FIFTH SECTION

CASE OF CHERNEY v. UKRAINE

(Application no. 26759/13)

JUDGMENT

STRASBOURG

18 November 2021

This judgment is final but it may be subject to editorial revision.

In the case of Cherney v. Ukraine,

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

Lətif Hüseynov, President, Lado Chanturia, Arnfinn Bårdsen, judges, and Viktoriya Maradudina, Acting Deputy Section Registrar,

Having deliberated in private on 21 October 2021,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 11 April 2013.

2. The applicant was represented by Mr B.V. Fokiy, a lawyer practising in Chernivtsi, Ukraine.

3. The Ukrainian Government (“the Government”) were given notice of the application. The Government objected to the examination of the application by a Committee. Having considered the Government’s objection, the Court rejects it.

THE FACTS

4. The applicant’s details and information relevant to the application are set out in the appended table.

5. The applicant complained of the ineffective investigation into the death of his brother, who had died in a road traffic accident. He also raised other complaints under various Articles of the Convention.

THE LAW

6. The applicant complained that the investigation into the death of his brother in a traffic accident had been ineffective. He relied on Articles 2 and 6 § 1 of the Convention and Article 13 of the Convention.

7. The Court, which is master of the characterisation to be given in law to the facts of the case, finds that the complaints at issue fall to be examined under Article 2 of the Convention (see Igor Shevchenko v. Ukraine , no. 22737/04, § 38, 12 January 2012). This provision, in so far as relevant, reads as follows:

Article 2 § 1

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

8. The Court notes at the outset that the present case falls to be examined from the perspective of the State’s obligation to conduct an effective investigation under the procedural limb of Article 2 of the Convention. The relevant general principles concerning the effectiveness of the investigation were summarized in Mustafa Tunç and Fecire Tunç v. Turkey [GC] (no. 24014/05, §§ 169-82, 14 April 2015). In particular, once the investigative obligation is triggered, compliance with the procedural requirement of Article 2 is assessed on the basis of several essential parameters: the adequacy of the investigative measures, the promptness of the investigation, the involvement of the deceased person’s family, and the independence of the investigation. These elements are inter ‑ related and each of them, taken separately, does not amount to an end in itself (ibid., § 225).

9. Moreover, 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 (see Paul and Audrey Edwards v. the United Kingdom , no. 46477/99, § 71, ECHR 2002-II).

10. Reviewing the facts of the present case in the light of those principles, the Court considers that the investigation was marked by various shortcomings, which had undermined the ability of the investigating authorities to establish the circumstances surrounding the death of the applicant’s brother, and who, if anyone, was responsible. The specific shortcomings are indicated in the appended table.

11. In the leading cases of Basyuk v. Ukraine (no. 51151/10, 5 November 2015), Pozhyvotko v. Ukraine (no. 42752/08, 17 October 2013) and Kachurka v. Ukraine (no. 4737/06, 15 September 2011), the Court already found violations of the Convention in respect of issues similar to those in the present case.

12. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Having regard to its case-law on the subject and the materials before it, the Court considers that in the instant case the investigation failed to meet the criteria of effectiveness.

13. These complaints are therefore admissible and disclose a breach of Article 2 § 1 of the Convention under its procedural limb.

14. The applicant also raised other complaints under various Articles of the Convention.

15. The Court has examined the application and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto.

It follows that this part of the application must be rejected in accordance with Article 35 § 4 of the Convention.

16. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

17. Regard being had to the documents in its possession and to its case ‑ law (see, in particular, Basyuk , cited above, §§ 74-80), the Court considers it reasonable to award the sums indicated in the appended table and it rejects any additional claims for just satisfaction raised by the applicant.

18. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(a) that the respondent State is to pay the applicant, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

Done in English, and notified in writing on 18 November 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

{signature_p_2}

Viktoriya Maradudina Lətif Hüseynov

Acting Deputy Registrar President

APPENDIX

Application raising complaints under Article 2 § 1 of the Convention

(ineffective investigation into death, caused by private parties or in circumstances that exclude involvement of State agents)

Application no.

Date of introduction

Applicant’s name

Year of birth

Background to the case and domestic proceedings

Key issues

Amount awarded for non-pecuniary damage per applicant

(in euros) [1]

Amount awarded for costs and expenses per application

(in euros) [2]

26759/13

11/04/2013

Leonid Dmytrovych CHERNEY

1963

1. Circumstances of the incident:

at around midnight on 01/12/2000 the applicant’s brother, Ch., while being extremely intoxicated, stepped into a highway and was hit by a car. He died as a result. The driver, certain B., was an official of the local prosecutor’s office. He was dismissed after the accident.

2. Investigation:

(i) on 08/12/2000 – criminal investigation was opened into the death caused by careless driving;

(ii) on 12/12/2000 – the applicant was given a victim status;

(iii) on 28/04/2001 – the General Prosecutor’s Office informed the applicant that the investigator had been told to expedite the proceedings;

(iv) on numerous occasions the proceedings were terminated; those decisions were then quashed by the courts as unsubstantiated and premature, and further investigation was ordered. In particular, the investigators’ decisions were quashed:

- on 03/12/2007 because experts had not established whether B. could have avoided collision by following certain manoeuvres, provided for by the traffic rules, as well as had not identified the exact place of the collision, etc;

- on 16/01/2013 because the investigating authorities had not looked into the lawfulness of modifications done to B.’s car, etc.;

- on 28/04/2014 because it had not been assessed whether B.’s actions had complied with the traffic rules;

- on 16/02/2015 because the casefile contained discrepancies between witness testimonies recorded on video and done via written statements, and those discrepancies had not been assessed by an investigator;

- on 21/10/2015 because the investigator had not thoroughly evaluated B.’s actions and all the available evidence; the technical state of the vehicle had not been assessed and the decision terminating the criminal proceedings had not contained information which investigative actions had been taken;

(v) on 13/07/2018 a court once again quashed the decision terminating the proceedings, noting that no investigative measures had been taken since 23/10/2015 and that the investigator had not complied with the instructions, provided for by the decision of 21/10/2015;

(vi) on 19/06/2019, 06/08/2019, 30/08/2019, 26/09/2019 a court ordered the investigator to examine the applicant’s petition related to bringing charges against B., given that the proceedings at the relevant time had already been pending for 19 years, the identity of the driver had been known but no one had been charged;

(vii) according to the most recent information from the applicant, as of 26/09/2020 the investigation was ongoing.

insufficient measures during the preliminary stage of the investigation ( Kachurka v. Ukraine , no. 4737/06, § 52, 15 September 2011),

lack of thoroughness and promptness which undermined the authorities’ ability to establish the circumstances of the case ( Igor Shevchenko v. Ukraine , no. 22737/04, § 60, 12 January 2012; Zubkova v. Ukraine , no. 36660/08, § 40, 17 October 2013 ),

no genuine attempt by the investigating authorities to carry out a thorough investigation ( Yuriy Slyusar v. Ukraine , no. 39797/05, §§ 84-88, 17 January 2013 ; Lyubov Efimenko v. Ukraine , no. 75726/01, §§ 76-80, 25 November 2010),

numerous shortcomings in collection of evidence ( Basyuk v. Ukraine , no. 51151/10, § 67, 5 November 2015),

repeated remittals of the case for additional investigation owing to the insufficiency of the measures taken by the investigators ( Antonov v. Ukraine , no. 28096/04, § 50, 3 November 2011).

6,000

250[1] Plus any tax that may be chargeable to the applicant.

[2] Plus any tax that may be chargeable to the applicant.