FIFTH SECTION

DECISION

Application no . 58347/08 Lyusya Ivanovna YERMAKOVA against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 14 May 2013 as a Chamber composed of:

Mark Villiger , President, Ann Power-Forde , Ganna Yudkivska , André Potocki , Paul Lemmens , Helena Jäderblom , Aleš Pejchal , judges, and Claudia Westerdiek , Section Registrar ,

Having regard to the above application lodged on 29 October 2008 and the observations submitted by the respondent Government

Having deliberated, decides as follows:

THE FACTS

The applicant, Ms Lyusya Ivanovna Yermakova, is a Russian national, who was born in 1937 and lives in Yeysk.

The Ukrainian Government (“the Government”) were represented by their Agent, Mr Nazar Kulchytskyy.

In accordance with Article 36 § 1 of the Convention, the Government of the Russian Federation were invited to exercise their right to intervene in the proceedings, but they declined to do so.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

In the late evening of 24 January 2007 an ambulance found G.P., the applicant ’ s daughter, dead in the flat she had lived in with I.P., her husband.

At 12.25 a.m. on 25 January 2007 the police were notified of the death. From 1.30 to 4 a.m. an investigator from the Malinovsky District Prosecutor ’ s Office of Odessa, and medical and forensic experts, examined and photographed the body of G.P. and the flat. They noted numerous bruises and abrasions on G.P. ’ s body, took samples of a brownish substance and seized cloths and linen with brown stains found in the flat. On the same date the Malinovsky District Police Office of Odessa detained I.P., and opened a criminal case against him on suspicion of inflicting serious bodily injuries on G.P. causing her death. I.P., after being interviewed separately by the police and prosecutors, confessed to having punched G.P. in the face and abdomen. During that day two neighbours were also interviewed and an autopsy and forensic medical examination of G.P. ’ s larynx (throat) were ordered.

On 26 January 200 7 an expert, Yu., drew up a death certificate indicating that the rupture of G.P. ’ s liver and closed injury of the abdomen, sustained during an “assault with the aim of inflicting injuries”, had led to significant loss of blood, which had ultimately caused her death. On the same date, three neighbours of G.P. and I.P. were interviewed. I.P., in the presence of an advocate, stated that he had only slapped G.P. lightly on the face a number of times, and that she herself had fallen and sustained all the injuries. He explained the discrepancy with his previous statements by his having been misled by the police on 25 January 2007 and having been ill at the time of making the statement.

On 29 January 2007 the applicant was recognised as an aggrieved party in the case.

On 31 January 2007 a forensic medical report of the examination of G.P. ’ s larynx recorded that she had sustained a complete fracture of the hyoid bone and thyroid cartilage. The expert was unable to determine what sort of object had caused the injuries.

On 1 February 2007 investigator I. of the district police ordered a post ‑ mortem and immunologic examination of G.P. and questioned I.P. again.

On 7 February 2007 expert Yu. drew up an autopsy report indicating that the liver rupture, a closed fracture of the hyoid bone and thyroid cartilage, and numerous bruises and abrasions had been inflicted with a blunt object without specific features. In the expert ’ s opinion the liver rupture had caused significant loss of blood, which had led to death. He also noted that G.P. had been heavily intoxicated before her death.

An immunological report of 9 February 2007 indicated that the items seized and samples taken from the flat occupied by G.P. and I.P. contained blood of the same group as that of G.P.

On 12 February 2007 expert Yu., having conducted a post-mortem examination of G.P., found that it could not be excluded that the fractures and liver rupture had been sustained as a result of the victim falling and hitting the corners of furniture.

On 28 February 2007 investigator I. discontinued the criminal proceedings against I.P. for lack of corpus delicti , basing his decision on the fact that the neighbours had not noticed anything suspicious on that day and described I.P. as a peaceful person; on I.P. ’ s admission that he had only lightly slapped G.P. in the face a number of times, that both of them had been drinking and that G.P. had fallen over and hit various objects on that day; that the flat had been cordoned off before the forensic examination of 25 January 2007; and that according to the post-mortem examination G.P. could have sustained her injuries as a result of falling and hitting protruding objects.

On 6 March 2007 the district prosecutors, without giving their arguments, found the discontinuation of the proceedings premature, groundless and unlawful and instructed the district police to put the case materials in order, to set up a task force and draw up a detailed investigation plan, to carry out an additional post-mortem examination, to verify I.P. ’ s statements of 24 January 2007, to interview expert Yu., and to attach photographs of the crime-scene examination to the case file.

On 6 March 2007 the investigation was suspended because I.P. was ill. It was resumed on 4 April 2007, when investigator I. conducted a reconstruction of the crime scene, during which I.P. essentially repeated his statement of 26 January 2007.

On 5 April 2007 investigator I. ordered an additional post-mortem examination of G.P. in order to verify I.P. ’ s statement in respect of the victim ’ s injuries.

On 5 May 2007 expert Yu. drew up an additional post-mortem report which indicated that G.P. might have sustained her serious injuries in the way described in I.P. ’ s statement.

On 4 June 2007 the Odessa Regional Prosecutor ’ s Office ordered a forensic medical examination of G.P.

On 12 June 2007 expert Yu. was questioned.

On 19 June 2007 investigator I. ordered an additional medical examination to be carried out in respect of the victim ’ s injuries.

On 2 July 2007 a combined forensic medical examination was carried out by experts K., R. and O., who concurred with the findings of the examination of 12 February 2007, but noted that all the injuries had been sustained shortly before G.P. ’ s death, and that the lethal injury might not have been sustained as a result of falling and hitting objects. On 3 July 2007 the same experts drew up an additional medical report in which they concluded that it was impossible to establish the order in which the injuries had been inflicted.

On 10 July 2007 investigator I. charged I.P. with the infliction of serious bodily injuries resulting in the death of G.P. and questioned him in that connection. There is no indication of whether the investigator complied with the prosecutors ’ remaining instructions.

On 16 July 2007 the investigation was completed and on 17 July 2007 the case was transferred to the Malinovsky District Court of Odessa for trial.

On 19 December 2007 a panel of psychiatrists which had been ordered by the court to examine I.P. failed to reach a conclusion concerning the latter ’ s mental state on 24 January 2007, and recommended that I.P. undergo an in-patient examination.

On 27 March 2008 a panel of psychiatrists examined I.P. and found it impossible to establish his mental state without the accounts of V.B. and V.P., who, according to I.P., had been present during the events on 24 January 2007.

On 26 May 2008 the court ordered the panel to carry out another psychiatric examination of I.P.

On 19 June 2008 the panel found that I.P. had been of sound mind after 24 January 2007, but that it was impossible to establish his mental state on 24 January 2007 without the accounts of V.B. and V.P. However, on 14 April 2009 an additional psychiatric examination of I.P. established that he had been of sound mind both on and around 24 January 2007.

In May 2009 the judge dealing with the case suspended the proceedings due to the expiry of his term of office.

On 11 September 2009 the President of the court transferred the case to another judge.

On 1 March 2010 the applicant lodged a civil claim with the court seeking 250,000 Ukrainian hryvnias (UAH) [1] in damages for the alleged murder of her daughter.

On 29 November 2010 the court convicted I.P. of the premeditated infliction of serious bodily injury resulting in death, sentenced him to eight years ’ imprisonment and ordered him to pay UAH 200,000 [2] to the applicant in compensation for non-pecuniary damage. In the reasoning of the judgment the court mentioned that I.P. had repeatedly changed his account of the events of 24 January 2007 and only in March and October 2008 had he stated that V.P., V.B., and V.A. had been present during that day and could confirm his version of the events. The court noted a number of inconsistencies in the accounts of the events of 24 January 2007 submitted by I.P. and witnesses V.A. and V.P., and substantial contradictions between their respective statements and those made by other witnesses.

The court also noted that the police officer who had interviewed I.P. on 24 January 2007 had smelled alcohol on I.P. ’ s breath and noticed fresh scratches on his neck, but could not explain why a medical examination or taking of nail samples from I.P. had not been ordered. The court also noted that I.P. had “manipulated” the investigator and the expert dealing with his case on a number of occasions in order to evade responsibility. It referred to: “... [his] attempt to obtain 10,000 American dollars to ‘ settle the matter ’ , the initial autopsy report finding that G.P. ’ s injuries might have been sustained ‘ in a natural manner ’ , and the termination of the proceedings on 28 February 2007 [for lack of corpus delicti in his actions] ...”. The court also noted that some witnesses had stated that I.P. had often beaten up G.P. when drunk, while other witnesses had disagreed. It also referred to the experts ’ reports drawn up during the trial.

On 1 March 2011 the Odessa Regional Court of Appeal upheld I.P. ’ s conviction and sentence. The court noted in particular that the experts ’ reports of 2 and 3 July 2007 and photographs of the crime-scene examination rebutted a number of I.P. ’ s statements. It found the explanations put forward by the defence for the death of G.P., such as there having been an accident, or the involvement of G.P. ’ s son or other individuals, to be groundless. Concerning the conduct of the investigations, the Court of Appeal found investigator I. ’ s actions to have been inconsistent in that he had considered I.P. to be unwell during the first interview but had not sent him for a medical examination. In that connection, the court of appeal concluded that the investigator had not taken “the measures necessary to duly investigate the case, which had subsequently been closed without determining the circumstances of the incident”. As regards the opinion by expert Yu. of 12 February 2007, the court noted that it had been drawn up before the reconstruction of the crime and had later been refuted by two panels of experts. There is no indication of the date when the applicant was informed of or received the appeal ruling, or whether she appealed against it. According to her, she was denied access to the case file during the investigation and was not invited to a number of court hearings.

In the meantime, the applicant repeatedly complained to the police, the prosecutors, the District Court, the Council of Judges and other State bodies about the lack of progress in the case.

Some thirty-two court hearings were held in the case and another twenty hearings were adjourned for various reasons, such as the applicant ’ s failure to appear before the court on one occasion (which protracted the proceedings for six days), the failure to appear of the defendant or his advocate, a witness ’ s illness, prior official commitments of judges and prosecutors, or consideration of appeals by a higher court. In the course of the proceedings the District Court conducted twenty-four interviews and ordered three expert examinations that lasted for about two months in all. During the court proceedings, the applicant filed nine procedural requests and complaints, all meeting procedural requirements. Her three requests for the withdrawal of judges were rejected as unsubstantiated.

B. Relevant domestic law

The provisions of the Constitution and the Code of Criminal Procedure can be found in the judgment in the case of Sergey Shevchenko v. Ukraine (no. 32478/02, §§ 36 and 38, 4 April 2006).

COMPLAINTS

The applicant complained under Article 6 § 1 of the Convention about excessive length and ineffectiveness of the investigation into the death of her daughter. She also invoked Article 4 of the Convention and Article 1 of Protocol No. 1.

THE LAW

The applicant complained that the investigation into the circumstances of the death of her daughter had been ineffective, inadequate and plagued by excessive delays. She relied on Article 6 § 1 of the Convention. She also invoked Article 4 of the Convention and Article 1 of Protocol No. 1.

The Court, which is master of the characterisation to be given in law to the facts of the case, finds that the applicant ’ s complaint falls to be examined under Article 2 of the Convention, which reads, in so far as relevant, as follows:

“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.”

The Government argued that they had discharged their procedural obligation under Article 2 of the Convention. In particular, the cause of death of the applicant ’ s daughter had been established without delay and the investigators had taken all the necessary measures in order to establish the circumstances of the case. Although the prosecutors had quashed the decision terminating the criminal proceedings on 28 February 2007, that fact in itself did not demonstrate that the investigation had been ineffective. The Government also argued that the applicant had never made an official request to study the case file.

The applicant did not respond to the Government ’ s observations. She only maintained that moral sufferings she sustained following the death of her daughter and unfair trial should be compensated.

The Court notes that it has examined a number of applications against Ukraine concerning the obligation to investigate under Article 2 of the Convention (see Sergey Shevchenko (cited above); Lyubov Efimenko v. Ukraine, no. 75726/01 , 2 5 November 2010; Antonov v. Ukraine, no. 28096/04 , 3 November 2011; Merkulova v. Ukraine, no. 21454/04 , 3 March 2011; Igor Shevchenko v. Ukraine, no. 22737/04 , 12 January 2012; and Kachurka v. Ukraine, no. 4737/06 , 15 September 2011 ). In those cases it found a violation of that provision mainly on account of the failure of investigative authorities to conduct a thorough and timely investigation.

As regards the present case, the Court notes that the pre-trial investigation was flawed by some shortcomings which were later acknowledged by the courts at two levels of jurisdiction. The Court also takes account of the delays in the judicial stage of the proceedings which were attributable to the courts (see, in particular, paragraphs 31 and 38) .

However, the Court is of the opinion that those shortcomings did not undermine the effectiveness of the investigation as a whole. In particular, it appears that the investigative authorities responded promptly to the information about the death of G.P. and initiated a preliminary investigation without delay (compare and contrast Antonov , cited above) . T he initial investigative measures, such as the crime-scene examination carried out by experts and involving the collection of evidence, interviews of the neighbours and the suspect, and the expert examinations, point to the investigative authorities ’ willingness and aptitude to establish the circumstances of the incident (compare and contrast Kachurka , cited above ) . The investigation itself lasted about five and a half months and did not need to be repeated or supplemented by a further investigation (compare and contrast Igor Shevchenko , cited above ) .

On the whole, it cannot be suggested that the authorities did not act with reasonable diligence in investigating the circumstances of the applicant ’ s daughter ’ s death, or that they failed to take any important steps to establish the facts of that tragedy. The applicant did not indicate what other measures the authorities could take to investigate the matter.

The Court further notes that the applicant was recognised as an aggrieved party early on in the proceedings. Her allegations that she had not been invited to a number of court hearings and that she had not had the opportunity to study the case file are not supported by any evidence. Thus, there is no ground to suggest that she was not involved in the proceedings to the extent necessary to safeguard her legitimate interests in the case.

As regards the judicial stage of the proceedings, the Court observes that it was completed within three years and seven months by a final decision establishing the circumstances of the death of the applicant ’ s daughter and providing for the punishment of the person responsible for the death. The courts also ordered what appears to be a reasonable amount of compensation to be paid to the applicant.

Therefore, in the light of all the foregoing, the Court finds that the applicant ’ s complaints are manifestly ill-founded and the application must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention .

For these reasons, the Court unanimously

Declares the application inadmissible.

Claudia Westerdiek Mark Villiger Registrar President

[1] . About 23,740 euros (EUR)

[2] . About EUR 19,000