CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 6 juillet 2023

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UKRAINE (Application no. 14480/20)             JUDGMENT   STRASBOURG 6 July 2023   This judgment is final but it may be subject to editorial revision. In the case of Shakhmina and Shakhmin v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:   Carlo Ranzoni, President ,   Lado Chanturia,   María Elósegui , judges , and Viktoriya Maradudina, Acting Deputy Section Registrar, Having deliberated in private on 15 June 2023, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 10 March 2020. 2.     The applicants were represented by Mr   A.A.   Kristenko, a lawyer practising in the city of Kharkiv, Ukraine. 3.     The Ukrainian Government (“the Government”) were given notice of the application. THE FACTS 4.     The list of applicants and the relevant details of the application are set out in the appended table. 5.     The applicants complained of the ineffective investigation into a life ‑ threatening accident without involvement of State agents. THE LAW ALLEGED VIOLATION OF ARTICLE 2 § 1 of the Convention 6.     The applicants complained of the ineffective investigation into a life ‑ threatening accident without involvement of State agents. They relied on Articles 2 and 13 of the Convention. 7.     The Court, which   is   the master   of the   characterisation to be given in law to the facts of the case, finds that the complaint at issue falls to be examined under Article   2 of the Convention (see Igor Shevchenko v. Ukraine , no. 22737/04, §   38, 12 January 2012). 8.     The Court notes at the outset that the present case must be examined from the perspective of the State’s obligation to conduct an effective investigation under the procedural limb of Article 2 of the Convention. The relevant general principles concerning the effectiveness of the investigation were summarized in Mustafa   Tunç and Fecire   Tunç v.   Turkey [GC], no.   24014/05, §§ 169-82, 14 April 2015. In particular, 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 (ibid., §   225). 9.     Moreover, 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). 10.     Reviewing the facts of the present case in the light of those principles, the Court considers that the investigation was marked by various shortcomings, which had undermined the ability of the investigating authorities to establish the circumstances surrounding the life-threatening accident that happened to the applicants, and who, if anyone, was responsible. The specific shortcomings are indicated in the appended table. 11.     In the leading cases of Basyuk v. Ukraine (no. 51151/10, 5 November 2015), Pozhyvotko v.   Ukraine (no. 42752/08, 17 October 2013) and Kachurka v.   Ukraine (no.   4737/06, 15   September   2011), the Court already found violations in respect of issues similar to those in the present case. 12.     Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the investigation failed to meet the criteria of effectiveness. 13.     These complaints are therefore admissible and disclose a breach of Article   2 of the Convention under its procedural limb. APPLICATION OF ARTICLE 41 OF THE CONVENTION 14.     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.” 15.     Regard being had to the documents in its possession and to its case ‑ law (see, in particular, Basyuk, cited above, §§   74-80), the Court considers it reasonable to award the sums indicated in the appended table. FOR THESE REASONS, THE COURT, UNANIMOUSLY, Declares the application admissible; Holds that this application discloses a breach of Article   2   §   1 of the Convention concerning the ineffective investigation into the life-threatening accident without involvement of State agents; Holds (a)   that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b)   that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. Done in English, and notified in writing on 6 July 2023, pursuant to Rule   77   §§   2 and   3 of the Rules of Court.     Viktoriya Maradudina   Carlo Ranzoni   Acting Deputy Registrar   President       APPENDIX Application raising complaints under Article 2 § 1 of the Convention (ineffective investigation into a life-threatening accident without involvement of State agents) Application no. Date of introduction Applicant’s name Year of birth Background to the case and domestic proceedings Key issues Amount awarded for non-pecuniary damage per household (in euros) [1] Amount awarded for costs and expenses per household (in euros) [2] 14480/20 10/03/2020 Household   Iryna Yuriyivna SHAKHMINA 1980   Yuriy Oleksandrovych SHAKHMIN 1949   1.     The circumstances of the accident: (i)     The applicants are father and daughter. On 12/01/2017 the second applicant drove a car with the first applicant as a passenger. Their car collided with the truck and the applicants sustained severe bodily injuries as a result; Mr G., an employee of the state-owned enterprise U., drove the truck. The first applicant was diagnosed with craniocerebral trauma, concussion, fracture of the mandible, and bone fractures; the second applicant was diagnosed with closed head injury, chest contusion, and abdominal injury. According to the applicants the accident resulted from the fact that the truck had blocked the road completely and had been parked without any lights while it had been dark outside and there had been no lighting along the road. 2.     The course of the criminal investigation and its findings: (i)     13/01/2017 – the criminal investigation was instituted on account of a breach of the road traffic rules that caused bodily injuries of medium severity; (ii)     on an unspecified date the first applicant was given a victim status; (iii)     09/03/2017 – the second applicant lodged a petition before an investigator, asking to give him a victim status. According to the second applicant the investigator on the phone had dismissed his petition; replying to the applicant’s repetitive request the investigator noted that the issue on granting the victim status would be considered after carrying out the reconstruction of the events. According to the available information as on 09/09/2019 the reconstruction of the events had not been carried out. (iv)     According to the available information, neither the participants nor the eyewitnesses of the traffic accident were questioned. (v)     It appears that a medical-expert examination of the first applicant’s injuries and the auto-technical examination of the vehicles were performed. Both examinations were conducted on the basis of limited pieces of evidence. Some additional examinations of the vehicles were scheduled. On 12/04/2017 the first applicant lodged a petition before the investigator, asking to conduct a complex forensic medical-expert examination. On 24/04/2017 an investigator without taking any formal decision informed her that she had to provide the investigating authorities with the results of the medical examination. On 19/05/2017 a local court declared unlawful the investigator’s inactivity and ordered that the investigator should consider the applicant’s petition of 12/04/2017. (vi)     A medical-expert examination of the second applicant was not performed since he had not been assigned the status of a victim. According to the most recent information from the applicants, as of 04/02/2020 the investigation was ongoing.   3.     Civil proceedings: (i)     on 10/05/2017 the applicants lodged a civil claim against, inter alia, U. and an insurance company, seeking compensation of damages, caused as result of the accident; (ii)     on 09/01/2019 a local court dismissed their claim, reasoning that the guilt of the defendants had not been proven; on 08/05/2019 an appellate court upheld that decision. On 18/12/2019 the Supreme Court (SC) admitted the case for examination. It appears from the Unified State Registry of Judgments that on 07/10/2020 the SC set aside the decisions of the lower courts in the part related to the dismissal of the claim of one of the applicants and remitted the case in this part for a fresh consideration to the first-instance court. It appears that the case is currently pending before a local court. Applicants’ rights as a victim were not properly safeguarded ( Sergey Shevchenko v. Ukraine , no. 32478/02, §   74, 4 April 2006; Prynda v.   Ukraine , no. 10904/05, §   56, 31   July 2012; Masneva v. Ukraine , no. 5952/07, § 56, 20 December 2011),   insufficient measures during the preliminary stage of the investigation ( Kachurka v. Ukraine , no. 4737/06, § 52, 15 September 2011),   lack of thoroughness and promptness which undermined the authorities’ ability to establish the circumstances of the case ( Igor Shevchenko v. Ukraine , no.   22737/04, § 60, 12 January 2012; Zubkova v. Ukraine , no. 36660/08, § 40, 17 October 2013),   numerous shortcomings in collection of evidence ( Basyuk v. Ukraine , no.   51151/10, § 67, 5 November 2015) 6,000 250   [1] Plus any tax that may be chargeable to the applicants. [2] Plus any tax that may be chargeable to the applicants.