CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 8 novembre 2005

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display:inline-block }     SECOND SECTION     CASE OF GONGADZE v. UKRAINE     (Application no. 34056/02)     JUDGMENT     STRASBOURG     8 November 2005   FINAL     08/02/2006       In the case of Gongadze v. Ukraine, The European Court of Human Rights (Second Section), sitting as a Chamber composed of:   Mr   J.-P. Costa , President ,   Mr   A.B. Baka ,   Mr   I. Cabral Barreto ,   Mr   K. Jungwiert ,   Mr   V. Butkevych ,   Mrs   A. Mularoni ,   Mrs   D. Jočienė, judges , and Mrs S. Dollé , Section Registrar , Having deliberated in private on 22 March and 11 October 2005, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1.     The case originated in an application (no. 34056/02) 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, Mrs Myroslava Gongadze (“the applicant”), on 16   September 2002. 2.     The applicant was represented by Ms S. Preuss-Laussinotte, a lawyer practising in Paris. The Ukrainian Government (“the Government”) were represented by their Agents, Mrs V. Lutkovska and Mrs Z. Bortnovska. 3.     The applicant alleged that the State authorities had failed to protect the life of her husband and investigate his disappearance and death, which caused her serious anguish and distress. 4.     The application was allocated to the Second Section of the Court (Rule   52 §   1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1. 5.     By a decision of 22 March 2005, the Chamber declared the application admissible. 6.     The applicant and the Government each filed observations on the merits (Rule 59 § 1). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 7.     The applicant was born in 1972 and lives in Arlington, United States of America. A.     The facts of the case, as submitted by the parties 8.     Georgiy Gongadze, the applicant's husband, was a journalist. He disappeared on 16 September 2000 in circumstances that have not yet been fully established by the Ukrainian authorities despite the numerous demands and requests of the applicant. Recently, however, several police officers were charged with the kidnap and murder of Mr Gongadze. 1.     Events prior to the disappearance of the applicant's husband 9.     Mr Gongadze was a political journalist and the editor-in-chief of Ukrayinska Pravda , an online newspaper. He was known for his criticism of those in power and for his active involvement in awareness-raising in Ukraine and abroad as regards the problems of freedom of speech in his country. He reported on such topics as the allegedly undemocratic initiatives of the Ukrainian authorities and corruption amongst high-level State officials. 10.     For months before his disappearance Mr Gongadze had been telling his relatives and colleagues that he was receiving threats and was under surveillance. 11.     On 14 July 2000 Mr Gongadze wrote an open letter to the Prosecutor General making the following complaints: (i)     His relatives and friends in the city of Lviv, and his colleagues in Kyiv, had been interviewed by law enforcement officers about him. The pretext for holding these interviews had been an inquiry into a criminal incident in Odessa in which Mr Gongadze had allegedly been involved. (The applicant maintained that Mr Gongadze had known nothing about the incident or the people involved in it. He himself had never been interviewed about it.) (ii)     For some time, unknown persons in a car with the number plate 07309   KB had been following Mr Gongadze from his home to his office and back. In his open letter, Mr Gongadze requested the Prosecutor General to take measures to protect him from what he described as “moral terror”, and to find and punish those involved. 12.     In response, the Prosecutor General sent the letter to the regional prosecutor's office in Lviv, where Mr Gongadze was officially registered as a resident ( propiska ). The Lviv prosecutor replied that the places and streets (of Kyiv) mentioned in Mr Gongadze's letter were unknown in Lviv. 13.     Later, the then Minister of the Interior told representatives of the non-governmental organisation “Reporters sans frontières” (as recounted in the latter's report of 22 January 2001) that the car registration plate had been stolen from a police vehicle in February 2000. 14.     On 1 September 2000 the General Prosecutor's Office (“the GPO”) informed Mr Gongadze that there were no grounds for the adoption of any decision under Article 52-1 of the Code of Criminal Procedure (protective measures during criminal proceedings) regarding his letter. 15.     Mr Gongadze disappeared on 16 September 2000. 2.     The investigation into the disappearance and murder of the applicant's husband 16.     On 17 September 2000 the applicant reported her husband's disappearance to the Moskovskiy District Police Department in Kyiv. 17.     On 18 September 2000 (19 September, according to the Government) the Pechersky district prosecutor's office initiated an inquiry into a case of premeditated murder (the “Gongadze case”). The inquiry included a search of the places where Mr Gongadze had last been seen and interviews with people who had been there at the time. The applicant maintained that the investigating prosecutor in charge of the case, Mr H., had seemed to be conducting a serious investigation. However, he was replaced at the beginning of November by another prosecutor, Mr V. 18.     On 2 November 2000 the decapitated body of an unknown person was discovered in the vicinity of the town of Tarashcha, in the Kyiv Region. 19.     On 3 November 2000 the Kyiv regional prosecutor's office initiated an inquiry into the murder of an unidentified person (the “Tarashcha case”). 20.     The first autopsy of the corpse was performed by a local expert and the findings were presented on 8 November 2000. According to these findings, the time of death of the unknown person roughly corresponded to the time of the disappearance of Mr Gongadze. 21.     On 10 November 2000 relatives learned from a brief article in the newspapers about the discovery of an unidentified body in the vicinity of Kyiv. On 15 November 2000, on examining the body, they identified jewellery belonging to Mr Gongadze and the marks of an old injury to the body that corresponded to that of the missing journalist. The contents of the stomach corresponded to the food which Mr Gongadze had eaten on the day of his disappearance. The relatives took a fragment of skin from the body to be examined by independent experts. 22.     From that date onwards, the prosecutor allegedly began actively to impede the investigation. On 15 November 2000 the body was removed from the morgue in Tarashcha. Three days later the Kyiv regional prosecutor's office admitted that the body had been transferred to Kyiv. All documents relating to the first forensic examination conducted in Tarashcha were confiscated. The local expert was prohibited from talking about the autopsy of the body and later became the subject of criminal proceedings. On 16 November 2000 the Deputy Minister of the Interior announced that, contrary to the preliminary findings, the body which had been discovered had been buried in the ground for about two years. 23.     On 21 November 2000 the applicant requested the investigator at the Pechersky district prosecutor's office (i)     to recognise her as a civil party to the proceedings in the Tarashcha case; (ii)     to identify the body and the jewellery found with it; and (iii)     to organise a forensic medical examination in order to establish whether the body found in Tarashcha was that of her husband. 24.     On 23 November 2000 the investigator rejected this request. 25.     That day the applicant also requested the prosecutor of the Kyiv Region not to cremate the body found in Tarashcha and to let her bury it if the body were to be identified as that of her husband. 26.     On 29 November 2000 the Pechersky district prosecutor's office recognised the applicant as a civil party in the Gongadze case. 27.     On 4 December 2000 the head of the investigation department of the Kyiv regional prosecutor's office informed the applicant that a criminal investigation into the murder of the unidentified person had been initiated and that a forensic medical examination had been organised. However, there were no grounds to recognise the applicant as a civil party in the Tarashcha case. They promised to keep the applicant informed as to her possible participation in the identification of the objects found with the body. Accordingly, the applicant was not allowed to participate in the identification of the body at that stage. 28.     On 6 December 2000 the applicant asked the GPO to be allowed to participate in the identification of the body and requested that the two sets of proceedings be joined. 29.     On 8 December 2000 the Prosecutor General announced that DNA analysis could not be done for the time being because Mrs Lesya Gongadze, the deceased's mother, was ill. This statement was denied by the latter herself. The Prosecutor General then declared that he had been misunderstood. 30.     On 10 December 2000, more than a month after the body had been discovered, the applicant was allowed to participate in its identification. Being under stress, she was unable to make a positive identification of the body as being that of her husband. 31.     On 11 December 2000 a blood sample was taken from the deceased's mother for DNA analysis. 32.     On 14 December 2000 the applicant requested the Prosecutor General to involve foreign experts in the investigation of the case under the European Convention on Mutual Assistance in Criminal Matters of 20 April 1959. 33.     On 15 December 2000 the Prosecutor General announced that the body found in Tarashcha was not that of Mr Gongadze. 34.     On 18 December 2000 the GPO refused the applicant's request to involve foreign experts in the DNA analysis and informed her that the Ukrainian institutions were empowered to conduct all necessary examinations. 35.     Later, several DNA analyses were conducted in the case, including by foreign experts. The forensic medical examinations conducted by the Russian and United States specialists confirmed that it was highly probable that the body found in Tarashcha was that of Mr Gongadze. However, within the framework of an investigation conducted by an ad hoc parliamentary committee, an examination conducted by German specialists did not confirm this finding. 36.     The applicant maintained that she had never been informed directly by the investigating authorities about the results of these examinations, but had learned about them from the media. 37.     On 10 January 2001 the Prosecutor General informed Parliament of the provisional findings of the forensic medical examination conducted by the Russian experts, which showed that the body found in Tarashcha was that of Mr Gongadze (99.64% probability). Nevertheless, the identity of the body could not be confirmed as there were witnesses who claimed to have seen Mr Gongadze alive in Lviv after his disappearance, in November and December 2000. This information had been checked but was also not confirmed. 38.     On 12 January 2001 the applicant and the deceased's mother requested the GPO to recognise them as civil parties in the Tarashcha case and to conduct another examination of the body. The same day the applicant was informed by the Prosecutor General that her status as a civil party, which had been granted by the Pechersky district prosecutor's office on 29   November 2000, was annulled. The applicant lodged a complaint with the Pechersky District Court of Kyiv. 39.     On 13 January 2001 the GPO rejected the applicant's request to be recognised as a civil party, stating that it had not been established beyond all doubt that Mr Gongadze was dead or that the body found in Tarashcha was his. 40.     On 15 January 2001 the Pechersky District Court recognised the right of the applicant and the deceased's mother to be civil parties and ordered the GPO to grant them this status. However, despite the order, the GPO again refused this status on 17 January 2001. Exceptionally, the GPO agreed to give them the Tarashcha body for burial, whilst emphasising that the GPO was not competent to issue a death certificate. 41.     Also on 15 January 2001 the editor-in-chief of the Grani newspaper made public the names of four policemen who had allegedly participated in the surveillance of Mr Gongadze. 42.     The applicant and the deceased's mother challenged the refusal to grant them aggrieved-party status in the Pechersky District Court. On 9   February 2001 that court found that the GPO's decision was illegal. The GPO appealed. 43.     On 24 January 2001 the investigators severed a defamation case involving a Mr Melnychenko from the Gongadze case (see Melnychenko v. Ukraine , no. 17707/02, § 15, ECHR 2004-X). 44.     Despite its appeal, on 26 January 2001 the GPO recognised the status of the applicant and the deceased's mother as civil parties in the light of further forensic evidence. (The applicant maintained that this was done under the influence of Resolution 1239 (2001) of the Parliamentary Assembly of the Council of Europe, adopted on 25 January 2001, which called on the authorities to conduct “an expeditious, full and transparent investigation into the disappearance or death of Mr Gongadze, and to make known the results of the investigation as quickly as possible; ... to respect the rights of the victim's relatives, including their right to be the aggrieved side in the case of Mr Gongadze's death”.) 45.     On 27 February 2001 the GPO informed the applicant that additional evidence had confirmed that the body found in Tarashcha was that of Mr   Gongadze. An investigation into the murder of Mr Gongadze was initiated, and the applicant and the deceased's mother were granted the status of aggrieved parties. 46.     On 16 March 2001 the applicant requested the Prosecutor General to give her access to the case-file material concerning the forensic medical examination of the body. On 19 March 2001 the investigating officer refused, stating that it was part of the preliminary investigation and the applicant could only have such access when the preliminary investigation was over. The applicant's lawyer unsuccessfully challenged this refusal in the Pechersky District Court of Kyiv. 47.     On 30 March 2001 the applicant lodged a complaint with the Pechersky District Court of Kyiv alleging negligence by the investigators. 48.     On 26 April 2001 the investigator carried out an inspection of the Tarashcha body in the presence of the deceased's mother and her lawyer, and the applicant's lawyer. An additional forensic examination and a genetic identification test were carried out by United States specialists. The joint examination by the United States and Ukrainian experts confirmed that the Tarashcha body was that of Mr Gongadze. 49.     On 8 May 2001 the applicant requested full access to the case file, which was refused on 17 May 2001 pending the pre-trial investigation. 50.     On 15 May 2001 the Minister of the Interior announced that the two presumed murderers of Mr Gongadze, identified as drug users, had died and that the case was therefore solved. The Minister further stated that the murder had been spontaneous, with no political motive. On 17 May 2001 the GPO contradicted this announcement and recommended that the Minister refrain from disclosing any information about the criminal investigation. 51.     On 18 May 2001 the applicant requested the GPO to confirm the Minister's statement and to inform her as to when she would be allowed access to the case file. The same day the GPO informed the applicant that important additional information had been obtained and needed further examination, and that it would therefore be premature to say that the preliminary investigation was over. 52.     On 22 May 2001 the applicant requested the GPO to involve experts from the United States Federal Bureau of Investigation (FBI) in the investigation. Her request was refused on 25 May 2001. 53.     By a letter of 30 May 2001, the GPO authorised the Kyiv Office for Forensic and Medical Examinations to deliver the remains of Mr Gongadze to his relatives for burial. A copy of this letter was handed to the representative of the deceased's mother and sent by mail to the applicant's representative. On 6 July 2001 the forensic office informed the deceased's mother that she could take the body away for burial. However, according to the Government, the body was still in the Kyiv Office for Forensic and Medical Examinations, although the burial decision remained exclusively with the deceased's mother and the applicant. 54.     On 6 September 2001 the applicant's representative requested access to the results of all the forensic examinations in the case file. She also asked when the preliminary investigation would be finished. On 7 September 2001 the GPO replied that it was not yet possible to say. 55.     In a further reply of 10 September 2001, the GPO stated that the representative of an aggrieved party had a right of access to the results of forensic examinations, but only after the pre-trial investigation had been completed. According to the Government, the GPO noted that the representative had had access to the results of the forensic examinations and genetic tests within the limits permitted by the confidentiality of the investigation. 56.     On 10 October 2001 the Kyiv City Justice Department informed the applicant that her negligence claim against the investigators, lodged on 30   March 2001 with the Pechersky District Court of Kyiv, had not been registered and could not be found. The Department of Justice advised the applicant to lodge the complaint again with that court. 57.     On 30 October 2001 the applicant requested the GPO to provide her with information about the forensic medical examination conducted by the FBI and the reasons for the contradictory findings of the forensic medical examinations conducted by the Russian and German experts. She requested that an additional forensic medical examination be held to answer these questions. 58.     On the same date the applicant was informed by the GPO that the case file could not be disclosed before the end of the preliminary investigation and that the preliminary investigation would be finalised when the person guilty of the crime had been found. 59.     On 31 October 2001 the GPO stated that the forensic medical examinations had established that the body found in Tarashcha was that of Mr   Gongadze. It further informed the applicant that the results of the forensic medical examination conducted by the German experts could not be included in the case file, as the tissue samples for that examination had been taken by an unauthorised person in breach of established procedures. 60.     On 13 November 2001 the Kyiv City Justice Department again informed the applicant that her negligence claim against the investigators, lodged with the Pechersky District Court of Kyiv, had not been registered and could not be found. The Department of Justice advised the applicant to lodge the complaint again with the Pechersky District Court. 61.     On 3 December 2001 the applicant lodged a complaint with the Pechersky District Court of Kyiv about the GPO's refusal to allow her access to the case-file material concerning the forensic medical examination of the body. 62.     On 11 February 2002 the Pechersky District Court held that the applicant's complaint against the GPO could not be considered prior to the transfer of the case to the court. It decided to attach the complaint to the case file for consideration at a later date. The court stated that the Code of Criminal Procedure did not provide for a separate appeal against the investigators on the ground of their refusal of access to the case-file material relating to the forensic medical examination. 63.     On 20 February 2002 the State Civil Registration Office in Lviv refused to issue a death certificate for Mr Gongadze in the absence of any document confirming his death. 64.     On 28 March 2002 the applicant requested Mr Robert Ménard, the Secretary-General of “Reporters sans frontières”, to be her representative in the case. 65.     On 22 May 2002, while the power of attorney for this purpose was being prepared, Mr Ménard requested the GPO, on behalf of the deceased's mother who was also a civil party to the case, to interview the four police officers named in the press as having followed Mr Gongadze. He further requested access to the case-file material concerning the forensic medical examinations, and asked for another examination by foreign experts. His request was not answered. 66.     Another request by Mr Ménard on 10 June 2002 was refused by the GPO on 18 June 2002 on the ground that he could not be recognised as the representative of the civil party. On 19 June 2002 Mr Ménard asked the GPO to annul that decision. 67.     On 6 July 2002 a new Prosecutor General was elected, who confirmed on 3 September 2002 that there had been numerous irregularities in the previous investigation. 68.     On 10 September 2002 the Prosecutor General announced an investigation into the alleged falsification of procedural documents by the prosecutor and investigator from the town of Tarashcha. 69.     On 16 September 2002 “Reporters sans frontières” requested access to all the forensic results in the case file and their examination by an independent expert. They also requested information about the identity of the four persons who had followed Mr Gongadze before his disappearance. 70.     In October 2002 a new forensic examination took place in Switzerland. On 11 March 2003 “Reporters sans frontières” announced that the last DNA test had unequivocally identified the body as that of Mr   Gongadze. 71.     In November 2002 the prosecutor from the Tarashcha district prosecutor's office was arrested and charged with negligence in the investigation of the case. On 6 March 2003 the prosecutor was sentenced to two and a half years' imprisonment but absolved from serving the sentence by the Shevchenkivsky Local Court of Kyiv under an amnesty law. 72.     On 15 January 2003 the chairman of the parliamentary ad hoc committee on the Gongadze case announced that the persons responsible for the death of Mr Gongadze were members of the police. 73.     On 17 February 2003 Parliament requested the GPO to investigate the possible role of Mr Kravchenko, who had been Minister of the Interior at the time of the disappearance of Mr Gongadze, in the death of the journalist. This request was supported by 120 members of parliament. 74.     On 24 February 2003 the Prosecutor General, Mr Piskun, declared that they were checking the information about the involvement of senior officials of the Ministry of the Interior in the death of Mr Gongadze. 75.     On 28 February 2003 the Prosecutor General openly criticised his predecessor, Mr Potebenko, for impeding the investigation into the murder of Mr Gongadze. 76.     In May 2003 a former police officer, Mr G., was arrested and charged with setting up a criminal group with the participation of the police. He died in prison on 1 August 2003 in unclear circumstances. His lawyers maintained that he had been beaten and tortured. The body of Mr G. was cremated on 3 August without an autopsy. 77.     On 5 August 2003 the letters of the late Mr G. appeared in the media. In these letters he accused the police and senior officials of kidnapping and killing Mr Gongadze. These letters, and the documents attached to them, were sent to the GPO. 78.     On 9 September 2003 the GPO confirmed that the handwriting of the letters was that of the late Mr G. 79.     On 22 October 2003 Lieutenant-General Pukach, an official of the Ministry of the Interior, was arrested on suspicion of involvement in the disappearance of Mr Gongadze. He was accused of ordering the destruction of important documents in the case. 80.     On 29 October 2003 the Prosecutor General, Mr Piskun, was dismissed by the President. 81.     On 6 November 2003 the Kyiv City Court released Mr Pukach on his undertaking not to abscond. 82.     On 15 August 2005 the applicant was allowed to have access to the criminal case file. 3.     The political context 83.     The applicant noted that, since 1991, eighteen journalists had been killed in Ukraine. 84.     The applicant maintained that the political situation which had developed after the disappearance of her husband illustrated the attitude of the Ukrainian authorities towards freedom of the press. 85.     Soon after the disappearance of Mr Gongadze, the President of Ukraine had promised to employ every means to find him. After a motion voted by Parliament, the President had assigned three law enforcement agencies – the GPO, the police and the security services – to work on the case. 86.     On 18 September 2000 an anonymous person called the embassy of Georgia in Kyiv with the information that the responsibility for the disappearance of the journalist lay with Mr K., the notorious leader of a criminal group, and with the Minister of the Interior and an MP, Mr Volkov. The Ambassador of Georgia, who made the contents of the call public, was recalled to Georgia several weeks later. The Ukrainian authorities denied any link between the two events. 87.     At the end of September 2000 Parliament created an ad hoc committee to investigate the disappearance of Mr Gongadze. The Prosecutor General refused to collaborate with the committee as its request to interview experts and officers was considered unconstitutional. 88.     On 28 November 2000 the Chairman of the Socialist Party, Mr   Moroz, publicly announced the existence of audio tapes, secretly made in the office of the President, implicating President Kuchma and other high-level State officials in the disappearance of Mr Gongadze. In one of the recorded conversations, allegedly between the President and the Minister of the Interior, the President had asked for Mr Gongadze to be threatened. The Minister had then proposed certain people whom he called “real eagles”, capable of anything, to do the job. 89.     The applicant maintained that, due to doubts as to the quality of the tapes, it was not possible to establish their authenticity, although a United States laboratory (BEK TEK) confirmed that they were genuine. She referred to the report of 22 January 2001 by “Reporters sans frontières” that testified to the existence of special forces in the police, and groups of retired police officers recruited by the mafia who would commit acts of violence against political figures or journalists. 90.     After the disappearance of Mr Gongadze, many news media experienced pressure and censorship over their coverage of the case. 91.     On 15 September 2001 several thousand opposition supporters demonstrated in memory of Mr Gongadze. 4.     The international context 92.     The case of the disappearance of Mr Gongadze attracted the attention of many international organisations. It was analysed in the context of the lack of freedom of the media in Ukraine, which had been criticised for several years at international level. 93.     On 25 January 2001 the Parliamentary Assembly of the Council of Europe (PACE) adopted Resolution 1239 (2001) expressing its concern about “the intimidation, repeated aggression and murders of journalists in Ukraine and the frequent abuse of power by the competent Ukrainian authorities in respect of freedom of expression”. It further stated that the investigation into the disappearance of Mr Gongadze “should be considered as a test for freedom of expression and the functioning of parliamentary democracy in Ukraine”. 94.     A plea for a speedy and transparent investigation into all cases of violence against and the death of journalists, particularly in the Gongadze case, was repeated in PACE Recommendation 1497 (2001) of 25 January 2001, Resolution 1244 (2001) and Recommendation 1513 (2001) of 26   April 2001 and Resolution 1262 (2001) of 27 September 2001. 95.     Similar pleas were made by the European Union in a statement on 5   February 2001, and by the Parliamentary Assembly of the Organisation for Security and Co-operation in Europe (OSCE) in its resolution of July 2001. The OSCE Assembly also awarded the 2001 OSCE Prize for Journalism and Democracy to Mr Gongadze posthumously. 96.     The case of the disappearance of Mr Gongadze was reported in the documents of certain United Nations bodies: the Working Group on Enforced or Involuntary Disappearances and the Human Rights Committee. 97.     “Reporters sans frontières” conducted its own investigation into the disappearance of Mr Gongadze, the results of which were published in the special report of 22 January 2001 mentioned above. It concluded that the investigating authorities had been mainly preoccupied with proving the innocence of high-level State officials. 98.     On 2 July 2003 the report of Mr H.C. Krüger, Deputy Secretary General of the Council of Europe, was presented to PACE. The documents attached to the report confirmed that, prior to the appointment of a new Prosecutor General on 6 July 2002, the investigation had been ineffective, although later developments had raised hopes of more efficacy. According to the applicant, the further developments in the investigation demonstrated that the hopes expressed had been premature. 99.     On 16 September 2003 the Euopean Union made a declaration in which concern was expressed at the lack of progress in the investigation. 100.     The issue of the effectiveness of the investigation in the case was similarly raised by the United States Congress and by NATO. 101.     On 13 September 2005 several international non-governmental organisations published a report about the progress of the investigation in the Gongadze case. They maintained that the GPO, supported by the President, had tried to limit the investigation and had not made enough efforts to find and prosecute the instigators of the kidnap and murder of Mr   Gongadze. They further criticised the Ukrainian authorities for serious setbacks in the investigation, in particular: “–     the disappearance of Lieutenant-General Pukach; the leaking of information that disrupted the work of Ukrainian and Israeli agencies who were preparing to detain him; the lack of any public scrutiny of that potentially criminal action; and the absence of any investigation into the process by which Lieutenant-General Pukach was previously released and the Pukach case closed in December 2003; –     the death of former Minister of the Interior Mr Kravchenko, who could have provided important information about the link between the conversations recorded by Melnychenko and the murder; and the lack of any public scrutiny of the possible negligence of the GPO in its handling of the Kravchenko case and in protecting him as a witness; –     the failure to interview numerous witnesses in the Ministry of the Interior with a knowledge of the system of surveillance operated there; and the failure to investigate thoroughly the links between the 'werewolves' and Honcharov cases with the Gongadze case; –     the failure to resolve the problems surrounding the Melnychenko tapes, with a view to using them as primary evidence in court, caused mainly by the mistakes and sluggishness of the GPO; ...” B.     Supplementary facts as submitted by the Government 1.     The investigation into the disappearance and murder of the applicant's husband 102.     On 19 September 2000 the Pechersky district prosecutor's office of Kyiv instituted a criminal investigation, pursuant to Article 94 of the Criminal Code of Ukraine, into a case of premeditated murder. In order to determine the circumstances of the disappearance, an investigation group was formed. The group included officers of the Department of Criminal Investigations and the GPO. The following three lines of inquiry were pursued: (i)     Did the disappearance involve family problems? (ii)     Was Mr Gongadze the victim of a criminal offence unrelated to his profession? (iii)     Was the disappearance connected to his critical publications in the Ukrayinska Pravda online newspaper? 103.     From 19 September 2000 until 10 October 2000, a number of investigative measures were taken to identify witnesses, check Mr   Gongadze's contacts, search localities, etc. 104.     On 2 November 2000 the unidentified corpse of a man was found in a forest in the Tarashcha district. The law enforcement authorities were informed about this and immediately went to the site. On 3 November 2000 the investigation group examined the site and prepared the necessary procedural documents. The corpse was transferred to the morgue of the Tarashcha district for a forensic examination. The investigating officer of the Tarashcha district prosecutor's office instituted a criminal investigation into the premeditated murder of an unidentified person, pursuant to Article   94 of the Criminal Code. The forensic expert found jewellery on the corpse that day and near the corpse in the soil nearby the following day. 105.     The Pechersky district prosecutor's office enquired whether the corpse could be that of Mr Gongadze. For this purpose the applicant was summoned before the prosecutor and requested to describe the jewellery which Mr Gongadze could have been wearing when he disappeared. 106.     On 15 November 2000 a group of journalists – close friends of Mr   Gongadze – went to Tarashcha, having learned about the unidentified body from a newspaper article. They met with the forensic expert, who informed them about the jewellery and showed them the corpse. Upon the journalists' request, he took an X-ray of one of the arms of the corpse. The X-ray showed pieces of metal in the arm that could have corresponded to an old wound of Mr Gongadze's. On this ground the journalists concluded that the corpse was that of Mr Gongadze. The same day the Tarashcha prosecutor ordered and effected the transfer of the corpse to the Kyiv city morgue for further forensic examination. 107.     On 7 December 2000 the GPO joined the investigations in the Gongadze and Tarashcha cases, and a case of defamation against senior State officials (the Melnychenko case), in order to ensure their comprehensive and speedy examination. 108.     On 13 December 2000 the applicant was questioned as an aggrieved party. She agreed to provide samples of her own blood and of that of her children for forensic examination. The applicant insisted on participating in the identification of the Tarashcha body, and said that she was certain that she could recognise her husband's jewellery. 109.     On 14 December 2000 the applicant refused to give blood samples because of a family conflict. That day the applicant requested the GPO to conduct the forensic examinations in a western country. This request was rejected on 18 December 2000. 110.     On 15 December 2000 the investigator reported to the Deputy Prosecutor General that the deceased's mother had refused to participate in the identification of the Tarashcha body, scheduled for 18 December 2000, as she did not feel well and wished to postpone her participation until the completion of the genetic identification tests. 111.     On 18 December 2000 the applicant was summoned to the GPO to participate in the identification of the Tarashcha body and the jewellery. She stated that there was a high probability that the corpse was that of her husband. She recognised the jewellery with absolute certainty. The same day the applicant requested to see the documents relating to the examination of the scene of the events and the body. Her request was allowed and a note made to that effect. 112.     On 20 December 2000 the GPO received a letter from the deceased's mother, stating that she was under stress and could not come to Kyiv for the identification. She also stated that she would only participate in the identification once an independent forensic examination of the corpse had been conducted. 113.     On 12 January 2001 the applicant and the deceased's mother requested the GPO to conduct an additional forensic examination with the assistance of United States experts. They also requested that efforts be made to find the head of the Tarashcha body. The request for the forensic examination was allowed and, with the assistance of the FBI and the United States Department of Defence, an additional forensic examination and a genetic identification test were conducted on 22 February 2001. The head could not be found, however. 114.     On 27 February 2001 the GPO sent a request for legal assistance to the competent German authorities asking for the official results of a genetic identification test done in that State following a request from Mr Holovaty, a Ukrainian MP. According to Mr Holovaty, the German experts had concluded that the Tarashcha body was not that of Mr Gongadze. However, according to the Government, this test had no legal value, as neither the test nor the procedure for taking tissue samples had complied with Ukrainian legislation. 115.     On 6 September 2001 the applicant's representative applied to the GPO, stating that, according to the media, journalists had visited Tarashcha on 15 October 2000. The journalists had examined the body in the Tarashcha morgue and taken photographs of it. She asked the GPO to interview those journalists and to join the photographs to the criminal case file. On 7 September 2001 the applicant's representative was informed that the journalists had been identified and interviewed as witnesses in the course of the investigation. They had been requested to submit their photographs for inclusion in the case file. 116.     On 30 October 2001 the applicant's representative requested the GPO to fix a time-limit for the completion of the pre-trial investigation into the murder of Mr Gongadze. The GPO replied that it could not do so until the murderer had been identified. 117.     On the same day the applicant's representative requested an additional forensic examination in order to determine, inter alia : (i)     whether the X-ray of the corpse's hand done in Tarashcha and given to the journalists corresponded to the X-rays taken when Mr Gongadze was alive, and to those taken by the FBI on 27 April 2001; (ii)     whether the FBI analyses proved the presence of traces from bullets that corresponded to the wounds known to have been suffered earlier by the late journalist; and (iii)     whether the hair identification and DNA analysis confirmed the corpse's identity. 118.     On 31 October 2001 the GPO refused to authorise an additional examination, as the Tarashcha body was undoubtedly that of Mr Gongadze and during their examinations the Ukrainian and United States experts had already answered the applicant's questions. 119.     On 11 June 2002 the applicant's representative requested access to the decision ordering a new forensic examination, allegedly to be carried out by German experts. She further requested to be allowed to put questions to these experts. She referred in her application to the alleged statements of investigators, disseminated by the media, about this new examination. 120.     On 21 June 2002 the GPO rejected the application. The applicant's representative was informed that she could study the case file after the pre-trial investigation was completed and that no statement about a new examination by German experts had been made by the Deputy Prosecutor General to the media. 121.     On 17 July 2002 the newly appointed Prosecutor General ordered the creation of a new investigation group in the Gongadze case. 122.     On 26 and 30 July 2002 the new group conducted two additional examinations of the site where the body was found, together with forensic experts. They took soil samples, carried out a thorough search and took a number of objects for analysis. 123.     On 9 August 2002 an additional examination of the Tarashcha body was conducted and samples for further forensic tests were taken. The additional forensic examinations were to establish more accurately the approximate time of Mr Gongadze's death. 124.     On 3 September 2002 the deceased's mother was provided with the documents necessary for the burial of Mr Gongadze's remains. 125.     On 24 September 2002 the GPO sent a letter to the Director of the FBI inviting them to assist Ukrainian specialists in investigating the case. 126.     In September and October 2002 Mr Ménard, Secretary-General of “Reporters sans frontières”, visited Kyiv twice as the representative of the deceased's mother in the criminal case. He met the Prosecutor General and had access to the results of the forensic examinations in the case. Moreover, samples were taken for an additional