Communicated on 6 January 2014

FIFTH SECTION

Application no. 18180/11 Emiliya Ivanivna KOTSUPYR against Ukraine lodged on 9 March 2011

STATEMENT OF FACTS

The applicant, Ms Emiliya Ivanivna Kotsupyr , is a Ukrainian national, who was born in 1942 and lives in Novyy Rozdil in the Lviv region . She is represented before the Court by Mr A. Ilkiv , a lawyer practising in Novyy Rozdil .

A. The circumstances of the case

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

At the time of the events the applicant ’ s son, Mr K., thirty-three years old, worked as an electrician in the municipal company for housing maintenance and utilities “ Rozdilzhytloservis ”.

On 26 January 2006 Mr K., together with some other colleagues, was repairing electric cables in the basement of an apartment block. At noon he suddenly felt unwell. According to the applicant, her son had fallen down and had had a closed head injury.

On the same day, immediately after Mr K. complained about the deterioration of his heath, he was hospitalised to the Novyy Rozdil Town Hospital. It appears from the case-file materials that he was initially diagnosed with vegetative-vascular dystonia and that subsequently the diagnosis was changed to posttraumatic subarachnoid hematoma .

As also follows from the case file (see the summary of the judgment of 16 June 2010 below), Mr K. explained to the doctors (it is not clear when) that he had fallen down in the basement, had hit his head against a concrete surface and had lost consciousness.

On 30 January 2006 Mr K. was transferred to the Lviv City Emergency Hospital, where the following diagnoses were established: a closed head injury, cerebral contusion of medium severity, s ubarachnoid hematoma and hydrocephaly .

On 20 February 2006 he was discharged from the hospital with a prescription to continue outpatient treatment by the place of his residence in Novyy Rozdil .

He was supposed to, but did not, resume work on 23 February 2006.

On 24 February 2006 Mr K. died at his home.

On 20 March 2006 a forensic medical expert report was issued on whether Mr K. had suffered any injuries on 26 January 2006 and on the cause of his death. It stated that he had died as a result of purulent meningitis having led to a sudden brain swelling. The report also referred to the post-mortem findings, which had not revealed any indication of a head injury.

On 8 June 2006 the Lviv Regional Territorial Department of Derzhgirpromnagliad appointed a commission for investigation of the incident with Mr K. on 26 January 2006.

On 23 June 2006 the commission delivered its report. It found no evidence that Mr K. had injured himself at work on 26 January 2006 or earlier. Relying also on the report of 20 March 2006 (see above), the commission did not consider the death of Mr K. to be related to his work.

On the same date a “Report on a non-occupational accident” was drawn up in respect of the death of the applicant ’ s son. The sudden deterioration of his health on 26 January 2006 was found not to have resulted from any work-related injuries.

On 21 July 2006 the applicant lodged a civil claim with the Mykolayiv [1] Town Court (“the Mykolayiv Court”) against the “ Rozdilzhytloservis ” municipal company seeking compensation for damages in respect of the death of her son. She also complained that she had never been provided with the official investigation report.

On 18 August 2006 “ Rozdilzhytloservis ” sent a copy of the reports of 23 June 2006 to the applicant.

On 6 November 2006 the applicant amended and supplemented her claims. Namely, she maintained her civil claim seeking a judicial finding that there had been unlawful inactivity on the part of the “ Rozdilzhytloservis ” municipal company as regards the investigation of the circumstances leading to the death of her son. In addition, she lodged an administrative claim against the Lviv Regional Territorial Department of Derzhgirpromnagliad seeking invalidation of the reports of 23 June 2006 and an additional investigation into the death of her son.

On 18 June 2007 the Lviv Regional Bureau of Forensic-Medical Expert Examinations, following an expert assessment undertaken upon the direction of the Mykolayiv Court, concluded that the death of Mr K. had been caused by a closed head injury complicated by aseptic lymphocytic meningitis and the brain swelling.

On 4 September 2007 the Mykolayiv Court stayed the civil proceedings pending the outcome of the applicant ’ s related administrative claim.

On 11 September 2008 the Mykolayiv Court allowed the applicant ’ s administrative claim in part. It invalidated the reports of 23 June 2006 and ordered an additional investigation into the circumstances of Mr K. ’ s death. The court concluded that the investigation undertaken could not be regarded as comprehensive, thorough or objective. Thus, the scene where the incident had taken place had not been examined, and not all the relevant circumstances had been clarified. No explanations had been given to the statement of Mr K. upon his arrival to the hospital (that he had fallen down and had injured his head) or to the statement of his colleague (of an unspecified date) that on 26 January 2006 Mr K. had been alone in the basement for a while. Furthermore, the investigation had not had due regard to the expert report of 18 June 2007.

On 1 June 2009 the Lviv Regional Court of Appeal quashed the aforementioned decision and terminated the proceedings having concluded that the dispute fell to be examined solely under the civil procedure.

On 18 January 2010 the civil proceedings were resumed.

On 16 June 2010 the Mykolayiv Court invalidated the reports of 23 June 2006 and ordered an additional investigation. The court did not, however, consider that there had been any unlawful inactivity on the part of the defendants, as they had not had conclusive information that Mr K. had injured himself at work. On the other hand, the expert report of 18 June 2007 had concluded that his death had resulted from a head injury, although without specifying the date of that injury. Furthermore, there were inconsistencies in the witnesses ’ statements: some had submitted that Mr K. had accidentally hit his head against the wall at the entrance to the apartment block, some had noted that he had fallen down and had hit his head against the concrete floor. According to yet another witness statement, Mr K. had hit his head against a metal pipe. All those inconsistencies were to be reconciled. Lastly, the explanations of Mr K. himself given in the hospital, according to which he had injured himself at work, remained to be assessed.

On 16 May and 22 August 2011 the Lviv Regional Court of Appeal and the Higher Specialised Civil and Criminal Court, respectivel y, upheld the judgment of 16 June 2010.

There is no information on the progress or outcome of the additional investigation ordered by the aforementioned judicial decisions.

The applicant also applied to the prosecution authorities on many occasions seeking initiation of criminal proceedings against the “ Rozdilzhytloservis ” and Derzhgirpromnagliad officials. The Mykolayiv Town Prosecutor ’ s Office issued several rulings refusing to institute such criminal proceedings for the lack of corpus delicti .

COMPLAINTS

The applicant complains under Article 2 of the Convention that there was no effective investigation of the death of her son.

She also complains under Article 13 that there were no effective domestic remedies at her disposal in respect of the above complaint.

QUESTIONS TO THE PARTIES

1. Having regard to the procedural protection of the right to life (see paragraph 104 of Salman v. Turkey [GC], no. 21986/93, ECHR 2000-VII), was the investigation in the present case by the domestic authorities in breach of Article 2 of the Convention?

2. Did the applicant have at her disposal an effective domestic remedy for her above complaint, as required by Article 13 of the Convention?

[1] A small town in the Lviv region. Not to be confused with the city of Mykolayiv , the centre of the Mykolayiv region.