CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 25 avril 2024

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UKRAINE (Application no. 69557/13)             JUDGMENT   STRASBOURG 25 April 2024     This judgment is final but it may be subject to editorial revision .   In the case of Usachenko and Others v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:   Mārtiņš Mits , President ,   Kateřina Šimáčková,   Mykola Gnatovskyy , judges , and Viktoriya Maradudina, Acting Deputy Section Registrar, Having deliberated in private on 4 April 2024, 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”) by four applicants, Mr   Dmitriy Usachenko (“the first applicant”), Mrs Anastasiya Tsykolenko (“the second applicant”), Mr Nikolay Tsykolenko (“the third applicant”) and Mrs Anna Dyachenko (“the fourth applicant”, the mother of Ms T.), on 17   October 2013. 2.     After the death of the third applicant on 31 July 2018, his civil wife, Ms Halyna Tsykolenko, expressed her wish to pursue the application on his behalf. In a number of cases, in which an applicant has died in the course of proceedings, the Court has taken into account statements of the applicant’s heirs or close family members expressing the wish to pursue the proceedings before the Court even where the complaint before the Court concerned complaints under Articles 2 and 3 of the Convention (see Ivko v.   Russia , no. 30575/08, 15 December 2015; Kardava v.   Ukraine [Committee], no. 19886/09, 17 December 2019). Therefore, the Court considers that Ms Halyna Tsykolenko has a legitimate interest to pursue the application in the late applicant’s stead. 3.     The Ukrainian Government (“the Government”) were given notice of the application. THE FACTS 4.     The relevant details of the application are set out in the appended table. THE LAW ALLEGED VIOLATION OF ARTICLE 2 § 1 of the Convention 5.     The applicants complained of the lengthy and ineffective investigation into a car accident, without involvement of State agents. They relied, expressly or in substance, on Article 2 § 1 of the Convention. 6.     The relevant general principles concerning the effectiveness of the investigation were summarised 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). 7.     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). 8.     The Court notes that in the present case, the traffic accident (described in the attached table below) was investigated, and later the case was heard in a court located on the territory where, in April 2014, illegal armed groups associated with two self-proclaimed entities known as the “Donetsk People’s Republic” and the “Luhansk People’s Republic” began operating, seizing control of certain parts of those regions by force. A ceasefire line was later put in place (see   Vyshnyakov v. Ukraine , no. 25612/12, § 20, 24 July 2018, and   Burgas v.   Ukraine [Committee], no. 8976/07, §   26, 18 December 2018). However, for the purposes of the examination of the present case, it is not necessary to determine whether the respondent State may be held responsible for conduction of the investigation after that date. The Court will proceed with assessing the period preceding the outbreak of hostilities (see, for the same approach, Burgas , cited above, § 39). 9.     Reviewing the facts of the present case in the light of above principles, the Court considers that the investigation was marked by shortcomings, such as repeated remittals of the case for additional investigation and lack of thoroughness and promptness which undermined the authorities’ ability to establish the circumstances of the case. 10.     In the leading cases of Kachurka v.   Ukraine (no. 4737/06, 15   September 2011), Pozhyvotko v.   Ukraine (no. 42752/08, 17 October 2013) and Basyuk v. Ukraine (no. 51151/10, 5 November 2015) the Court has already found violations in respect of issues similar to those in the present case. 11.     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. 12.     These complaints are therefore admissible and disclose a breach of Article   2 § 1 of the Convention under its procedural limb. APPLICATION OF ARTICLE 41 OF THE CONVENTION 13.     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 sum indicated in the appended table. FOR THESE REASONS, THE COURT, UNANIMOUSLY, Decides   that the third applicant’s civil wife, Ms Halyna Tsykolenko, has   locus standi   in the proceedings; Declares the application admissible; Holds that this application discloses a breach of Article 2 § 1 of the Convention concerning the ineffective investigation into the traffic accident; 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 amount 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 25 April 2024, pursuant to Rule   77   §§   2 and   3 of the Rules of Court.     Viktoriya Maradudina   Mārtiņš Mits   Acting Deputy Registrar   President   APPENDIX Application raising complaints under Article 2 § 1 of the Convention (ineffective investigation into deaths or life-threatening accidents 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 applicant (in euros) [1] 69557/13 17/10/2013   Dmitriy Leonidovich USACHENKO 1972   Anastasiya Andriivna TSYKOLENKO 1993   Nikolay Ivanovich TSYKOLENKO 1951 Deceased in 2018   Heir: Ms Halyna Tsykolenko     Anna Feodosyevna DYACHENKO 1948     On 24/07/2003 the first applicant, a Ms T., her daughter (the second applicant), and her father-in-law (the third applicant), were riding together in a car, when a wheel broke off a truck riding in front of them. To avoid collision, the first applicant, driving the car, swerved it to the left and drove into oncoming traffic causing a crash with another car. T. and one passenger of the other car died and everybody else received injuries of different degrees. On 27/07/2003 criminal investigation was instituted into the accident. There is no information as to when the participants of the road-traffic accident were recognised as victims within the criminal proceedings, though they were referred to as such in the available court decisions. On 06/04/2005 by a verdict of the Yenakiyeve Local Court the driver of the truck was found guilty of the violation of the operation of a vehicle that resulted in several deaths. On 19/08/2005 a court of appeal quashed the abovementioned verdict and returned the case for an additional investigation. On 16/02/2010 the driver of the truck was again found guilty of the same crime, but on 03/09/2010 the court of appeal quashed the verdict and returned the case for re-examination to the local court. The court referred, inter alia , to the need of assessment of the first applicant’s behaviour as a driver and his compliance with the requirements of the traffic rules. In April and July 2011 the local court refused the requests of the first applicant on the judges’ recusals as unsubstantiated. On 14/07/2011 the local court remitted the case for further investigation. The court pointed out the incompleteness of the pre-trial investigation. On 09/12/2011 the Donetsk Court of Appeal upheld the decision of a local court on the remittal of the case. On 22/02/2013 the court of appeal transferred the case for consideration on the merits to the Yenakiyeve Local Court. The court noted that the first-instance court should analyse the evidence presented before it more carefully and should order an additional technical expert examination, if necessary. On numerous occasions the court hearings were adjourned because of the witnesses’ failure to appear. On 24/04/2014 a local court ordered a new forensic examination in the case. According to the notification of 05/09/2014 published on the website of the Yenakiyeve Local Court, the work of the court was suspended owing to the armed conflict in the region and its jurisdiction was reassigned to the Artemivsk Local Court. The applicants claim that materials of their case were not transferred to the Artemivsk Local Court and the applicants are deprived of a possibility to seek the restoration of the case file since there has been no judgment delivered.   Repeated remittals of the case for additional investigation owing to the insufficiency of the measures taken by the investigators ( Antonov v. Ukraine , no. 28096/04, § 50, 3 November 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) 6,000     [1] Plus any tax that may be chargeable to the applicants.