SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 10231/02 by Vasiliy Ivanovich ZAMULA AND OTHERS against Ukraine

The European Court of Human Rights (Second Section) , sitting on 20 May 2003 as a Chamber composed of

Mr J.-P. Costa , President , Mr L. Loucaides , Mr C. Bîrsan , Mr K. Jungwiert , Mr V. Butkevych , Mrs W. Thomassen , Mrs A. Mularoni , judges , and Mrs S. Dollé , Section Registrar ,

Having regard to the above application lodged on 19 July 2001,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Vasiliy Ivanovich Zamula, is a Ukrainian national, who was born on 12 January 1952 and currently resides in Yevpatoria, the Crimea. He lodged his application with the Court on behalf of his wife (Mrs Natalya Ivanovna Zamula), who died on 25 October 2001, and on behalf of his youngest daughter (Ms Maryna Zamula), born in 1987.

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

On 31 July 1997 police sergeant B.A.I. of the Shostka City Police Department, while under the influence of alcohol, fatally wounded the applicant’s eldest daughter, Mrs Iryna Yachmeneva (born Zamula). On 3 March 1998 the Sumy Regional Court sentenced B.A.I. to 14 years’ imprisonment following his conviction for the murder of the applicant’s daughter, attempted murder of other persons and abuse of power. It also ordered the Police Department to pay UAH 65,114.20 to the applicant and his deceased daughter’s mother, younger sister and former husband Mr Aleksandr Yachmenev. On 7 April 1998 the Supreme Court of Ukraine upheld this decision.

The execution proceedings commenced on 19 May 1998.

On 15 May 2000 the Shostka City Execution Service informed the applicant that UAH 1,223.56 were to be paid to the family, but that it was not possible to execute the decision in full. It also informed the applicant that the outstanding debt was UAH 63,805.64, of which UAH 19,405.64 was to be paid to the applicant and UAH 14,800 to each of the other victims.

On 5 July 2001 the execution proceedings were terminated due to the Shostka City Police Department’s lack of funds.

On 9 July 2001 the Sumy Regional Department of Justice informed the applicant of the Police Department’s lack of funds. It also informed the applicant that he could reapply for execution of the judgment of 3 March 1998 within a three-year period.

On 2 November 2001 the applicant informed the Court that he was the guardian of Ms Ekaterina Yachmeneva, born in 1995, the child of his murdered daughter, whose father (Mr Alexander Yachmenev) had been divested of his parental rights.

COMPLAINTS

The applicant complains about the unlawful actions of the police officer who fatally wounded his daughter. He relies on Article 2 § 1 of the Convention. He also complains about the failure of the State authorities to execute the judgment of 3 March 1998 within a reasonable time and about the unreasonable length of the proceedings in his case. He relies in this connection on Article 13 of the Convention. In substance, he also complains of an infringement of Article 6 § 1 of the Convention.

THE LAW

1. The applicant complains that the judgment of 3 March 1998 of the Sumy Regional Court was not executed within a reasonable time. He also complains about the unreasonable length of the proceedings in his case. He relies on Articles 6 § 1 and 13 of the Convention, which in so far as relevant provide, respectively:

“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

“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 considers that it cannot, on the basis of the case-file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

2. The applicant further complains under Article 2 § 1 of the Convention of the violation of his daughter’s right to life. Article 2 § 1 of the Convention provides:

“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 Court notes that the tragic death of the applicants’ daughter was caused by the criminal act of a State official. In such cases, the Court has held that the States are required by Article 2 of the Convention to ensure that there should be some form of effective official investigation capable of leading to the identification and punishment of those responsible, which is not an obligation of result, but of means. The Court has summarised the nature of this obligation in its recent case-law (see Shanaghan v. the United Kingdom , no. 37715/97, §§ 90-92, ECHR 2001 ‑ III; Hugh Jordan v. the United Kingdom , no. 24746/94, §§ 107-109, ECHR 2001 ‑ III; McShane v. the United Kingdom , no. 43290/98, §§ 96-98, 28 May 2002, unreported and AvÅŸar v. Turkey , no. 25657/94, §§ 394-395, ECHR 2001 ‑ VII (extracts)).

Having regard to the principles established in that body of case-law, the Court considers that on the facts of the case, as submitted by the applicant, an effective investigation was carried out into the murder of the applicants’ daughter. It notes that the perpetrator was arrested, tried and convicted. He received a heavy prison sentence. Furthermore, the courts found the Police Department vicariously liable for the unlawful actions of its officer and ordered it to pay the applicant and his family UAH 65,114.20 in compensation for moral and material damage.

In these circumstances, the Court concludes that the complaint under Article 2 of the Convention is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaints regarding the non-execution of a judgment, the unreasonable length of the proceedings in the applicant’s case and the alleged absence of effective domestic remedies for those complaints;

Declares inadmissible the remainder of the application.

S. Dollé J.-P. Costa Registrar President