LEZNYUK v. UKRAINE - 35431/21 (Article 2 - Right to life : Fifth Section Committee) [2023] ECHR 696 (21 September 2023)

JUDGMENT STRASBOURG 21 September 2023 This judgment is final but it may be subject to editorial revision . In the case of Leznyuk 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 31 August 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 26 June 2021. 2. The Ukrainian Government ("the Government") were given notice of the application. THE FACTS 3. The applicant's details and information relevant to the application are set out in the appended table. 4. The applicant complained of the ineffective investigation into the death of his son without involvement of State agents. THE LAW ALLEGED VIOLATION OF ARTICLE 2 § 1 of the Convention 5. The applicant complained of the ineffective investigation into the death of his son in a traffic accident. He relied on Articles 2 and 13 of the Convention. 6. 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). 7. The Court notes at the outset that the present case should 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 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). 8. 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). 9. 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 death of the applicant's next of kin, and who, if anyone, was responsible. The specific shortcomings are indicated in the appended table. 10. 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. 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 of the Convention under its procedural limb. APPLICATION OF ARTICLE 41 OF THE CONVENTION 13. 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." 14. 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, Declares the application admissible; Holds that this application discloses a breach of Article § 1 of the Convention concerning the ineffective investigation into the death of the applicant's son; Holds (a) that the respondent State is to pay the applicant, within three months, the amount 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 21 September 2023, pursuant to Rule §§ 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 deaths 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 (in euros) [1] 35431/21 26/06/2021 Petro Mykhaylovych LEZNYUK The applicant's son I. died on 12/11/2001 while crossing the street in an unauthorised place. He had been hit by a car driven by Mr Ch. Investigation authorities, on numerous occasions, refused to initiate criminal proceedings in view of the victim's conduct. Eventually, on 19/05/2014 criminal proceedings were instituted. From June 2014 until March 2015 the following investigatory action were conducted: technical forensic examinations, medical forensic examinations, and witnesses' interrogation. On 19/03/2015 the criminal proceedings were discontinued. The applicant challenged that decision following which the proceedings were resumed. Further on, the criminal proceedings were discontinued and resumed on several occasions. On 30/11/2018 the proceedings were discontinued. There is no indication that the applicant was informed of the decision. In a final decision, on 07/10/2020 the Supreme Court of Ukraine rejected the applicant's claim for compensation of damage caused by the ineffective investigation finding that the applicant had failed to prove illegal actions of the authorities and the resulting damage. applicant's 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), decisions refusing to institute proceedings issued without the circumstances of the case having been properly examined ( Oleynikova v. Ukraine , no. 38765/05 , §§ 80-81, 15 December 2011, with further references), 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), progressive deterioration/loss of evidence ( Antonov v. Ukraine , no. 28096/04 , § 50, 3 November 2011) 6,000 [1] Plus any tax that may be chargeable to the applicant. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII