Communicated on 20 January 2020 Published on 10 February 2020

FIFTH SECTION

Application no. 1314/18 Volodymyr Stanislavovych MAKSYMCHUK against Ukraine and three other applications (see list appended)

STATEMENT OF FACTS

A list of the applicants is set out in the appendix.

The facts of the case s , as submitted by the applicant s , may be summarised as follows.

At the time of the events the applicant ’ s wife, Mrs L., worked in a municipal company. On 18 June 2008 she died with her colleague because of toxic gas poisoning while they were on duty cleaning sewage.

On 19 June 2008 a prosecutor instituted a criminal investigation into the breach of workplace safety rules causing the death of employees.

On 16 December 2008 the deceased, Mrs L., was charged with the above crime post-mortem. On 12 January 2009 the Kobeliatskyy Local Court discontinued criminal proceedings against Mrs L. because of her death. On 17 July 2009 the Poltava Regional Court of Appeal quashed the latter decision and remitted the case for additional investigation, since Mrs L. ’ s relatives had not been involved in the proceedings.

On 21 April 2011 the prosecutor withdrew the indictment of 16 December 2008 against Mrs L. as ill-founded. Apparently, at a certain point the criminal proceedings against Mrs L. had been terminated.

On 24 March 2011, the investigation against the director of the municipal company, Mr T., was initiated. On 4 April 2011 the applicant was given victim status.

During the above criminal proceedings the applicant complained to the prosecutor ’ s office and to the local court. In response to the applicant ’ s complaints, several of the prosecutors were disciplined for their failure to ensure supervision over the proper conduct of the investigation. The court also ordered the investigator and the prosecutor in charge to take certain investigative measures.

On 2 February 2015 the bill of indictment against Mr T. was sent to the trial court. On 12 February 2016 the Novosanzharskyy Local Court found Mr T. guilty of breach of safety rules relating to high-risk operations that caused the death of Mrs L. and suspended his sentence on probation; the court allowed the applicant ’ s civil claim against Mr T., awarding him 50,000 Ukrainian hryvnias (UAH) (about 1,640 euros (EUR) at the material time) in respect of non-pecuniary damage caused by the death of Mrs L.

On 5 May 2016 the Poltava Regional Court of Appeal upheld the latter decision as regards the criminal liability of Mr T. and quashed the decision of the local court as regards the applicant ’ s civil claim, remitting the case in this regard for fresh consideration by civil courts (see below).

On 29 April 2011 the Kobyliatskyy Local Court awarded the applicant compensation of UAH 25,000 (about EUR 2,155 at the time) in respect of non-pecuniary damage caused by the death of Mrs L., to be paid by the municipal company, after finding that the director of the company had not ensured the safety rules at the company. The applicant did not appeal against that decision and it entered into force on 22 July 2011.

On 29 December 2016 the Novosanzharskyy Local Court dismissed another civil claim which the applicant had introduced after the criminal charges against Mr T. had been determined. The court found that the applicant had been awarded compensation of UAH 25,000 in respect of non-pecuniary damage caused by the death of Mrs L. according to the binding decision of 29 April 2011. Therefore, the applicant had already exercised his right to compensation and domestic legislation did not provide for repeated compensation for the same loss. These findings were upheld by the Poltava Regional Court of Appeal on 20 April 2017 and by the final decision of Supreme Court of Ukraine on 18 April 2018.

On 1 April 2016 the applicants ’ son died as a result of an electric shock while performing his military service in a military unit in Kirovohrad Region.

On 2 April 2016 the police initiated a criminal investigation into the incident.

Simultaneously, an ad hoc commission was set up by the commander of the military unit to investigate the circumstances of the incident concerning the applicants ’ son. On 4 April 2016 the commission found that the applicants ’ son died as a result of an electric shock while attempting to commit an offence, namely trying to steal metal elements from an electricity transformer at the high voltage electricity transformer substation. The commission also found violations on the organisation of internal service in the military unit by the officials of the military unit as regards restriction of access to the electricity substations. The commission suggested that disciplinary measures be taken against the military unit officials who had neglected their duties.

On 12 April 2016 the criminal proceedings were closed for lack of constituent elements of any crime. The investigator noted that the applicants ’ son died from an electric shock when he tried to commit an offence. The applicants challenged that decision. On 24 April 2018 the Leninskiy District Court of Kirovohrad dismissed the applicants ’ complaint. On 14 May 2018 the Kirovograd Regional Court of Appeal quashed the decision of 12 April 2016 as having been taken prematurely and remitted the case for additional investigation. The court found that the investigation had been incomplete and the applicants had not been informed of the investigation and of their right to be admitted to the proceedings as victims. The investigation is pending.

On 6 December 2016 criminal proceedings were opened into the negligent attitude of the servicemen during military service causing the death of the applicants ’ son. In the course of the investigation the military unit officials explained that all the transformer substations were properly locked and surveyed, and access to them had been duly restricted.

On 27 December 2016 the criminal proceedings were closed for lack of constituent elements of crime. The applicants challenged that decision.

On 26 July 2017 the Leninskiy District Court of Kirovohrad dismissed the applicants ’ complaint. On 11 September 2017 the appellate court quashed the decision of 27 December 2016 and sent the case for additional investigation. The court pointed out, inter alia , that the investigation had been incomplete because the applicants had not been notified of the investigation or granted victim status. T he investigation is pending.

On 22 November 2016 the applicants ’ son, who was 10 years old at the time, was struck by a train while crossing the railway line at the informal crossing point near his school in the city of Irpin . He died at the scene.

On 22 November 2016 the police launched an investigation into the death of the applicants ’ son under Article 276 of the Criminal Code of Ukraine (“Violation of rules related to safety of traffic or operation of railway, water or air transport”) and ordered a forensic medical examination.

On 7 December 2016 the father of the deceased (hereinafter “the first applicant”) was given victim status in those proceedings.

Between November 2016 and July 2017 certain investigative actions, including three on-the-spot investigations of the events and questioning of the witnesses had been carried out. According to the applicants no investigation actions have been carried out since that time.

Between January and December 2017 numerous investigating instructions were given by superior police officers and the Prosecutor ’ s Office as to the measures that should have been taken in the case (including questioning the victims and witnesses, collecting material and medical evidence, conducting a forensic medical and technical examination and an additional inspection of the crime scene, etc.) Allegedly, these instructions have not been followed, and for a certain period there was no investigator in charge of the case.

Between December 2016 and June 2018 on a number of occasions the first applicant had repeatedly complained to the prosecutors of various levels regarding inactivity of investigative authorities and requested to conduct an effective investigation into his son ’ s death. Mostly he received formal responses, without giving any details, stating only that his requests were being considered or had been forwarded to different prosecutors ’ offices or rejected as unsubstantiated.

On 9 February 2017 the first applicant requested that a criminal investigation be conducted into the neglect of official duty by the head of Irpin Railway Station as regards the safety of the railway lines in Irpin . He argued that the non-authorised crossing point, despite its danger to life, had been used by the locals for many years because in that area the railway line had been completely open and unfenced. There was even a paved track leading to the above crossing point and a pedestrian ‘ zebra ’ crossing over the street parallel to the track.

According to official statistics during the period from 2011 to 2017 and the announcement of 20 March 2017 published on the Railway Administration ’ s official website, Irpin Railway Station was among the twenty-eight most dangerous railway stations in Ukraine given the large number of accidents recorded during the specified period. As stated by the applicant, at the end of 2016 a fence was constructed by local residents along the railway line alongside the elementary school, and in 2017 a metal fence was installed on the opposite side of the railway line.

The applicants argued that no investigative actions have been carried out with regard to that criminal complaint.

The applicant ’ s son Mr Kh . was drafted into the army in April 2015. On 25 June 2015 he died having sustained injuries to his head. A criminal investigation was launched on the same day.

In accordance with the order of the military unit ’ s commander, an internal inquiry was conducted into the incident. According to the inquiry report of 2 July 2015, Mr Kh ., while under the influence of alcohol, tripped over a doorstep on a balcony, hit his head on the balcony floor and died.

Between 26 June and 10 July 2015 a post-mortem examination was conducted on the body of the applicant ’ s son. No odour of alcohol was identified during the examination. The expert found that the death of the applicant ’ s son had been caused by a serious craniocerebral injury. The expert also noted that the blood of the applicant ’ s son, his stomach and its contents had been disposed of due to the absence of facilities for their preservation.

The applicant argued that the other soldiers informed her about bullying in the military unit where Mr Kh . had served.

On 23 September 2015 the criminal proceedings were terminated for lack of constituent elements of any crime.

On 11 March 2016 that decision was quashed as unlawful and further investigation was ordered. The investigation appears to be pending however, allegedly, no reply was made to the applicant ’ s recent requests for information.

COMPLAINTS

The applicants complain under various provisions of the Convention, including Article 2, that effective investigations have not been carried out in relation to their relatives’ deaths. The applicants in application no. 37590/18 ( Zayets v. Ukraine ) further complain under Article 2 that the domestic authorities failed to take appropriate steps to protect their son ’s life.

QUESTION TO THE PARTIES AS REGARDS ALL THE APPLICATIONS

Having regard to the procedural protection of the right to life, were the domestic proceedings in the present case in breach of Article 2 of the Convention?

The Government are invited to provide the material on criminal, disciplinary and civil proceedings in relation to the applicants’ allegations.

ADDITIONAL QUESTIONS TO THE PARTIES AS REGAR DS APPLICATION N o . 1314/18 , Maksymchuk v. Ukraine

Was Article 6 § 1 of the Convention under its civil head applicable to the criminal proceedings in the present case? In particular, did the applicant, who had victim/injured-party status in the criminal proceedings, pursue civil claims in that case so as to bring the civil limb of Article 6 § 1 into play?

Was the overall length of the domestic proceedings in the present case in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?

ADDITIONAL QUESTIONS TO THE PARTIES AS REGAR DS APPLICATION No . 37590/18 , Zayets v. Ukraine

With regard to the positive obligations of the State under Article 2 of the Convention, have the domestic authorities taken all the necessary and sufficient measures to safeguard the life of the applicants’ son? Were the authorities aware of the specific, real and immediate risk to the life of local resident s , notably the children, linked to the existence of the informal railway crossing point at Irpin Railway Station?

APPENDIX

No.

Application no.

Case name

Lodged on

Applicant

Year of Birth

Place of Residence

Nationality

Represented by

1

1314/18

Maksymchuk v. Ukraine

15/12/2017

Volodymyr Stanislavovych MAKSYMCHUK

1946Kobelyaky

Ukrainian

2

26039/18

Romanyuk v. Ukraine

26/05/2018

Olga Anatoliyivna ROMANYUK

1970Belogorivka

Ukrainian

Oleksandr Vasylyovych ROMANYUK

1963Belogorivka

Ukrainian

Sergey Sergeyevich MEDVEDEV

3

37590/18

Zayets v. Ukraine

26/07/2018

Sergiy Anatoliyovych ZAYETS

1974Irpin

Ukrainian

Nataliya Yuryevna ZAYETS

1981Irpin

Ukrainian

Philip LEACH

4

12308/19

Khoman v. Ukraine

14/02/2019

Nataliya Vasylivna KHOMAN

1954Pisochyn

Ukrainian