FIFTH SECTION

DECISION

Application no. 47107/14 Natalya Stanislavovna BIKBULATOVA and Others against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 7 April 2022 as a Committee composed of:

Ivana Jelić, President, Ganna Yudkivska, Arnfinn Bårdsen, judges, and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 47107/14) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 10 June 2014 by the applicants listed in the appended table (“the applicants”) who were represented before the Court by Mr I.P. Pogasiy, a lawyer practising in Kropyvnytskyi;

the decision to give notice of the application to the Ukrainian Government (“the Government”), represented by their acting Agent, Ms Olga Davydchuk;

the parties’ observations;

the decision to reject the Government’s objection to examination of the application by a Committee;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The present case raises an issue under the procedural aspect of Article 2 of the Convention during the period following the delivery of the Court’s judgment in the applicants’ first case ( Mikhalkova and Others v. Ukraine, no. 10919/05, 13 January 2011).

2. On 29 April 2003 the applicants’ relative, Vasiliy Mikhalkov, who was born in 1963, was taken by police officers to a local sobering-up facility because of his severe alcohol intoxication. While he was there, he died of an acute internal haemorrhage and a laceration of his small intestine resulting from abdominal trauma sustained on the same date.

3. On 20 June 2003 the Kompaniyivka district prosecutor’s office of the Kirovohrad Region opened a criminal investigation into the circumstances of Vasiliy Mikhalkov’s death.

4 . On 13 January 2011 the European Court of Human Rights found in Mikhalkova and Others v. Ukraine (cited above), that there had been substantive violations of Articles 2 and 3 of the Convention as regards Vasiliy Mikhalkov’s death and the inhuman treatment to which he was subjected. The Court also found that there had been a procedural violation of Article 2 of the Convention on account of the authorities’ failure to conduct an effective investigation into the death of the applicants’ relative. In that connection, the Court held that, at the time of its judgment, the domestic investigation had been groundlessly delayed, it had not been thorough, no conclusion had been reached as to the circumstances in which the victim had sustained his fatal injuries, and the persons responsible had not been identified. In respect of non-pecuniary damage, the Court awarded the sums of 20,000 euros (EUR) each to the first and second applicants and EUR 50,000 to the third applicant. The Court’s judgment became final on 13 April 2011.

5. On 6 May 2011 an additional expert assessment, ordered on 8 June 2010, concluded that Vasiliy Mikhalkov’s injuries had been inflicted by the impact of a blunt object with a limited contact surface striking at an acute angle. According to the report, the injuries could have been sustained in the circumstances described by the third applicant and could not have been inflicted in the circumstances described by the police officer, P. The fatal injury had been sustained six hours prior to Vasiliy Mikhalkov’s death.

6. On 26 May 2011 the investigation, which had been suspended on 8 June 2010 on the grounds that the suspects had not been identified, was resumed.

7. On 27 May 2011 criminal proceedings were instituted against police officers S. and P. on suspicion of intentional infliction of grievous bodily injury resulting in Vasiliy Mikhalkov’s death (Article 121 § 2 of the Criminal Code) and exceeding authority or official powers leading to serious consequences (Article 365 § 3 of the Criminal Code).

8. On 30 May and 2 June 2011 S. and P. were accordingly charged with the above-mentioned offences.

9. On 29 June 2011 the prosecutor approved the bill of indictment and referred the case to the Kompaniyivka District Court of the Kirovohrad Region (“the Kompaniyivka Court”) for trial.

10. On 14 July 2011 the Kompaniyivka Court held a preparatory hearing of the case and scheduled the next hearing for 14 September 2011 because the presiding judge had planned a summer holiday.

11. On 14 September 2011 P. made an application to challenge the presiding judge, which was allowed.

12. On 28 September 2011 the Kompaniyivka Court asked the Kirovohrad Regional Court of Appeal (“the Court of Appeal”) to transfer the case to another court, as neither of the two judges of the Kompaniyivka Court could sit in the case. On 4 October 2011 the case was assigned to the Bobrynets District Court of the Kirovohrad Region (“the Bobrynets Court”).

13. Between 7 November 2011 and 17 December 2012, the Bobrynets Court scheduled thirty-three hearings, nineteen of which were actually held, and fourteen of which were adjourned, mainly because of absence of the parties or witnesses and the need to ensure their presence, or at the parties’ request.

14. On 17 December 2012 the Bobrynets Court found S. and P. guilty as charged and sentenced them to seven years’ imprisonment with a three-year prohibition on occupying posts within law-enforcement bodies. It also awarded the applicants damages that had to be paid by the State Treasury.

15. The defendants, the prosecutor and the State Treasury appealed against that judgment, and on 13 February 2013 the Bobrynets Court submitted the criminal case file to the Court of Appeal for examination.

16 . On 9 April 2013 the Court of Appeal adjourned the hearing until 30 April 2013 at the request of P.’s lawyer, who informed the court that P. had been undergoing inpatient treatment at the Kirovohrad regional psychiatric hospital since 5 April 2013. In reply to a complaint by the applicants that P. had invented a psychiatric disorder in order to protract the proceedings, the hospital provided the Court of Appeal with a certificate attesting to P.’s illness and n oting that he was to be discharged from the hospital on 26 April 2013.

17. On 30 April 2013 the statute of limitations for the criminal offences in issue expired.

18 . On the same date the Court of Appeal adjourned the hearing until 28 May 2013, this time at the request of S.’s lawyer, who informed the court that since 28 April 2013 S. had been undergoing inpatient treatment at the Kompaniyivka hospital. He provided the court with a relevant certificate from the hospital.

19. On 28 May 2013 the Court of Appeal quashed the Bobrynets Court’s judgment and closed the proceedings, ruling that the prosecution of the offences was time-barred. It noted, in particular, that the defendants had been charged with offences in respect of which the Criminal Code provided for a ten-year limitation period, and that that period had expired by the time the appeals were being considered and, therefore, the proceedings had to be closed.

20. On 10 December 2013 the Higher Specialised Civil and Criminal Court dismissed appeals on points of law lodged by the applicants and the prosecutor and upheld the decision of 28 May 2013.

21. The applicants complained that following the Court’s judgment in Mikhalkova and Others (cited above), the subsequent criminal proceedings concerning the death of their relative had been ineffective and deliberately delayed by the authorities in order to help S. and P. to escape justice, which had amounted to a new violation of the procedural aspect of Article 2 of the Convention.

THE COURT’S ASSESSMENT

22. Since the Court’s judgment in the applicants’ previous case ( Mikhalkova and Others , cited above), a number of procedural events have occurred within the domestic proceedings. Those developments raise a new issue triggering a fresh procedural obligation under Article 2 and the Court’s competence to examine the matter in the light of the applicants’ complaint that their rights have continued to be violated (see and compare Egmez v. Cyprus (dec.), no. 12214/07, §§ 62 and 63, 18 September 2012).

23. For a summary of the relevant principles concerning procedural obligations arising under Article 2 of the Convention, see Mocanu and Others v. Romania ([GC], nos. 10865/09 and 2 others, §§ 314-26, ECHR 2014 (extracts)).

24. Regarding the conduct of the proceedings in the present case, the Court finds that their overall length of about two years and eight months (from the date on which the Court’s judgment in Mikhalkova and Others (cited above) became final until the delivery of the final judgment by the Higher Specialised Civil and Criminal Court) does not indicate a lack of promptness on the part of the authorities. In this connection, the material in the case file suggests that the pre-trial investigation was promptly resumed by the prosecutor and completed within one month. There were also no significant delays which could be attributed to the courts of first and second instance: the hearings were scheduled at reasonable intervals and the adjournment delays were relatively short and mainly caused by the parties’ conduct and the courts’ obligation to ensure the adversarial nature of the trial.

25. To the extent that the applicants implied that the Court of Appeal had unreasonably protracted the proceedings by postponing the hearings for almost two months at the request of the defendants’ lawyers on the basis of their allegedly untrue statements regarding the defendants’ illnesses (see paragraphs 16 and 18 above), they provided no evidence that the information provided by the lawyers had been false. Moreover, it appears from the case file that in reply to the applicants’ complaint on the matter, the Court of Appeal verified the accuracy of the evidence provided by S. (see paragraph 16 above).

26. Overall, the Court finds no indication that, during the period under examination, the actions taken by the investigative and judicial authorities in respect of the death of the applicants’ relative fell short of the requirements of Article 2 of the Convention.

27. It is true that the investigation was eventually terminated because the statutory limitation period for criminal liability had expired. However, in the circumstances of the present case, the Court believes that this was mostly a consequence of the authorities’ lack of promptness during the initial period of the investigation, which lasted for more than seven years, and in respect of which the Court found a violation of Article 2 in its first judgment in the applicants’ case and awarded them just satisfaction accordingly (see paragraph 4 above).

28. It is also true that the authorities were aware, in advance, that they had to secure a final judgment before 30 April 2013 in order to avoid the effect of the ten-year procedural time bar. However, in the absence of concrete facts demonstrating that inordinate delays attributable to the authorities occurred, the Court cannot reach the conclusion that they again failed in their Article 2 duties in the reopened proceedings.

29. Having regard to the foregoing, the Court considers that the applicants’ complaint must be rejected as manifestly ill ‑ founded, pursuant to 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 15 September 2022.

Martina Keller Ivana Jelić Deputy Registrar President

Appendix

List of applicants:

No.

Applicant’s Name

Year of birth

Nationality

Place of residence

1.Natalya Stanislavovna BIKBULATOVA

1978Ukrainian

Maryivka

2.Sergey Petrovich MIKHALKOV

1968Ukrainian

Kirovograd

3.Olga Kuzminichna MIKHALKOVA

1938Ukrainian

Maryivka