FIFTH SECTION

Application no. 22323/08 Galina Ivanovna LOVYGINA and Anatoliy Yevgenyevich LOVYGIN against Ukraine lodged on 18 April 2008

STATEMENT OF FACTS

The applicants, Mrs Galina Ivanovna Lovygina and Mr Anatoliy Yevgenyevich Lovygin , are Ukrainian n ationals, who were born in 1939 and 1938, respectively, and live in the city of Kherson , Ukraine .

A. The circumstances of the case

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

On 14 January 2000 a police training exercise, held in accordance with an operational plan “ Sirena ”, was conducted, during which the applicant ’ s son, a police officer at the material time, played a role of a “criminal” and was accidentally shot. The applicants submitted a video record of the exercise, however, the part concerning the incident with the applicant ’ s son is absent. The original video recording of the training exercise has been lost.

According to the available case-file materials the training exercise was conducted in the following way. At around 10:55 on 14 January 2000 a police officer on duty transmitted over a communication channel that two persons had highjacked a car. At 12:20 a police officer, K., stopped the car at issue, in which there were police officers Ku. and O., as well as the applicant ’ s son. While searching the applicant ’ s son, K. put his gun off safe and pressed the gunpoint to the applicant ’ s son ’ s back. When the applicant ’ s son moved, K. accidentally pulled the trigger. The applicant ’ s son was lethally wounded and died on the way to a hospital.

On 16 October 2000 a lump sum in the amount of 18,270 Ukrainian hryvnias (UAH) (at the material time around 3,894.68 euros (EUR)) was paid jointly to the applicants, and to their son ’ s widow and daughter.

1. Criminal proceedings against K.

On 14 January 2000 the Dniprovskyy District Prosecutor ’ s Office of Kherson (“the District Prosecutor ’ s Office”) instituted criminal proceedings concerning the incident.

On 13 July 2000 the Dniprovskyy District Court (“the Dniprovskyy Court ”) found that K. had committed an unintentional homicide as a result of careless handling of a weapon but amnestied him under the Amnesty Act.

On 3 April 2009 the Dniprovskyy Court rejected as unsubstantiated the second applicant ’ s request of March 2009 to renew her time-limit for appeal against the decision of 13 July 2000. On 19 May 2009 the Kherson Regional Court of Appeal upheld this decision. The court noted that although the second applicant had been ab sent from a court hearing on 13 July 2000, she had been aware about this decision at least since 2004 and had received a copy of it at the latest on 23 January 2008.

2. Criminal proceedings against other police officers

The internal police inquiry conducted on 16 January 2000 revealed poor organisation of the training exercise of 14 January 2000 and recommended disciplinary sanctions against the organisers.

On 1 September 2000 the District Prosecutor ’ s Office instituted criminal proceedings against police officers involved in the organisation and conduct of the training exercise.

Within these proceedings, the applicants complained that the police officers had not been informed that there had been a training exercise. Instead they were informed that the criminals were armed and very dangerous. However, according to the applicants, there were no lawful reasons to use force against their son. The applicants insisted that their son had not been shot but killed by being hit on his head by a gun since he had possessed information about some unlawful activity of other police officers. They stated that the body had had a big haematoma on the head and there had been a crack in the skull.

On 25 January 2006 the Kherson Regional Prosecutor ’ s Office decided that an investigation officer I. was to be disciplined for the loss of the original video recording of the training exercise (see above).

On 10 February 2006 the above criminal proceedings were terminated in the absence of the evidence of a crime. It was noted that in accordance with the decision of the Ministry of Internal Affairs of Ukraine no. 230 of 1998, police training held in accordance with an operational plan “ Sirena ” were to be conducted in maximum realistic circumstances. The decision to have such training is adopted by the head of the local police department. Moreover, there is no obligation to inform participants that this is training and not a real situation. A police officer O., who was a training observer, submitted that he had seen K. ’ s mistake but was unable to stop him as everything happened within seconds. The second applicant ’ s allegations that her son had died not from a gun shot but from being hit on the head were also checked. Forensic examination of the applicant ’ s son ’ s clothes was held and it was concluded that he had been shot from a short distance. This was also confirmed by a forensic-medical examination of the applicant ’ s son ’ s body of 10 February 2000, and by additional examination of 24 March 2005 done after an exhumation of the body. The crack in the skull appeared in the course of forensic-medical examination of the body.

On 8 September 2006 the Suvorovskyy District Court (“the Suvorovskyy Court ”) quashed this decision and remitted the case for additional investigation since the prosecutor ’ s office had failed to assess the facts that some police officers were disciplined.

On 14 November 2006 the Kherson Regional Court of Appeal quashed the decision of 8 September 2006 and uph eld the decision of 10 February 2006.

On 31 January 2008 the Supreme Court of Ukraine rejected the second applicant ’ s appeal on points of law.

By letter of 31 July 2009 the Kherson Regional Department of the Ministry of Internal Affairs informed the applicants that the decree no. 230-98 “On measures for search and arrest of armed and other socially dangerous criminals” and the instruction on organisation of an operational plan “ Sirena ” were classified.

3. Various compensation proceedings

a. Compensation for damage inflicted by the applicants ’ son ’ s death

The applicants instituted proceedings against the Kherson Regional Police Department claiming damages inflicted by their son ’ s death. On 13 October 2000 the Suvorovskyy Court awarded them UAH 23,600 as compensation for non-pecuniary damage. This decision was quashed and the case remitted for a new consideration.

On 26 September 2001 the court awarded the applicants UAH 20,000. On 15 January 2002 the Kherson Regional Court of Appeal upheld it and it appears that by 25 October 2002 it had been fully enforced.

On 21 October 2002 the Supreme Court of Ukraine quashed this decision and rejected the applicants ’ claim, finding that after having accepted a full insurance payment, the applicants no longer had a valid compensation claim.

b. Compensation for ineffective investigation

In March 2006 the applicants instituted proceedings against the prosecutor ’ s offices at various levels. The applicants complained about ineffective investigation and claimed compensation for non-pecuniary damage.

After several refusals to consider their case because of the failure to comply with procedural requirements, on 6 February 2008 the Komsomolskyy District Court (“the Komsomolskyy Court ”) refused to institute such proceedings as the applicants ’ claim for damages should have been lodged under civil procedure.

On 24 December 2008 the Odessa Administrative Court of Appeal upheld this decision. The applicants appealed in cassation.

On 10 March 2011 the Higher Administrative Court upheld the above decisions. It held that the applicants should have complained about the unlawful actions of the prosecutor to a higher prosecutor.

In April 2009 the applicants instituted civil proceedings in the Komsomolskyy Court against the Kherson Prosecutor ’ s Office claiming damages inflicted by ineffective investigation. On 22 April 2009 the court refused to institute such proceedings on the ground that the applicants should have lodged their claim under the administrative law procedure. On 20 July 2009 the Kherson Regional Court of Appeal upheld this decision. The applicants did not appeal against these decisions.

c. Proceedings against the Ministry of Internal Affairs

In February 2009 the second applicant instituted administrative proceedings in the Kherson Regional Administrative Court against the Ministry of Internal Affairs and the Kherson Department of the Ministry of Internal Affairs complaining that their actions related to organisation of the police training of 14 January 2000 had been unlawful. It is not clear whether she claimed any compensation in this respect.

On 26 June 2009 the Kherson Regional Administrative Court found against the second applicant. The court noted that the second applicant ’ s son ’ s death had been investigated several times. As a result K. was found guilty but amnestied, criminal proceedings against other police officers were terminated for the absence of the evidence of crime, and police officers S. and I. had been disciplined. Moreover, the second applicant ’ s son died in 2000, but the second applicant lodged her claim only in 2009.

On 4 January 2010 the Odessa Administrative Court of Appeal returned the second applicant ’ s appeal as lodged out of time.

On 16 November 2010 the Higher Administrative Court of Ukraine upheld the decision of 4 January 2010.

COMPLAINTS

The applicants complain under Article 2 of the Convention that the police failed to ensure the safety of the exercise participants and as a result their son was killed.

The applicants further complain that the investigation of the events in question was very lengthy and inefficient.

The applicants also invoke Articles 13 and 14 of the Convention.

QUESTIONS TO THE PARTIES

1. Has the applicants ’ son ’ s right to life, ensured by Article 2 of the Convention, been violated in the present case? In particular, having regard to the State ’ s positive obligation under Article 2 of the Convention to regulate hazardous activities so as to minimise risk to life (see, mutatis mutandis , Öneryıldız v. Turkey [GC], no. 48939/99, §§ 89-92, ECHR 2004 XII), did the authorities take all measures that could be reasonably expected from them in planning and organising the police training exercise during which the applicants ’ son was killed? Is the practice of not informing the police officers involved that they are taking part in a training exercise relevant to the considerations under Article 2 of the Convention?

2. 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 of the organisation and conduct of the training exercise in the present case by the domestic a uthorities in breach of Article 2 of the Convention ?

3. Did the applicants have at their disposal an effective domestic remedy for their complaints under Article 2, as required by Article 13 of the Convention? If yes, did they exhaust it?