FIFTH SECTION

Application no. 51151/10 Viktor Ivanovych BASYUK against Ukraine lodged on 26 August 2010

STATEMENT OF FACTS

The applicant, Mr Viktor Ivanovych Basyuk , is a Ukrainian national, who was born in 1940 and lives in Odesa .

A. The circumstances of the case

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

On 4 September 2005 the applicant ’ s daughter, Ms Ye., and her child were hit by a car driven by Ms M., when crossing a road.

On 21 November 2005 the applicant ’ s daughter died from the injuries sustained in the aforementioned accident. As to the injuries of his granddaughter, they were not dangerous for life.

On 29 December 2005 an investigator of the Traffic Accidents Investigation Unit of the Odesa Regional Department of the Ministry of the Interior ( слідчий відділу розслідування дорожньо-транспортних пригод ГУ МВС в Одеській області ) delivered a ruling refusing to initiate criminal proceedings in respect of the accident. It was established that Ms Ye. and her daughter had been crossing the road unexpectedly and not on a pedestrian crossing, and when the driver, Ms M., had seen them, it had been technically impossible for her to avoid the accident.

On an unspecified date thereafter three witnesses stated that the accident had taken place at the pedestrian crossing.

On 7 June 2005 the Odesa City Prosecutor quashed the ruling of 29 December 2005 and ordered additional investigation.

On 25 January 2007 a forensic technical expert found it impossible to reconcile the version of the accident given by the driver (as outlined in the investigator ’ s decision of 29 December 2005) and that of the eye-witnesses “owing to a delay of more than half a year with the questioning of those witnesses”.

On 1 March 2007 the investigator again refused to initiate criminal proceedings having found that there was no case to answer.

On 24 March 2009 the Odesa Regional Prosecutor ’ s Office (“the regional prosecutor”) quashed the above decision and opened a criminal case against Ms M. on suspicion of a breach of traffic rules causing the death of the applicant ’ s daughter. The investigator previously dealing with the case was disciplined for the inadequate and lengthy investigation.

On 1 June 2009 a forensic medical expert issued a report about the causal link between the injuries sustained by Ms Ye. as a result of the accident and her death.

On 27 October 2009 the investigator ordered a comprehensive forensic medical and technical expert examination.

On 30 November 2009 it was completed. Having analysed the injuries sustained by Ms Ye. and her daughter, as well as the damages to the car of Ms M., the expert established the position of the victims at the time of the accident.

On 18 May 2010 yet another technical examination was assigned, and on 30 September 2010 it was completed. The expert concluded that, if the victims had been crossing the road not on the pedestrian crossing, it had been technically impossible for the driver to avoid the accident. If, however, they had been on the pedestrian crossing, it had been technically possible for her to avoid the accident.

On 6 June 2011 one more forensic technical expert examination was assigned, and on 9 September 2011 it was completed. Relying, in particular, on the initial scene inspection report, the expert concluded that the accident might have taken place outside the pedestrian crossing.

On 10 May 2012 the investigator terminated the proceedings for the want of evidence of the driver ’ s guilt. As noted in his decision, three witnesses stated that the accident had taken place on the pedestrian crossing, while other four witnesses stated that it had been outside the crossing, and it appeared technically impossible to establish the truth.

On 6 June 2012 the regional prosecutor quashed the above decision and ordered additional investigation. He noted that the initial investigative measures, such as the accident reconstruction, had not reflected all the issues essential for subsequent technical expert evaluations to establish the pertinent facts with precision. Furthermore, the inquiry authorities had inadequately complied with the assignments given by the investigator.

The applicant, who was assigned a victim status on an unspecified date, has on many occasions sought access to the case file, but to no avail. All his requests to that effect were rejected on the ground that, under the criminal procedural legislation, a victim in criminal proceedings could be provided with such access only after the completion of the pre-trial investigation.

B. Relevant domestic law and practice

The relevant provisions of the Constitution of Ukraine and the Code of Criminal Procedure of Ukraine can be found in the judgment in the case of Muravskaya v. Ukraine (no. 249/03, §§ 35-36, 13 November 2008).

According to Article 286 of the Criminal Code (2001), a driver, who having breached the rules of road safety or correct use of his/her vehicle has caused a human death, shall be sentenced to a term of imprisonment from three to eight years. His/her driving license may also be revoked for up to three years.

The relevant provisions of the Civil Code of Ukraine and the Code of Civil Procedure of Ukraine can be found in the judgment in the case of Fedina v. Ukraine (no. 17185/02, §§ 43-45, 2 September 2010).

COMPLAINTS

Relying on Article 2 of the Convention, the applicant complains that the driver, who had hit his daughter, had not undergone the training requisite for obtaining a driving licence. He suspects that that traffic police had issued the driving licence to Ms M. for a bribe.

He also complains about the ineffectiveness and length of the investigation, with reference to Article 6 § 1 of the Convention.

Lastly, the applicant invokes Articles 7, 13 and 34 of the Convention complaining that Ms M. went unpunished and that the authorities have been indifferent to his complaints.

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? Are there any safeguards for ensuring compliance of the investigating authority with the instructions given by the higher-level authority where a case is remitted for additional investigation?

2. Could a separate civil claim remedy the alleged shortcomings regarding the procedural obligation under Article 2? The Government are invited to submit relevant case-law of the national judicial authorities.

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