European Court of Human Rights

 

 

FIFTH SECTION

CASE OF KAPLATYY v. UKRAINE

(Application no. 39997/17)

 

 

 

 

 

 

JUDGMENT

STRASBOURG

4 February 2021

 

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

In the case of Kaplatyy v. Ukraine,

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

          Lətif Hüseynov, President,
          Lado Chanturia,
          Mattias Guyomar, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 39997/17) 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, Mr Dmytro Vsevolodovych Kaplatyy (“the applicant”), on 29 May 2017;

the decision to give notice of the application to the Ukrainian Government (“the Government”);

the parties’ observations;

Having deliberated in private on 14 January 2021,

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

INTRODUCTION

1.  The case concerns complaints under Article 2 of the Convention regarding the ineffectiveness of the investigation into the death of the applicant’s ex-wife which was allegedly not natural.

THE FACTS

2.  The applicant was born in 1975 and lives in Kyiv.

3.  The Government were represented by their Agent, Mr Ivan Lishchyna.

4.  The facts of the case, as submitted by the parties, may be summarised as follows.

5.  Until 2011 the applicant had been married to K. On 3 September 2013 in the afternoon K. died in her partner’s house in the village of Turka, Ivano-Frankivsk Region, where she had moved from the city of Poltava earlier in August, the same year. The following sets of proceedings ensued.

I.       Proceedings initiated by the applicant in Kolomyya

6.  On the same day the crime scene investigation was conducted and no signs of fighting or violent death were found. According to the death certificate, K. died of acute cardiac and pulmonary insufficiency and thromboembolia of the pulmonary artery.

7.  On 4 September 2013 a criminal case was opened into K.’s death by the police of the city of Kolomyya, Ivano-Frankivsk Region (hereafter - the Kolomyya police). The case was opened for murder under Article 115 of the Criminal Code of Ukraine. It transpires from the documents available that the applicant was granted victim status in those proceedings.

8.  It appears that on the same date, a forensic medical examination was ordered by the investigator.

9.  On 5 September 2013 K.’s body was transferred to Poltava, where she had lived for many years before moving to Turku. On the same day she was buried in the local cemetery.

10.  On 9 September 2013 the Kolomyya police terminated the proceedings for lack of a crime. The respective one-and-a-half page resolution referred to the death certificate and testimony of the ambulance doctors and K.’s partner who had been questioned on unspecified dates. In particular, the latter had stated that on 3 September he and K. had been at home together. In the evening K. had started to complain of heart pain and was losing consciousness. Knowing that in 1991 K. had undergone surgery and had a cardiac pacemaker he had called the ambulance, but by the time it arrived K. was already dead. The ambulance doctors confirmed the above statements. They also noted that they had tried to resuscitate K. but their efforts were in vain. They confirmed that they had seen no bodily injuries on K.’s body. Based on this, it was concluded that there were no signs of a crime, in particular, of murder.

11.  On 10 September 2013 the applicant challenged the above resolution before the Kolomyya Inter-District prosecutor’s office. He noted that it had been adopted only on the basis of the death certificate, without waiting for the results of the forensic medical examination. He also complained that not all persons had been questioned, including him. He further alleged that K. had been murdered by her mother because of the money she had received from the sale in July 2013 of an apartment in Poltava she co-owned with the applicant. The applicant also mentioned that there were injection marks on K.’s arms which he had allegedly noted when the body was being prepared for burial and which had been disregarded by the authorities. He contended that those marks could signify that K. had been injected with something that had caused her death.

12.  On 3 October 2013 the forensic expert examination ordered on 4 September 2013 was finalised by the Kolomyya Division of the Ivano‑Frankivsk Regional Bureau of Forensic Expert Examinations. According to its conclusion K. had died of acute cardiac and pulmonary insufficiency and thromboembolia of the pulmonary artery. In the framework of the examination, a blood clot which had allegedly caused death was found and histologically examined. It was also noted in the conclusion that on K.’s body there was only a light bruise on the left shoulder which had appeared 3-4 days before death. Further toxicological expert examination did not find any signs of intoxication in K.’s blood.

13.  By a letter of 9 October 2013, the Kolomyya Inter-District prosecutor’s office, apparently in reply to the applicant’s complaint against the resolution of 9 September 2013, informed the applicant of the actions taken by the investigation. It also noted that as the information gathered did not reveal any signs of a crime, the proceedings were terminated. It was thus concluded that there were no grounds for any measures to be taken by the prosecutor and that the resolution was adopted lawfully. It was also noted that the forensic expert conclusion of 3 October 2013 had been joined to the case file.

14.  It appears that on 8 October 2014 the investigation in the criminal case, terminated by the Kolomyya police on 9 September 2013, was reopened. No copies of the relevant documents were provided by the parties.

II.    Proceedings initiated by the applicant in Poltava

 

 

17.  On 26 September 2013 the Poltava police ordered the exhumation and forensic medical examination of K.’s body, referring to the applicant’s version of events described in his complaint of 20 September.

18.  On 8 October 2013 the exhumation of K.’s body took place.

 

20.  On 5 December 2013, acting upon the resolution of 26 September 2013, the Poltava Regional Bureau of Forensic Expert Examinations drafted a conclusion of the examination of K.’s exhumed body. The experts established no trauma or other wounds or marks on the body except for several bruises on the arms and legs. In the text of conclusion it was also mentioned that on 18 November 2013 the experts had received K.’s histological samples and medical documents, apparently those that had been received from the Ivano-Frankivsk Regional Bureau of Forensic Expert Examinations, and on 27 November 2013 these had been returned to the investigator. It was further noted that the investigator had twice been requested to provide the experts with the materials of the criminal case into K.’s death, the original of the expert conclusion by the Kolomyya Division of the Ivano-Frankivsk Regional Bureau of Forensic Expert Examinations and K.’s medical documentation (medical history record, and so on), but these materials had never been provided. Finally, it was also noted that on 3 December 2013 a letter from the investigator had been received with the request to “return the expert examination without execution”. Based on the above, it was decided to “suspend and return” the expert examination to the investigator.

21.  According to the information provided by the Government, this forensic medical examination had never been finalised due to the non‑provision to the experts of K.’s medical documents and histological samples, which were in the applicant’s possession. The Government noted that the applicant had, on numerous occasions, been contacted by the investigators by phone and requested to provide the above materials and inform them of his place of residence, but he had refused. The applicant submitted that he had never been contacted by the authorities, that his place of residence had been known to them and that he had not changed it since the events and had never been hiding from the authorities. It appears that the applicant is still in possession of the materials in question.

22.  On 20 December 2013 the Kyivskyy District Court of Poltava granted the Poltava police investigator’s request to have access to the materials of the case investigated by the Kolomyya police. The request was based, inter alia, on the impossibility of finalising the additional expert examination without these documents. It is unclear whether the investigator attempted actually to obtain the documents in question.

23.  On 21 February 2014 the Poltava police terminated the criminal proceedings for lack of a crime. It was noted in the resolution, inter alia, that because of lack of access to all the necessary medical materials, as the place of their storage was unknown, it had been impossible to conduct an additional forensic medical expert examination.

 

III. Joinder of the proceedings and their transfer to Kolomyya

25.  As it transpires from the documents available, on 17 October 2014 the two criminal cases were joined into one and their investigation was entrusted to the Kolomyya police.

26.  By a letter of 27 November 2014 the Ivano-Frankivsk Regional prosecutor’s office informed the applicant that the proceedings were pending and that the investigator had been instructed to take all necessary actions to finalise the investigation within a reasonable time.

27.  On 29 June 2016 the Kolomyya police terminated the proceedings for lack of a crime. The resolution referred to the evidence gathered at the initial stages of the investigation back in 2013, such as the testimony of K.’s partner, the testimony of the ambulance doctors, as well as to the expert conclusions of 3 October and 5 December 2013. It was further noted that on 13 July 2015 a complex forensic medical examination, ordered upon the applicant’s motion, had been finalised. However, because of the absence of the medical documents and histological samples kept by the applicant the experts could not provide any replies to the investigator’s questions. Finally, it was noted in the resolution that it was impossible to conduct any further examinations as the applicant, who held the necessary medical documents and histological samples, refused to provide them. In this respect it was stated that the applicant had on numerous occasions been contacted in order to resolve the issue; however, he had refused to indicate his place of residence, or to come to Kolomyya or to send the materials in question.

28.  The applicant alleges that he was not informed of this decision and found out about it only in April 2017. In support of this assertion he provided a copy of his complaint to the Kolomyya police filed on 10 April 2017 in which he requested, among other things, a copy of the resolution of 29 June 2016.

29.  The applicant further submitted a copy of his complaint to the Ivano‑Frankivsk regional prosecutor’s office, filed on 28 April 2017 according to the incoming correspondence stamp. In this complaint he reiterated his version that his ex-wife had been murdered for money and that he suspected that the perpetrators were her partner and mother. He also submitted that there were evident signs of bodily harm on K.’s body which had been disregarded by the forensic experts, in particular during the first expert examination. He also complained that the additional expert examination ordered on 26 September 2014 (which was supposed to verify the conclusions of the initial one) had not been finalised and requested that the case be transferred back to Poltava. On this basis he requested that the resolution of 29 June 2016 be quashed.

30.  By a letter of 3 May 2017 the Ivano-Frankivsk Regional Prosecutor’s Office instructed the Kolomyya local prosecutor’s office to examine the applicant’s complaint and inform them of the results by 22 May 2017.

31.  According to the applicant, he has never received any replies to his complaint. In his view, without this reply he could not apply to the courts.

RELEVANT LEGAL FRAMEWORK

32.  The relevant provisions of the Criminal Code of Procedure of 2012 read as follows:

Article 284. Termination of criminal proceedings

and the proceedings against a legal person

“...4.   An investigator or a prosecutor may issue a decision to terminate criminal proceedings, which is amenable to appeal in accordance with the procedure established by this Code.

...6.  A copy of the investigator’s decision to terminate the criminal proceedings shall be sent to the complainant, the victim and the prosecutor. The prosecutor has the right to quash the decision on the grounds of its unlawfulness or lack of substantiation within twenty days of receipt of the copy of the decision. The prosecutor may also quash the investigator’s decision to terminate the criminal proceedings following a complaint lodged by a complainant or a victim, if such a complaint has been lodged within ten days of receipt of a copy of the decision by the complainant or the victim. ...”

Article 303. Decisions, acts or inaction of the investigator or the prosecutor, which are amenable to appeal during the pre-trial investigation, and the right to appeal

“1.  During the pre-trial proceedings the following decisions, acts or inactions of the investigator or the prosecutor are amenable to appeal:

...3)  the investigator’s decision to terminate the criminal proceedings - by the complainant, the victim, his or her representative or legal representative;

4)  the prosecutor’s decision to terminate the criminal proceedings - by the complainant, the victim, his or her representative or legal representative, the suspect, his/her counsel or legal representative ...”

Article 304. Time limits for challenging decisions, acts or omissions

of the investigator or prosecutor, its returning or refusal to open proceedings

“1.  Complaints against decisions, acts or omissions of the investigator or prosecutor referred to in paragraph one of Article 303 of the present Code, may be lodged [with a court] within ten days after the decision was taken, or the act or omission committed. If a decision of the investigator or prosecutor has been drawn up as a resolution, the time limit for lodging a complaint shall be counted from the day the complainant has received its copy.

2.  A complaint shall be returned if:

1)  it has been lodged by a person who is not entitled thereto;

2)  it is not subject to consideration by this court;

3)  it has been lodged after the expiry of time limit specified in paragraph one of this Article, and the complainant does not raise the issue of renewing the time limit, or the investigating judge finds no grounds for renewing it upon the person’s application.

4.  A copy of the ruling to return the complaint shall be immediately forwarded to the complainant, together with the complaint and all materials attached thereto.

5.  The investigating judge or the court refuses to open proceedings only if the complaint is lodged against such decisions, acts or omissions of the investigator or prosecutor that are not subject to appeal.

6.  A copy of the ruling to refuse to open the proceedings shall be immediately forwarded to the complainant, together with the complaint and all materials attached thereto.

7.  A ruling to return the complaint or refuse to open proceedings may be challenged on appeal.

8.  The returning of the complaint does not preclude re-applying to the investigating judge or the court as prescribed in the present Code.”

THE LAW

I.       ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

33.  The applicant complained under Articles 2, 3 and 6 of the Convention of the ineffective investigation into the death of his ex-wife, K.

 

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

A.    Admissibility

1.     As to the applicant’s victim status

 

36.  In reply the applicant stated that he was K.’s ex-husband and thus a relative and that in the respective criminal proceedings he had been officially granted victim status. His standing in the proceedings before the domestic authorities had never been questioned.

 

38.  Furthermore, when deciding the issue of standing the Court has also taken into account a person’s involvement into the domestic proceedings (see, mutatis mutandis, Alecu and Others v. Romania, nos. 56838/08 and 80 others, § 31, 27 January 2015).

39.  Turning to the present case, the Court notes that the applicant and K. had been married for six years, until 2011. It appears that since that time they had not been living together, but still lived in the same city and co‑owned an apartment which they sold in July 2013. After K’s death in September 2013, it was upon the applicant’s complaint that criminal proceedings were initiated and he was granted victim status within their framework. It is unclear whether any other person, that is, blood relatives of K. (her parents or sister) or her new partner, were granted victim status in those proceedings. This is especially important in view of the applicant’s version of events that K. was killed by her mother and partner for money. Furthermore, throughout the proceedings the applicant had been very actively involved in the investigation, submitting applications and challenging the termination of the proceedings on several occasions.

40.  In these specific circumstances, the Court considers that the applicant may claim to be a victim of the alleged violation of the Convention in respect of the subsequent investigation into K.’s death (compare with Trivkanović, cited above). The Court thus rejects the Government’s objection under this head.

2.    Otherwise as to admissibility

41.  The Government further noted that the authorities conducted a number of investigative actions in order to establish the circumstances of the case. It was concluded that K. had died of natural causes. They emphasised that, while asking for further forensic medical examinations to be conducted, the applicant had refused to provide the authorities with the histological samples and medical materials in his possession and that the authorities’ attempts to make him provide these materials (such as phone calls) had been fruitless. In this respect they noted that the applicant lacked interest in the results of the investigation and concluded that his application was therefore manifestly ill-founded.

42.  The Government also stated that, as the applicant did not file any complaints against the resolution on termination of criminal proceedings of 29 June 2016, although he could have challenged it either before the prosecutor or the courts, he had failed to exhaust domestic remedies. They further noted that the applicant had also failed to comply with the six‑month rule for the submission of his application, as the six months had to be counted from 29 June 2016.

43.  The applicant contended that the investigation into K.’s death had been ineffective and constituted essentially a refusal to investigate. In particular, he complained of the authorities’ inactivity and failure to take necessary measures, referring to, inter alia, the forensic medical examination ordered on 26 September 2013 which had never been finalised. He also complained that the investigating authorities had terminated the proceedings on several occasions.

44.  The applicant further stated that, contrary to what was claimed by the Government, he had submitted a complaint to the prosecutor against the resolution of 29 June 2016, of which he had become aware in April 2017. At the same time, he stated that he could not appeal against it to the courts until he received a reply from the prosecutor. He thus considered that he had exhausted the domestic remedies.

45.  The Court considers that the Government’s objections mentioned above are closely linked to the merits of the present complaint. Consequently, the examination of these issues should be joined to the assessment of the merits of that complaint.

B.     Merits

46.  The Government provided no observations on the merits of the applicant’s complaints.

 

 

 

50.  Turning to the present case, the Court notes that the proceedings into K.’s death were initiated in Kolomyya and Poltava (into murder and non‑provision of help to a person in a dangerous situation, respectively) one and eighteen days after her death. Both sets of proceedings were opened upon the applicant’s complaints and it appears that the national authorities considered those complaints well-grounded and necessitating investigation, in particular, in respect of his allegations that K. did not die of natural causes.

51.  The Court further observes that, despite prompt institution, in these proceedings only a limited number of investigative activities was undertaken and very little evidence was gathered. In particular, as transpires from the resolution on termination of the proceedings of 9 September 2013 (see paragraph 10 above), the police obtained testimony only from K.’s partner and the ambulance doctors. Furthermore, although a forensic medical examination was ordered, when terminating the proceedings the police relied only on the death certificate based on which it concluded that K. had died of natural causes without waiting for the results of the forensic medical examination. The Court is also mindful that the above‑mentioned resolution was adopted on 9 September 2013, that is only six days after K.’s death, which in itself raises serious doubts as to the thoroughness of the investigation.

 

53.  The Court notes that in the context of the latter set of proceedings the applicant complained that the forensic medical examination ordered on 26 September 2013 had never been finalised. According to the information provided by the Government, it had never been finalised due to the non‑provision to the experts of K.’s medical documents and histological samples, which were in the applicant’s possession. The Government noted that the applicant had been contacted on numerous occasions by the investigators by phone and requested to provide the above materials and inform them of his place of residence, but he had refused. The applicant submitted that he had never been contacted by the authorities, that his place of residence had been known to them and had not changed since the time of the events and that he had never hidden from the authorities. The applicant also acknowledged that he still has the materials in question.

54.  In this context the Court observes that it is unclear why it was decided to have these materials transferred to the applicant in the first place. The resolution of 20 November 2013 (see paragraph 19 above) contains no explanation. Likewise, no explanations in that respect were provided by the parties. In any case it appears that the documents in question were the only existing originals and the histological samples were the only ones available from the initial expert examination. No other copies or samples were stored by the authorities. At the same time the Court observes that the expert conclusion of 5 December 2013 states that some medical documents and histological samples were provided to the experts (see paragraph 20 above). However, in the absence of further details the Court is unable to conclude which particular materials are mentioned.

55.  The Court further observes that this expert conclusion also mentioned that the experts had requested the investigator to provide additional documents, but to no avail. The parties had likewise provided no explanations in that respect. Finally, the Court is mindful that the expert conclusion in question relies on the letter from the investigator requesting the experts to return the expertise “without execution” (see paragraph 20 above). In the absence of the relevant documents the Court cannot examine the reasons for such a request, but in the light of the above circumstances taken cumulatively it cannot but conclude that the authorities lacked diligence in dealing with such important evidence as medical documents and histological samples and failed to ensure their availability and the availability of other important materials for expert examination (see Belenko v. Russia, no. 25435/06, § 83, 18 December 2014).

 

 

 

 

60.  The Court further notes that, according to the applicant, he has not received any reply to his complaint, which precludes him from appealing further to the courts. The Court observes in this respect that the applicable legislation does not require any hierarchy to be followed when challenging the investigator’s decision to terminate proceedings - the person may choose to apply either to the prosecutor or the court, or both, and both the prosecutor and the court have the power to quash the termination of the proceedings (see paragraph 32 above). The Court is mindful that the applicant has been waiting for the prosecutor’s reply for more than 3 years now and had neither applied to the courts nor, as it appears, tried to contact the prosecutor again. The Government claimed that this demonstrated both his lack of interest in pursuing the case and his failure to exhaust domestic remedies. The Court, however, considers that this issue needs to be decided in the light of its conclusions as to the effectiveness of the investigation.

 

 

63.  Having regard to the above, the Court finds that there has been a violation of the procedural limb of Article 2 of the Convention.

II.    APPLICATION OF ARTICLE 41 OF THE CONVENTION

64.  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.”

 

66.  The Government submitted that the applicant’s claims for non‑pecuniary damage had no causal connection with the violation complained of. In any case, in their view, the applicant’s complaints were inadmissible.

 

68.  Since the applicant made no claim in respect of costs and expenses incurred either domestically or before the Court, the Court is not called upon to make an award under this head.

69.  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.      Holds that the applicant may claim to be a victim;

2.      Joins the Government’s objection as to the non-exhaustion of domestic remedies to the merits of the complaint under Article 2 of the Convention and dismisses it;

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

4.      Holds

(a)   that the respondent State is to pay the applicant, within three months, EUR 6,000 (six thousand euros) plus any tax that may be chargeable, in respect of non-pecuniary damage to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

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

Done in English, and notified in writing on 4 February 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Martina Keller                                                                    Lətif Hüseynov
 Deputy Registrar                                                                       President