FIFTH SECTION

DECISION

Application no. 66975/10 Mykhaylo Kostyantynovych REPEY against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 25 August 2020 as a Committee composed of:

Mārtiņš Mits , President, Ganna Yudkivska , Anja Seibert- Fohr , judges, and Anne-Marie Dougin, Acting Deputy Section Registrar ,

Having regard to the above application lodged on 6 November 2010,

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, Mr Mykhaylo Kostyantynovych Repey , is a Ukrainian national who was born in 1940 and lives in Zhmerynka . He was represented before the Court by Mr A.S. Kychenok , a lawyer practising in Kyiv.

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 . The applicant ’ s son (R.) was born in 1975. He suffered from a mental disorder (schizophrenia).

5 . On 21 November 2004 R. left home and never returned.

6 . On 25 November 2004 the applicant applied to the police office of Zhmerynka District in the Vinnytsya Region, asking for search measures to be taken to find R. The applicant stated that R. had a specific mental condition and that there was therefore a risk to his life. Subsequently, the applicant submitted further similar requests.

7 . On 9 January 2005 R. ’ s dead body was found by hunters in the forest. A forensic assessment established that R. had frozen to death on or around 24 December 2004.

8 . On 17 January 2005 the applicant asked the police authorities to discipline the local police staff for their failure to take timely and necessary search measures with regard to his son.

9 . On 7 February 2005, having conducted its disciplinary inquiry, the Vinnytsya Regional Police Department found that the operational-search measures in question had been insufficient and belated. It found that no information about the disappearance had been spread in the neighbouring villages even though, as it had turned out later, the villagers had seen the disappeared man. The police decided to apply disciplinary measures in respect of five police officers: Officer M., who had been in charge of the applicant ’ s request for a search, was demoted; and four other officers, including officers at managerial level, were reprimanded or given official warnings. The head of the police office was not disciplined because he had been dismissed by that time.

10 . On 15 February 2005 a criminal investigation was opened in relation to the applicant ’ s complaints that the police had failed to ensure that there was a search for his son. In 2006 and 2007 the criminal case was closed on several occasions for lack of constituent elements of crime on the part of Officer M. who had been directly responsible for the search. However, those decisions were quashed and further investigations were ordered. Officer M. then unsuccessfully tried to challenge before the courts the decision to open criminal proceedings against him.

11 . In 2008 Officer M. was charged with three crimes: abuse of office, neglect of official duty and forgery of documents. The applicant did not submit any civil claims for damages within the criminal proceedings.

12 . On 22 December 2009 the investigator decided to drop the charges of abuse of office and neglect of official duty against M. because there were no constituent elements of those crimes. Among the reasons for dropping those charges, the investigator stated that there had been no direct causal link between the conduct of Officer M. and the death of the applicant ’ s son; moreover, as regards the alleged abuse of office, that offence required a special motive which, however, had not been established. As regards the remaining third charge of forgery of documents, the investigator found it substantiated.

13 . On 20 January 2010 the Bar District Court of the Vinnytsya Region found that Officer M. had forged official documents, including reports, minutes and other search-related documents, to give the impression that there had been comprehensive search measures in response to the applicant ’ s request. However, the court exempted M. from criminal liability, owing to the expiry of the limitation period for that offence.

14 . On 10 March 2010 the Vinnytsya Regional Court of Appeal upheld the first-instance court ’ s decision.

15 . On 11 May 2010 the Supreme Court rejected an appeal on points of law by the applicant and endorsed the decisions of the lower courts. The Supreme Court also noted that the applicant could pursue a civil claim for damages against M. in the civil courts.

16 . On 6 August 2009 the applicant initiated civil proceedings, seeking damages from Officer M. and the Zhmerynka Police Office for their failure to ensure a search for his son.

17 . On 9 September 2009 the applicant withdrew his claim.

18 . The relevant domestic law is quoted and summarised in 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

19 . The applicant complained under various provisions of the Convention that the State had failed to take preventive operational measures to protect the life of his son, and that there had been no effective remedies in respect of the police failings as regards the search for his son.

THE LAW

20 . The Court, being the master of characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/10, §§ 123-26, 20 March 2018), considers that the complaints fall to be examined under Article 2 of the Convention, which reads, in so far as relevant, as follows:

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

21 . The Government submitted that the applicant had failed to exhaust domestic remedies in relation to his complaints, as it had been open to him to seek damages in the civil courts. The Government insisted that the authorities had complied with their positive obligation to ensure an effective independent judicial system in the applicant ’ s case.

22 . The applicant insisted that only criminal responsibility could be an adequate remedy for the police negligence resulting in the death of his son. However, the criminal proceedings against Officer M. had been ineffective and had resulted in the criminal case being terminated as time-barred.

23 . The Court notes that the applicant ’ s complaint concerns two aspects of positive obligations under Article 2 of the Convention: ( i ) the obligation to take preventive operational measures to protect the life of the applicant ’ s son while he was still alive, and (ii) the obligation to secure an effective independent judicial system to make those responsible for the death of the applicant ’ s son accountable and provide redress on that account.

24 . With regard to the first aspect of the case, the Court reiterates that a positive obligation to take preventive operational measures will arise if the authorities knew, or ought to have known at the time, of the existence of a real and immediate risk to the life of an identified individual, and if they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk (see Nicolae Virgiliu Tănase v. Romania [GC], no. 41720/13, § 136, 25 June 2019 , with further references). Having regard to the applicant ’ s son ’ s long absence from home and his mental condition, the authorities were obliged under Article 2 to take all the necessary and sufficient search measures to find him.

25 . In the present case, the domestic authorities, having conducted a disciplinary inquiry and a criminal investigation, acknowledged that the local police had failed to take effective search measures. The question therefore remains as to whether the applicant exhausted domestic remedies in relation to that failing to obtain appropriate redress. This remaining issue falls within the second aspect of the case, notably the issue of whether the authorities secured an effective independent judicial system and whether the applicant made use of that system.

26 . In that regard, the Court reiterates that in cases where death is caused unintentionally and/or lives are put at risk unintentionally, the requirement to have in place an effective judicial system will be satisfied if the legal system affords victims (or their next of kin) a remedy in the civil courts, either alone or in conjunction with a remedy in the criminal courts, enabling any responsibility to be established and any appropriate civil redress to be obtained. Where agents of the State or members of certain professions are involved, disciplinary measures may also be envisaged (see Nicolae Virgiliu Tănase , cited above , §159 ).

27 . In response to the applicant ’ s complaints of police failings in the matter of his son ’ s disappearance, disciplinary sanctions were imposed on the police officers in question (see paragraph 9 above). In the course of the ensuing criminal proceedings, the authorities established exactly how the police had neglected their duties (see paragraph 13 above). It cannot be suggested that those official investigations were ineffective. The fact that a criminal penalty was time-barred is not relevant under Article 2, given that there was never any allegation that the applicant ’ s son had been killed intentionally, and in the circumstances of the present case, this provision of the Convention cannot be interpreted as requiring any criminal sanction (contrast Öneryıldız v. Turkey , no. 48939/99, § 92, 30 November 2004).

28 . In addition to the above disciplinary and investigative measures, it was open to the applicant to pursue a civil claim for damages. However, he failed to make use of that remedy, either in the criminal proceedings (see paragraph 11 above) or in a separate civil action (see paragraph 17 above). The applicant effectively raised the issue of damage only before this Court when submitting his claims for just satisfaction. The Court therefore upholds the Government ’ s objection as regards the non-exhaustion of a domestic civil remedy in relation to the applicant ’ s complaint that the police authorities failed to take preventive operational measures.

29 . The Court further notes that the relevant facts were established properly in the disciplinary and criminal proceedings, disciplinary sanctions were imposed on the police officers in question, and a civil remedy was available to the applicant. Taking these factors into account, there is no reason to conclude that the State has failed in its positive obligation under Article 2 of the Convention to ensure an effective judicial system in respect of the applicant ’ s allegation of police negligence.

30 . In these circumstances, the application must be dismissed for non-exhaustion of domestic remedies and for being manifestly ill-founded, pursuant to Article 35 §§ 1, 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 17 September 2020 .

Anne-Marie Dougin Mārtiņš Mits              Acting Deputy Registrar President