19.02.2019 | Автор: Зеров Костянтин
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«Зоріна та інші проти України»: ЄСПЛ встановив порушення процесуального аспекту статті 2 Конвенції внаслідок неефективного розслідування обставин смерті родичів Заявників (ст. 2 Конвенції, заяви № 20295/07 та 3 інші, від 14.02.2019 р.)

Фабула судового акта: Заявниками є громадяни України О.К. Зоріна, Н.П. Козак, Л.В. Денисова, М.І. Копищук та Н.У. Копищук. Заявники звернулися до ЄСПЛ у зв`язку з неефективними розслідуваннями смерті їхніх родичів, які загинули за підозрілих обставин.

Уряд стверджував, що компетентні національні органи діяли сумлінно і оперативно.

Щодо заяви О.К. Зоріної. Син Заявниці був збитий автомобілем на пішохідному переході, внаслідок чого помер. Було порушено кримінальну справу, проте слідчі органи вчасно не встановили місцезнаходження підозрюваного.  У той же час, протягом більш ніж десяти років існували суттєві розбіжності між висновками технічних експертиз, які унеможливлювати розгляд справи. Проте, такі недоліки не були усунуті, а підозрюваний покинув Україну і кримінальне провадження було припинено за закінченням строків давності притягнення до кримінальної відповідальності.

Щодо заяви Н.П. Козак. Шестирічний син Заявниці зник, а згодом було знайдене його тіло. Кримінальна справа неодноразово поновлювалася, а також направлялася на дорозслідування судом. Слідчі органи не забезпечили збирання усіх можливих доказів, які могли підтверджувати вину підозрюваного (в тому числі не дослідили його одяг на предмет наявності слідів крові сина Заявниці). Суд встановив, що зізнання обвинуваченого  не може встановлювати його вину, оскільки обвинувачений страждав на шизофренію, а будь-які інші докази його вини були відсутні. Таке рішення переглядалося в апеляції і касації, проте було залишене без змін. Згодом міліція здійснювала додаткове розслідування обставин сиерті сина Заявниці, проте встановити всі обставини через значний проміжок часу з моменту події (близько 13,5 років) – не вдалося.

Щодо заяви Л.В. Денисової. Брата Заявниці було знайдено мертвим у його квартирі. Судово-медична експертиза встановила, що він помер від ішемічної хвороби серця. Верховний Суд України скасував рішення судів першої та апеляційної інстанції про відмову у відкритті справи. Верховний Суд України вказав, що не було жодних доказів щодо ішемічної хвороби брата Заявниці до дня його смерті, а слідчі органи не зібрали докази, що вказували на можливе вбивство брата Заявниці. Під час подальших розслідувань вказані недоліки так і не було усунуто.

Щодо заяви М.І. Копищука та Н.У. Копищук. Донька Заявників була знайдена мертвою, офіційною причиною смерті вважалося отруєння чадним газом. На думку Заявників, їхню доньку було вбито. Незважаючи на те, що було проведено низку судово-медичних експертиз, жодна з них не дозволила переконливо встновити причину смерті доньки Заявників. Справу відправляли на дорозслідування, було проведено декілька ексгумацій. Остання ексгумація була проведена майже через три роки після смерті, і оскільки тіло знаходилося у стані розкладу, судово-медична експертиза не змогла встановити причину смерті доньки Заявників. Під час останнього направлення справи на дорослідування суд звернув увагу на розбіжності у показаннях свідків, висновках експертів та ін.

ЄСПЛ наголосив, що пункт 1 статті 2 Конвенції зобов'язує державу не лише утримуватися від умисного та незаконного позбавлення життя, але і вживати заходів для захисту життя осіб, які перебувають під її юрисдикцією, в тому числі, здіснювати ефективне офіційне розслідування обставин смерті за підозрілих обставин. ЄСПЛ констатував, що не кожне розслідування обов'язково є успішним, проте воно повинно повинно встановити обставини події та зробити можливим покарання винних. Дотримання процесуальних вимог статті 2 Конвенції оцінюється на підставі декількох взаємопов'язаних параметрів: адекватності слідчих дій, швидкості та незалежності розслідування, залучення членів сім'ї померлого до розслідування. Оперативне реагування в подібних випадках має важливе значення для підтримки суспільної довіри до відповідності дій влади верховенству права та вимогам законності. Натомість, ЄСПЛ констатував, що у справах Зявників розслідування смерті їхніх родичів було розпочато із суттєвою затримкою.

ЄСПЛ відзначив, що ефективність розслідування серед іншого передбачає ретельність у збиранні та дослідженні доказів. Проте у справах Заявників відмова слідчих органів від вчасного здійснення усіх необхідних слідчих дій унеможливила встановлення обставин загибелі родичів Заявників.

З огляду на вищевказане, ЄСПЛ встановив порушення процесуального аспекту статті 2 Конвенції.

Аналізуйте судовий акт:«Ігор Шевченко проти України» (Igor Shevchenko v. Ukraine), заява № 22737/04

«Басюк проти України» Basyuk v. Ukraine, заява № 51151/10

«Мустафа Тундж і Феджіре Тундж проти Туречиини» [ВП] (Mustafa Tunç and Fecire Tunç v. Turkey [GC]), заява 24014/05

«Юрій Слюсар проти України» (Yuriy Slyusar v. Ukraine), заява № 39797/05

«Пол та Одрі Едвардс проти Сполученого Королівства» (Paul and Audrey Edwards v. the United Kingdom), no. 46477/99

FIFTH SECTION

 

CASE OF ZORINA AND OTHERS v. UKRAINE

(Applications nos. 20295/07 and 3 other applications -

see appended list)

JUDGMENT

STRASBOURG

14 February 2019

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

In the case of Zorina and Others v. Ukraine,

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

Síofra O’Leary, President,
Lәtif Hüseynov,
Lado Chanturia, judges,
and Milan Blaško, Deputy Section Registrar,

Having deliberated in private on 22 January 2019,

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

PROCEDURE

1. The case originated in applications against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table.

2. Notice of the applications was given to the Ukrainian Government (“the Government”).

3. With regard to applications nos. 24328/08 and 65898/11, the Government objected to the examination of the applications by a Committee. Having considered the Government’s objection, the Court rejects it.

THE FACTS

4. The list of applicants and the relevant details of the applications are set out in the appended table.

5. The applicants complained of the failure to effectively investigate the deaths of their relatives, who appear to have died under suspicious circumstances.

THE LAW

I. JOINDER OF THE APPLICATIONS

6. In accordance with Rule 42 § 1 of the Rules of Court, the Court decides to join the applications and consider them in a single judgment, given that they raise similar issues under the Convention.

II. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

7. The applicants complained that the investigations into the deaths of their relatives, who died in a road traffic accident or in circumstances which could have been regarded as suspicious, without there being evidence that State agents were involved, had been ineffective (the relevant facts of the applications are outlined in § 16 below and in the appended table). They relied on Article 2, Article 6 § 1 and Article 13 of the Convention.

8. The Court, which is master of the characterisation to be given in law to the facts of the case, finds that the complaints at issue fall to be examined under Article 2 of the Convention (see Igor Shevchenko v. Ukraine, no. 22737/04, § 38, 12 January 2012). This provision, in so far as relevant, reads as follows:

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

A. Admissibility

9. In application no. 20295/07 the accident in question happened on 30 August 1996, nearly one year before the Convention entered into force in respect of Ukraine on 11 September 1997.

However, the investigation continued for another fifteen years and seven months after that date. In view of this, the Court finds that the alleged interference with Article 2 of the Convention in its procedural aspect, which took place after 11 September 1997, falls within the Court’s temporal jurisdiction (see Igor Shevchenko v. Ukraine, cited above, §§ 47-48).

10. The Court notes that the complaints in the present cases are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

B. Merits

1. The parties’ submissions

11. The Government submitted that there had been no violation of the Convention. They noted in particular that the investigating authorities had either immediately instituted criminal investigations into the applicants’ relatives’ deaths (nos. 20295/07 and 24328/08) or had taken all investigative steps in order to conclude that an investigation was not necessary (nos. 65898/11 and 52601/12). The competent investigating authorities had acted diligently and promptly; they had done everything possible to investigate the circumstances of the cases; and the length of the investigations had been justified by the necessity to carry out a significant number of investigative actions.

12. The applicants did not accept the Government’s assertions that effective investigations had been carried out. They contended that the investigating authorities had not acted promptly and had not secured evidence of the incidents. The applicants also argued that the investigations had not been structured and had been marked by tactical shortcomings, which had undermined any possibility of identifying those responsible or establishing their relatives’ cause of the death.

2. The Court’s assessment

13. The Court reiterates that Article 2 § 1 of the Convention enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see L.C.B. v. the United Kingdom, 9 June 1998, § 36, Reports of Judgments and Decisions 1998-III). This implies the putting in place of effective criminal-law provisions to deter the commission of offences against the person, backed up by law-enforcement machinery for the prevention, suppression and punishment of breaches of such provisions (see Osman v. the United Kingdom, 28 October 1998, § 115, Reports 1998‑VIII).

14. More specifically, the obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, requires by implication that there should be an effective official investigation when individuals have died in suspicious circumstances. This obligation is not confined to cases where it has been established that the killing was caused by an agent of the State. The mere fact that the authorities have been informed of the death will give rise ipso facto to an obligation under Article 2 of the Convention to carry out an effective investigation into the circumstances in which it occurred (see, for example, Railean v. Moldova, no. 23401/04, § 28, 5 January 2010; Basyuk v. Ukraine, no. 51151/10, §§ 56-57, 5 November 2015; and Igor Shevchenko v. Ukraine, cited above, § 56). This is not an obligation of results to be achieved but of means to be employed. The Court accepts that 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).

15. Once the investigative obligation is triggered, compliance 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 inter‑related and each of them, taken separately, does not amount to an end in itself (see Mustafa Tunç and Fecire Tunç v. Turkey [GC], no. 24014/05, § 225, 14 April 2015).

16. Turning to the circumstances of the present cases, the Court notes that the applicants’ relatives either died in a road traffic accident (no. 20295/07), or were found dead with signs of serious physical injuries (nos. 24328/0852601/12), or died under the unknown circumstances, which could have been regarded as suspicious (no. 24328/08). There was no evidence that State agents were involved in possible murder of the applicants’ relatives (the relevant facts of the applications are outlined in the appended table).

17. The Court has firstly had regard to the substantial delay in commencing the inquiries into the applicants’ relatives’ deaths. Namely, in applications nos. 65898/11 and 52601/12, more than one year elapsed between the date of the applicants’ relatives’ deaths and the date the criminal proceedings were instituted. Moreover, in these cases, the decisions to refuse to institute proceedings were taken without the circumstances of the cases having been properly examined.

18. In this connection, 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, for example, Sergiyenko v. Ukraine, no. 47690/07, §§ 52-53, 19 April 2012; Chumak v. Ukraine[Committee], no. 60790/12, §§ 27-28, 19 May 2016; and Yuriy Slyusar v. Ukraine, no. 39797/05, § 82, 17 January 2013).

19. The Court further notes that, in the present cases, the investigations were characterised by repeated discontinuations and reopenings as a result of the insufficiency of the measures taken by the inquiring officers, and were marked by the progressive deterioration of evidence. Moreover, from the information available, it does not appear that structured investigations took place after criminal proceedings were instituted. In the following ways, the investigations were marked by substantial shortcomings in their preliminary stages which undermined any possibility of establishing causes of death or punishing those responsible.

(i) In application no. 20295/07, for more than ten years, there were substantial divergences between the conclusions of technical expert examinations of the vehicle in question, which were not reconciled and which precluded the examination of the case on the merits. During this time the suspect left Ukraine and as a consequence the criminal proceedings against him were terminated because the limitation period for criminal liability expired.

(ii) In application no. 24328/08 there is no evidence that the investigating authorities explored other possible avenues apart from pursuing an investigation against B., whose confession could not serve as a basis for establishing his guilt, since he was suffering from schizophrenia. Moreover, the investigating authorities failed to secure any possible evidence to corroborate B.’s guilt. Namely, they did not examine the suspect’s clothes, which, in view of the circumstances of the incident, could have had bloodstains on them. Lastly, the investigating authorities acknowledged that it was not possible to establish the circumstances of the incident, because of the significant lapse of time since the event in issue.

(iii) In application no. 65898/11 the investigating authorities did not provide any explanations as to the lack of medical evidence regarding the applicant’s brother’s alleged ischaemic illness. Nor did they examine the traces of injuries on the applicant’s brother’s body. The Court also notes that the police officers were disciplined because of their inactivity: there was no medical evidence regarding the applicant’s brother’s ischaemic illness before the day of his death, swelling on his brain documented in the post-mortem examination had not been explained, and other evidence indicating a possible murder had not been properly assessed.

(iv) In application no. 52601/12, despite the fact that a number of forensic medical examinations were carried out, none of them provided convincing evidence regarding the cause of the applicants’ daughter’s death. More specifically, the exhumation conducted on 29 March 2012 fell short of the procedural requirements, and thus the court declared the results of the subsequent forensic medical examination inadmissible. Furthermore, since another exhumation was conducted on 6 May 2014, nearly three years after the incident, the subsequent forensic medical examination was unable to determine the cause of death, because the body was in an advanced state of decomposition. There is no indication that the substantive discrepancies between the expert forensic medical examinations – regarding the fact that the scene of the incident was covered with the blood of the applicants’ daughter – were resolved.

20. In this regard, the Court reiterates that the effectiveness of an investigation also implies a requirement of thoroughness, in that the authorities must have taken all reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony and forensic evidence (see, for example Ryzhenkov and Zaytsev v. Ukraine, nos. 1805/03 and 6717/03, § 19, 13 December 2005, and Yuriy Slyusar v. Ukraine, cited above, § 82). Moreover, any deficiency in the investigation which undermines its ability to establish the circumstances of the case or the person responsible is liable to fall foul of the required measure of effectiveness (seeNachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 113, ECHR 2005 VII).

21. The Court observes that, in the present cases, the failure of the investigating authorities to complete the necessary steps in a timely manner undermined their ability to establish the circumstances surrounding the deaths of the applicants’ relatives, and who, if anyone, was responsible.

22. Having regard to its well-established case-law on the subject (see Basyuk v. Ukraine, cited above, and Svystoruk v. Ukraine (dec.) [Committee], no. 50067/13, 24 November 2016), the Court considers that, in the instant cases, the investigations failed to meet the criteria of effectiveness. These complaints therefore disclose a breach of the procedural limb of Article 2 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

23. 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

24. The applicants claimed between 30,000 euros (EUR) and 42,160,069,728 Ukrainian hryvnias (UAH) (around EUR 1,576,669,572 at the material time) in respect of non-pecuniary damage. In application no. 65898/11 the applicant also claimed UAH 560,000 (around EUR 23,333 at the material time) in respect of pecuniary damage for the loss of a library located in the apartment where her brother had lived. Apparently, that library had been destroyed, and the applicant claimed that the person responsible for her brother’s death was also responsible for destroying the library.

25. Regard being had to the documents in its possession and to the approach taken in similar Ukrainian cases (see, in particular, Basyuk v. Ukraine, cited above, and Nikolay Volkogonov and Igor Volkogonov v. Ukraine [Committee], no. 40525/05, 28 November 2013), in respect of non‑pecuniary damage, the Court finds it reasonable to award each of the applicants in applications nos. 20295/0724328/08 and65898/11 EUR 6,000, and the applicants in application no. 52601/12 EUR 6,000 jointly.

26. The Court rejects the remainder of the applicants’ claims in respect of non‑pecuniary damage.

27. The Court further notes that in application no. 65898/11 no causal link has been established between the pecuniary damage alleged and the violation found, nor has the applicant submitted any evidence in support of the claim in respect of pecuniary damage; the Court therefore rejects this claim.

B. Costs and expenses

28. The applicants claimed the following amounts in respect of costs and expenses incurred:

(i) in application no. 20295/07 the applicant claimed UAH 4,795 (around EUR 160 at the material time) for the costs and expenses incurred before the Court for legal representation;

(ii) in application no. 24328/08 the applicant claimed EUR 1,000 for the costs and expenses incurred before the domestic courts for legal representation and subsistence expenses, and EUR 1,120 for the costs and expenses incurred before the Court, comprising EUR 1,000 for legal representation and EUR 120 for her lawyer’s postal and subsistence expenses. The applicant submitted that she had not made any advance payment to her lawyer because of her lack of financial resources. She thus requested that the costs and expenses be transferred directly to her lawyer’s bank account;

(iii) in application no. 65898/11 the applicant claimed UAH 29,649 (around EUR 1,011 at the material time) for the costs incurred in printing documents, UAH 1,279 (around EUR 44 at the material time) for postal expenses, and UAH 20,000 (around EUR 833 at the material time) for legal representation before the Court;

(iv) in application no. 52601/12 the applicants claimed UAH 11,500 (around EUR 500 at the material time) for the costs and expenses incurred before the Court for legal representation.

29. The Government stated that the amounts claimed were excessive and unsubstantiated.

30. 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 cases, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award: EUR 160 to the applicant in application no. 20295/07; EUR 196 to the applicant in application no. 24328/08, to be paid to the applicant’s lawyer; EUR 23 to the applicant in application no. 65898/11; and EUR 500 to the applicants in application no. 52601/12.

31. The Court rejects the remainder of the applicants’ claims for costs and expenses in applications nos. 24328/08 and 65898/11.

C. Default interest

32. 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. Decides to join the applications;

 

2. Declares the applications admissible;

 

3. Holds that there has been a violation of Article 2 of the Convention under its procedural limb in respect of the complaints concerning the ineffective investigations into the applicants’ relatives’ deaths;

 

4. Holds

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

(i) EUR 6,000 (six thousand euros) to each of the applicants in applications nos. 20295/0724328/08 and 65898/11, and EUR 6,000 (six thousand euros) jointly to the applicants in application no. 52601/12, plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 160 (one hundred and sixty euros) to the applicant in application no. 20295/07; EUR 196 (one hundred and ninety-six euros) to the applicant’s lawyer in application no. 24328/08; EUR 23 (twenty-three euros) to the applicant in application no. 65898/11; and EUR 500 (five hundred euros) to the applicants in application no. 52601/12, 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’ claims for just satisfaction.

Done in English, and notified in writing on 14 February 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Milan Blaško                        Síofra O’Leary
Deputy Registrar                  President

 

 

 

 

  1.   

20295/07

29/04/2007

 

Olga Konstantinovna ZORINA

19/01/1929

Dnipro

Ukrainian

 

Valeriy Vasilyevich ANDRUSENKO

On 30 August 1996 the applicant’s son was killed when he was hit by a car driven by P. while he was crossing the road. On 19 February 1997 criminal proceedings were initiated against P. on charges of breaching traffic rules and thereby causing death. The Zhovtnevyy District Court in Dnipro remitted the case to a prosecutor for additional examination on multiple occasions, for various reasons: (i) on 2 August 1999 because, inter alia, there were substantial divergences between the conclusions of technical expert examinations of the vehicle in question; (ii) on 31 July 2001 because the additional technical expert examination of the vehicle and reconstruction of the incident had not fully taken into account the circumstances of the incident; (iii) on 17 May and on 18 November 2004 because the court’s previous instructions had not been complied with; and (iv) on 29 December 2007 because the whereabouts of the suspect had not been established and no actions by the investigator had been taken in this regard. On 3 February 2008 the criminal proceedings were suspended owing to the fact that P.’s whereabouts had not been established. Subsequently, P. was arrested in the Russian Federation, but on 4 August 2008 the Prosecutor General’s Office of the Russian Federation refused to extradite him to Ukraine because of the expiry of the limitation period for criminal liability. On 29 April 2013 the Babyshkinskyy District Court in Dnipro terminated the criminal proceedings against P. owing to the expiry of the limitation period for criminal liability.

  1.   

24328/08

08/05/2008

 

Natalia Petrovna KOZAK

05/02/1961

Vinnitsa

Ukrainian

 

Andriy Olegovych KADOCHNIKOV

On 4 September 1999 the applicant’s six-year-old son went missing. On 6 September 1999 his body was found on wasteland near an unfinished factory building. According to a forensic medical conclusion, the applicant’s son had more than ten head wounds, skull fractures, and bruises all over his body. Criminal proceedings regarding his death were instituted on the same day. The testimony of witnesses suggested that not long before his death the applicant’s son had been seen in the company of an unidentified boy aged 15-18. The case-file material contains a reference to a confession to murder dated 5 July 2003 of a certain B., a person diagnosed with schizophrenia. Since B. withdrew his confession and the authorities were unable to identify the perpetrator of the crime, the criminal proceedings were suspended and resumed on numerous occasions. The applicant was not duly informed about such suspensions. On 3 July 2007 B. again confessed to murdering the applicant’s son. On 21 March 2008 the Zamostyanskyy District Court in Vinnytsia rejected an application by the prosecutor for compulsory medical treatment for B., and remitted the case for additional investigation, ordering, inter alia, that an additional comprehensive forensic psychological and medical examination be carried out. The court noted that the Vinnytsia regional prosecutor’s office and the Prosecutor General’s Office had given instructions on how the case was to be investigated, however, those instructions had not been complied with. Furthermore, the court noted that the investigating authorities had not explained the origin of cuts on the child’s body in the area of his kidney. On 1 June 2010 the Vinnytsia Regional Court of Appeal ordered additional investigation into the case. It was noted that the applicant’s son had had numerous wounds. A stone covered with blood had been found near the body. It could be concluded that the applicant’s son’s attacker had also had bloodstains on his clothes. The court also noted that on 7 September 1999 B.’s apartment had been searched and some of his clothing had been seized, however, it had never been examined. On 28 September 2011 the Zamostyanskyy District Court terminated the proceedings against B. for lack of evidence of his guilt. The court held that B.’s confessions could not serve as a basis for establishing his guilt, since he was suffering from schizophrenia. There was no other evidence corroborating his guilt. B.’s clothes had not been examined by an expert, since there were no traces on them. L. (B.’s stepfather), a witness who had given evidence in the case, had died. The decision of 28 September 2011 was upheld on 8 December 2011 by the Vinnytsia Regional Court of Appeal. On 15 November 2012 the Higher Specialised Civil and Criminal Court of Ukraine rejected an appeal in cassation by the prosecutor against the above decisions. On 13 and 26 February 2013 the investigator ordered the police to conduct an investigation in order to establish the circumstances of the applicant’s son’s death. On 14 March 2013 the police officers submitted that it was not possible to execute such an order, because of the significant lapse of time since the event.

  1.   

65898/11

13/10/2011

 

Larysa Volodymyrivna DENYSOVA

25/12/1959

Kyiv

Ukrainian

 

 

The applicant and her brother, S., owned a flat in Kyiv. S. lived there with his civil partner, L. The applicant lived at a different address. S. suffered from epilepsy. On 18 April 2008 S. gifted his part of the flat to a private individual. The gift was certified by a notary. On 25 April 2008 at around 9.30 p.m. S. was in his flat drinking alcohol and having dinner with L. and his friend, a person called D. L. and D. then left the flat and when L. returned home later at 2.00 a.m. she found S. unconscious in the flat. She called an ambulance. Upon arrival, doctors found that S. was dead. They also noted that he was drunk. The police examined the scene of the incident immediately. The next day a forensic medical examination of S.’s body was conducted, which concluded that he had died from ischaemic heart disease. On 2 May 2008 the Pecherskyy district police station in Kyiv refused to open criminal proceedings in respect of S.’s death. On 4 November 2009 the Kyiv Court of Appeal upheld a decision by a lower court rejecting a complaint by the applicant against the decision of 2 May 2008. On 31 August 2010 the Supreme Court quashed the decisions of the lower courts, noting: that there was no medical evidence regarding the applicant’s brother’s ischaemic illness before the day of his death; that swelling on his brain documented in the post-mortem examination had not been explained; and that other evidence indicating a possible murder had not been properly assessed. On an unspecified date pre-investigation inquiries were reopened. Furthermore, on multiple occasions the police refused to open criminal proceedings in respect of the alleged murder; those decisions were quashed by the courts or prosecutors as unsubstantiated, and further pre-investigation inquiries were ordered. On 11 December 2012 the police opened criminal proceedings in respect of S.’s murder. On 14 January 2013 the criminal proceedings were terminated because of the lack of corpus delicti. On 30 September 2013 the Pecherskyy District Court in Kyiv quashed the latter decision as wholly unsubstantiated and remitted the case for further investigation. The court noted that neither the circumstances of the incident nor evidence in this regard had been assessed. The court also noted that the shortcomings in the investigation indicated by the judgment of the Supreme Court of Ukraine of 31 August 2010 had not been rectified. By a letter of 8 December 2014 the applicant was informed that, in accordance with the results of an internal enquiry, the investigators in charge of her case had been disciplined because of their inactivity.

4. 

52601/12

15/08/2012

Mykola Ivanovych KOPYSHCHYK

21/08/1955

Klesiv

Ukrainian

Nina Ustymivna KOPYSHCHYK

23/07/1960

Ukrainian

Lyubov Vasylivna KARPYUK

On 2 March 2011 the applicants’ daughter, S., together with two other persons, was found dead in a house. The official cause of death was carbon monoxide poisoning. However, the applicants state that their daughter was killed, since her face was blue and a bed and some clothes were covered with blood. On 5 March 2011 the Sarnenskyy district police station refused to institute criminal proceedings in respect of the applicants’ daughter’s death, stating that the official cause of death was carbon monoxide poisoning. That decision, as well as numerous subsequent refusals to institute proceedings, were quashed, in particular by a court, and the case remitted for additional investigation. The court noted that the decision to refuse to institute criminal proceedings had been taken without the circumstances of the case being properly examined. Namely, on 1 February 2012 the Rivne District Court noted that no explanation had been given about whose blood had covered the scene of the incident. In order to establish that, the exhumation of S.’s body was required, and that was carried out on 29 March 2012. On 17 December 2012 criminal proceedings in respect of the applicants’ daughter’s alleged murder were instituted. On 12 August 2013 a forensic medical examination was conducted. On multiple occasions the criminal proceedings were terminated, and subsequently those decisions were quashed by the courts or prosecutors as unsubstantiated and premature, and further investigation was ordered. Namely, on 1 October 2013 the Sarnentskyy District Court quashed the termination of the criminal proceedings and remitted the case for additional investigation. The court noted that the investigating authorities had not complied with procedural requirements when carrying out the exhumation on 29 March 2012: no record had been drafted in this respect and the forensic medical expert had been absent during the course of the exhumation. The court therefore declared that the correct procedure for the exhumation had not been complied with, and that the resulting forensic medical examination was inadmissible. On 29 April 2014 the Rivne prosecutor’s office ordered another exhumation of S.’s body, which was carried out on 6 May 2014. A subsequent forensic medical examination was carried out on the body between 6 May and 2 July 2014. It was not possible to determine the cause of S.’s death, because the body was in an advanced state of decomposition. The Rivne District Court remitted the case for additional investigation for the last time on 7 September 2016. The court reasoned that there were discrepancies between the witnesses’ statements. The court also noted that no explanation had been given as to why the scene of the incident had been covered with the blood of the applicants’ daughter, and that there were substantive discrepancies between the expert forensic medical examinations in this regard.

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