FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 7529/07 by Tamara Konstantinovna SUPRUN against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 27 April 2010 as a Chamber composed of:

Peer Lorenzen , President, Renate Jaeger , Karel Jungwiert , Rait Maruste , Mirjana Lazarova Trajkovska , Zdravka Kalaydjieva , judges, Mykhaylo Buromenskiy , ad hoc judge, and Claudia Westerdiek, Section Registrar ,

Having regard to the above application lodged on 29 January 2007,

Having deliberated, decides as follows:

THE FACTS

The applicant, Ms Tamar a Konstantinovna Suprun, is a Ukrainian national who was born in 1962 and lives in Dn i prodzerhzinsk.

A. The circumstances of the case

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

1 . The disappearance of the applicant ' s daughter and the inquiry by the investigators

On 9 June 2003 the applicant ' s daughter, Ms L. A. P., who was eighteen years old and was studying at Dnipropetrovsk State University at the time, left the premises of the students ' dormitory in which she was residing and did not come back.

On 12 June 2003 Ms S., an acquaintance of the applicant ' s daughter, informed the police of the latter ' s disappearance.

On 14 June 2003 the body of an unidentified woman was found in the River Dnipro.

On 16 June 2003 an autopsy was carried out by an expert from a local medical institution. The expert noted that the body was considerably decayed. The expert concluded that the woman had died of asphyxia caused by drowning and that there were no traces of other injuries on the body.

On the same day Ms V. A. P., the applicant ' s other daughter, Mr O., the former partner of Ms L. A. P., and the applicant were invited to the morgue, where the body was being kept, to identify it. The unclothed body was brought to the door entrance. The clothes and jewellery which had allegedly been on the body when it was found on 14 June 2003 were placed nearby. Ms V. A. P. and Mr O. confirmed that the body and clothes was that of Ms L. A. P. The applicant, having also confirmed that the clothes belonged to her daughter, denied that it was her body.

By decisions of 20 June, 8 July and 11 December 2003, and 17 January and 27 November 2005 the investigators, who had been conducting an inquiry into the matter, refused to open criminal proceedings and found that the applicant ' s daughter had committed suicide.

Upon appeals by the applicant, those decisions were annulled by the higher prosecutors or the courts on the ground that the investigators ' inquiry had fallen short of the requirements of a full, objective and detailed examination of the circumstances of the case. It was noted that the investigators had limited the inquiry to only one version of the events and that they had failed to question people who had had contact with Ms L. A. P. before her death.

In particular, the investigators ' decision of 11 December 2003 was overturned by the Petrikivskyy District Court of Dnipropetrovsk on 8 April 2004. The court found that the investigators had failed to check the possibility that the applicant ' s daughter had been murdered and that there was insufficient evidence to conclude that the body found on 14 June 2003 was that of the applicant ' s daughter. The court ruled to return the case to the investigators for another inquiry and also ordered the body ' s exhumation and genetic examination.

By a ruling of 2 July 2004 the Dnipropetrovsk Regional Court of Appeal confirmed the findings of the first-instance court concerning the incompleteness of the inquiry and upheld its decision to return the case for another inquiry. The Court of Appeal further held that the exhumation and genetic examination of the body could only be carried in the framework of criminal investigation and ruled to exclude the first-instance court ' s instruction to that effect, as no criminal investigation had been initiated in the applicant ' s case.

During the fresh inquiry between 2005 and 2007, the investigators questioned Ms S., Mr O., and Ms B., the administrator of the dormitory in which Ms L. A. P. had resided.

Ms S. and Mr O. both stated that, before her disappearance, Ms L. A. P. had been suffering from depression and that she had on a number of occasions expressed her intention to commit suicide. Mr O. also confirmed that, on 16 June 2003, he had said that the body was that of Ms L. A. P., because he had recognised her clothes and jewellery.

Ms S. further stated that she had seen Ms L. A. P. leaving the premises of the students ' dormitory on 9 June 2003 and that the latter had been dressed in the clothes which were on the body found on 14 June 2003.

Ms B. stated that the applicant had had arguments with Ms L. A. P. before the latter ' s disappearance.

The applicant was also questioned and stated that, before her disappearance, her daughter had behaved strangely and had made notes in her diary suggesting that she would “do something to herself”. The applicant further insisted that the body found on 14 June 2003 was not that of her daughter.

On 17 July 2007 the investigators issued a decision, by which they refused to start criminal investigations into the death of Ms L. A. P., finding no evidence of a crime. According to them, she had committed suicide because she had been suffering from a serious psychological disorder and had suicidal tendencies.

On 7 December 2007 the Petrikivskyy Court upheld that decision.

Following several reconsiderations of the admissibility of the applicant ' s appeal against the decision of 7 December 2007 by the courts of appeal and cassation, on 6 May 2009 the Petrikivskyy Court rejected it as having been lodged out of time.

In her submissions of 15 July 2009, the applicant stated that she would have to go through the whole procedure of challenging the decision of 6 May 2009, without informing the Court whether she had in fact lodged an appeal against that decision.

According to the applicant, she was not allowed to take part in the official inquiry into the matter and was not given access to the materials of the inquiry.

2 . The civil proceedings instituted by the applicant against the authorities

On 1 April 2007 the applicant instituted civil proceedings in the Zavodskyy District Court of Dniprodzerzhynsk against the authorities, including the Petrikivskyy Police Department and Prosecutor ' s Office, and the Dnipropetrovsk Prosecutor ' s Office, seeking compensation for their failure to protect her daughter ' s life and to investigate the circumstances of her disappearance and death.

On 20 February 2008 the court dismissed the applicant ' s claim, holding that she had failed to provide evidence that any damage had been caused to her as a result of the authorities ' actions or inactivity. The court also noted that the investigators ' conclusions that the applicant ' s daughter had committed suicide and that there had been no evidence of a crime had been confirmed by the decision of the Dnipropetrovsk Regional Court of Appeal of 2 July 2004.

By a ruling of 17 June 2008 the Dnipropetrovsk Regional Court of Appeal upheld the judgment.

On 1 October 2008 the applicant appealed in cassation. She submitted that she had missed the two-month time-limit for lodging an appeal in cassation because she had not been able to afford a lawyer in order to prepare her appeal in due time, and requested a time-limit extension.

On 20 October 2008 the judge of the Supreme Court refused that request and rejected the applicant ' s appeal as lodged out of time.

B. Relevant domestic law

The relevant domestic law is quoted and summarised in the judgment s of Gongadze v. Ukraine ( no. 34056/02, § § 147-149 , ECHR 2005 ‑ XI ) and Sergey Shevchenko v. Ukraine ( no. 32478/02, § § 36-39 , 4 April 2006 ) .

COMPLAINTS

The applicant insists that her daughter has not died and complains under Article 2 of the Convention about the failure of the authorities to conduct an effective investigation into her disappearance. The applicant also complains under Article 13 of the Convention that she had no effective domestic remedy for her complaint under Article 2 of the Convention.

The applicant further complains that there was a violation of Article 6 § 1 of the Convention, alleging that the civil proceedings she had instituted against the authorities were unfair.

THE LAW

The applicant essentially complains that the investigations carried out by the authorities in her case fell short of the requirements of Article 2 of the Convention and that, contrary to Article 13 of the Convention, she had no effective domestic remedy in this respect . The applicant also complains under Article 6 § 1 of the Convention about the unfairness of the civil proceedings against the authorities.

The Court considers that the applicant ' s complaint under Article 6 of the Convention does not raise a separate issue and falls to be examined in the context of her complaints under Articles 2 and 13 of the Convention, which read, in so far as relevant, as follows :

Article 2

“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...”

Article 13

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Court reiterates that i t is the responsibility of the State to investigate deaths, irrespective of the circumstances surrounding them and, in particular, whether they were caused by an act of violence or involve d State agents (see, for instance, Dodov v. Bulgaria , no. 59548/00, §§ 80, 82-83 , 17 January 2008 , and Beker v. Turkey , no. 27866/03, §§ 43-44, 24 March 2009 ) . Th e obligation to investigate is not an obligation of result, but of means. Such investigation must be effective, that is capable, firstly, of ascertaining the circumstances in which the incident took place and, secondly, of leading to the identification and p unishment of those responsible . Any deficiency in the investigation which undermines its capacity to establish the cause of death or identify the person responsible will ri sk f alling below this standard (see Muravskaya v. Ukraine , no. 249/03, § 41 , 13 November 2008 , and Dudnyk v. Ukraine , no. 17985/04 , § 32 , 10 December 2009 ).

The Court notes that i n the present case an official inquiry was carried out into the incident, which enabled the investigators to conclude that the applicant ' s daughter had committed suicide. Although the applicant denies that the body was that of her daughter and insists that her daughter has not died, she does not provide sound arguments to rebut the investigators ' conclusion which was based on the statements of several witnesses, including the depositions of the applicant ' s other daughter and of the missing daughter ' s former partner, and on the results of the autopsy carried out by an expert within a few days after the body had been found. T he Court considers that the investigators have on the whole taken reasonable and prompt steps to secure sufficient evidence to establish the essential circumstances of the incident, including the cause of death of the applicant ' s daughter.

As to the fact that before 2006 the inquiry was ordered to be resumed on several occasions by the decisions of the prosecutors and the courts, who noted certain deficiencies in the way the investigators established the circumstances of the case, the Court considers that this does not in itself imply that the inquiry was ineffective. Moreover, the applicant raised her complaint about the ineffectiveness of the inquiry before the civil courts, but she failed to pursue it in accordance with the applicable procedural requirements. In this context, the Court notes that the decision of the Supreme Court of 20 October 2008 dismissing the applicant ' s appeal in cassation as lodged out of time was not arbitrary or otherwise manifestly unreasonable.

The Court further notes that the investigators ' conclusion that the applicant ' s daughter had committed suicide was eventually confirmed by a resolution of the Petrikivskyy District Court of Dnipropetrovsk on 7 December 2007, against which the applicant has failed to lodge an appeal in accordance with the procedural requirements. Even assuming that in these circumstances the applicant may still be regarded as having exhausted domestic remedies in respect of her complaint under Article 2 of the Convention, the Court reiterates that it is not its task to substitute its own assessment of the facts for that of the domestic authorities, and in particular the courts , and , as a general rule , it is for those courts to assess the evidence before them . The Court does not discern cogent elements in the case to lead it to depart from the findings reached by the Petrikivskyy District Court.

In the light of the foregoing, the Court finds that there is no indication of a violation of the procedural obligation under Article 2 of the Convention. Therefore, no issue arises under Article 13 of the Convention either.

It follows that the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention .

For these reasons, the Court by a majority

Declares the application inadmissible.

             Claudia Westerdiek Peer Lorenzen Registrar President