In the case of Fedina v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as
a Chamber composed of:
Peer Lorenzen, President,
Renate Jaeger,
Karel Jungwiert,
Mark Villiger,
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva,
Ganna Yudkivska, judges,
and Claudia Westerdiek,
Section Registrar,
Having deliberated in private on 29 June 2010,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
1. The case originated in an application (no.
17185/02) against Ukraine lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Ukrainian national, Ms Raisa Nikolayevna Fedina (“the
applicant”), on 26 March 2002.
2. The applicant was represented by Mr A. V.
Lesovoy, a lawyer practising in Simferopol. The Ukrainian Government (“the
Government”) were represented by their Agents, Mrs V. Lutkovska and Mrs I.
Shevchuk, of the Ministry of Justice.
3. On 15 March 2005 the President of the Fifth
Section decided to give notice of the application to the Government. It was also
decided to examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
4. The applicant was born in 1950 and lives in the village of Tenistoye, Crimea, Ukraine.
A. The accident of 19 July 2001
5. On 19 July 2001 the applicant’s son, Mr Fedin,
who was born in 1969, was fishing in the River Karacha with a teenager, D.
According to D.’s testimony in the subsequent proceedings, the water started to
“bite” their feet when they reached Ayvove village. They saw a wire hanging from
a wooden support pole for power lines, dangling in the water. Mr Fedin, saying
that the wire was not dangerous and should be removed, stepped into the water
and tried to pull the wire from the river. When he grasped the wire he cried
out, fell into the water and died. D. tried to pull the wire out of Mr Fedin’s
hands. Unable to do so, he ran to the village for help.
B. The Network’s internal inquiries
6. Mr Z., an engineer with the Bakhchisaray District
Electricity Network (hereinafter “the Network”) – forming a part of the public
company, Krymenergo, owned by the Ukrainian State – carried out an initial,
immediate investigation into the accident. In his report of 26 July 2001,
Mr Z. concluded that the applicant’s son had died as a result of
electrocution. This occurred because a live wire, which had been incorrectly fixed
to a wooden support pole, had come loose during strong winds. He further
concluded that the security trip switch had failed on account of an ineffective
earth connection.
7. A further internal inquiry was subsequently
carried out by a commission composed of six Network officials (hereinafter “the
commission”). Its report, drawn up on 20 August 2001, states that the Network
owned two wooden poles on opposite banks of the River Karacha, supporting a
power line strung across the river. In addition to that power line, those two
poles also supported a bare radio wire that had been attached to the poles –
above the power line – by the local telecommunications service of the
Ukrtelecom Company. Owing to stormy weather conditions, the hook with which the
radio wire had been attached had come loose, the wire had snapped and one end
had fallen into the river. The commission found that, although in principle it
was not unlawful to attach a power line and a radio wire to a single pole, the
local telecommunications service had failed to obtain the relevant consent from
the Network.
C. The criminal investigation
8. On 6 August 2001 the applicant asked the
Bakhchisaray District Prosecutor’s Office (hereafter “the Prosecutor’s Office”)
to conduct an inquiry into the circumstances of her son’s death, claiming that
his death had been caused by negligence and carelessness on the part of the
Network in that it had failed to repair a broken power line, whereas the Ayvove
villagers had already reported a power failure as early as 5 July 2001.
9. The autopsy report, issued on 20 August 2001 by
an expert with the local Bureau of Forensic Medical Examinations at the request
of the Prosecutor’s Office, stated that Mr Fedin had suffered a sudden death as
a result of an electric shock.
10. On 20 August 2001 the Prosecutor’s Office asked
the Network to make available documents relating to the accident, including the
records of previous inspections and repairs of the power line. In its reply of
30 August 2001 the Network stated, inter alia, that it had not given its
consent to the radio wire being attached to the pole, and that the manner in
which it had been done contravened technical safety rules. It further stated
that it had notified the telecommunications service several times of the
potential danger of the installation and had unsuccessfully sought to have it
comply with the relevant safety regulations.
11. On 3 September 2001 the Prosecutor’s Office
informed the applicant that there was no reason for the Office to take any
criminal proceedings against the Network’s management. None of the Ayvove
villagers had called the Network between 5 and 19 July 2001 to report a power
supply failure, and the required annual inspections and general revision of the
power supply network had been conducted regularly and timely by the Network.
The last annual inspection had taken place on 22 August 2000 and the last
general overhaul in October 1995 which was within the prescribed six years’
interval. Also taking into account the findings of the internal inquiry carried
out by the Network’s commission and statements given by various Ayvove
villagers – according to whom the 0.4 Kilowatt radio wire had come loose on 18
July 2001 – the Prosecutor found no wrongdoing on the part of the Network’s
staff.
12. On 19 November 2001 the applicant asked the
Prosecutor’s Office to conduct an additional criminal investigation into the
death of her son and to take criminal proceedings in accordance with Article 97
of the Code of Criminal Procedure.
13. In a decision of 23 November 2001, the
investigator from the Prosecutor’s Office decided against taking criminal
proceedings against the Network’s staff as there was no evidence of a criminal
offence. That decision was based on statements taken by the investigator from
the applicant, her son’s widow, her son’s friend D., two Ayvove villagers and
Ms T., a nurse who had been called for help on 19 July 2001. The two villagers
had stated that, although Ayvove had experienced certain power supply problems
as early as 13 July 2001, it was only on 18 July 2001 that the radio wire had
come loose from the pole, and that nobody had informed the Network about this.
The investigator further noted that the applicant’s claim that her son had died
as a result of negligence and carelessness on the part of the Network in that
it had failed to repair a power line broken on 5 July 2001 was not
supported by the findings made by the Network’s commission.
14. The applicant filed a complaint against that decision
with the Prosecutor’s Office of the Autonomous Republic of Crimea (hereafter
“the POARC”) as well as an appeal with the Bakhchisaray District Court
(hereafter “the Bakhchisaray Court”).
15. On 29 May 2002, the POARC quashed the decision
of 23 November 2001, finding that further inquiries were called for.
It instructed the investigator to question officials of Ukrtelecom, to question
again the villagers as to when the radio wire had come loose and whether
someone had informed the Network about this, and to attach a copy of the on‑site
inspection of the scene of the accident and the report on the forensic post-mortem
examination of the body of the applicant’s son. In view of that decision, the Bakhchisaray Court did not deal with the applicant’s appeal against the decision of 23
November 2001.
16. On 17 June 2002 the investigator of the
Prosecutor’s Office, after having heard an Ukrtelecom employee – according to
whom the radio wire had been attached to the pole in conformity with the
relevant technical requirements – and after having heard the applicant, her son’s
friend D., the two Ayvove villagers already heard previously, and the nurse, Ms
T., who gave the same testimonies as before, decided against taking any
criminal proceedings because there was no evidence of a criminal offence.
17. On 20 December 2002, acting on an appeal filed
by the applicant, the Bakhchisaray Court quashed the decision of 17 June 2002.
It found that the inquiry carried out by the Prosecutor’s Office was
incomplete, in that the case file contained no record of an on-site inspection
of the scene of the accident and no report on post-mortem examinations of the
body of the applicant’s son, and in that the investigation had failed to
establish the reason why a dangerous live wire had been hanging in the river
and who bore responsibility for this.
18. On 3 February 2003, after having added to the
case file the report on the post-mortem examination of Mr Fedin’s body and an
undated statement taken from the local electrician, the Prosecutor’s Office
took a fresh decision not to initiate any criminal proceedings, which was based
on essentially the same grounds as the decision of 17 June 2002. According to
the statement given by the electrician, he had received no complaints or
information about a wire hanging in the river. He did know that wires had come
loose from their support, but did not know who was responsible for it.
19. On 27 March 2003, acting on a complaint filed by
the applicant, the POARC quashed the decision of 3 February 2003 and
remitted the case to the Prosecutor’s Office for further inquires in that, inter
alia, the case file did not contain an internal investigation report from
the company responsible for electricity network maintenance, and the
investigation had not made any findings about who was responsible for the
network’s maintenance.
20. In the course of the subsequent additional
criminal investigation, the investigator of the Prosecutor’s Office examined
the internal regulations governing the duties and responsibilities of the
Network’s staff, and identified and questioned two officials responsible for
the maintenance of power lines, as well as two Network employees who had
repaired the power supply network after Mr Fedin’s death. It further examined
information about the meteorological conditions at the material time and
concluded that the power cut had been caused by adverse weather conditions. On
16 April 2003, having found no evidence of negligence or involuntary
manslaughter, the Prosecutor’s Office decided not to bring any charges against
the Network staff responsible for electricity network maintenance. According to
the Prosecutor’s Office, the wire network in the Ayvove village had been
maintained in accordance with the relevant technical rules and regulations.
21. On 1 August 2004, acting on a complaint filed by
the applicant, the POARC quashed the decision of 16 April 2003 and remitted the
case once more for additional investigations. It found that the investigator
had failed to question a number of Network employees and that, despite repeated
instruction, no on-site inspection report had been drawn up.
22. Accordingly, the Prosecutor’s Office conducted
an on-site inspection at the scene of the incident. According to the inspection
report, an unprotected radio wire, strung across the River Karacha, had been
attached to a wooden support pole. That pole also had an electricity power line
attached to it. The Prosecutor’s Office concluded that such an installation was
permissible under the relevant technical regulations. It further found that a
storm had caused the radio wire to come loose and fall into the river.
23. On 27 August 2004 the Prosecutor’s Office
concluded that Mr Fedin’s death had been the result of a tragic accident
and decided not to institute any criminal proceedings. The applicant again
filed a complaint against that decision. On 23 November 2004 the POARC accepted
the applicant’s complaint, quashed the decision of 27 August 2004 and ordered
further inquiries to be made, including a forensic technical examination of the
cause of the accident.
24. On 6 December 2004 the Prosecutor’s Office
again decided against bringing any charges, having found no evidence that any
criminal offence had been committed by officials of the Network. The applicant
challenged the decision of 6 December 2004 before the POARC. On 24 February
2005 the POARC quashed the decision of the Prosecutor’s Office of 6 December 2004,
finding that the criminal inquiry conducted had not been sufficiently thorough.
It noted that, in the internal investigation into the incident carried out by
the Network’s commission in 2001, it had been found that the radio wire had
been attached to the poles in a manner contrary to relevant technical
regulations, whereas the Prosecutor’s Office had found that the relevant rules
and regulations had been respected. The POARC further found it unacceptable
that no documentary evidence had been obtained from the Network concerning
inspections of the Ayvove village electricity supply network prior to the
accident, and that the identity of the persons who were responsible for the
maintenance of the Network wires had not been established.
25. In its subsequent decision of 23 March 2005
the Prosecutor’s Office maintained its conclusion that there were no reasons
for taking any criminal proceedings. As to the installation of wires and poles,
the investigation found that they had originally been installed in 1968 and the
relevant installation company no longer existed. It further stated that the
forensic technical examination could be conducted by the Kharkiv Forensic
Examinations Institute (Харківський
науково-дослідний
інститут судових
експертиз), however, such
examination would require pre-payment of fees and the Prosecutor’s Office did
not have funds available to cover those costs. The applicant was offered an
opportunity to meet those costs.
26. On 19 July 2005 the Bakhchisaray Court quashed
the decision of 23 March 2005 and ordered further investigation on the
ground that technical expertise was required to establish whether there had
been irregularities in the installation and use of wires that could have a causal
link with the electrocution and death of the applicant’s son.
27. On 28 July 2005 the Prosecutor’s Office sent the
case file material to the Kharkiv Forensic Examinations Institute, but the
examination was not conducted owing to non-payment of fees.
28. On 31 March 2006 the Prosecutor’s Office refused
to institute criminal proceedings on the same grounds as in its decision of 23 March
2005. The Prosecutor’s Office noted that it had no available funds to pay for the
forensic examination and the interested parties were not willing to meet the
costs either.
29. On 13 December 2006 the POARC quashed the
decision of 31 March 2006 and remitted the case for additional
investigation.
30. On 28 December 2006 the Prosecutor’s Office
refused to institute criminal proceedings on the same grounds as in its
decisions of 23 March 2005 and 31 March 2006.
31. On 24 January 2007 the POARC quashed the
decision of 28 December 2006 and remitted the case for additional
investigation.
32. On 2 February 2007 the Prosecutor’s Office
refused to institute criminal proceedings against the Network officials under Article
367 of the Criminal Code. The Prosecutor’s Office repeatedly noted that they
had no funds available for forensic examination and the interested party
refused to pay for it.
33. On 14 February 2007 the applicant complained about
that decision to the POARC. She did not, however, provide information about any
decision taken regarding her complaint.
D. Civil proceedings
34. On 6 September 2001 the applicant instituted
civil proceedings before the Bakhchisaray Court against Krymenergo, the public
company of which the Network formed a part. In those proceedings, the applicant
claimed compensation for non-pecuniary damage caused by the death of her son.
35. On 14 September 2001 the Bakhchisaray Court, for reasons of territorial jurisdiction, remitted the case to the
Kyivskyy District Court of Simferopil. On 25 March 2002, acting at the
applicant’s request, the Court of Appeal of the Autonomous Republic of Crimea
(the "Court of Appeal of the ARC") ruled that the Bakhchisaray Court
had jurisdiction over the case.
36. On 30 April 2002 the Bakhchisaray Court assumed
jurisdiction over the case and scheduled a first hearing for 28 August 2002. On
that day, it granted the applicant’s request to stay those proceedings pending
the criminal investigation into the death of her son. It did not fix any date
for a future hearing.
37. On 14 May 2004, the Bakhchisaray Court granted
another request to stay the proceedings filed by the applicant, who had
expected to receive further information from the Prosecutor’s Office.
38. On 18 March 2005, the Bakhchisaray Court
considered the proceedings and asked the Prosecutor’s Office for information
about the state of proceedings in the criminal investigation. On 6 April 2005,
after having received a copy of the decision taken by the Prosecutor’s Office
on 23 March 2005, the Bakhchisaray Court resumed its examination of the
applicant’s case.
39. On 4 June 2007 the Bakhchisaray Court found
against the applicant.
40. On 27 August 2007 the Crimea Court of Appeal
overruled the decision of the first-instance court, having held that under the
law the owner of a source of the increased hazard could be exempted from
liability in two conditions: force majeure or the intentional actions of the
victim. Neither of the two had been established in the case. The court also
noted that the prosecutor had refused to institute criminal proceedings owing
to a lack of proof of a crime and not because there had been any doubt that the
event had taken place. Therefore, the Network, regardless of guilt, bore
liability and had to provide compensation for the death of the applicant’s son.
Therefore, it awarded 80,000 Ukrainian hryvnias (UAH) to the applicant, UAH
50,000 to her daughter-in-law and UAH 20,000 to her granddaughter.
41. On 4 December 2008 the Supreme Court of Ukraine upheld
the decision of the court of appeal.
II. RELEVANT DOMESTIC LAW
A. Criminal Code, 1960, with amendments
42. Article 367 of the Criminal Code provides:
“Neglect of
official duty, that is, failure to perform, or improper performance, by an
official of his or her official duties due to negligence, where it causes any
significant damage to the legally protected rights and interests of individual
citizens, State and public interests or those of legal entities, shall be
punishable by a sentence of two to five years’ imprisonment ...”
B. Civil Code, 1963
43. Article 450 of the Civil Code, as in force until
1 January 2004, provided as follows:
“Organisations and persons, whose activities give rise
to an increased hazard to their environment (transport organisations,
industrial enterprises, buildings, car owners etc.) shall be obliged to
compensate the damage caused by the source of that increased hazard unless they
can prove that the damage has resulted from force majeure or from intentional
actions on the part of the victim.”
C. Civil Code, 2004
44. The relevant provisions of the Civil Code, as in
force since 1 January 2004), read:
Article 1187.
Compensation of damage caused by a source of increased danger
...5. A [natural or legal] person involved in an
activity constituting a source of increased hazard shall be responsible for the
damage caused [by that activity] unless [he, she or it] can prove that the
damage has resulted from force majeure or from intentional actions on the part
of the victim”
D. Code of Civil Procedure
45. Article 221 of the Code of Civil Procedure
provides:
“The court shall suspend its examination of a case if ...
it cannot be examined prior to the outcome of another case pending in civil,
criminal or administrative proceedings.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 2 OF THE
CONVENTION
46. The applicant complained that the authorities
had failed to protect the life of her son and were responsible for his death.
She also complained that the investigation into her son’s death had not been
adequate or effective, as required by the procedural obligation imposed by
Article 2 of the Convention. This provision reads in its relevant part as
follows:
“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. Concerning the substantive aspect of Article 2
47. The Government, acknowledging their positive
obligation under Article 2 of the Convention to take appropriate steps to
safeguard the lives of those within their jurisdiction, submitted that – as
radio and power lines constitute a source of increased danger – special
instructions, rules and regulations regulate such installations in order to
ensure adequate safety standards. The prescribed inspections and maintenance on
the installation at issue in the present case were carried out within the
defined intervals, and the necessary repairs were made. Before the incident of
19 July 2001, none of the users had complained of any power failures. However,
an exceptional situation had arisen in that, some days before the incident, a
severe thunderstorm had damaged numerous radio and power lines in the region.
In this connection, the Government submitted – referring to the evidence given
by a number of Ayvove villagers in the domestic proceedings – that the radio
wire had broken on 18 July 2001 and not on 5 July 2001 as alleged by the
applicant. As nobody had reported the damaged wire to the authorities or
requested its repair, the Network had remained unaware of the problem at the
material time.
48. The Government further submitted, referring to
the evidence given by D. in the domestic proceedings, that the applicant’s son
and D. had seen the broken radio wire hanging in the river and that they had
felt the water tingle. Instead of notifying the appropriate authorities of this
dangerous situation, the applicant’s son had decided to remove the wire from
the water himself. The Government considered that, in the given circumstances,
in which an adult of sound mind had decided to ignore a danger of which he was
aware, they could not be held responsible for the fatal consequences of that
decision and that they could not be regarded as having fallen short of their
positive obligations under Article 2.
49. The applicant maintained that, had the relevant
safety regulations been respected, her son would not have been killed.
50. The Court notes that the cause of death of the
applicant’s son, as established by the autopsy report which was prepared at the
request of the Prosecutor’s Office in August 2001, was death by electrocution.
The circumstances of the death are not in doubt: the applicant’s adult son had
picked up a live, dangling cable which was lying in the water.
51. The Court reiterates in the first place that the
first sentence of Article 2 § 1 enjoins the State not
only to refrain from the intentional and unlawful taking of life, but also to
take appropriate steps to safeguard the lives of those within its jurisdiction
(L.C.B. v. the United Kingdom, 9 June 1998, § 36, Reports of
Judgments and Decisions 1998‑III).
52. The positive obligation to take all appropriate
steps to safeguard life for the purposes of Article 2 entails above all a
primary duty on the State to put in place a legislative and administrative
framework designed to provide effective deterrence against threats to the right
to life. This obligation indisputably applies in the particular context of
dangerous activities, where, in addition, special emphasis must be placed on
regulations geared to the special features of the activity in question,
particularly with regard to the level of the potential risk to human lives (see
Öneryıldız v. Turkey [GC], no. 48939/99, §§ 89-90, ECHR
2004‑XII).
53. The scope of the positive obligation must be
interpreted in a way which does not impose an impossible or disproportionate
burden on the authorities. Accordingly, not every claimed risk to life can
entail for the authorities a Convention requirement to take operational
measures to prevent that risk from materialising. For a positive obligation to
arise, it must be established that the authorities knew or ought to have known
at the time of the existence of a real and immediate risk to the life of an
identified individual from the criminal acts of a third party and that they
failed to take measures which, judged reasonably, might have been expected to
avoid that risk (Keenan v. the United Kingdom, no. 27229/95, § 90, ECHR
2001‑III, and Osman v. the United Kingdom, cited above, § 116). In
the present case, as in the case of Keenan, the Court has to consider to
what extent this applies where the risk to a person derives from harm which is,
in one way or another, self-inflicted.
54. There has been no discussion in the present
about whether the construction and use of electricity networks call for
regulation by responsible authorities, and the applicant does not contest the
existence in Ukraine at the time of norms and regulations governing the
installation and the safe operation of electricity networks. Furthermore, the
applicant’s allegations of negligence in repairing the wires after the storm were
reviewed by the domestic authorities on numerous occasions. In the absence of
any indication that the authorities had been aware of the broken line before
the applicant’s son pulled it out of the river and was electrocuted (and
regardless of whether the line broke in the storm or as a result of a breach of
the relevant safety regulations), the Court considers that it cannot be said in
the present case that the safety regulations were inadequate or not respected
in a way which led to the applicant’s son’s death, or that the State otherwise
failed to comply with its positive obligations to protect life under Article 2
of the Convention.
55. In view of the above-mentioned considerations, the Court finds that this
complaint is manifestly ill-founded and rejects it in accordance with Article
35 §§ 1 and 4 of the Convention.
B. Concerning the procedural aspect of Article 2
1. Non-exhaustion of domestic remedies
56. The Government submitted that the applicant had failed
to exhaust domestic remedies, in that she had not challenged the decision of
the Prosecutor’s Office of 23 March 2005, which she could have done under
Article 236 (1) of the Code of Criminal Procedure.
57. The applicant contested the Government’s
submission, arguing that that remedy would have been ineffective in her case.
She stated that the criminal proceedings had lasted too long and the
authorities had shown reluctance to carry out a proper and impartial
investigation into the circumstances of her son’s death.
58. The Court notes that as it appears from the
further developments in the case, the decision of 23 March 2005 was successfully
challenged by the applicant and the inquiry continued until 2 February 2007.
Furthermore, acting on a petition filed by the applicant, the Prosecutor’s
Office conducted a preliminary inquiry into the circumstances of Mr Fedin’s
death and that its successive decisions of 23 November 2001, 17 June 2002, 3
February and 16 April 2003, and 27 August and 6 December 2004 not to take
any criminal proceedings were quashed, on the basis of complaints filed by the
applicant, by either the POARC or the Bakhchisaray Court for procedural flaws.
In the Court’s opinion, the fact that the applicant stopped claiming criminal
liability for the death of her son at the domestic level in 2007 does not
prevent it from looking into the effectiveness of the investigation which
lasted for more than five years. The Court therefore dismisses this objection of
the Government.
2. Otherwise as to admissibility
59. The Government maintained that, at the applicant’s
request, the Prosecutor’s Office had conducted an inquiry in which it had collected
all available evidence – reports and other documents, and statements from
individuals – in connection with the death of the applicant’s son. According to
the Government, that inquiry complied with the requirements for an effective
investigation under Article 2 of the Convention.
60. The applicant submitted that the inquiry
conducted by the Prosecutor’s Office could not be regarded as effective in that
it had been carried out in a superficial and dilatory manner.
61. The Court reiterates that for the investigation
to be effective, it is necessary for the persons responsible for carrying it
out to be independent from those implicated in the death. They should not be
hierarchically or institutionally subordinate to them but independent in
practice. The authorities must take whatever reasonable steps they can to
secure the evidence concerning the incident, including, inter alia, eyewitness testimony,
forensic evidence and, where appropriate, an autopsy (see, Slimani v. France,
no. 57671/00, § 88, ECHR 2004‑IX) especially when the relatives of
the deceased themselves have no access to the relevant information (see Pereira
Henriques, cited above, §§ 57 and 62). Any deficiency in the investigation
which undermines its ability to establish the cause of death or the person
responsible will risk falling foul of this standard (see, McShane v. the
United Kingdom, no. 43290/98, § 96, 28 May 2002).
62. The Court further reiterates that, although the
right to have third parties prosecuted or sentenced for a criminal offence
cannot be asserted independently (see Perez v. France [GC], no.
47287/99, § 70, ECHR 2004‑I), the Court has stated on a number of
occasions that an effective judicial system, as required by Article 2, may, and
under certain circumstances must, include recourse to the criminal law.
However, if the infringement of the right to life or to physical integrity is
not caused intentionally, the positive obligation imposed by Article 2 to set
up an effective judicial system does not necessarily require the provision of a
criminal-law remedy in every case. In certain spheres, like medicine, “the
obligation may for instance also be satisfied if the legal system affords
victims a remedy in the civil courts, either alone or in conjunction with a
remedy in the criminal courts, enabling any liability of the doctors concerned
to be established and any appropriate civil redress, such as an order for
damages and for the publication of the decision, to be obtained. Disciplinary measures
may also be envisaged” (see Calvelli and Ciglio, cited above, § 51; Lazzarini
and Ghiacci v. Italy (dec.), no. 53749/00, 7 November 2002; and
Mastromatteo v. Italy [GC], no. 37703/97, § 90, ECHR 2002-VIII).
63. The Court also underlines that it would be
inappropriate and contrary to its subsidiary role under the Convention to
attempt to establish the facts of this case on its own, duplicating efforts of
the domestic authorities which are better placed and equipped for that purpose
(see, for example, McShane v. the United Kingdom, referred to above §
103). Following its well‑established practice, it will confine the
examination of this application to evaluation of the domestic investigation
into the matter as regards its overall compliance with the aforementioned
standards.
64. The Court notes, as has already been mentioned
above, that the investigating authorities responded promptly to the applicant’s
allegations that they had failed to repair the broken wire, having established
that the relevant authorities had not been aware of it and that the breakage had
happened shortly before the lethal accident of the applicant’s son.
65. Furthermore, it cannot be said with any
certainty that any criminal offences were committed at all in the present case:
the Prosecutor’s Office on numerous occasions found that no criminal offence
had been committed, and even if it had been established that the relevant
electrical safety rules had been breached, such breach would not necessarily
entail criminal responsibility. The Court also takes into account the fact that
the applicant’s late son bore a degree of responsibility for the accident
having exposed himself to unjustified danger (see and compare Bone v. France
(dec.), no. 69869/01, 1 March 2005).
66. On the other hand, the applicant could have had and
did have recourse to a civil remedy, which was not dependent on the outcome of
any criminal investigation. Although any relevant findings in the criminal
proceedings could have influenced the outcome of the civil proceedings, the
latter could have and did establish liability, even in the absence of any crime,
and did award appropriate compensation (see paragraphs 40, 43, 44). Although it
could be argued that the criminal inquiry delayed the course of civil
proceedings, they were concluded by the decision awarding the applicant UAH
80,000 in compensation for the death of her son. Accordingly, the applicant can
no longer claim to be a victim of the alleged violation.
67. It follows that this part of the application is
manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3
and 4 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE
CONVENTION
68. The applicant complained that the delays in the
inquiry of the Prosecutor’s Office and the general attitude of the authorities
towards the investigation into the death of her son caused her severe moral
suffering. She relied in this respect on Article 3 of the Convention, which
provides as follows:
“No one shall be subjected to torture or to inhuman or
degrading treatment or punishment.”
69. The Court notes that, unlike the situation in other
cases (see, for instance, Kurt v. Turkey, 25 May 1998, § 133, Reports
of Judgments and Decisions 1998‑III; Orhan v. Turkey, no. 25656/94,
§ 359, 18 June 2002; and Gongadze v. Ukraine, no. 34056/02, § 185,
ECHR 2005‑), the present case does not concern a disappeared relative or
any period of uncertainty as regards the circumstances in which the applicant’s
son died.
70. Although the Court accepts that the inadequacy
and ineffectiveness of the investigation into the death of her son may have
caused the applicant feelings of distress, it considers that – in so far as the
applicant has substantiated this claim – it has not been established that there
were special features which would justify finding a violation of Article 3 of
the Convention (see Ülkü Ekinci v. Turkey, no. 27602/95,
§ 151, 16 July 2002).
71. The Court is therefore of the opinion that this
part of the application must be rejected as being manifestly ill-founded,
pursuant to Article 35 §§ 3 and 4 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
72. The applicant complained that the dilatory
manner in which the Prosecutor’s Office conducted its inquiry affected the
length of the civil proceedings taken by her. According to the applicant, the
duration of these civil proceedings exceeded a “reasonable time” within the
meaning of Article 6 § 1 of the Convention, which reads as follows:
“In the determination of his civil rights and obligations ...,
everyone is entitled to a ... hearing within a reasonable time by [a] ...
tribunal...”
73. The Government contested that argument, pointing
out that, at the applicant’s own request, these proceedings had been stayed
twice, pending the outcome of the inquiry by the Prosecutor’s Office.
74. The period to be taken into consideration began
on 6 September 2001, when the applicant lodged her civil claim, and
ended on 21 March 2009 with the Supreme Court decision. It thus lasted
seven years and almost three months at three levels of jurisdiction.
A. Admissibility
75. The Court notes that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
It further notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
76. The applicant complained that although the civil
proceedings had been stayed at her request, she could not be responsible for
the delays in the criminal inquiries into the death of her son.
77. The Government considered that they could not be
held responsible for the period between the 28 August 2002 and 6 April 2005, because
the proceedings had been stayed upon a request by the applicant.
78. The Court reiterates that the reasonableness of
the length of proceedings must be assessed in the light of the circumstances of
the case and with reference to the following criteria: the complexity of the
case, the conduct of the applicant and the relevant authorities (see, among
many other authorities, Pélissier and Sassi v. France [GC], no.
25444/94, § 67, ECHR 1999-II)
79. The Court has frequently found violations of
Article 6 § 1 of the Convention in cases raising issues similar to the one in
the present case (see Pélissier and Sassi, cited above).
80. 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. In particular, the Court notes that the length of criminal
inquiry is equally attributable to the domestic authorities which did not
finalise it with due diligence. Having regard to its case-law on the subject,
the Court considers that in the instant case the length of the proceedings was
excessive and failed to meet the “reasonable time” requirement, even excluding
the period of delay attributable to the applicant from the overall length of
the proceedings.
81. There has accordingly been a breach of Article 6
§ 1.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
82. 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
83. The applicant claimed UAH 200,000 (the
equivalent of 18,573 euros (EUR) in respect of non-pecuniary damage.
84. The Government considered this sum excessive.
85. Deciding on an equitable basis, and having
regard to the sums awarded in similar cases and the violation which it has
found in the present case, the Court awards the applicant EUR 1,200 in respect
of non‑pecuniary damage.
B. Costs and expenses
86. The applicant also claimed UAH 10,101.66 (the
equivalent of EUR 938) for the costs and expenses incurred before the
domestic courts and for those incurred before the Court.
87. The Government argued that the applicant had
failed to prove this claim except for UAH 101 of mailing expenses.
88. The Court reiterates that, in order for costs
and expenses to be included in an award under Article 41, it must be
established that they were actually and necessarily incurred in order to
prevent or obtain redress for the matter found to constitute a violation of the
Convention and were reasonable as to quantum (see Nilsen and Johnsen v. Norway [GC],
no. 23118/93, § 62, ECHR 1999-VIII). While it is true that the applicant
has produced receipts only for a minor part of the expenses, she has presented
a contract with the lawyer for UAH 10,000, which sum she is liable to pay, even
though the contract provides for payment in instalments because of her
financial situation.
89. The Court, having regard to the information in
its possession, finds it reasonable to award the sum of EUR 500 for costs and
expenses.
C. Default interest
90. The Court considers it appropriate that the
default interest 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 complaint concerning the
length of the civil proceedings under Article 6 § 1 admissible and the
remainder of the application inadmissible;
2. Holds that there has been a violation of
Article 6 § 1 of the Convention;
3. Holds
(a) that the respondent State is to pay the applicant,
within three months of the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention, EUR 1,200 (one
thousand two hundred euros) in respect of non-pecuniary damage and EUR 500
(five hundred euros) in respect of costs and expenses, plus any tax that may be
chargeable to the applicant, to be converted into Ukrainian hryvnias at the
rate applicable on 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;
4. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 2 September
2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer
Lorenzen
Registrar President
