FIFTH SECTION

DECISION

Application no. 43800/15 Ganna Vasylivna CHAYKA against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 11 March 2021 as a Committee composed of:

Mārtiņš Mits, President, Lətif Hüseynov, Mattias Guyomar, judges, and Martina Keller, Deputy Section Registrar ,

Having regard to the above application lodged on 26 February 2016,

Having regard to the observations submitted by the respondent Government,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Ms Ganna Vasylivna Chayka, is a Ukrainian national, who was born in 1949 and lives in Slovyansk.

2 . The Ukrainian Government (“the Government”) were represented by their Agent, Mr Ivan Lishchyna, from the Ministry of Justice.

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

4 . In the late evening of 30 December 2011 the applicant ’ s son was found on the street severely beaten and unconscious. An ambulance was called for him and around midnight he was transported to a local hospital.

5 . As established later in the course of the criminal investigation, on that day at around 10 p.m. the applicant ’ s son was drunk and met with S., who was also drunk, near a local shop. The applicant ’ s son started a quarrel with S., who hit him in the face five times. According to S., the applicant ’ s son was swearing and threatened to shoot S. ’ s children. Later, as the applicant ’ s son allegedly did not stop his aggressive behaviour, S. hit the applicant ’ s son again twice on the head and the latter fell down . S. ’ s brother and a certain Zh., an acquaintance of the applicant ’ s son, were also present. Zh., S. and his brother left the place of the incident with the applicant ’ s son still lying on the ground. According to the applicant, her son was found across the street rather than next to the shop.

6 . On 31 December 2011 the applicant ’ s son died and the police were informed thereof by the hospital administration.

7 . On the same day criminal proceedings were instituted against S. under Section 2 of Article 121 of the Criminal Code of Ukraine for inflicting grievous bodily injuries resulting in the victim ’ s death.

8 . Also on the same day a number of investigative activities were conducted: a forensic medical examination was ordered; the crime scene and the body were examined; the witnesses were questioned; S. was arrested and questioned; the crime scene was reconstructed and witnesses were interviewed.

9 . According to the protocol of the questioning of the suspect dated 31 December 2011 and an unnamed document dated 3 January 2012 S. partially acknowledged his guilt, confirming that during the quarrel with the applicant ’ s son he had hit him in the face several times but stated that he did not intend to inflict grievous bodily injuries.

10 . On 3 January 2012 several other witnesses were questioned.

11 . On 16 January 2012 an expert examination was finalised in the course of which the clothes of the applicant ’ s son and S. and a stone found at the crime scene were examined. It concluded that all of the above objects had blood spots on them containing antigen H which was also present in the deceased ’ s blood, but not present in S. ’ s blood. According to the applicant, the stone could have been used by S. to hit her son.

12 . On 31 January 2012 a conclusion of the forensic expert examination of the body was drafted which established severe head injuries on both the temporal and occipital areas of the head of the applicant ’ s son as the cause of his death. Some other injuries, including bruises and hematomas on the face, were also established. It was also noted that there had been alcohol in the deceased ’ s blood which corresponded to the condition of “light alcoholic intoxication”.

13 . It appears from the documents available that two more expert examinations were conducted in February 2012 by the same expert. While no copies of the respective conclusions were provided to the Court, their findings were restated in several later court judgments and expert examinations. In particular, the examination dated 7 February 2012 concluded that the injuries sustained by the applicant ’ s son were caused by blunt objects and could not have been caused by a hand, that the head injuries were caused by grievous bodily harm, and the facial bruises by light bodily harm. The examination dated 20 February 2012 concluded that the injuries were caused by blunt objects and could have been caused by fists. Those injuries could not have been caused due to falling down and were most probably caused in the circumstances described by S.

14 . On 30 March 2012 the pre-trial investigation was completed and the case was transferred to the Slovyansk Local Court of the Donetsk Region (hereafter – the Slovyansk Court).

15 . On 18 April 2012 the applicant lodged a civil claim for compensation of pecuniary and non-pecuniary damage for the sum of 505,022.32 Ukrainian hryvnias (UAH) (around EUR 48,162 at the time of events) to be examined in the course of the criminal proceedings.

16 . It appears that during the trial before the Slovyansk Court two more expert examinations were ordered. The first one, completed in one day, was called to establish whether S. had any injuries after the events. Based on the medical documents drafted at the time of the events, it concluded that S. had no injuries. The second examination, which took place between 5 September and 20 November 2012 and was held by a commission of experts, was called to clarify the discrepancies in the conclusions of the previous expert examinations (see paragraph 13 above). It established that the victim ’ s head injuries were caused by falling on a blunt object; however, they were not caused by falling on the particular stone provided for examination. It was also stated that the applicant ’ s son could have still moved after being injured, but it was not excluded that he had lost consciousness immediately after receiving the blows. It was further noted that S. ’ s testimony concerning the circumstances of the fight “did not contradict the way [the victim ’ s] injuries had been inflicted”.

17 . On 3 January 2013 the prosecutor, relying on Article 277 of the Criminal Code of Procedure (see paragraph 43 below), changed the initial charges to unintentional murder under Article 119 of the Criminal Code, which is a less serious crime. It was noted in the respective resolution that based on the conclusion of the expert examination of 20 February 2012 and the witnesses ’ and the accused ’ s testimonies it appeared that S. never hit the applicant ’ s son on the occipital part of the head, while the injuries causing his death were located there and were caused by falling down on the ground. The prosecutor thus concluded that S. ’ s actions were not intentional but rather negligent and therefore his actions should have been qualified as unintentional murder. It appears that the applicant disagreed with this change.

18 . On 19 February 2013 the Slovyansk Court found S. guilty of unintentional murder and sentenced him to four years ’ imprisonment. The court also granted the applicant ’ s civil claim and awarded her UAH 50,000 (around 4,680 euros (EUR) at the time the judgment was adopted). The court relied on the expert conclusions of 31 January 2012, 7 and 20 February 2012 and 20 November 2012 (see paragraphs 12 , 13 and 16 above) and other evidence, including witnesses ’ testimony. It found that S. hit the applicant ’ s son in the face several times after which the latter fell on the ground. When hitting the victim, S. could not have foreseen the possibility of his death; however, he should have foreseen it, in view of the fact that, being drunk, the applicant ’ s son could fall and that could result in grave consequences. In the court ’ s view, this proved that S. ’ s actions were rightly qualified as unintentional murder. In the court hearing S. pleaded guilty to unintentional murder. Before the court the applicant testified that, in her view, it was both S. and his brother who had beaten her son as, according to her, her son had more bodily injuries than indicated in the expert examination conclusions.

19 . The applicant appealed, claiming that the local court had wrongly established the facts of the case. In particular, she claimed that the court had failed to evaluate the fact that a stone with traces of blood on it had been found at the place of the incident. She also noted that S. had been drunk, left her son unconscious, and his actions led to grievous consequences. She further claimed that the court had applied the law erroneously, in particular she disagreed with the requalification of the case to unintentional murder and claimed that it be examined under the initial charges under Section 2 of Article 121 of the Criminal Code. She also asked for the maximum punishment.

20 . The prosecutor ’ s office also lodged an appeal challenging the lenient sentence. S. ’ s lawyer also appealed stating that despite his client pleading guilty his guilt had not been proven with sufficient evidence. Moreover, it had not been taken into account that S. has already paid the applicant UAH 5,000 (around EUR 470 at the material time) in pecuniary damages.

21 . On 4 June 2013 the Donetsk Regional Court of Appeal upheld the sentence of the Slovyansk Court. It endorsed the local court ’ s findings and noted that it had established all pertinent facts and applied the law correctly. It noted that the punishment had been ordered with regard to all factors, including S. ’ s acknowledgement of guilt, his personality, and partial compensation of damages.

22 . The applicant appealed in cassation. She claimed that the courts failed to establish the facts of the case and resolve the existent discrepancies, in particular in the expert conclusions, concerning, for example, the origin of the blood on the stone found at the crime scene and its possible use by S. to hit her son; the fact that her son was found opposite the place where the fight had allegedly taken place. She also repeated her arguments that S. ’ s actions should have been qualified as grievous bodily harm causing the death of the victim and not as unintentional murder and that a more severe punishment should have been applied. The prosecutor also appealed, challenging the sentence as being too lenient.

23 . On 19 November 2013 the Higher Specialised Court of Ukraine for Civil and Criminal Cases remitted the case to the appellate court for new examination as the punishment ordered did not correspond to the seriousness of the crime, in particular in the view of the gravity of the crime and its commission in a state of alcoholic intoxication. The court also noted that the court of appeal should check all complaints raised by the parties in their appeals. If the charges remained the same and no other circumstances were revealed, the sentence applied by the first instance court should be considered as lenient.

24 . On 24 April 2014 the Donetsk Regional Court of Appeal quashed the sentence of 19 February 2013 and remitted the case for fresh examination by the local court. The appellate court noted that the local court had merely listed the evidence and did not provide any analysis thereof and thus failed to properly substantiate its conclusions.

25 . During the second round of examination, on 11 December 2014 the prosecutor again changed the charges against S. to unintentional murder under Article 119 of the Criminal Code.

26 . It appears that in the court hearing of 18 December 2014 the applicant stated that she disagreed with the change of charges and that she wished to pursue the charges under Article 121 of the Criminal Code.

27 . On 24 December 2014 the Slovyansk Court convicted S. for unintentional murder, sentenced him to four years ’ imprisonment and granted him amnesty on the basis of the Amnesty Act of 2014. The court also granted the applicant ’ s civil claim and awarded her UAH 50,000 (around EUR 2,590 when the judgment was adopted). The court noted that during the trial S. had fully acknowledged his guilt in committing an unintentional murder. Furthermore, his guilt was confirmed by the witnesses ’ testimonies. The court also examined all the expert conclusions and found that they did not contradict the version of events as presented by S. In the court hearing the applicant reiterated her previously raised arguments and added that her son had told her that S. would kill him as there were some financial problems between them. The former wife of the deceased and her new partner testified that they knew nothing about the deceased ’ s relations with S.

28 . The prosecutor and the applicant appealed. The applicant claimed that the local court had wrongly established the facts of the case and applied the law. She also repeated her arguments that S. ’ s actions should have been qualified as grievous bodily harm causing the death of the victim and not as unintentional murder.

29 . On 7 April 2015 the Donetsk Regional Court of Appeal returned the case to the local court as the accused failed to appear at court hearings and was apparently not residing in the territory of Ukraine. On 7 May 2015 S. was put on the wanted list.

30 . On an unspecified date the case was transferred again to the appellate court to continue the examination.

31 . On 28 July 2015 the appellate court quashed the sentence of 24 December 2014 due to the breach of procedural rules. In particular, the court noted that while on 11 December 2014 the prosecutor had changed the charges (see paragraph 25 above) and the applicant disagreed because it was a less serious crime, the local court, “in breach of the rights of the victim” continued its examination of the case under the changed charges. The court also noted that the local court failed to substantiate the granting of the amnesty to S. These were serious violations of criminal legislation which triggered the quashing of the judgment and remittal of the case for new examination under Article 370 of the Criminal Code of Procedure (see paragraph 43 below).

32 . On 19 October 2015 the prosecutor again changed the charges against S. to unintentional murder under Article 119 of the Criminal Code.

33 . On 30 October 2015 the Slovyansk Court convicted S. for unintentional murder but granted him amnesty on the basis of the Amnesty Act of 2014; it also ordered him to pay the applicant UAH 45,000 (around EUR 1,790 when the judgment was adopted) in compensation of non-pecuniary damage.

34 . The prosecutor and the applicant appealed. The applicant claimed that the local court had wrongly established the facts of the case and applied the law. She also repeated her arguments that S. ’ s actions should have been qualified as grievous bodily injuries causing the death of the victim and not as unintentional murder.

35 . On 20 January 2016 the Donetsk Regional Court of Appeal quashed the sentence of 30 October 2015 and remitted the case for fresh consideration to the local court. It established that in breach of the requirements of Article 277 of the Criminal Code of Procedure, the applicant was not informed of the change of charges of 19 October 2015 and of her right to pursue the initial charges. Despite this the local court examined the case under the changed charges. Under Article 370 of the Criminal Code of Procedure this was a serious violation of the criminal legislation which triggered the quashing of the judgment and remittal of the case for new examination.

36 . On 24 October 2016 the Slovyansk Court convicted S. for unintentional murder, granted him amnesty on the basis of the Amnesty Act of 2014 and ordered him to pay the applicant UAH 100,000 (around EUR 3,580 when the judgment was adopted) in compensation of non ‑ pecuniary damage. The court started its examination of the case under the initial charges under Section 2 of Article 121 of the Criminal Code (intentional infliction of grievous bodily harm causing the victim ’ s death). It examined a large quantity of evidence. In particular, it heard the applicant who testified that she knew S. since his childhood as they were neighbours. S. and her son had “ordinary relations”. However, her son had told her that S. would kill him and she had heard that there had been an attempt to hit her son with a car belonging to S. She could not name those who told her about this incident. In her view, somebody else beat her son and S. took the blame upon himself. The applicant considered that her son had not been drunk but that alcohol had been “poured in[to]” his mouth after his death.

37 . The court also took account of the testimonies of S., who pleaded guilty to unintentional murder acknowledging that he had hit the applicant ’ s son in the face. It also examined the testimony of S. ’ s brother and Zh. who, being the only eye-witnesses of the events, consistently confirmed the version of events as presented by S. The court also stated that some minor discrepancies in their testimonies and between them and other evidence could have been easily explained by the fact that at the time of the events all of them were drunk and could not remember the circumstances in detail. The court also established that the applicant ’ s son was hit by S. only in the face and that was the reason he had fallen on the ground. The court noted that there was no evidence that he might have been beaten by anybody else on that day.

38 . The court further examined all of the experts ’ conclusions and rejected some of their findings as unsupported by other evidence or being based on incomplete information. It relied mostly on the conclusions of the commission ’ s expert examination of 20 November 2012 which was most detailed and during which all relevant documents and material evidence were examined. In particular, the court noted that as the blood stains on S. ’ s clothes were only located on the front parts, he must have stood face to face with the applicant ’ s son, and that corresponded to his version of events.

39 . It is based on the above that the court found S. ’ s actions to be unintentional rather than intentional. Therefore it decided that the case needed to be examined as unintentional murder rather than intentional infliction of grievous bodily harm.

40 . The court finally held that, as S. acknowledged his guilt, had no previous convictions, committed an unintentional crime, and had three minor children, he could be granted amnesty on the basis of the Amnesty Act of 2014.

41 . It appears that this sentence was not appealed against and became final on 9 November 2016.

42 . Article 121, as worded at the material time, penalised the intentional infliction of grievous bodily harm causing the victim ’ s death by imprisonment for seven to ten years. Under Article 119, as worded at the material time, unintentional murder was punishable by the limitation of liberty for three to five years or by the imprisonment of the same duration.

43 . Relevant provisions of the Code as in force at the material time read as follows:

Article 277. Change of charges during trial

“During the court examination of the case but before the completion of court investigation the prosecutor is entitled to change the charges against the accused.

Change of charges shall not be allowed if it will breach the rule of obligatory pre ‑ trial investigation. In that case, and should there be relevant grounds, the prosecutor shall request the return of the case for further investigation.

Having concluded that the charges previously brought against the accused shall be changed, the prosecutor adopts a resolution which shall contain the description of new charges and the reasons for such decision. The prosecutor shall familiarize the accused with the resolution and provide him (...) with its copy as well as send the copy thereof to the victim (...) The resolution shall be joined to the case file.

Should the resolution suppose the application to the case of the criminal law that provides for the responsibility for a less serious crime, or in case of limiting the scope of the charges, the court shall explain to the victim and his or her representative their right to pursue initial charges. If the victim and his or her representative had refused to pursue the initial charges, as well as in all other cases, the court shall explain to the accused that he or she will defend against new charges and postpones the hearing (...)”

Article 370. Substantial violations of the requirements of the criminal procedural law

“A substantial violation of criminal procedural law is a violation of this Code that has prevented or could have prevented the court from conducting a complete and comprehensive examination of a case and from adopting a lawful, reasoned and fair judgment or decision.

The sentence shall be quashed in the following circumstances:

1) the case had not been closed despite the existence of grounds for closing of the case;

2) the sentence was adopted by an unlawful composition of the court;

3) violation of the accused ’ s right to defence;

4) violation of the accused ’ s right to use his native language or the language he/she speaks, or to enjoy the help of a translator;

5) the investigation had been conducted by a person subject to withdrawal;

6) the case was examined in the absence of the accused, except for the case provided for in paragraph 2 of Article 262 of this Code;

7) violation of the rules of jurisdiction;

8) violation of the secrecy of court deliberations;

9) the sentence (ruling) has not been signed by any of the judges;

10) there is no court record in the case or if the course of trial in the cases provided for by this Code has not been recorded by technical means;

11) violation of the requirements of this Code as to the obligatory familiarization with the indictment and investigation materials;

12) the indictment had not been approved by the prosecutor or it had not been served on the accused;

13) violation of the requirements of this Code as regards the immutability of the composition of the court and the accused ’ s right to participate in the court debates and have the last word.”

44 . The Act provided that the persons who, at the time of conviction for an unintentional crime which is not especially grievous, had minor children should be dispensed from the serving of sentence of imprisonment.

COMPLAINT

45 . The applicant complained under Articles 2 and 6 of the Convention about the ineffective and lengthy investigation by the domestic authorities into her son ’ s death.

THE LAW

46 . The Court finds that the complaints at issue fall to be examined only under Article 2 of the Convention, which reads as follows:

“Everyone ’ s right to life shall be protected by law (...)”

47 . The Government claimed that the applicant ’ s complaint was ill ‑ founded. They noted that the pre-trial investigation into the death of the applicant ’ s son had been prompt and effective and had been completed within three months. According to them, its efficiency was proved by the fact that the courts have never remitted the case for further investigation. As for the trial which took another four years and six months, the Government noted that the requirement of promptness under Article 2 of the Convention should not be examined in isolation and irrespective of other criteria of effectiveness of the investigation established by the Court. They thus suggested distinguishing the present case from other cases already examined by the Court where not only the proceedings before the courts were too lengthy, but the entirety of the investigation was flawed either because important evidence was lost, or no perpetrator was established, or there were significant periods of inactivity, etc. In the view of the absence of such circumstances in the present case they concluded that the delay in the trial did not affect the effectiveness of the investigation in general and its results. In support of their position they relied on the Court ’ s judgment in the case of Sarbyanova-Pashaliyska and Pashaliyska v. Bulgaria (no. 3524/14, 12 January 2017).

48 . The applicant maintained her complaints.

49 . The Court notes that the relevant general principles concerning the effectiveness of the investigation were summarized in Giuliani and Gaggio v. Italy [GC] (no. 23458/02, §§ 299-305, ECHR 2011 (extracts)) and Armani Da Silva v. the United Kingdom [GC] (no. 5878/08, §§ 231-237, 30 March 2016), with further references .

50 . More specifically, this is not an obligation of results to be achieved but of means to be employed. The Court accepts that not every investigation is necessarily successful or comes to a conclusion coinciding with the claimant ’ s account of events. However, it should, in principle, be capable of leading to the establishment of the facts of the case and, if the allegations prove to be true, to the identification and punishment of those responsible. For an investigation to be effective, it must be independent; be capable of leading to the identification and punishment of those responsible; be prompt and carried out with reasonable expedition; be accessible to the victim ’ s family; and afford a sufficient element of public scrutiny (ibid.)

51 . Furthermore, in so far as an investigation leads to charges being brought before the national courts, the Court considers that the procedural obligations under Article 2 extend to the trial stage of the proceedings. In such cases the proceedings as a whole, including the trial stage, must satisfy the requirements of this provision of the Convention (see Sarbyanova ‑ Pashaliyska and Pashaliyska v. Bulgaria , cited above, § 38 with further references).

52 . Turning to the present case, the Court notes that the case was not complex as it only involved one accused and one episode. The domestic authorities opened criminal proceedings and established and arrested the suspect on the day of the death of the applicant ’ s son, 31 December 2011. They also promptly undertook a number of investigative activities which allowed them to indict the suspect three months later, at the end of March 2012, and send the case to court. The perpetrator was for the first time convicted by the local court on 19 February 2013 and the final sentence was pronounced on 24 October 2016.

53 . The Court considers that there is nothing in the present case that could disclose any unequivocal deficiencies as regards adequacy and thoroughness of the investigation at the end of which both the circumstances and the cause of the victim ’ s death as well as the person responsible had been established. Nor can it be said that the independence of the bodies conducting the investigation could be called into question; in any case the applicant never raised this issue at any point.

54 . The Court however observes that in the present case on four occasions the higher courts quashed the lower courts ’ decisions and remitted the case for a new trial. In particular, on 19 November 2013 the court of cassation remitted the case to the appellate court for new examination instructing it to examine all complaints and arguments that the parties raised in their appeals and decide whether the charges and the punishment were to remain the same. The appellate court, in turn, quashed the sentence of 19 February 2013 and remitted the case for fresh examination by the local court finding that it had merely listed the evidence and did not provide any analysis thereof (see paragraphs 23 and 24 above). On two more occasions the case was sent back because, after the prosecutor had changed the charges to a more lenient crime, the trial court failed to ensure the possibility for the applicant as a victim to pursue initial charges. It was noted that this was a serious violation of criminal legislation which triggered the quashing of the judgment and remittal of the case for new examination (see paragraphs 31 and 35 above). It thus took the national courts more than four and a half years to adopt a final judgment in the case.

55 . In this respect the Court notes that the period of four years and ten months for the conduct of investigation and trial at three levels of jurisdiction is not excessive according to its standards under Article 6 (see Jääskeläinen and others v. Finland (dec.), no. 32051/96, 4 May 2000, and Vujović v. Montenegro , no. 75139/10 , § 29, 15 May 2018). However, the purpose of its analysis under Article 2 is different. As pointed out in Sarbyanova-Pashaliyska and Pashaliyska v. Bulgaria (cited above, § 41 with further references), the requirement of promptness under Article 2 should not be examined in isolation and irrespective of the other parameters, the combination of which makes an investigation effective.

56 . The Court observes that at the end of the proceedings in the present case the authorities had achieved the essential purpose pursued with the investigation, that is established both the cause of, and the person responsible for, the applicant ’ s son ’ s death. By a final judgment the latter was convicted and sentenced to a term of imprisonment (though he was dispensed from serving it) and damages were awarded to the applicant. Therefore, the present case shall be distinguished from those examples where cases have been on numerous occasions remitted for further investigation and in which this has been, in itself, found to disclose a serious deficiency in the criminal investigation (see, among many other authorities, Pozhyvotko v. Ukraine , no. 42752/08, § 40, 17 October 2013) or those where the excessive length of the proceedings was coupled with numerous flaws of the investigation which made it impossible to establish the perpetrator or to shed sufficient light on the facts surrounding the death of the applicants ’ relative (see, as a recent example, Danciu and Others v. Romania , no. 48395/16, § 95-96, 12 May 2020) or yet those where the lengthy and flawed proceedings eventually led to the accused being dispensed from criminal responsibility due to the expiration of the statute of limitation (see, mutatis mutandis, Muta v. Ukraine , no. 37246/06, §§ 63-66, 31 July 2012).

57 . At the same time the Court is mindful that, as clearly indicated by the higher domestic courts, the repeated remittals in the present case were triggered by the lower courts ’ failure to ensure the right of the applicant to present her arguments and have them verified, as well as to pursue the initial charges after the prosecutor had changed them. However the Court observes that the case was eventually examined in compliance with the domestic law and the applicant ’ s account of events and arguments proved to be wrong (see paragraphs 36 - 41 above).

58 . In view of the above, the Court finds it difficult to call into question the overall effectiveness of the investigation carried out by the authorities in the present case. The delay incurred during trial, while regrettable, cannot be said, in and of itself, to have undermined the investigation to an extent excluding its effectiveness. It follows that the applicant ’ s complaints are manifestly ill-founded and 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.

Done in English and notified in writing on 1 April 2021 .

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Martina Keller Mārtiņš Mits Deputy Registrar President