CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 16 octobre 2014

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UKRAINE   (Application no. 40587/07)             JUDGMENT         STRASBOURG   16 October 2014         This judgment is final but it may be subject to editorial revision. In the case of Reus and Others v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:   Angelika Nußberger, President,   Boštjan M. Zupančič,   Vincent A. De Gaetano and Stephen Phillips, Deputy Section Registrar, Having deliberated in private on 23 September 2014, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 40587/07) against Ukraine lodged on 8 September 2007 with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by four Ukrainian nationals and one Moldovan national, as specified in the Appendix (“the applicants”). 2.     The applicants were represented by Mr B.   Fokiy, a lawyer practising in Chernivtsi. The Ukrainian Government (“the Government”) were represented by their then acting Agent, Mr   M. Bem. 3.     The applicants complained that the domestic proceedings concerning the death of their relative had not been effective. 4.     On 22 November 2012 the application was communicated to the Government. 5.     The Moldovan Government did not exercise their right under Article   36 § 1 of the Convention and Rule 44 of the Rules of Court to intervene in the proceedings. 6.     The fifth applicant (Mr Georgiy Leontiyovych Cheban) died on 12   June 2008. His son, Oleksandr Georgiyovych Cheban, who is the second applicant in the present case, expressed the wish to maintain the application on behalf of his father. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 7.     All the applicants are relatives of Mr I.   Cheban, as specified in the Appendix. 8.     On 23 December 2000 I. Cheban was struck by a car when crossing a street in the city of Chernivtsi. Following the accident he died in a hospital. 9.     On 30 December 2000 the Chernivtsi regional police department refused to open criminal proceedings in connection with the accident, noting that there had been no corpus delicti in the actions of T., the driver of the car. 10.     On 16 January 2001 the Chernivtsi city prosecutor’s office quashed the decision of 30 December 2000 as unfounded and instituted criminal proceedings for causing death by careless driving. 11.     On 16 March, 23 August, 17 September 2001, 15 May 2002, 11 July and 27 December 2003 the Chernivtsi regional police department terminated the investigations on the grounds that there had been no corpus delicti in the actions of T. 12.     Following the applicants’ complaints, all those decisions were quashed by the supervising authorities as unsubstantiated and further investigations were ordered. When quashing those decisions, the supervising authorities held that the evidentiary basis had been incomplete and that the investigations had not been carried out thoroughly. In particular, on 10 February 2004 the Shevchenkivskyy District Court of Chernivtsi quashed the decision of 27 December 2003 as unfounded and noted that serious contradictions in the case file had still not been removed, despite numerous orders to the investigators dealing with the case. The court considered that it was necessary to carry out additional investigative measures and expert examinations. 13.     On 6 April 2005 the Chernivtsi regional police department terminated the investigation on the grounds that there had been no corpus delicti in the actions of T. The police referred to the results of expert examinations suggesting that T. had had no technical possibility of avoiding the accident; at the same time the materials of the file suggested that I.   Cheban had violated the traffic rules. 14.     On 6 January 2006 the Shevchenkivskyy District Court of Chernivtsi upheld that decision, noting that it was lawful and substantiated. 15.     On 14 March 2006 and 10 April 2007 the Chernivtsi Region Court of Appeal and the Supreme Court, respectively, upheld the judgment of the first-instance court. II.     RELEVANT DOMESTIC LAW 16.     The relevant provisions of the domestic law can be found in the judgment in the case of Kaverzin v. Ukraine (no. 23893/03, §   45, 15 May 2012). THE LAW I.     LOCUS STANDI 17.     The fifth applicant died while the case was pending before the Court (see paragraph 6 above). It has not been disputed that his son, Oleksandr Georgiyovych Cheban, is entitled to pursue the application on his behalf and the Court sees no reason to hold otherwise (see, mutatis mutandis , Kalló v. Hungary , no. 30081/02, §   25, 11 April 2006). II.     ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 18.     The applicants complained that the proceedings concerning the death of I. Cheban had not been effective. 19.     Article 2 of the Convention, which is relevant to this complaint, reads as follows: “1.     Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. ...” A.     Admissibility 20.     The Government submitted that the applicants had not exhausted domestic remedies in respect of their complaints. In particular, the applicants should have lodged a claim for damages with the domestic courts, seeking civil redress for the allegedly ineffective investigation of the criminal case. 21.     The applicants argued that the remedy suggested by the Government had been ineffective. 22.     The Court notes that the Government merely referred to the theoretical possibility of lodging a claim for damages for the alleged ineffectiveness of the investigation, but have not shown that that remedy was available in practice. In particular, the Government failed to refer to any case in which the courts had ruled on such a complaint. While it is not for the Court to give a ruling on an issue of domestic law that is as yet unsettled, the absence of any case-law indicates the uncertainty of that remedy in practice. Therefore, leaving aside the question of whether the remedy suggested by the Government could have offered adequate redress in respect of the applicants’ complaints, the Court considers that the applicant was not required to exhaust that remedy (see Aleksandr Nikonenko v. Ukraine, no. 54755/08, § 36, 14 November 2013). The Government’s related objection is dismissed. 23.     The Court further notes that the applicants’ complaints are not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. They are not inadmissible on any other grounds. They must therefore be declared admissible. B.     Merits 24.     The applicants argued that the domestic proceedings had been excessively lengthy, and that the instructions of the supervising authorities had been ignored during the investigations, which had lacked comprehensiveness and thoroughness. 25.     The Government considered that the domestic authorities had carried out adequate and prompt measures in order to scrutinise the circumstances of the accident. In their opinion, the State has properly discharged its procedural obligations under Article 2 of the Convention. 26.     The Court notes that the Government did not contend that the applicants could effectively pursue the matter arising from the traffic accident outside the framework of the criminal investigation (compare Sergiyenko v. Ukraine, no.   47690/07, §§   40 and 42, 19 April 2012). Moreover, given that the Code of Criminal Procedure afforded a joint examination of criminal responsibility and civil liability arising from the same actions, the applicants reasonably relied on the procedures provided for by that Code. The Court will therefore confine itself to examining whether the criminal investigation into the death of the applicant’s son satisfied the criteria of effectiveness required by Article 2 of the Convention (see Antonov v. Ukraine, no. 28096/04, §§   47-49, 3 November 2011; Prynda v. Ukraine, no. 10904/05, §   54, 31 July 2012; and Zubkova v.   Ukraine, no.   36660/08, § 38, 17 October 2013). 27.     The Court notes that between 2001 and 2003 the investigative authorities adopted six decisions discontinuing the investigations. Those decisions were, however, quashed by the supervising authorities, who considered that the investigation had not been thorough and that further procedural measures were required. The repetition of those remittal orders discloses a serious deficiency in the criminal investigation (see Oleynikova v. Ukraine, no. 38765/05, §   81, 15 December 2011). It is relevant to note that in quashing the sixth decision terminating the investigation, the domestic court found that there remained serious contradictions in the case file which had not been removed despite numerous orders given to the investigators dealing with the case. Those facts suggest that for a considerable period of time there had been no genuine attempt on the part of the investigative authorities to carry out a thorough investigation of the accident. 28.     Furthermore, it does not appear that the overall length of the criminal proceedings was justified. The Court notes in particular that, while the accident took place on 23 December 2000, the last decision to terminate the investigation was not approved until 10 April 2007, that is, more than six years and three months after the accident. The Court reiterates that the effectiveness of an investigation implies a requirement of promptness and reasonable expedition. Even where there may be obstacles or difficulties which prevent progress in an investigation in a particular situation, a prompt response by the authorities is vital in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts (see Šilih v. Slovenia [GC], no. 71463/01, §   195, 9 April 2009). Moreover, with the lapse of time the prospects that any effective investigation can be undertaken will increasingly diminish. 29.     Having regard to its well-established case-law, the Court finds that the domestic proceedings aimed at scrutinising the circumstances of the death of the applicant’s relative were not compatible with the procedural requirements of Article 2 of the Convention. 30.     There has therefore been a procedural violation of that provision of the Convention. III.     APPLICATION OF ARTICLE 41 OF THE CONVENTION 31.     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 32.     The first, second and fourth applicants claimed 100,000 euros (EUR) and the third applicant claimed EUR   70,000 in respect of non-pecuniary damage. 33.     The Government contested those claims, arguing that they were unsubstantiated. 34.     The Court considers that the applicants must have suffered distress and anxiety on account of the violation it has found. Ruling on an equitable basis, as required by Article 41 of the Convention, it awards the applicants EUR 10,000 jointly in respect of non-pecuniary damage. B.     Costs and expenses 35.     The applicants also claimed 3,458.25 Ukrainian hryvnias (UAH) for the costs and expenses incurred before the Court. 36.     The Government left this matter to the Court’s discretion, noting that the applicants had supported this claim with the relevant evidence. 37.     Regard being had to the documents in its possession and to its case ‑ law, the Court considers it reasonable to award the applicants jointly EUR   305, plus any tax that may be chargeable thereon to the applicants, in respect of costs and expenses. C.     Default interest 38.     The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1.     Declares the application admissible;   2.     Holds that there has been a procedural violation of Article 2 of the Convention;   3.     Holds (a)     that the respondent State is to pay the applicants jointly, 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 10,000 (ten thousand euros) in respect of non-pecuniary damage; (ii)     EUR 305 (three hundred and five euros) in respect of costs and expenses; plus any tax that may be chargeable to the applicants on the above amounts; (b)     that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;   4.     Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 16 October 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stephen Phillips   Angelika Nuβberger Deputy Registrar   President   Appendix   Kateryna Illivna Reus (“the first applicant”) is a Ukrainian national who was born in 1955 and lives in Chernivtsi. She is Mr I. Cheban’s widow. Oleksandr Georgiyovych Cheban (“the second applicant”) is a Ukrainian national who was born in 1953 and lives in Chernivtsi. He is Mr I. Cheban’s brother. Nina Georgiyivna Cheban (“the third applicant”) is a Ukrainian national who was born in 1955 and lives in Chernivtsi. She is Mr   I.   Cheban’s sister. Lyudmyla Ivanivna Cheban (“the fourth applicant”) is a Ukrainian national who was born in 1985 and lives in Chernivtsi. She is Mr   I.   Cheban’s daughter. Georgiy Leontiyovych Cheban (“the fifth applicant”) was a Moldavian national who was born in 1927 and lived in the village of Yarivka, Chernivtsi Region. He was Mr I. Cheban’s father.