FIFTH SECTION
CASE OF
ZUBKOVA v. UKRAINE
(Application no.
36660/08)
JUDGMENT
STRASBOURG
17 October 2013
This judgment will become final in
the circumstances set out in Article 44 § 2 of the Convention. It may
be subject to editorial revision.
In the case of Zubkova v. Ukraine,
The European Court of Human
Rights (Fifth Section), sitting as a Chamber composed of:
Mark Villiger, President,
Angelika Nußberger,
Boštjan M. Zupančič,
Ganna Yudkivska,
André Potocki,
Paul Lemmens,
Aleš Pejchal, judges,
and Claudia Westerdiek, Section Registrar,
Having deliberated in private on 24 September 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
36660/08) against Ukraine lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Ukrainian national, Ms Nina Antonovna Zubkova (“the
applicant”), on 3 July 2008.
The applicant, who had been granted legal aid,
was represented by Mr M. Tarakhkalo, a lawyer practising in Kharkiv. The
Ukrainian Government (“the Government”) were represented by their Agent, Mr N. Kulchytskyy.
The applicant alleged under Article 2 of the
Convention that the authorities had failed to carry out an effective investigation
of the accident which had caused the death of her son.
On 14 December 2011 the application was
communicated to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1937 and lives in the
city of Kharkiv.
On 18 May 2002 Mr Igor Zubkov, the applicant’s
son (born in 1961), was riding a bicycle and collided with a minibus at a
crossroads in Kharkiv.
On the same day the police examined the scene of
the accident and prepared a vehicular accident inspection report, taking relevant
measurements. They also questioned the driver of the minibus and his passenger.
On 20 May 2002 the applicant’s son died as a
result of his injuries.
On 21 May 2002 the local police instituted
criminal proceedings in respect of the violation of
traffic safety rules which had resulted in the victim’s death. In the
subsequent period a number of investigative measures were taken, including
questioning witnesses, staging a reconstruction of events, and conducting expert
examinations.
On 25 September 2002 a police investigator
terminated the criminal proceedings for lack of corpus delicti in the
actions of the minibus driver. The investigator also noted that the accident
was caused by the cyclist himself.
On 25 October 2002 the Kharkiv City Prosecutor’s
Office quashed that decision, finding that it had been taken prematurely. It
noted, in particular, that in the course of the investigation the attesting
witnesses, who had been present during the examination of
the scene of the accident and the preparation of the vehicular accident inspection
report, had to be questioned; that a statement by the victim’s relatives
contesting the veracity of that report had to be annexed to the file and
examined; and that an additional auto-technical expert examination (автотехнічна
експертиза)
had to be conducted.
Following the additional investigative measures,
on 18 April 2003 the police investigator terminated the criminal proceedings
for lack of corpus delicti in the actions of the minibus driver. The
investigator concluded that the accident had taken place as a result of the
negligent and careless behaviour of the cyclist.
On 14 May 2003 the supervising prosecutor
quashed that decision, noting, inter alia, that the instructions given
by the Kharkiv City Prosecutor’s Office had not been followed in full. The
investigation was resumed.
On 15 September 2003 the police investigator
terminated the criminal proceedings, finding that the additional investigation
did not disclose any elements of a criminal offence on the part of the minibus
driver who could not avoid colliding with the cyclist.
On 5 November 2003 a supervising prosecutor
quashed that decision, finding that not all the investigative measures had been
taken in order to carry out a full, comprehensive and objective examination of
the circumstances of the case. He specified that it would be necessary to
question witnesses and carry out an auto-technical expert examination of the
bicycle.
On 26 February 2004 the police investigator,
having taken the additional investigative measures, concluded that there had
been no corpus delicti in the actions of the minibus driver. The
investigation was therefore closed.
On 1 July 2004 the supervising prosecutor
quashed that decision and ordered a further investigation. He noted, in
particular, that it would be necessary to carry out new reconstructions of
events and a more thorough auto-technical expert examination.
Following the additional investigative measures,
on 24 January 2005 the criminal proceedings were terminated for lack of corpus
delicti in the actions of the minibus driver.
On 14 February 2005 the supervising prosecutor
quashed that decision, noting that it had been taken prematurely. He instructed
the investigator to examine the arguments advanced by the victim’s relatives, who
disagreed with the results of the expert examinations.
On 11 September 2006 the police investigator found
that there had been no elements of a criminal offence on the part of the
minibus driver and that therefore the criminal proceedings had to be terminated.
On 23 October 2006 the supervising police
authorities, having regard to the arguments advanced by the victim’s relatives,
quashed that decision as having been taken prematurely, and ordered a further
investigation.
By a decision of 30 December 2007 the
investigation was closed once again for lack of corpus delicti. The
investigator found that the minibus driver did not violate any traffic rules
and could not avoid colliding with the cyclist. On 11 March 2008 the
applicant was sent a copy of that decision.
On 30 March 2012 the applicant challenged the
decision of 30 December 2007 before the Kyivskyy District Court of Kharkiv
(“the District Court”).
On 24 April 2012 the District Court dismissed
the complaint as unfounded. The applicant appealed against that decision.
On 24 May 2012 the Kharkiv Regional Court of
Appeal quashed the decision of 24 April 2012 and remitted the case to the
District Court for a fresh examination. The court of appeal noted in particular,
that the conclusions reached by the investigator had not been properly
substantiated by the material in the criminal case file and that the District
Court had failed to give appropriate reasons for dismissing the applicant’s
complaint.
On 11 July 2012 the District Court quashed the
decision of 30 December 2007 as unsubstantiated and ordered a further
investigation. The District Court specified that during the investigation, it would
be necessary to scrutinise the arguments put forward by the applicant, to
assess the statements of certain witnesses properly and to carry out another
auto-technical expert examination. The parties did not inform the Court whether
that decision became final. Nor did they inform the Court about any further
steps taken in the investigation.
II. RELEVANT DOMESTIC LAW
Under Article 28 of the
Code of Criminal Procedure of 28
December 1960 (in force at the relevant time), a
person who sustained damage as a result of a criminal offence could lodge a civil
claim against an accused at any stage of criminal proceedings before the
beginning of the consideration of the case on the merits by a court. A civil
claimant in criminal proceedings was exempt from the court fee for the lodging
of a civil claim.
The other relevant provisions of domestic law can
be found in the judgment of Muravskaya v. Ukraine (no. 249/03, §§ 35 and
36, 13 November 2008).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 2 OF THE
CONVENTION
The applicant complained that the domestic
authorities had failed to carry out an effective investigation of the accident which
had caused the death of her son. She relied on Article 2 of the Convention, which
reads, in so far as relevant, as follows:
“1. Everyone’s right to life shall be protected by law. ... ”
A. Admissibility
The Government contended that in as much as the
application related to the alleged failure of the investigative authorities to
comply with the instructions of the supervising authorities, that part of the
application was manifestly ill-founded.
The applicant disagreed and maintained that the
application was admissible.
The Court considers that the application 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
1. The submissions by the parties
The applicant maintained that the investigation
had been ineffective, since 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 investigation had not been comprehensive and
thorough, which had resulted in wrong conclusions in the case being reached.
The Government argued that the law-enforcement
bodies had taken all the necessary procedural measures in order to investigate
the circumstances of the death of the applicant’s son effectively. They contended
that there was nothing to suggest that the investigation had been protracted or
ineffective. They further noted that it was not until 30 March 2012 that
the applicant decided to challenge the decision of 30 December 2007 in
court, despite having received a copy of it in March 2008. The Government
therefore insisted that the relevant period of inactivity was imputable to the
applicant and should not be taken into account when assessing the effectiveness
and length of the investigation conducted by the domestic authorities.
2. The Court’s assessment
The Court reiterates that the first sentence of
Article 2 of the Convention requires the States, in particular, to put in place
a legislative and administrative framework designed to provide effective
deterrence against threats to the right to life in context of any activity,
whether public or not, in which the right to life may be at stake (see, among
other authorities, Öneryıldız v. Turkey [GC], no. 48939/99, §§ 89-90,
ECHR 2004-XII; Kalender v. Turkey, no. 4314/02, § 51, 15 December 2009; and Krivova v. Ukraine, no. 25732/05, § 44, 9 November 2010). In case of a life-threatening injury or death, the above
obligation calls for an effective independent judicial system to ensure
enforcement of the aforementioned legislative framework by providing
appropriate redress (see, for example, Anna Todorova v. Bulgaria, no.
23302/03, § 72, 24 May 2011). This obligation also applies in the context
of designing a framework for protection of life from road traffic accidents (see, for example, Al Fayed v. France
(dec.), no. 38501/02, §§ 73-78, 27 September 2007; Rajkowska
v. Poland (dec.), no. 37393/02, 27 November 2007; Railean v. Moldova,
no. 23401/04, § 30, 5 January 2010).
The Court has stated on a number of occasions
that, although the right to have third parties prosecuted or sentenced for a
criminal offence cannot be asserted independently, an effective judicial
system, as required by Article 2, may, and under certain circumstances must,
include recourse to the criminal law (see, for example, Perez v. France
[GC], no. 47287/99, § 70, ECHR 2004-I). However, if the infringement of
the right to life or to physical integrity was not caused intentionally, the
positive obligation imposed by Article 2 to set up an effective judicial system
does not necessarily require the provision of a criminal-law remedy in every
case (see Vo v. France [GC], no. 53924/00, § 90, ECHR 2004-VIII).
In principle, the States should have the discretion
to decide how a system for the enforcement of a regulatory framework protecting
the right to life must be designed and implemented. What is important,
however, is that whatever form the investigation takes, the available legal remedies, taken together, must amount to
legal means capable of establishing the facts, holding accountable those at
fault and providing appropriate redress. Any
deficiency in the investigation, undermining its ability to establish the cause
of the death or those responsible for it, may lead to the finding that the
Convention requirements have not been met (see Antonov v.
Ukraine, no. 28096/04, § 46,
3 November 2011).
Turning to the present case, the Court notes
that the Government did not contend that the applicant could effectively pursue
the matter outside the framework of the criminal investigation (compare Sergiyenko
v. Ukraine, no. 47690/07, §§ 40
and 42, 19 April 2012). Moreover, given that the Code
of Criminal Procedure afforded a joint examination of criminal responsibility
and civil liability arising from the same culpable actions, the Court considers
that in the circumstances of the present case the applicant reasonably relied
on the procedures provided for by that Code. The Court will therefore confine itself to examining whether the criminal investigation
into the death of the applicant’s son satisfied the criteria of effectiveness
required by Article 2 of the Convention (see Antonov, cited
above, §§ 47-49; Igor
Shevchenko v. Ukraine, no. 22737/04, §§ 56-62, 12 January 2012 and Prynda v. Ukraine, no.
10904/05, § 54, 31 July 2012).
In this regard, the Court notes that following
the traffic accident the authorities took a significant number of procedural measures
aimed at discharging their positive obligation under Article 2 of the
Convention. The fact that the authorities did not establish any criminal
liability on the part of the minibus driver does not render the investigation
ineffective.
At the same time, the Court notes that between
2002 and 2006 the investigative authorities adopted numerous decisions
discontinuing the investigation. Those decisions were, however, quashed by the
supervising authorities, who considered that the investigation had been
incomplete and that further steps were required. The repetition of such
remittal orders discloses a serious deficiency in
criminal investigation (see Oleynikova v. Ukraine,
no. 38765/05, § 81, 15 December 2011).
It is relevant to note that in ordering additional investigations, the
supervising authorities specified, inter alia, that additional measures were
necessary in order to carry out a comprehensive investigation of the case,
namely questioning of the witnesses, expert examinations, a reconstruction of
events, and an examination of the arguments advanced by the victim’s relatives.
The facts of the case therefore suggest that the investigative authorities did
not take all the necessary steps in order to carry out a thorough investigation
which would be compatible with the Convention requirements.
Even though there was a long period of
inactivity on the part of the applicant, as suggested by the Government, the
overall length of the criminal proceedings, while they were pending before the
domestic authorities, does not appear to be justified. The Court notes in
particular that, while the accident took place on 18 May 2002, the last decision
to close the investigation - which was later challenged by the applicant - was
taken only on 30 December 2007 and notified on 11 March 2008, that is almost
six years after the accident. In this regard, the Court reiterates that the effectiveness of an investigation implies a requirement of promptness and reasonable expedition. Even where there may be obstacles
or difficulties which prevent progress in an investigation in a particular
situation, a prompt response by the authorities is vital in maintaining public
confidence in their adherence to the rule of law and in preventing any
appearance of collusion in or tolerance of unlawful acts (see Šilih v. Slovenia [GC], no. 71463/01, § 195,
9 April 2009).
Moreover, with the lapse of time the prospects
that any effective investigation can be undertaken will increasingly diminish.
The foregoing considerations are sufficient to
enable the Court to conclude that there has been a violation of the procedural
limb of Article 2 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
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
The applicant claimed 35,000 euros (EUR) in
respect of non-pecuniary damage.
The Government submitted
that this claim was excessive and unsubstantiated.
The Court considers that the applicant must have
suffered anguish and distress on account of the facts giving rise to the
finding of a violation in the present case, that cannot be made good by a
finding of a violation alone. Ruling on an equitable basis, the Court awards
the applicant EUR 9,000 in respect of non-pecuniary damage.
B. Costs and expenses
The applicant, who had
been granted legal aid, claimed EUR 2,553.60
for the costs and expenses incurred before the Court. She
asked that any award in respect of this claim be paid directly into the bank
account of her representative.
The Government submitted that this claim was
excessive.
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 and the above criteria, the Court considers it
reasonable to award, in addition to the legal aid granted, the sum of EUR 500
for costs and expenses for the proceedings before the Court. The latter amount is
to be paid directly into the bank account of the applicant’s representative (see,
for example, Hristovi v. Bulgaria, no. 42697/05, § 109, 11 October 2011, and Singartiyski
and Others v. Bulgaria, no. 48284/07, §
54, 18 October 2011).
C. Default interest
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 application admissible;
2. Holds that there has been a violation of
the procedural limb of Article 2 of the Convention;
3. Holds
(a) that the respondent
State is to pay the applicant, 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 thousand euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage;
(ii) EUR
500 (five hundred euros), plus any tax that may be chargeable to the applicant,
in respect of costs and expenses, to be paid into the bank account of the
applicant’s representative;
(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 applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 17 October 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia
Westerdiek Mark Villiger
Registrar President
