I correctly predicted that there was a violation of human rights in KABANOVA v. UKRAINE.

Judgment

FIFTH SECTION

CASE OF KABANOVA v. UKRAINE
(Application no. 17317/08)

JUDGMENT

STRASBOURG
15 October 2020

This judgment is final but it may be subject to editorial revision. In the case of Kabanova v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Mārtiņš Mits, President,Ganna Yudkivska,Anja Seibert-Fohr, judges,and Anne-Marie Dougin, Acting Deputy Section Registrar,
Having regard to:
the application against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Ms Natalya Vitalyevna Kabanova (“the applicant”), on 26 March 2008;
the decision to give notice to the Ukrainian Government (“the Government”) of the complaints under Articles 2 and 3 of the Convention concerning the ineffectiveness of the investigation into a traffic accident and to declare inadmissible the remainder of the application;
the parties’ observations;
Having deliberated in private on 22 September 2020,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
The application concerns complaints under Articles 2 and 3 of the Convention regarding the ineffectiveness of the investigation into a traffic accident which the applicant survived, while sustaining bodily injuries. THE FACTS
1. The applicant was born in 1984 and lives in Donetsk. 2. The Government were represented by their Agent, Mr I. Lishchyna. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. In the evening of 17 March 2006, the applicant was hit by a car while crossing a street in the city of Donetsk. She was taken by ambulance to hospital, where she was diagnosed with fractures of the left thigh bone and of two bones in the lower part of her left leg; injuries to her left hand, head and neck; numerous bruises on her body; and second or third-degree traumatic shock. The applicant was treated in hospital until 7 April 2006, when she was discharged as her condition was considered stable. She was in the early stages of pregnancy at the time. 5. Throughout the following year the applicant had to undergo inpatient and outpatient treatment for her injuries. In June 2006 she had a miscarriage resulting in spontaneous termination of her pregnancy. Between 21 September 2006 and 1 November 2007 she was officially recognised as having the second (medium) degree of disability. 6. Between 20 December 2006 and 10 January 2007 the applicant was again admitted to hospital and had an operation on account of the injuries sustained in the traffic accident. She then underwent inpatient treatment and was discharged from hospital with medical prescriptions and recommendations for further outpatient treatment. 7. Following the accident, the investigative authorities inspected the scene in the presence of the driver of the car, questioned the driver, the applicant and witnesses, and carried out a forensic technical examination. 8. On 25 April and 4 August 2006, 5 February and 23 November 2007, 12 May and 21 August 2009 and 14 May 2010, having conducted pre-investigation inquiries, the police investigators refused to open criminal proceedings on account of the lack of constituent elements of a criminal offence in the driver’s actions. Those decisions were subsequently quashed by the supervising authorities as ill-founded and further inquiries were ordered. The investigators were repeatedly criticised for their failure to assemble the relevant evidence, remove the contradictions in the available evidence, and produce a substantiated decision on their inquiries. 9. On 31 January 2011 an investigator from the Donetsk police initiated criminal proceedings in relation to the traffic accident. In the course of the criminal investigation, the authorities carried out a range of investigative actions, including a reconstruction of the accident in the presence of the driver of the car, forensic medical and technical examinations, and questioning of the driver and witnesses. 10. On 12 April 2011 the forensic medical expert found no causal link between the accident and the applicant’s miscarriage, noting that the miscarriage had taken place three months after the accident. 11. On 19 May 2011 the forensic technical expert concluded that it had been impossible for the driver of the car to avoid hitting the applicant. 12. On 27 May and 28 September 2011 the investigator closed the criminal proceedings on account of the lack of a criminal offence in the driver’s actions, finding that it had been impossible for the driver to avoid hitting the applicant. Those decisions were reversed by supervising prosecutors because of the incompleteness of the investigation and further investigations were ordered. 13. On 21 November 2011, in response to a complaint by the applicant, the Prosecutors’ Office acknowledged various flaws on the part of the investigative authorities and informed her that disciplinary proceedings had been initiated against the investigator in charge. The applicant’s case was assigned to another investigator. 14. On 10 January 2013 the criminal proceedings were reinitiated under the new Code of Criminal Procedure of 2012. The applicant joined the proceedings as an injured party. 15. Because of the contradictory findings of the previous forensic technical examinations as regards the culpability of the driver of the car, on 19 April 2013 additional technical and trace examinations were ordered. On 12 July 2013 the expert found no causal link between the accident and the driver’s actions. 16. On 26 August 2013, on the basis of the findings of the above-mentioned expert report, the investigator terminated the criminal proceedings on account of the lack of constituent elements of a crime. 17. On 27 August 2013 that decision was reversed by the Donetsk regional prosecutor’s office as unlawful and a further investigation was ordered. Instructions were given on how to proceed with the investigation. In this connection disciplinary proceedings were instituted against the investigator. 18. On 15 October 2013 an additional forensic technical examination was ordered. 19. From April 2014 illegal armed groups associated with two self-proclaimed entities known as the “Donetsk People’s Republic” and the “Luhansk People’s Republic” began operating in the Donetsk and Luhansk regions, seizing control of certain parts of those regions by force. A ceasefire line was later put in place (see Vyshnyakov v. Ukraine, no. 25612/12, § 20, 24 July 2018 and Burgas v. Ukraine [Committee], no. 8976/07, § 26, 18 December 2018). 20. On 4 November 2015 the Ukrainian authorities decided to close the criminal case, as in the absence of the case file, it had not been possible to continue the investigation of the accident. RELEVANT LEGAL FRAMEWORK
21. The relevant provisions of the domestic law can be found in Muravskaya v. Ukraine (no. 249/03, §§ 35-36, 13 November 2008) and Nagorskiy v. Ukraine ((dec.), no. 37794/14, § 38, 12 January 2016). THE LAW
22. The applicant complained that the criminal investigations into the traffic accident in which she had sustained numerous bodily injuries had been ineffective. 23. The complaint should be examined under Articles 2 and 3 of the Convention which provide as follows:
Article 2
“1. Everyone’s right to life shall be protected by law....”
Article 3
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
24. The Government submitted that the present case fell under the procedural limb of Article 3 of the Convention and contended that the criminal investigations into the traffic accident in issue had been effective. They further maintained that there had been no serious delays on the part of the domestic authorities and that the applicant had contributed to the overall length of the proceedings by repeatedly seeking the re-examination of the investigator’s findings. 25. The applicant submitted that the accident had put her life in real danger and that she had sustained serious bodily injuries which had required long-term medical treatment. She further alleged that the investigation into the circumstances of the accident had been unreasonably lengthy and ineffective. 26. The Court must first determine whether Articles 2 and 3 of the Convention are applicable to the facts of the present case. 27. It notes that the applicant sustained numerous injuries in the accident; however, there is no indication that the driver of the car had any intention to harm, humiliate or debase the applicant. The Court reiterates that bodily injuries and physical and mental suffering experienced by an individual following an accident which is merely the result of chance or negligent conduct cannot be regarded as the consequence of “treatment” to which that individual has been “subjected” within the meaning of Article 3 (see Nicolae Virgiliu Tănase v. Romania [GC], no. 41720/13, § 123, 25 June 2019). It follows that Article 3 is not applicable in the present circumstances. 28. This part of the application is thus incompatible ratione materiae with the provisions of the Convention, within the meaning of Article 35 §§ 3 (a) and 4 (Nicolae Virgiliu Tănase, cited above, § 124). 29. As regards Article 2 of the Convention, the Court observes that the case concerns a pedestrian who was injured in a street. The applicant was hit by a car and sustained numerous bodily injuries, including a fracture of the left thigh bone and a double fracture of the lower part of her left leg, which necessitated several operations and long-term medical treatment; she was officially recognised as having the second degree of disability for a considerable period of time (see paragraphs 4-6 above). 30. Having regard to the circumstances of the accident where the applicant was a pedestrian, a young pregnant woman who had sustained multiple serious injuries in the street, the Court considers that the risk to the applicant’s life at least appeared real and imminent at the time of the accident (see Nicolae Virgiliu Tănase, cited above, §§ 144-145). In the light of the above, the Court concludes that Article 2 is applicable. 31. The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. 32. The traffic accident which gave rise to the present application took place on 17 March 2006 (see paragraph 4 above). The Court has taken note of the military events of April 2014 in the Donetsk and Luhansk regions (see paragraph 19 above) and of their consequences (see paragraph 20 above). However, for the purposes of the examination of the present case, it is not necessary to determine whether the respondent State may be held responsible for the procedural failings which might have occurred after that date; indeed, a violation of the procedural limb of Article 2 of the Convention can be found in relation to the period preceding the outbreak of hostilities, for the reasons set out below (see, for the same approach, Burgas v. Ukraine [Committee], no. 8976/07, § 39, 18 December 2018). 33. The general principles concerning the State’s procedural obligations under Article 2 in the event of life-threatening injuries are described in Nicolae Virgiliu Tănase (cited above, §§ 162-71). 34. The Court notes that the Government did not contend that the applicant could have effectively pursued the matter arising from the car accident outside the framework of the criminal proceedings (compare Sergiyenko v. Ukraine, no. 47690/07, §§ 40 and 42, 19 April 2012). Moreover, given that the domestic rules on criminal procedure afforded the possibility of a joint examination of criminal responsibility and civil liability arising from the same culpable actions, the applicant acted reasonably in pursuing the case within the framework of the criminal proceedings. The Court will therefore examine whether the criminal investigations in issue satisfied the criteria of effectiveness required by Article 2 of the Convention (see Antonov v. Ukraine, no. 28096/04, §§ 47‐49, 3 November 2011; Zubkova v. Ukraine, no. 36660/08, § 38, 17 October 2013; and Prilutskiy v. Ukraine, no. 40429/08, § 42, 26 February 2015). 35. The Court observes that in the present case the procedural steps in relation to the traffic accident taken by the authorities took the form of pre-investigation inquiries which lasted for more than four and a half years. However, the Court has already held that pre-investigation inquiries do not comply with the principles of an effective remedy, because the inquiry officer can only take a limited number of steps and the victims have no formal status, meaning that they are excluded from effective participation in the procedure (see, mutatis mutandis, Strogan v. Ukraine, no. 30198/11, § 53, 6 October 2016, with further references). It is notable that throughout that long period of time the authorities supervising the quality of the pre-investigation inquiries repeatedly criticised the investigators and ordered further inquiries (see paragraph 8 above). The repetition of such remittal orders discloses a serious deficiency in the criminal proceedings (see Zubkova, cited above, § 40). 36. Eventually, once the full-scale investigation was opened in January 2011 (see paragraph 9 above), the investigators repeatedly discontinued the proceedings on ill-founded grounds. Consequently, those decisions were quashed by the supervising prosecutors who considered that the investigations had been incomplete and deficient (see paragraphs 12 and 17 above). In that regard, the domestic authorities initiated disciplinary proceedings against the investigators in charge for their failure to ensure proper investigation of the accident (see paragraphs 13 and 17 above). However, by April 2014, the length of the domestic inquiries and investigations had exceeded eight years, which does not appear to be justified in view of the above considerations. 37. Having examined the available material, the Court finds that the domestic proceedings lacked a thorough and comprehensive approach and that their length was unreasonable. 38. The Court therefore finds that by the time the armed hostilities started in April 2014 the domestic criminal proceedings were already faulty and ineffective, given the manner in which they had been conducted. 39. There has accordingly been a violation of Article 2 of the Convention under its procedural limb. 40. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
41. The applicant claimed that she had sustained non-pecuniary damage on account of the alleged violation of the Convention. She left the amount to the Court’s discretion. 42. The Government contended that there were no grounds for awarding damages. 43. The Court awards the applicant EUR 3,000 (three thousand euros) in respect of non-pecuniary damage, plus any tax that may be chargeable. 44. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY,
(a) that the respondent State is to pay the applicant, within three months, EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. Done in English, and notified in writing on 15 October 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Anne-Marie DouginMārtiņš Mits Acting Deputy RegistrarPresident