CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 26 mai 2016

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s79DE5897 { margin-top:18pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; page-break-inside:avoid; page-break-after:avoid } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .sBB355983 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s583D00FA { margin-top:0pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt } .s4B243ECC { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .sF7A4323 { margin-top:36pt; margin-bottom:0pt; text-align:left } .sBF964C40 { width:8.54pt; display:inline-block } .sD7DE76AD { width:201.77pt; display:inline-block } .sA2E62387 { width:204.97pt; display:inline-block }       FIFTH SECTION             CASE OF TUCHIN AND TUCHINA v. UKRAINE   (Application no. 40458/08)                       JUDGMENT       STRASBOURG     26 May 2016         This judgment is final but it may be subject to editorial revision. In the case of Tuchin and Tuchina v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:   Khanlar Hajiyev, President,   Faris Vehabović,   Carlo Ranzoni, judges, and Milan Blaško, Deputy Section Registrar, Having deliberated in private on 3 May 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 40458/08) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Ukrainian nationals, Mr Anatoliy Andreyevich Tuchin and Ms Svetlana Aleksandrovna Tuchina (“the applicants”), on 29 July 2008. 2.     The applicants were represented by Mr V.V. Sudakov, a lawyer practising in Odessa. The Ukrainian Government (“the Government”) were represented by their Acting Agent, most recently Ms Olga Davydchuk. 3.     The applicants alleged that there had not been an effective investigation into the death of their daughter. 4.     On 3 June 2013 the application was communicated to the Government. THE FACTS THE CIRCUMSTANCES OF THE CASE 5.     The applicants were born in 1943 and 1942 respectively and live in Odessa. 6.     On 30 April 2002 the applicants’ daughter was struck by a car driven by P. as she was crossing the street. She died in hospital following the accident. 7.     Between April 2002 and October 2010 the prosecution authorities delivered at least ten decisions refusing to institute or discontinuing criminal proceedings in respect of P. owing to a lack of corpus delicti in his actions. All those decisions were quashed by the supervising authorities as unsubstantiated and further investigations were ordered. 8.     On 9 July 2009 the first applicant lodged a civil claim against P. within the criminal proceedings. On 15 July 2009 he was attributed the status of an aggrieved party in those proceedings. 9.     On 26 October 2010 the Odessa Suvorivskyy District Court discontinued the criminal proceedings against P. as time-barred. On 21   December 2010 and 20 November 2012 the Odessa Regional Court of Appeal (“the Court of Appeal”) and the Higher Specialised Court for Civil and Criminal Matters (“the Higher Specialised Court”), respectively, upheld that decision. 10.     On 20 November 2012 the Higher Specialised Court also issued a separate ruling, by which it brought to the attention of the Court of Appeal and the Odessa regional prosecutor’s office a number of shortcomings in the proceedings. It   stated, in particular, that the pre-trial investigation had been perfunctory and lengthy. Since 2002, there had been hardly any investigative measures. The numerous refusals by the investigating authorities to institute criminal proceedings in respect of the accident had been unfounded and had eventually been quashed. Guidelines as regards remedying shortcomings in the investigation had been ignored. The overall duration of the investigation, over ten years, had been unjustified. In summary, the Higher Specialised Court held that the criminal investigation in question had not complied with domestic legislation or the Convention. It therefore instructed the aforementioned authorities to take measures to prevent similar violations in the future. THE LAW I.     ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 11.     The applicants complained that there had been no effective investigation into the death of their daughter, which meant that the driver whom they blamed for the accident had evaded both criminal and civil liability. They relied on Article 6 of the Convention. 12.     The Court reiterates that it is the master of the characterisation to be given in law to the facts of a case. In the present case, it considers that the applicants’ complaint concerns exclusively the failure of the State authorities to effectively investigate the circumstances of their daughter’s death. Accordingly, even though this complaint was communicated to the Government under both Article 2 and Article 6 of the Convention, the Court considers that it falls to be examined under the procedural limb of Article   2 of the Convention only (see Igor Shevchenko v. Ukraine, no.   22737/04, §   38, 12 January 2012, and Kholodkov and Kholodkova v.   Ukraine [Committee], no. 29697/08, §§ 26 and 27, 7 May 2015). This provision, in so far as relevant, reads as follows: “1.     Everyone’s right to life shall be protected by law...” A.     Admissibility 13.     The Government submitted that the applicants had not exhausted domestic remedies as they had failed to bring a civil claim against the investigating authorities. According to the Government, it had been established by the separate ruling of the Higher Specialised Court of 20   November 2012 that the investigation had been flawed and lengthy and the applicants could claim compensation on that ground. 14.     The applicants disagreed. They observed, in particular, that the ruling in question had been delivered more than ten years after the death of their daughter. The applicants therefore contended that they could not be reproached for failing to institute further proceedings with an unclear prospect of success and of uncertain duration. 15.     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 applicants were not required to use that remedy (see Reus and Others v.   Ukraine [Committee], no. 40587/07, § 22, 16 October 2014). The Government’s objection on that point is dismissed. 16.     The Court further notes that this application is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention and is not inadmissible on any other grounds. It must therefore be declared admissible. B.     Merits 17.     The applicants alleged that the investigation of their daughter’s death had been ineffective as it had been marked by excessive delays and a lack of diligence on the part of the authorities. 18.     The Government objected to that view. They noted, in particular, that numerous investigative measures had been taken to establish the circumstances of the fatal traffic accident. 19.     The Court observes that the criminal proceedings regarding the traffic accident which caused the death of the applicants’ daughter lasted for more than ten years and eventually became time-barred. The domestic authorities themselves acknowledged serious deficiencies in those proceedings and that they were of unjustified duration (see paragraph   10 above). However, at the time the Higher Specialised Court delivered its separate ruling to that effect, it was already impossible to establish the facts surrounding the death of the applicants’ daughter and to impose criminal liability on the driver if his guilt had been established. 20.     The Court has already found violations of Article 2 of the Convention in other cases where the proceedings aimed at establishing the circumstances of a fatal accident and providing redress to the victim’s relatives were unreasonably delayed (see, for example, Antonov v. Ukraine , no. 28096/04, §§   50-52, 3 November 2011; Igor   Shevchenko, cited above, §§ 57-62; Prynda v. Ukraine, no.   10904/05, §§ 55-57, 31 July 2012; and Barsukovy v. Ukraine [Committee], no.   23081/07, §§ 22-27, 26 February 2015). 21.     Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. 22.     The Court therefore concludes that there has been a breach of Article   2 of the Convention under its procedural limb. II.     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.” 24.     The applicants’ lawyer did not submit claims for just satisfaction or costs and expenses in line with the procedure. Accordingly, the Court considers that there is no call to award the applicants any sum on account of such items. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1.     Declares the application admissible;   2.     Holds that there has been a violation of Article 2 of the Convention. Done in English, and notified in writing on 26 May 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.   Milan Blaško   Khanlar Hajiyev Deputy Registrar   President