara v. Ukraine, nos. 36146/05 and 42418/05, 12 January 2012).

72. As regards the obligation to put in place a legislative and administrative framework against threats to the right to life, the Government noted that the possibility to conduct a training exercise under Operation Sirena had been provided for by order No. 230 of the Ministry of the Interior. However, there had been no legal instruments stipulating any procedure for the conduct of such training. In particular, the duties of observers had not been specified and there had been no obligation to inform police officers that they were participating in any training. Any training had to be conducted under realistic conditions.

73. Order No. 230 had provided that “in cases when special means [were] to be deployed, employees of the bodies of internal affairs ... [had] to exercise caution ..., [while still] bearing in mind the circumstances and the desired [training] aim, [in order to minimise] the risk to life and the health ... ”. K. should thus have been particularly careful in handling his weapon and should have minimised its use.

74. The death of the applicants’ son had been caused by K.’s negligence and not by the absence of appropriate legal instruments stipulating the procedure for police training.

75. The Government maintained that the applicants had failed to submit any evidence that the State had not complied with its positive obligations under Article 2 of the Convention.

(b) The applicants

76. The applicants maintained that their application was admissible. The applicants considered that the absence of any legal instrument in respect of police training under Operation Sirena in itself constituted a breach of the State’s positive obligation under Article 2 of the Convention.

77. The applicants noted that they had had recourse to all possible domestic remedies under the criminal, civil and administrative procedures but that all of those remedies had proved to be ineffective. Moreover, refusals to institute criminal proceedings had been quashed on numerous occasions by the domestic authorities because of the failure to fully investigate the circumstances of the case. The applicants’ recourse to the courts under the civil and administrative procedures against the police and the prosecutors had proved to be equally ineffective.

2. The Court’s assessment

78. The Court notes that the applicants had already complained before it about the termination of the criminal proceedings against K. and about the outcome of the proceedings in respect of the claim for compensation which they had lodged against the Kherson Regional Department in 2000-2002 (see paragraphs 53-54 above) relying on Articles 2 and 6 of the Convention, respectively (application no. 15439/03). Those complaints were declared inadmissible on 18 October 2005.

79. The specific complaints lodged by the applicants in the present application, which concern the failure by the police to ensure the safety of the participants in the training exercise (see further paragraphs 80-85 below), have not previously been the subject of this Court’s examination and are not substantially the same as the complaints which formed the basis of the applicants’ previous application. The Court considers that the applicants’ submissions are supported by appropriate evidence and sufficiently detailed to require an examination of their complaints on the merits. The complaints under Article 2 of the Convention are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. The Court further notes that, on the basis of the information before it, they are not inadmissible on any other grounds. They must therefore be declared admissible.

B. Merits

1. The parties’ submissions

(a) The applicants

80. The applicants argued that the domestic authorities had failed to take all necessary measures during the planning and organising of the police training exercise to minimise the risk to their son’s life.

81. The applicants reiterated that there had been no legal instruments governing the conduct of police training under Operation Sirena and that the State had thus failed to put in place a legislative and administrative framework designed to provide effective safeguards against threats to the right to life.

82. The applicants further stated that senior police officers had acted negligently when planning the training exercise in question and that this had resulted in their son’s death. In particular, the training plan had been drafted only one day before the day of the training exercise, had been limited to only one page, had lacked technical details, and suffered from significant shortcomings. For example, it had not stipulated the itinerary of the car, mandated a sufficient number of observers, or included any requirement to inform police officers that they were participating in a training exercise. In the applicants’ view, this should have been compulsory. The senior police officers had approved that plan without correcting the above shortcomings. The danger in using real firearms during the exercise was not highlighted or addressed.

83. The applicants further stated that the investigation into their son’s death had not complied with the requirements of Article 2 of the Convention. While there had been no significant difficulties in gathering and assessing the necessary evidence related to the case and the conclusions of the internal investigation had been available two days after the incident, the criminal proceedings against the police officers in charge of the training exercise had only been instituted seven and a half months later. The investigation authorities had focused on the criminal case against K. and failed to investigate properly the circumstances which had led to the applicants’ son’s death. The conclusions of the internal police investigation, which highlighted the severe deficiencies in the organisation and exercise of the training exercise, had been disregarded by the investigating authorities, who had also lost important pieces of evidence, such as the original video recording of the training exercise.

84. The applicants pointed out that the domestic authorities had on several occasions quashed the decisions to terminate the criminal proceedings against the police officers because of numerous shortcomings and had remitted the case for further investigation.

85. The applicants stated that the ruling of 14 November 2006 of the Kherson Regional Court of Appeal upholding the final decision to terminate the criminal proceedings against the police officers had been unsubstantiated and had demonstrated the courts’ tolerant attitude towards the police’s actions. Despite the lower court’s findings about the necessity to investigate further and to undertake certain investigative steps, the higher court had groundlessly concluded that it had not been specified why an additional investigation was required.

(b) The Government

86. The Government reiterated their submissions (see paragraphs 69-75 above) that the applicants’ complaints about the failure of the State to comply with its positive obligations under Article 2 of the Convention were unsubstantiated.

87. The Government further stated that the investigation conducted in the present case had complied with the procedural requirements under Article 2 of the Convention.

88. In particular, the investigation had been conducted expeditiously and the investigating bodies had acted promptly and on their own initiative, demonstrating diligence and commitment. All those police officers who had been involved in one way or another in the organisation and conduct of the training had been questioned. The testimonies of some police officers had been checked during the reconstruction of events.

89. The Government submitted that, in view of the complexity of the case and the necessity to conduct numerous investigative steps, several investigating officers had been placed in charge of the investigation. The investigating authorities had examined all documents related to the conduct of the training - in particular, the training scenario, Operation Sirena, and order No. 230. It had been established that there had been no legal instruments stipulating a procedure for the conduct of such training and, in particular, no obligation to (i) inform the police officers involved that they were taking part in a training exercise or (ii) stipulate the duties of an observer.

90. The Government also stated that the quashing on several occasions by the prosecutor’s office of the decisions on termination of the proceedings had been prompted by the necessity to conduct additional investigative steps.

91. The Government concluded that the investigation conducted at the national level had complied with the requirements of Article 2 of the Convention and that it had resulted in the finding that there had been no causal link between the shortcomings in the organisation and conduct of the training and the death of the applicants’ son.

2. The Court’s assessment

(a) Alleged violation of Article 2 as regards the planning and organisation of the police training exercise

92. The Court reiterates that, in the present case, the applicants complain about the failure of the State to put in place a regulatory and operational system capable of ensuring the safety of those participating in the police training exercise during which their son was killed. It observes that the first sentence of Article 2 § 1 enjoins the State not only to refrain from the unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see, among other authorities, L.C.B. v. the United Kingdom, 9 June 1998, § 36, Reports of Judgments and Decisions 1998-III; Gorovenky and Bugara v. Ukraine, cited above, § 32). This positive obligation imposes above all a duty on the State to put in place a legislative and administrative framework for the regulation of dangerous activities, where special emphasis must be placed on regulations geared to the special features of the activity in question, particularly with regard to the level of the potential risk to human life (see, among other authorities, Öneryıldız v. Turkey, cited above, § 90).

Where a life-threatening injury or a death occurs, Article 2 further requires that an effective judicial system be set up to ensure the enforcement of the aforementioned legislative framework by providing appropriate redress (see, for instance, Anna Todorova v. Bulgaria, no. 23302/03, § 72, 24 May 2011, and Antonov v. Ukraine, no. 28096/04, § 44, 3 November 2011). Such a system may and, under certain circumstances, must include recourse to the criminal law (see, among other authorities, Antonov, cited above, § 45). However, if the infringement of the right to life or physical integrity is not caused intentionally, the positive obligation to set up an “effective judicial system” may be satisfied if civil, administrative or even disciplinary remedies were available to the victims (see, for instance, Vo v. France [GC], no. 53924/00, § 90, ECHR 2004-VII).

94. As stated previously, the present complaint concerns the role of the State generally in the organisation and conduct of the police training exercise. The Court considers that the applicants’ son died in circumstances in which responsibility cannot be ascribed to a single individual (see, mutatis mutandis, Gorovenky and Bugara, cited above, and Sašo Gorgiev v. the former Yugoslav Republic of Macedonia, no. 49382/06, ECHR 2012 (extracts)). The training exercise was aimed at developing skills when searching for and arresting dangerous criminals and involved the use of special means, including firearms and live ammunition, by the police officers involved. The Court considers that holding the police training exercise under such conditions increased the risk to life in respect of both the police personnel involved and all other persons who happened to be in the vicinity, since the training was conducted in the city, and access to the training area had not been restricted in any way. Given the nature of the exercise, the State could not shift all responsibility onto only one of its agents but was under an obligation to put in place adequate regulations to minimise any risk to life.

According to the conclusions of the domestic investigation and the Government’s own observations, there were no legal instruments governing the conduct of police training exercises. The Government maintained that the absence of a legal framework was not a problem in itself, since the police officers were supposed to follow the existing regulations regarding the use of firearms and the implementation of Operation Sirena. The Court, however, cannot concur with this position.

The Court reiterates that police officers should not be left in a vacuum when performing their duties and that policing operations must be sufficiently regulated by national law, within the framework of a system of adequate and effective safeguards against arbitrariness and abuse of force. Moreover, the Court must take into consideration not only the actions of the agents of the State who actually administered the force but also all the surrounding circumstances, including such matters as the planning and control of the actions under examination (see McCann and Others v. the United Kingdom, 27 September 1995, §§ 201-214, Series A no. 324).

97. In the present case, the rules in force concerned the implementation of Operation Sirena in a “real-life” situation and did not cover many considerations essential for the safe conduct of the training exercise such as, for example, the number of observers and their duties, safeguards in respect of those participants playing the role of “criminals”, or any obligation to inform the participants that they were involved in a training exercise involving firearms and live ammunition. Furthermore, the Court notes that the internal police investigation expressly concluded that the senior police officers involved had failed to properly prepare and conduct the training.

The Court also notes that because the information about the training was not communicated to all participants, the police officers involved, including K., believed that they were participating in a real operation to arrest dangerous criminals.

At the relevant time, the rules on implementation for Operation Sirena did exist, but no rules existed as how to train police officers in this context. The internal police investigation concluded that those who had genuinely believed it to be a real car hijacking by armed criminals had failed to implement the operational plan correctly. It was also noted that the police officers involved, including K., had not been properly trained beforehand in how to act in the kind of extraordinary circumstances which Operation Sirena had been designed to address in the first place. The internal investigation noted numerous shortcomings on the part of all of the police officers involved and expressly noted that those shortcomings were at the root of the incident in question.

The Court thus concludes that given the regulatory and operational problems outlined above, the State did not comply with its positive obligations under Article 2 of the Convention.

(b) Alleged violation of Article 2 due to an ineffective investigation

101. The State’s duty to safeguard the right to life includes an obligation to have in place an effective independent judicial system securing the availability of legal means capable of establishing the facts, holding accountable those at fault and providing appropriate redress to the victim (see Sašo Gorgiev, cited above, § 43; Armani Da Silva v. the United Kingdom [GC], no. 5878/08, §§ 229-239, ECHR 2016).

In the particular context of the loss of life or serious injury incurred in connection with dangerous activities, the Court has considered that an official criminal investigation is indispensable, given that public authorities are often the only entities to have sufficient relevant knowledge to identify and establish the complex phenomena that might have caused such an incident. It has also held that where the authorities in question, fully realising the likely consequences and disregarding the powers vested in them, failed to take measures that were necessary and sufficient to avert the risks inherent in a dangerous activity, the fact that those responsible for endangering life were not charged with a criminal offence or prosecuted may amount to a violation of Article 2, irrespective of any other types of remedy which individuals may exercise on their own initiative (see Öneryıldız v. Turkey, cited above, § 93; Budayeva and Others, cited above, § 140).

103. Compliance of an official investigation 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 interrelated and none of them, taken separately, amounts to an end in itself. They are criteria which, taken jointly, enable the degree of effectiveness of an investigation to be assessed. It is in relation to this purpose of an effective investigation that any issues must be assessed (see Mustafa Tunç and Fecire Tunç v Turkey [GC], no. 24014/05, § 225, 14 April 2015).

104. The Court reiterates that an obligation to investigate is not an obligation of result, but of means. 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; Armani Da Silva v. the United Kingdom [GC], cited above, § 257).

105. In the instant case, nearly all of the police officers involved in the preparation and conduct of the training were subject to various disciplinary sanctions (see paragraphs 17-22 above). However, only lower ranking officers were disciplined and not those responsible for the regulatory and operational shortcomings already highlighted.

106. The investigation in the present case was itself marked by clear shortcomings. It was started belatedly and lasted for a total of nearly four and a half years. Although it is true that that period included the preliminary investigation and examination of the case by courts at three instances, there is no evidence, given the final conclusion of the investigation, that the case necessitated time-consuming investigative actions. Moreover, the decisions to terminate the criminal proceedings were quashed on numerous occasions because of a failure to conduct a proper investigation and, in addition, a key piece of evidence was lost by the investigating authorities, for which an investigating officer was disciplined. Although the reopening of a criminal investigation does not in itself constitute ultimate proof of its “deficiency” in terms of the Court’s case-law, the numerous reopenings (outlined in paragraphs 35-41 above) do indicate that insufficient attempts to establish the truth were made (see Belenko v. Russia, no. 25435/06, § 80, 18 December 2014).

The Court also observes that the investigation was ultimately terminated because it was concluded that there were no legal instruments stipulating the procedure for the conduct of training exercises and that, consequently, the scope of the duties of those involved in such training was not defined. In such circumstances, the Court considers that the absence of appropriate legal regulations undermined the deterrent function of the criminal law and made it difficult to hold accountable State officials and competent authorities as regards their role in the organisation and execution of the training exercise, thereby hindering the effectiveness of any investigation therein (see, mutatis mutandis, Öneryıldız, cited above, § 117; Armani Da Silva v. the United Kingdom [GC], cited above, § 239).

Lastly, the Court notes that the applicants’ claim for compensation for damage resulting from the death of their son was dismissed on the ground that the applicants had earlier accepted an insurance payment (paragraph 54 above). Their respective claims for compensation as regards alleged flaws in the investigation were dismissed on grounds which contradict each other (see paragraphs 58 and 60 above). The financial aid and other benefits provided to the applicants by State authorities of their own will were unrelated to the responsibility of the State regarding the organisation of the training exercise or the manner in which the events leading to the applicants’ son’s death were investigated.

By failing to effectively investigate the actions of the police officers involved in the organisation and conduct of the training exercise during which the applicants’ son was shot and died, the State failed to comply with its procedural obligations under Article 2 of the Convention.

In view of the above, the Court considers that there has been a violation of Article 2 of the Convention both under its substantive and procedural aspects.

II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

111. The applicants also invoked Article 13 of the Convention.

112. The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible.

113. Having regard to the finding relating to Article 2 (see paragraph 109 above), the Court considers, however, that it is not necessary to examine whether in this case there has been a violation of Article 13 (see, among other authorities, Budayeva and Others, cited above, § 195).

III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

114. Lastly, the applicants complained, citing Article 14 of the Convention that they had been discriminated against since they were poor and did not hold positions of any influence and that as a result the State had not protected their rights. They also complained that their son had been treated in a degrading manner, contrary to Article 3 of the Convention.

115. Having considered the applicants’ submissions in the light of all the material in its possession, the Court finds that, in so far as the matters complained of are within its competence and supposing that such a complaint were to fall ratione materiae within the scope of Article 14 of the Convention, they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention.

116. It follows that this part of the application must be declared inadmissible as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

117. 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.”

A. Damage

118. The applicants claimed “2,500,000” each in respect of non-pecuniary damage, without specifying the currency of the claim.

119. The Government submitted that there had been no causal link between the damage claimed and the violation alleged. The Government also considered that that amount claimed by the applicants was in Ukrainian hryvnias (at the material time around EUR 223,000) and was excessive.

120. The Court, deciding on an equitable basis, awards the applicants jointly EUR 9,000 in respect of non-pecuniary damage.

B. Costs and expenses

121. The applicants also claimed UAH 75,020 (seventy five thousand and twenty hryvnias) (at the material time around EUR 6,700) for expenses in respect of legal assistance provided by Mr Kristenko and UAH 561.83 (five hundred and sixty-one hryvnias and eighty-three kopiykas) (at the material time around EUR 50) in respect of postal expenses.

122. The Government submitted that the claims relating to legal assistance expenses concerned the services of only one lawyer, Mr Kristenko, who has been representing the applicants since 29 May 2013. Therefore, his services had been limited to the preparation of the applicants’ observations. In the Government’s view, the present case was not a complex one and had not required the need to study voluminous materials. The Government further considered that Mr Kristenko’s hourly rate was too high and that the number of hours he had worked on the case had been over-estimated.

123. As regards the amount claimed in respect of postal expenses, the Government left this issue to the Court’s discretion.

124. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession, the above criteria and the fact that the applicants have been granted legal aid, the Court considers it reasonable to award the sum of EUR 1,500 in respect of the proceedings before the Court.

C. Default interest

125. 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,

1. Declares the complaints under Articles 2 and 13 of the Convention admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 2 of the Convention both under its substantive and procedural aspects;

3. Holds that there is no need to examine the complaint under Article 13 of the Convention;

4. Holds

(a) that the respondent State is to pay the applicants jointly, within three months from the date on which the judgment becomes final, in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 9,000 (nine thousands euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses;

(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;

5. Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 23 June 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Claudia Westerdiek Angelika Nußberger
Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> LOVYGINY v. UKRAINE - 22323/08 (Judgment (Merits and Just Satisfaction) : Court (Fifth Section)) [2016] ECHR 562 (23 June 2016) URL: http://www.bailii.org/eu/cases/ECHR/2016/562.html Cite as: [2016] ECHR 562