FIFTH SECTION

DECISION

Application no. 29588/11 Tetyana Ivanivna SHEVCHENKO against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 8 July 2021 as a Committee composed of:

Arnfinn BÃ¥rdsen, President, Ganna Yudkivska, Mattias Guyomar, judges, and Martina Keller, Deputy Section Registrar,

Having regard to the above application lodged on 5 May 2011,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Ms Tetyana Ivanivna Shevchenko, is a Ukrainian national who lives in Kolychivka. She represented herself before the Court.

2. The Ukrainian Government (“the Government”) were represented by their Agent, Mr I. Lishchyna.

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

4. On 6 July 2007 the applicant’s house, two dependent buildings and two vehicles were destroyed by fire.

5. On an unspecified date the applicant initiated court proceedings against a local department of the electricity company and a local branch of the Ministry of Emergency Situations, complaining of the poor maintenance of overhead power lines located opposite her house, which, in her opinion, had caused the fire, and of the allegedly ineffective actions of the fire brigade. The applicant claimed compensation in respect of both pecuniary and non-pecuniary damage.

6. On 8 June 2010 the Chernihiv Court dismissed the applicant’s claim as unsubstantiated. The court took into account a forensic fire examination establishing that the fire, which had broken out in one of the dependent buildings and then spread to the house, had been caused by arson. The expert who had conducted the examination also stated that the burning of the house could have been avoided had the fire brigade acted in line with the provisions of the Fire Brigade Field Manual of 1970. The court accepted the conclusion that the fire had been caused by arson, but disregarded the expert’s evaluation of the actions of the fire brigade, on the ground that the Fire Brigade Field Manual of 1970 was no longer in force.

7. The applicant appealed against that decision to the Chernihiv Regional Court of Appeal.

8. On 31 August 2010 the Chernihiv Regional Court of Appeal upheld the decision of the first-instance court, and confirmed that the cause of the fire was arson.

9. The applicant lodged a cassation appeal against that decision.

10. On 15 November 2010 the Supreme Court of Ukraine declined to open cassation proceedings, dismissing the notice of cassation appeal as unsubstantiated.

11. On 6 July 2007 the applicant lodged an application with the Chernihiv District Police Department, seeking to have a “pre-investigation check” ( перевірка ) carried out in respect of the fire at her property.

12. On 9 July 2007 the Chernihiv District Police Department refused to open a criminal case. The police established, on the basis of witness evidence, that the fire had been caused by the power lines located opposite the applicant’s property, which had been sagging and sparking while swaying in the wind on the night before the fire.

13 . On 17 June 2010 the applicant, referring to the decision of the Chernihiv Court of 8 June 2010, lodged a request with the Chernihiv Prosecutor’s Office (“the prosecutor’s office”) seeking to have a criminal investigation into arson opened.

14. On 29 June 2010 the prosecutor’s office refused to open a criminal investigation until the Chernihiv Regional Court of Appeal had determined the civil case.

15 . On 15 September 2010 the applicant, referring to the decision of the Chernihiv Regional Court of Appeal of 31 August 2010, lodged a request with the head of the prosecutor’s office seeking to have a criminal investigation into arson opened.

16 . On 24 February 2017 the Court asked the applicant to provide information about the developments in the criminal investigation into arson and to submit copies of the relevant documents.

17 . On 9 March 2017 the applicant, following the above letter of enquiry from the Court, lodged a request with the head of the prosecutor’s office seeking information about the progress of the criminal investigation into arson.

18. On 14 March 2017 the prosecutor’s office opened a criminal investigation into arson. The case was assigned to the Chernihiv District Police Department.

19. On 8 July 2017 the Chernihiv District Police Department closed the criminal proceedings with reference to the findings in its decision of 9 July 2007 that a short circuit had been the cause of the fire.

20. On 12 September 2019 the prosecutor’s office quashed the decision of 8 July 2017 and sent the file for further investigation.

21. On 1 October 2020 the criminal case was closed for lack of corpus delicti .

22 . On 16 December 2020 that decision was quashed. At present, the investigation is still pending.

23. The relevant provisions of domestic legislation are summarised in Adnaralov v. Ukraine ( mutatis mutandis , no. 10493/12, §§ 33-34, 27 November 2014).

COMPLAINT

24. The applicant complained under Article 1 of Protocol No. 1 to the Convention that the State had failed to investigate her criminal complaint of arson.

THE LAW

25. The applicant alleged that the investigation into her complaint of arson had not been effective. She relied on Article 1 of Protocol No. 1 to the Convention, which reads as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

26 . The Government submitted that the investigation into the incident was still pending, and that the applicant had had no interest in the criminal case, as she had failed to enquire about its progress for seven years, that is, between 2010 and 2017, or to complain of inactivity on the authorities’ part. They further submitted, with reference to a letter of 13 September 2019 from the Deputy Prosecutor of the Chernihiv Region, that the materials relating to the applicant’s criminal complaints of 2007 and 2010 had been destroyed. The same letter stated that no one had applied to the prosecutor’s office on the applicant’s behalf following the closure of the criminal case in 2017 and 2019. The Government asked the Court to reject the present application for non-exhaustion of domestic remedies or as being premature. In relation to the former, they argued that the applicant did not complain about the alleged inactivity of a prosecutor or the authorities in accordance with the relevant provisions of the Code of Criminal Procedure. In relation to the latter, they submitted that the authorities had not established the fact that the house had been destroyed by arson.

27. The applicant maintained her complaint. In reply to the Government’s argument that she had not shown sufficient interest in her case, the applicant argued that she had applied to different State bodies for fourteen years, but had received either belated replies or no replies at all. She gave no further specific details, nor did she provide copies of any relevant documents confirming that she had complained of the lack of an effective investigation between 2010 and 2017 or afterwards.

28. The Court does not find it necessary to consider the Government’s objection of non-exhaustion of domestic remedies, since the application is inadmissible for the reasons set out below.

29. The relevant principles concerning the positive obligations of a State under Article 1 of Protocol No. 1 are to be found in Blumberga v. Latvia (no. 70930/01, §§ 64-67, 14 October 2008), Abu kauskai v. Lithuania (no. 72065/17, §§ 54-57, 25 February 2020) and Novoseletskiy v. Ukraine (no. 47148/99, §§ 100-03, ECHR 2005 ‑ II (French version [1] )).

30. More specifically, the obligation to investigate is less exacting with regard to less serious crimes, such as those involving property, than with regard to more serious ones, such as violent crimes, and in particular those which would fall within the scope of Articles 2 and 3 of the Convention. In cases involving less serious crimes, the State will only fail to fulfil its positive obligation in that respect where flagrant and serious deficiencies in the criminal investigation or prosecution can be identified (see Blumberga, § 67, and Abukauskai, §§ 56 and 60, both cited above).

31. In the present case, in 2010 the applicant applied to the prosecutor’s office seeking to have a criminal investigation into arson opened (see paragraphs 13 and 15 above). In 2017 she enquired about the progress of the criminal case following a letter of enquiry from the Court (see paragraphs 16 and 17 above). The criminal investigation is currently pending (see paragraph 22 above). The applicant submitted that the investigation had been futile and that she had received no reply to the numerous complaints she had filed over fourteen years. However, she did not provide any copies of the complaints that she had submitted to the State bodies in particular between 2010 and 2017 (see paragraph 27 above). The Court reiterates in this respect that the proceedings before the Court are adversarial in nature. It is therefore for the parties to substantiate their factual arguments by providing the Court with the necessary evidence (see Lyaluk v. Ukraine [Committee], no. 38839/07, § 22, 10 June 2021).

32. In these circumstances, the Court cannot but find, in the absence of any evidence demonstrating flagrant and serious deficiencies in the criminal investigation, that the applicant failed to sufficiently substantiate her complaint.

33. It therefore concludes that this 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, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 9 September 2021.

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Martina Keller Arnfinn BÃ¥rdsen Deputy Registrar President

[1] The relevant paragraphs cited in the judgment can only be found in the French version, the English version of the judgment contains only extracts.