FIFTH SECTION

CASE OF MASHCHENKO v. UKRAINE

(Application no. 42279/08)

JUDGMENT

STRASBOURG

11 June 2015

This judgment is final. It may be subject to editorial revision.

In the case of Mashchenko v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
	Vincent A. De Gaetano, President,
	Ganna Yudkivska,
	André Potocki, judges,
and Milan Blaško, Deputy Section Registrar,
Having deliberated in private on 19 May 2015,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 42279/08) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Ms Liliya Kirillovna Mashchenko (“the applicant”), on 22 July 2008.
2.  The applicant was represented by Mr R.Y. Martynovskiy, a lawyer practising in Kyiv. The Ukrainian Government (“the Government”) were represented by their Agents, then Mrs V. Lutkovska and Mr N. Kulchytskyy.
3.  On 14 December 2011 the application was communicated to the Government.
THE FACTS
Article I.	THE CIRCUMSTANCES OF THE CASE
4.  The applicant was born in 1938 and lives in Sevastopol.
5.  On 20 June 2003 Ivan Mashchenko, the applicant’s husband, was reported by an ambulance team to have died in a garage cooperative complex. The same day the police examined the site and ordered a forensic examination of the body.
6.  On 23 June 2003 the applicant received a medical certificate indicating that her husband had died of a head injury.
7.  On 30 June 2003 the Gagarinskiy District Prosecutors’ Office in Sevastopol concluded that Mr Mashchenko’s death had resulted from a head injury caused by an accidental fall and there were no grounds for instituting criminal proceedings. They referred, primarily, to the statements by D., who had submitted that his friend Mr Mashchenko had accidentally fallen on his back in D.’s presence, after both of them had consumed some alcohol in the garage. An ambulance had been called, but Mr Mashchenko died before it had arrived. The investigation also referred to the statements by K., the garage complex guardian, who had submitted that he had called the ambulance, after having been informed by G., the garage complex electrician, that Mr Mashchenko had been lying on the floor and in need of assistance.
8.  In September 2003 the applicant appealed against the decision of 30 June 2003 in the Gagarinskiy District Court of Sevastopol. She noted, in particular, that she had only been apprised of the above decision on 3 September 2003 and had not been provided with a copy of it; that the authorities had neither questioned her as part of their inquiry, nor informed her of the progress in the proceedings. Likewise, they had not studied her husband’s medical file and had examined the location where the death had occurred in a perfunctory manner.
9.  In the meantime, on 31 July 2003, following the completion of all laboratory tests, a forensic expert concluded that Ivan Mashchenko had in fact died of a heart attack, while his head injury could be classified as a minor one.
10.  On 26 February 2004 the court revoked the disputed decision of 30 June 2003, having concluded that the inquiry had been perfunctory. It referred to the discrepancies between the death certificate and the expert conclusion concerning the cause of Mr Mashchenko’s death; found that the investigation had failed to question all pertinent witnesses, including the ambulance staff, who had been first to certify Mr Mashchenko’s death, and noted that there had been unreconciled factual discrepancies between the accounts of the incident provided by the main witnesses D. and G.
11.  On 30 April 2004 the District Prosecutor’s Office took a fresh decision not to institute criminal proceedings.
12.  On 5 July 2004 this decision was revoked by the District Court, which found that its instructions had not been fulfilled in good faith.
13.  Between 2004 and 2011 nine more decisions not to institute criminal proceedings were taken (on 5 January and 8 August 2005, 16 August 2006, 14 May and 8 June 2007, 14 March, 13 June and 24 October 2008 and 11 May 2010). All of them were subsequently revoked either by the Sevastopol City Prosecutor’s Office or by the District Court (on 1 August 2005, 24 May 2006, 10 April, 31 May and 22 November 2007, 6 May and 3 September 2008, 28 April 2010 and 25 March 2011 respectively) with reference to insufficiency of the measures taken and failure of the inquiring officers to fulfil the earlier instructions given to them. At various times these instructions concerned, in particular, the need to question additional witnesses, including the owners of the neighboring garage boxes and members of the ambulance team, reconcile factual discrepancies between the accounts of D., K., G. and some other witnesses as well as the discrepancies between the medical documents concerning the cause of Mr Mashchenko’s death. The inquiring officers were likewise instructed to explore the applicant’s allegations that her husband might have been hit by a vehicle or by a third party, in particular, a certain N.Z., owner of one of the garage boxes, with whom he had presumably had conflicts.
14.  On 2 June 2011 the District Prosecutor’s Office took a fresh decision not to institute criminal proceedings, finding that, regard being had to the evidence collected, in particular, the statements by D., G., K. and other witnesses and the expert conclusion that Mr Mashchenko had died of a heart attack, there had been no grounds to suspect any criminal wrongdoing.
15.  On 6 September 2011 the District Court revoked this decision, having found that its earlier instructions, as well as those of the City Prosecutor’s Office, had not been fully complied with. In particular, no meaningful action had been taken to identify N.Z., to summon some of the members of the ambulance team for questioning and to reconcile factual discrepancies between various witness testimonies.
16.  On 10 February 2012 the District Prosecutor’s Office took a fresh decision not to institute proceedings. It noted, in particular, that it was no longer possible to question D., the principal witness, as he had died; that, according to Dr. S. of the ambulance team and officer P., who had participated in the initial on-site examination, neither of them had approached or examined the body so closely as to confirm or deny that there had been blood around it or other injuries potentially inflicted by third parties. Z., the medical expert, who had initially examined the body on site, and Sh., another ambulance team member, could not be questioned as they had moved out of Sevastopol and could not be located. B., another member of the ambulance team, reported that she could not recall the details of the incident. Notwithstanding impossibility to re-examine certain sources of evidence and to reconcile minor factual discrepancies, there was no reason to doubt the principal conclusion that there had been no crime committed against Mr Mashchenko, who had died of a sudden heart attack. Inter alia, according to the statements by the president of the garage cooperative complex, there had been no garage box owner called N.Z. and Mr Mashchenko had in any event not been in conflict with anyone. There was no other evidence whatsoever in support of the applicant’s unsubstantiated hypothesis concerning a car accident or an assault.
17.  According to the applicant, she learned of this decision and obtained its copy only on receipt of the Government’s observations in the present case. She also submitted that throughout the course of the proceedings the District Prosecutor’s Office had routinely failed to update her on the progress of the case, apprise her of the decisions taken, provide her with copies thereof, and respond to her inquiries in a coherent and meaningful way.
THE LAW
Article II.	I.  ALLEGED INEFFECTIVENESS OF THE INVESTIGATION INTO THE DEATH OF THE APPLICANT’S HUSBAND
18.  The applicant complained that the investigation into the circumstances of her husband’s sudden death had been ineffective. She relied on Articles 2, 6 and 13 of the Convention.
19.  The Court, which is 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, which is the relevant provision (see, e.g., Dudnyk v. Ukraine, no. 17985/04, § 27, 10 December 2009). This provision, in so far as relevant, reads as follows:
“1.  Everyone’s right to life shall be protected by law...”
Section 2.01	A.  Admissibility
20.  The Government did not comment on the admissibility of this complaint.
21.  The Court notes that the complaint at issue is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
Section 2.02	B.  Merits
22.  The applicant alleged that the investigation of the circumstances of her husband’s death had been perfunctory and protracted. The evidence collected was contradictory and the applicant’s allegations concerning a possibility of her husband’s violent death had not been meaningfully investigated. She also had not been able to participate in the investigation effectively, inter alia, because of the authorities’ systematic failures to provide clear answers to her inquiries and to notify her in good time of the decisions taken.
23.  The Government alleged that there had been no violation of the Convention, as the competent authorities had properly and thoroughly established the circumstances of the applicant’s husband’s death. In particular, he had died of a heart attack.
24.  The Court reiterates that where a death occurs under suspicious circumstances, the State must ensure some form of effective official investigation (see, e.g., Šilih v. Slovenia [GC], no. 71463/01, §§ 156-57, 9 April 2009, and Oleynikova v. Ukraine, no. 38765/05, § 60, 15 December 2011). This is not an obligation of result, but of means. The authorities must have taken all reasonable steps to secure the evidence concerning the incident. Any deficiency in the investigation which undermines its ability to establish the cause of death or the persons responsible will risk falling foul of this standard (see, e.g., Muravskaya v. Ukraine, no. 249/03, § 41, 13 November 2008).
25.  Turning to the facts of the present case the Court notes, firstly, that a significant period of time, that is, more than eight and a half years, elapsed between the date of Mr Mashchenko’s sudden death (on 20 June 2003) and the date of the last decision aimed at the establishment of the relevant circumstances (10 February 2012). The Court reiterates that a substantial delay in the identification of the cause of a death, unless it is justified by objective circumstances, can in and of itself undermine public confidence in the maintenance of the rule of law and thereby raise an issue under the Convention (see, e.g., Merkulova v. Ukraine, no. 21454/04, §§ 50-51 and 61, 3 March 2011; Kachurka v. Ukraine, no. 4737/06, § 50, 15 September 2011 and Sergiyenko v. Ukraine, no. 47690/07, §§ 52-53, 19 April 2012). This is all the more so where the investigation is characterized, as in the present case, by repeated remittals of the matter for additional investigation with reference to insufficiency of the measures taken by the inquiring officers (see, e.g., Kachurka, cited above, ibid.; Dudnyk v. Ukraine, no. 17985/04, § 36, 10 December 2009; Oleynikova v. Ukraine, no. 38765/05, § 81, 15 December 2011; Zubkova v. Ukraine, no. 36660/08, § 40, 17 October 2013 and Pozhyvotko v. Ukraine, no. 42752/08, § 40, 17 October 2013) and marked by the progressive deterioration of evidence (see, e.g., Khaylo v. Ukraine, no. 39964/02, § 68, 13 November 2008 and Antonov v. Ukraine, no. 28096/04, § 50, 3 November 2011). The Court also notes the applicant’s complaints concerning difficulties encountered by her in obtaining information on the progress of the case and involvement in the decision-making process. In this regard the Court reiterates that an effective investigation requires that the actions of the authorities be subjected to public scrutiny, and that the deceased person’s next-of-kin must able to take an active part in it, including by prompt access to the relevant materials and decisions (see, e.g., Sergey Shevchenko v. Ukraine, no. 32478/02, §§ 74-75, 4 April 2006; Kachurka, cited above, § 51; Mikhalkova and Others v. Ukraine, no. 10919/05, § 48, 13 January 2011; Masneva v. Ukraine, no. 5952/07, § 56, 20 December 2011 and Prynda v. Ukraine, no. 10904/05, § 56, 31 July 2012).
26.  Regard being had to the Court’s settled jurisprudence and the circumstances of the present case (see, in particular, paragraphs 8, 10, 12‑13, 15 and 16 above), the Court considers that the competent authorities did not carry out an effective investigation into the applicant’s husband’s death.
27.  There has accordingly been a violation of Article 2 of the Convention.
Article III.	II.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
28.  The applicant complained that the anguish and distress suffered by her on account of the attitude of the authorities towards their duty to investigate the circumstances of her husband’s death, including their systematic failures to update her of the progress in the investigation and to respond to her inquiries and demands amounted to inhuman and degrading treatment within the meaning of Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
29.  The Government submitted that the applicant in the present case was not in any way subjected to treatment proscribed by Article 3 of the Convention.
30.  The Court considers that the question whether the authorities’ failure to conduct an effective investigation amounted to treatment contrary to Article 3 of the Convention in respect of the applicant is a separate complaint from the one brought under Article 2 of the Convention which relates to procedural requirements and not to ill-treatment as understood by Article 3 of the Convention (see as a recent authority Lyubov Efimenko v. Ukraine, no. 75726/01, § 83, 25 November 2010).
31.  Although the inadequacy of the investigation into the circumstances of her husband’s sudden death will obviously have caused the applicant feelings of anguish and mental suffering, the Court considers that it did not reach the threshold of “degrading treatment” within the meaning of Article 3 of the Convention (see, e.g., Masneva, cited above, § 77 and Lyubov Efimenko, cited above, § 83 with further references).
32.  It therefore concludes that this complaint is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.
Article IV.	III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
33.  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.”
Section 4.01	A.  Damage
34.  The applicant claimed 23,600 euros (EUR) in respect of non‑pecuniary damage.
35.  The Government submitted that this claim was exorbitant and unsubstantiated.
36.  The Court recognizes that the applicant must have suffered some anguish and distress on account of the events leading to the finding of the violation of Article 2 of the Convention in the present case. Ruling on an equitable basis, it awards the applicant EUR 6,000 in respect of non‑pecuniary damage.
Section 4.02	B.  Costs and expenses
37.  The applicant also claimed 14,000 hryvnias (UAH) in legal fees incurred in connection with her representation before the Court. She presented a copy of the contract for her representation by Mr R. Martynovskiy in the Convention proceedings concluded on 30 May 2008 and copies of receipts in evidence that she had paid the amount of UAH 14,000 stipulated in the aforementioned contract.
38.  The Government submitted that this claim was unsubstantiated, as the applicant had failed to submit the documents indicating Mr Martynovskiy’s hourly rates and the detailed account of services actually provided by him in connection with the contract.
39.  The Court notes that, as follows from the case-file documents, Mr Martynovskiy has represented the applicant from the date on which she lodged the present application (including preparation of the application form, correspondence and submission of the observations concerning the case). Regard being had to the documents in its possession and to its case-law, the Court considers it reasonable to award the sum of EUR 1,350 in legal fees.
Section 4.03	C.  Default interest
40.  The Court considers it appropriate that the default interest rate 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 ineffective investigation of Ivan Mashchenko’s death admissible and the remainder of the application inadmissible;

2.  Holds that there has been a violation of Article 2 of the Convention;

3.  Holds
(a)  that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i)  EUR 6,000 (six thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii)  EUR 1,350 (one thousand three hundred and fifty euros), plus any tax that may be chargeable to the applicant, in respect of legal fees;
(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 11 June 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Milan Blaško	Vincent A. De Gaetano
	Deputy Registrar	President