FIFTH SECTION

Application no. 40587/07 Kateryna Illivna REUS and others against Ukraine lodged on 8 September 2007

STATEMENT OF FACTS

A list of the applicants is set out in the appendix. All the applicants are relatives of Mr I. Cheban as specified in the appendix.

A. The circumstances of the case

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

On 23 December 2000 I. Cheban was struck by a car when crossing a street in the city of Chernivtsi . Following the accident he died in a hospital.

On 30 December 2000 the Chernivtsi city police refused to open criminal proceedings in connection with the accident noting that there had been no corpus delicti in the actions of T., the driver of the car.

On 16 January 2001 the Chernivtsi city prosecutor ’ s office quashed the decision of 30 December 2000 as unfounded and opened criminal proceedings for the negligent driving causing death of a victim.

On 16 March, 23 August, 17 September 2001, 15 May 2002, 11 July and 27 December 2003 the Chernivtsi city police terminated the proceedings on the grounds that there had been no corpus delicti in the actions of T.

Following the applicants ’ complaints, all these decisions were quashed by the supervising authorities as unsubstantiated and further investigations ordered. In particular, on 10 February 2004 the Shevchenkivskyy District Court of Chernivtsi quashed the decision of 27 December 2003 as unfounded and noted that there had been serious contradictions in the case file which had not been removed despite numerous orders given to the investigators dealing with the case. The court considered that it was still necessary to carry out additional investigative measures and expert examinations.

On 6 April 2005 the Chernivtsi city police terminated the proceedings on the grounds that there had been no corpus delicti in the actions of T. The police referred to the results of expert examinations carried out between 2001 and 2003 suggesting that T. had no technical possibility to avoid accident; at the same time the materials of the file suggested that I. Cheban violated the traffic rules.

On 6 January 2006 the Shevchenkivskyy District Court of Chernivtsi upheld that decision noting that it was lawful and substantiated.

On 14 March 2006 and 10 April 2007 the Chernivtsi Region Court of Appeal and the Supreme Court, respectively, upheld the judgment of the first-instance court.

B. Relevant domestic law

1. Civil Code of 1966 (in force until 1 January 2004)

Article 450 provided as follows:

“Organisations and citizens whose activities give rise to an increased hazard to their environment (transport organisations, industrial enterprises, construction sites, vihicle owners etc.) shall be obliged to compensate any damage caused by the source of that increased hazard unless they prove that the damage resulted from the force majeure or from intentional actions of the victim.”

Article 454 provided as follows:

“If gross negligence of the victim gave rise to the damage or contributed to its increase, the amount of compensation shall be decreased ... or the compensation shall be refused, depending on the degree of the victim ’ s guilt ...”

2. Code of Criminal Procedure of 1960

The relevant provisions of the Code can be found in the judgment in the case of Kaverzin v. Ukraine (no. 23893/03 , § 45, 15 May 2012) .

COMPLAINTS

The applicants complain under Article 6 and 13 of the Convention that the domestic proceedings concerning the death of their relative were not effective.

QUESTIONS TO THE PARTIES

1. Have the applicants complied with the rule of exhaustion of domestic remedies in respect of their complaints of ineffectiveness of domestic proceedings concerning the death of their relative? In particular, could the applicants institute separate non-criminal proceedings seeking redress on account of the accident? Would those proceedings be effective in the circumstances of the present case?

The Government are invited to provide examples of the domestic case ‑ law.

2. 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?

Appendix

N o .

First name LASTNAME

Birth date

Birth year

Nationality

Place of residence

Relationship

Kateryna Illivna REUS

28/02/1955

1955Ukrainian

Chernivtsi

Cheban ’ s widow

Oleksandr Georgiyovych CHEBAN

11/11/1953

1953Ukrainian

Chernivtsi

Cheban ’ s brother

Nina Georgiyivna CHOBAN

30/09/1955

1955Ukrainian

Chernivtsi

Cheban ’ s sister

Lyudmyla Ivanivna CHEBAN

17/01/1985

1985Ukrainian

Chernivtsi

Cheban ’ s daughter

Georgiy Leontiyovych CHEBAN

22/09/1927

1927Moldovan

Yarivka

Cheban ’ s father