BURGAS v. UKRAINE - 8976/07 (Judgment : Article 2 - Right to life : Fourth Section Committee) [2018] ECHR 1030 (18 December 2018)

In the case of Burgas v. Ukraine,

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

Georges Ravarani, President,
Marko Bošnjak,
Péter Paczolay, judges,
and Andrea Tamietti, Deputy Section Registrar,

Having deliberated in private on 27 November 2018,

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

PROCEDURE

1. The case originated in an application (no. 8976/07) 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, Ms Lyubov Oleksandrivna Burgas and Mr Viktor Mikhaylovych Burgas ("the applicants"), on 13 February 2007.

2. The applicants were represented by Mr. V. Skyba, lawyer practising in Donetsk. The Ukrainian Government ("the Government") were represented by their Agent, most recently Mr I. Lishchyna.

3. On 21 March 2011 notice of the application was given to the Government.

4. The Government objected to the examination of the application by a Committee. Having considered the Government's objection, the Court rejects it.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicants were born in 1951 and 1948 respectively and live in Makiyivka.

6 . On 2 February 2002 B., the applicants' son, died in a road accident in the town of Makiyivka. B.'s car collided with another car being driven by Br., who sustained serious bodily injuries and was taken to hospital.

7. On the same day the Makiyivka town police inspected the scene of the accident and questioned M., who was Br.'s passenger at the time of the accident.

8. On 4 and 5 February 2002 forensic medical experts identified the injuries on the applicants' son's body and noted that there was ethyl alcohol in his blood and urine.

9. Between 5 February and 8 April 2002 the police conducted technical vehicular examinations and questioned Br., the applicants, and several other witnesses. According to the results of the technical examinations, the applicants' son swerved into the oncoming traffic lane and collided with Br.'s car, which was moving in the opposite direction. The expert therefore concluded that the applicants' son had contravened traffic rules and thus caused the road accident.

10 . On 18 April 2002, after the applicants had lodged their complaints, the Makiyivka District police opened a criminal investigation into the circumstances of the applicants' son's death.

11 . Between May 2002 and January 2005 the police ordered three forensic technical expert examinations, an additional technical examination, a vehicular trace examination, and three forensic expert examinations of the applicants' son's body. The police also conducted several on-site accident reconstructions, questioned witnesses, and took other investigative measures. The investigating authorities found that the surviving driver, Br., had previously been employed in a police security company, but that he had resigned before the accident happened.

12 . In the course of the above investigations, on 4 November 2003 the Chief Department of Investigations at the Ministry of Internal Affairs issued instructions as to the manner in which the case was to be investigated. It was emphasised that there had been contradictions in the evidence; the scene of the accident had not been inspected properly; Br.'s car had not been seized; the circumstances of the accident had not been noted carefully; and the witnesses had not been identified.

13 . On 2 July, 4 September and 29 October 2004 the criminal case was terminated because the investigators considered that it had been the applicants' son who had contravened traffic rules and caused the accident resulting in his own death. Those decisions were quashed as unsubstantiated by supervising prosecutors, who found that further measures were required to ensure full and objective investigation. Numerous investigating instructions were given.

14. Between 2005 and 2007 the investigators ordered two more technical expert examinations and a vehicular trace examination, three medical forensic expert examinations of the applicants' son's body, and a medical forensic examination of Br.

15. On 5 November 2007 the investigator ordered a new technical expert examination, which was completed on 19 June 2008. According to the results of the examination, it had been the applicants' son who had contravened traffic rules and caused the accident in which he had died.

16. On 23 June 2008 the investigator terminated the criminal proceedings because of the death of the applicants' son. The applicants objected to the grounds on which the case had been terminated, because their son had not been exonerated.

17 . On 1 September 2009 the prosecutor quashed the decision of 23 June 2008, noting that the applicants had objected to the grounds for termination of the proceedings, and therefore it had been for the court to take a final decision in the case.

18. On 29 September 2009 the investigator asked the Gornyanskyy District Court of Makiyivka ("the District Court") to close the criminal case concerning the traffic accident in which the applicants' son had died.

19. On 23 June 2010 the District Court rejected the investigator's request and sent the case back to the prosecutor's office, finding that there had been procedural errors in referring the case to the court. In particular, the investigator was instructed to prepare a bill of indictment.

20 . On 3 September 2010 the investigator closed the criminal case by his own decision, on the grounds that the person responsible for the accident had died. That decision was quashed on 3 December 2010 by a supervising prosecutor for failure to follow the court's instruction of 23 June 2010.

21 . On 28 January 2011 the investigator referred the case to the District Court for a further decision on discontinuing the proceedings.

22. On 31 January 2012 the District Court discontinued the criminal proceedings because of the death of the person responsible for the accident. The applicants appealed, arguing that the investigation had not been thorough and that the available evidence had been contradictory.

23. On 24 April 2012 the Donetsk Regional Court of Appeal quashed the decision of 31 January 2012 as unlawful, finding that the first-instance court should carry out a full examination of the case and give judgment, either finding the applicants' son guilty or acquitting him.

24. On 26 December 2013 the District Court found the applicants' son guilty of causing a traffic accident, but the sentence was not imposed owing to his death.

25. On 7 April 2014 the Donetsk Regional Court of Appeal quashed the above judgment, finding that the first-instance court had violated the applicants' right to defence, and remitted the case for a fresh examination by the same court.

26 . From April 2014 illegal armed groups associated with two self-�proclaimed entities known as the "Donetsk People's Republic" and the "Luhansk People's Republic" began operating in the Donetsk and Luhansk regions, seizing control of certain parts of those regions by force, including Makiyivka. Ukrainian Government forces launched a military anti-terrorist operation against them. A ceasefire line was later put in place.

27 . According to information provided by the applicants, their case was going to be examined by the "authorities" of the "Donetsk People's Republic".

II. RELEVANT DOMESTIC LAW

28. The relevant provisions of the domestic law can be found in Muravskaya v. Ukraine (no. 249/03, §§ 35-36, 13 November 2008).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

29. The applicants argued that the State was responsible for the traffic accident resulting in the death of their son, because the driver of the other car was a police officer. The applicants then complained that the domestic proceedings concerning their son's death had been lengthy and ineffective. They relied on Articles 2 and 6 of the Convention as well as on other provisions of the Convention.

30. The Court, which is master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], nos. 37685/10and 22768/12, §§ 114 and 126, 20 March 2018), will examine the case under Article 2 of the Convention alone. The relevant part of this Article provides:

"1. Everyone's right to life shall be protected by law ..."

A. Admissibility

1. Substantive limb of Article 2

(a) Submissions by the parties

31. The Government stressed that in the course of the domestic investigations it had been established that driver Br. had not been working for the police at the time of the accident. The Government contended that acts committed by a private individual could not in any way engage the State's liability under the substantive limb of Article 2 of the Convention.

32. The applicants disagreed with the Government's submissions and maintained that there had been police involvement in the accident and therefore the State was responsible for the death of their son.

(b) The Court's assessment

33. The Court reiterates that whether a person is an agent of the State for the purposes of the Convention is defined on the basis of a multitude of criteria, one of them being functional (see Kotov v. Russia [GC], no. 54522/00, §§ 92 et seq., 3 April 2012). In the case of Kotelnikov v. Russia (no. 45104/05, § 93, 12 July 2016), where an acting police officer was involved in a traffic accident, the Court considered that the police officer had been acting as an ordinary private individual, taking into account that at the time of the accident the police officer had been off duty, he had been driving his own car on private business, and he had not been using any special powers, weapons, tools or information conferred on him in connection with his position (ibid.).

34. As to the present case, nothing suggests that Br. had been authorised in any manner to exercise State powers when driving a car. It appears that Br. had formerly worked for a police security company but had resigned by the time of the accident (see paragraph 11 above). The earlier employment of Br. with a police security company is not sufficient to engage State liability under the substantive limb of Article 2 of the Convention.

35. The Court holds that the applicants' complaint under the said limb is manifestly ill-�founded and must be dismissed in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

2. Procedural limb of Article 2

36. The Court notes that the applicants' complaint under the procedural limb of Article 2 of the Convention is not manifestly ill-�founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

(a) Submissions by the parties

37. The applicants alleged that the investigation into their son's death had been unreasonably protracted and ineffective. In particular, they submitted that important procedural measures had not been carried out promptly and properly. The instructions by the supervising authorities had not been followed in full, and the investigations had not been comprehensive and thorough, which had made it impossible to establish the real cause of the accident.

38. The Government noted that the national authorities had taken all the necessary steps to collect evidence and to identify the person responsible. Their position was that the investigator had fulfilled all the instructions of the supervising authorities, whereupon on 28 January 2011 the criminal case was transferred to court (see paragraph 21 above). The Government also noted that the majority of those instructions had been based on the applicants' complaints, which also demonstrated sufficient involvement of the applicants in the criminal proceedings in question.

(b) The Court's assessment

39. The Court notes that the traffic accident which gave rise to the present application took place on 2 February 2002 (see paragraph 6 above). The Court has taken note of the military events of April 2014 in the Donetsk region (see paragraph 26 above) and of their consequences (see paragraph 27 above). However, for the purposes of the examination of the present case, it is not necessary to determine whether the respondent State may be held responsible for the procedural failings which might have occurred after that date; indeed, a violation of the procedural limb of Article 2 of the Convention can be found in relation to the period preceding the outbreak of hostilities, for the following reasons.

40. The Court notes that the Government did not contend that the applicants could have effectively pursued the matter arising from the car accident outside the framework of the criminal proceedings, which were still pending at the time when the parties exchanged their observations (compare Sergiyenko v. Ukraine , no. 47690/07, §§ 40 and 42, 19 April 2012). The Court will therefore confine itself to examining whether the criminal proceedings concerning the death of the applicant's son in the car accident satisfied the criteria of effectiveness required by the procedural guarantees of Article 2 of the Convention (see, mutatis mutandis , Antonov v. Ukraine , no. 28096/04, §§ 47-49, 3 November 2011; Prynda v. Ukraine , no. 10904/05, § 54, 31 July 2012; and Zubkova v. Ukraine , no. 36660/08, § 38, 17 October 2013).

41. The general principles concerning the State's procedural obligations under Article 2 are described in Šilih v. Slovenia ([GC] no. 71463/01, § 195, 9 April 2009) and Antonov (cited above, § 46, with further references).

42. The Court observes that in the present case the initial procedural steps in relation to the traffic accident were taken by the authorities by way of pre-investigation inquiries. However, the Court has held that the pre-investigation inquiries does not comply with the principles of an effective remedy, because the inquiry officer can only take a limited number of steps and the victims have no formal status, meaning they are excluded from effective participation in the procedure (see, inter alia , Strogan v. Ukraine , no. 30198/11, § 53, 6 October 2016, with further references). In the present case it took the authorities more than two months to initiate a full-scale investigation of the accident (see paragraph 10 above). This initial delay was not justified; it might have affected the manner in which the crucial evidence relevant to the case had been collected by the authorities by means of those preliminary inquiries, before the institution of criminal proceedings. In particular, the domestic authorities admitted that important initial procedural measures had not been properly taken (notably, an inspection of the scene of the accident) or had not been taken at all (see paragraph 12 above).

43. Subsequently, after the criminal case had been opened in April 2002, the proceedings were seriously delayed without any justification. By the time the armed conflict broke out in April 2014 (see paragraph 26 above), the criminal proceedings in relation to the traffic accident had lasted for twelve years.

44. In that regard the Court notes that the investigators repeatedly adopted decisions discontinuing the investigation. Those decisions were, however, quashed by the supervising authorities, who considered that the investigation had been incomplete and numerous investigative measures had yet to be carried out (see paragraph 13 above) or that specific procedural steps had not been taken (see paragraphs 17 and 20 above). The repetition of such remittal orders discloses a serious deficiency in criminal proceedings (see, in that regard, Zubkova, cited above, § 40). Moreover, the investigation was marked by an unreasonably large number of medical and technical expert examinations, which suggests the absence of a comprehensive approach to the collection of evidence during the pre-trial investigation phase (see, for example, Sergienko , cited above, § 52).

45. The above considerations are sufficient for the Court to find that by the time the armed hostilities started in April 2014 the domestic criminal proceedings were already faulty and ineffective, given the manner in which they were conducted.

46. There has accordingly been a violation of Article 2 of the Convention under its procedural limb.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

47. 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, costs and expenses

48. The applicants claimed 100,000 euros (EUR) in respect of pecuniary and non-pecuniary damage, as well as costs and expenses.

49. The Government submitted that the claims were unfounded and excessive, and that the translation and postal expenses were only partly supported by evidence.

50. The Court considers that the applicants have not demonstrated the existence of a causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicants EUR 3,000 in respect of non-�pecuniary damage.

51. As regards costs and expenses, according to the Court's case-law an applicant is entitled to their reimbursement 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 and the above criteria, the Court considers it reasonable to award the sum of EUR 215 for costs and expenses in the proceedings before the Court.

B. Default interest

52. 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 applicants' complaint under the procedural limb of Article 2 of the Convention admissible and the reminder of the application inadmissible;

2. Holds that there has been a violation of Article 2 of the Convention under its procedural limb;

3. 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 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 215 (two hundred and fifteen 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;

4. Dismisses the remainder of the applicants' claim for just satisfaction.

Done in English, and notified in writing on 18 December 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Andrea Tamietti Georges Ravarani
Deputy Registrar President

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