FIFTH SECTION

CASE OF STABROVSKA v. UKRAINE

(Application no. 65055/12)

JUDGMENT

STRASBOURG

14 January 2016

This judgment is final but it may be subject to editorial revision.

In the case of Stabrovska v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
	André Potocki, President,
	Ganna Yudkivska,
	Síofra O’Leary, judges,
and Milan Blaško, Deputy Section Registrar,
Having deliberated in private on 15 December 2015,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 65055/12) 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 Lyudmyla Vasylivna Stabrovska (“the applicant”), on 2 October 2012.
2.  The applicant, who had been granted legal aid, was represented by Mr O. Levytskyy, a lawyer practising in Kyiv. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr B. Babin, of the Ministry of Justice.
3.  On 1 December 2014 the application was communicated to the Government.
THE FACTS
Article I.	I.  THE CIRCUMSTANCES OF THE CASE
4.  The applicant was born in 1950 and lives in Kyiv.
Section 1.01	A.  Disappearance of the applicant’s son and identification of his body
5.  On 22 July 2006 the applicant’s son – a young man who was born in 1982 – left home and never returned.
6.  On that day a young man was found severely injured and unconscious, lying in a street in Kyiv. An ambulance and the police attended the scene of the incident. According to the report of a police officer of the Podilskyy District Police Department of Kyiv (“the Police Department”), a doctor explained to him that the man had fallen from a building with a height of approximately five metres; the doctor also specified the man’s surname, which was the same as that of the applicant’s son.
7.  The injured man was taken to hospital, where his surname was noted down slightly differently. On 29 July 2006 he died in hospital. According to the post-mortem examination, the man died from a serious craniocerebral injury; the injuries identified on the body (including the one which was fatal) could have been sustained as a result of his fall.
8.  On 31 July 2006 the applicant – who had no information concerning the whereabouts of her son – reported his disappearance to the Police Department.
9.  On 18 September 2006 the unclaimed body of the man found in the street was buried in a municipal cemetery.
10.  In March 2007 the applicant was invited by the police to look at a picture of the man found in the street. The applicant found that the man very closely resembled her son.
11.  Following the exhumation of the body of the man found in the street, forensic medical experts conducted two DNA examinations. On 14 July 2008 they concluded with 98.73% certainty that it was the body of the applicant’s son.
Section 1.02	B.  Pre-investigation enquiries relating to the death of the applicant’s son
12.  On 16 October 2006 the Podilsky District Prosecutor’s Office of Kyiv (“the Prosecutor’s Office”), having conducted pre-investigation enquiries, refused to open a criminal investigation into the disappearance of the applicant’s son. The Prosecutor’s Office had regard to the unsuccessful searches carried out by the police and the statements of G., K., D. and L., who had been acquaintances of the applicant’s son but could not give any information as to his whereabouts.
13.  On 24 May 2007 the Prosecutor’s Office refused to open a criminal investigation into the incident regarding the man who had been found injured and unconscious in the street. According to that decision, the identity of the man had not been established. The Prosecutor’s Office had regard to the statements of G., K., L. and other people, who had submitted that they had known the man and that he had often talked about suicide.
14.  On 12 September 2007 the Podilskyy District Court of Kyiv quashed the decision of 16 October 2006 as unsubstantiated, and ordered further pre-investigation enquiries.
15.  On 25 March 2008 the Kyiv Prosecutor’s Office quashed the decision of 24 May 2007 as unsubstantiated, and ordered additional enquiries to establish the circumstances of the incident and the identity of the deceased.
16.  In addition to the above decisions refusing to open investigations, on more than ten occasions between 2007 and 2012 the Police Department and the Prosecutor’s Office (following the pre-investigation enquiries) refused to open criminal investigations into the disappearance and death of the applicant’s son. Those decisions were quashed as unsubstantiated by the supervising courts or prosecutors, and further pre-investigation enquiries were ordered. In particular, on 3 August 2011 the Podilskyy District Court of Kyiv ordered further pre-investigation enquiries, stating that it was necessary to carry out an inspection of the scene of the incident with a forensic medical expert. Among other things, the court also stated that detailed drawings and photographs of the site had to be prepared; the expert had to be questioned in order to establish whether the applicant’s son could have fallen from the building and, if so, whether he could have sustained the injuries found on his body; and additional steps had to be taken to identify potential witnesses.
17.  In the last decision of 9 August 2012, the Podilskyy District Prosecutor’s Office of Kyiv refused to open criminal proceedings in relation to the death of the applicant’s son. According to that decision, the man found in the street had been identified, with a high degree of certainty, as the applicant’s son. He could have sustained fatal injuries as a result of his fall; there had been no evidence of violence and the incident did not appear to have had any criminal element.
Article II.	II.  RELEVANT DOMESTIC LAW
18.  The relevant provisions of domestic law can be found in Muravskaya v. Ukraine (no. 249/03, §§ 35 and 36, 13 November 2008).
THE LAW
Article III.	I.  ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
19.  The applicant complained that the domestic authorities had failed to carry out an effective investigation into the death of her son. She relied on Article 2 of the Convention, the relevant part of which provides:
“1.  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. ...”
Section 3.01	A.  Admissibility
20.  The Court notes that the complaint 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 3.02	B.  Merits
21.  The Government submitted that the national authorities had taken all necessary steps in order to collect evidence and establish the circumstances of the death of the applicant’s son. The applicant had been given appropriate access to the case file and had been able to participate effectively in the proceedings.
22.  The applicant disagreed and maintained her complaint.
23.  The Court reiterates that, where death occurs in suspicious circumstances, leaving room for allegations to be made of the intentional taking of life, the State must ensure an effective official investigation (see Šilih v. Slovenia [GC], no. 71463/01, §§ 156-57, 9 April 2009, and Pozhyvotko v. Ukraine, no. 42752/08, § 38, 17 October 2013). 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 Muravskaya, cited above, § 41).
24.  In the present case, the same law-enforcement authorities were confronted with two events which occurred during the same period of time: they found a severely injured man who died shortly afterwards from the injuries he had sustained, and the applicant reported that her son had disappeared on the day that the injured man was found in the street. However, the authorities carried out enquiries into those two events separately, even though there had been indications from the outset that they were linked. For example, the initial police report concerning the man found in the street clearly referred to the surname of the applicant’s son. Moreover, the same people – acquaintances of the applicants’ son – were initially questioned within the context of both sets of enquiries. As a result of those omissions, it was established almost two years later, by way of exhumation and DNA examinations, that the body found in the street was that of the applicant’s son. These facts suggest that the authorities did not make a serious attempt to establish the circumstances of the case.
25.  The Court further notes that the authorities examined the applicant’s allegations exclusively by way of “pre-investigation” enquiries, without opening a full investigation. The Court has found that this investigative procedure does not comply with the principles of an effective remedy because an enquiring officer can take only a limited number of procedural steps within that procedure, at a point where victims have no formal status and are therefore excluded from participating effectively in the procedure (see Skorokhodov v. Ukraine, no. 56697/09, § 34, 14 November 2013, with further references). It is notable that numerous decisions to terminate the pre-investigation enquiries were quashed as unfounded by the supervising authorities, which each time remitted the case for a new round of enquiries. The repetition of such remittal orders discloses a serious deficiency (see, for example, Spinov v. Ukraine, no. 34331/03, § 56, 27 November 2008). Indeed, the court decision of 3 August 2011 suggested that, after a period of more than five years, the investigating authorities had failed to take any significant measures.
26.  It follows therefore that the authorities, who were in a position to open and conduct an effective official investigation, did not make a genuine attempt to undertake a prompt and thorough examination of the matter, establish the facts and, if necessary, bring those responsible to account.
27.  There has therefore been a violation of the procedural aspect of Article 2 of the Convention.
Article IV.	II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
28.  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
29.  The applicant claimed 30,000 euros (EUR) in respect of non-pecuniary damage.
30.  The Government submitted that the claim was unsubstantiated.
31.  The Court considers that the applicant must have suffered anguish and distress on account of the facts giving rise to the finding of a violation in the present case, and that such damage cannot be made good by a finding of a violation alone. Ruling on an equitable basis, the Court awards the applicant EUR 12,000 in respect of non-pecuniary damage.
Section 4.02	B.  Costs and expenses
32.  The applicant also claimed EUR 3,300 for the costs and expenses incurred before the Court. She asked that any award in respect of this claim be paid directly into the bank account of her representative.
33.  The Government submitted that the claim was unfounded and excessive.
34.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award, in addition to the legal aid granted, the sum of EUR 800 for the costs and expenses incurred in the proceedings before the Court. The latter amount is to be paid directly into the bank account of the applicant’s representative (see, for example, Hristovi v. Bulgaria, no. 42697/05, § 109, 11 October 2011, and Singartiyski and Others v. Bulgaria, no. 48284/07, § 54, 18 October 2011).
Section 4.03	C.  Default interest
35.  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 application admissible;

2.  Holds that there has been a violation of the procedural aspect 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 12,000 (twelve thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii)  EUR 800 (eight hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be paid into the bank account of the applicant’s lawyer, Mr O. Levytskyy;
(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 14 January 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Milan Blaško	André Potocki
	Deputy Registrar	President