I correctly predicted that there was a violation of human rights in TATAYEV AND OTHERS v. RUSSIA.

Information

  • Judgment date: 2021-10-14
  • Communication date: 2017-08-08
  • Application number(s): 51928/15
  • Country:   RUS
  • Relevant ECHR article(s): 2, 2-1, 3, 13
  • Conclusion:
    Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)
  • Result: Violation
  • SEE FINAL JUDGMENT

JURI Prediction

  • Probability: 0.616993
  • Prediction: Violation
  • Consistent


Legend

 In line with the court's judgment
 In opposition to the court's judgment
Darker color: higher probability
: In line with the court's judgment  
: In opposition to the court's judgment

Communication text used for prediction

The applicants are: 1) Mr Said-Khamzat (also spelt as Saidkhamzat) Tatayev, who was born in 1958, 2) Mr Lecha Susayev, who was born in 1958, 3) Ms Novdash Bakharchiyeva, who was born in 1971, 4) Mr Ali Vakhayev, who was born in 1959, 5) Mr Adlan Multayev, who was born in 1993, 6) Ms Yakha Tatayeva, who was born in 1958, 7) Ms Malika Vakhayeva, who was born in 1963.
The applicants are Russian nationals who reside in Achkhoy-Martan, the Chechen Republic.
They are represented before the Court by lawyers from the Stichting Russian Justice Initiative (in collaboration with the Astreya NGO) (SRJI/Astreya).
The first and sixth applicants are the parents of Mr Movsar Tatayev, who was born in 1988, while the first applicant is also the uncle of Mr Shamil Katayev, who was born in 1991; the second applicant is the father of Mr Ramzan Susayev, who was born in 1969; the third applicant is the mother of Mr Movsar Dokhayev, who was born in 1992; the fourth and seventh applicants are the siblings of Mr Mayr-Ali Vakhayev, who was born in 1966.
The applicants alleged that their relatives, Mr Movsar Tatayev, Mr Shamil Katayev, Mr Ramzan Susayev and Mr Movsar Dokhayev, were killed during a special operation which was carried out by the State authorities on 11 and 12 February 2010 in Arshty village in Ingushetia, close to the administrative border with Chechnya.
They also allege that Mr Mayr-Ali Vakhayev went missing and that the fifth applicant, Mr Adlan Multayev, was wounded by State agents during the same operation.
The facts of the case, as submitted by the applicants, may be summarised as follows.
A.
The events of 10-13 February 2010 Background information On 26 January 2010 the head of the Operational Headquarters of the National Counterterrorism Committee (оперативный штаб национального антитеррористического комитета) in Ingushetia ordered a large-scale counter-terrorist operation in the Sunzhenskiy district of the Republic, situated on the administrative border with Chechnya, with “the aim of arresting members of illegal armed groups and the elimination of the threat of terrorist attacks in the Republic of Ingushetia”.
The operation was to start at 9 a.m. on 27 January 2010 and be conducted after the imposition of a special regime for the counter-terrorist operation (“the CTO regime”).
No final date for the operation was specified.
At the beginning of February 2010 the residents of the Achkhoy-Martan district in Chechnya obtained written permission from the head of the district administration to pick ramsons (wild garlic) in the forest in the Sunzhenskiy district.
The picking of ramsons is a traditional source of seasonal earnings for local families.
On the morning of 11 February 2010 about 200 residents of Achkhoy‐Martan district drove to the forest near Arshty village in the Sunzhenskiy district.
There were no signs, markings or warnings around the area and no other information concerning a special counter‐terrorist operation in the vicinity.
At about 2.30 p.m. on 11 February 2010 the people picking ramsons heard shooting nearby and started to leave the forest.
At the edge of the forest they saw buses and military vehicles with servicemen and police, who put them into the buses and ordered them to remain inside.
When about 150 other pickers came out of the forest, the servicemen opened fire.
The people inside the buses asked them to stop, saying there were still ramsons pickers in the forest, but to no avail.
At about 8 p.m. the people being detained in the buses were taken to Nesterovskaya police station and fingerprinted.
On 13 February 2010, after the end of the operation, the applicants and their relatives found the bodies of four ramsons pickers with gunshot and splinter wounds.
They were Mr Movsar Tatayev, Mr Shamil Katayev, Mr Ramzan Susayev and Mr Movsar Dokhayev.
Mr Mayr-Ali Vakhayev never returned home and has been missing since.
The fifth applicant, Mr Adlan Multayev, was wounded during the special operation.
(a) Attack on Mr Movsar Tatayev, Mr Shamil Katayev and the fifth applicant Early in the morning of 11 February 2010 (in the documents submitted the date was also given as 10 February 2010), the applicants’ relatives, Mr Tatayev, Mr Katayev and the fifth applicant arrived at the forest to pick ramsons.
At about 2.30 p.m. that afternoon, as they left the forest together after picking the ramsons, they came under fire from a nearby hill.
Mr Tatayev and Mr Katayev were shot dead on the spot and the fifth applicant received a perforating wound to the left leg.
He fell on the ground bleeding.
He later heard his brother calling his name, but could not move as he was subjected to gunfire each time he tried.
The fifth applicant managed to crawl into a pit in the ground, where he stayed for two days.
On 13 February 2010 the bodies of Mr Tatayev and Mr Katayev were found in the forest with numerous gunshot wounds.
The fifth applicant was admitted to Achkhoy-Martan Central District Hospital for treatment the same day, 13 February 2010.
It was established that he had a “perforating splinter wound of the lower one-third of the left shin and a splinter knee wound in the left knee area.” He was discharged from hospital on 24 February 2010.
(b) Attack on Mr Ramzan Susayev and Mr Movsar Dokhayev Early in the morning of 11 February 2010 the applicant’s relatives Mr Susayev and Mr Dokhayev and a number of other residents of Achkhoy‐Martan district arrived in the vicinity of the forest in a PAZ bus to pick ramsons.
They were leaving the forest at about 2 p.m. when they were shot dead.
Mr Susayev died from gunshot wounds to the chest while Mr Dokhayev was killed by three shots to the back.
(c) The disappearance of Mr Mayr-Ali Vakhayev Early in the morning of 11 February 2010 Mr Vakhayev arrived at the forest to pick ramsons.
According to fellow ramsons pickers, when he heard the shooting in the afternoon, he decided to stay in the forest, hoping that it would help him to survive.
The others decided to leave the forest and walked away.
Shortly after the special operation had ended, the fourth applicant went to the forest with the police to search for his brother, Mr Vakhayev, but to no avail.
In support of their application, the applicants submitted copies of their statements to the authorities and of documents from the investigation file in the criminal case opened in connection with the incident, including the results of forensic examinations of their relatives’ bodies.
B.
Official investigation into the events of 10-13 February 2010 1.
Investigation into the killing of the applicants’ relatives and the wounding of the fifth applicant (a) Initial steps taken by the investigation On 13 February 2010 the Sunzhenskiy district investigations department (“the investigators”) opened criminal case no.
10600021 under Articles 317, 208 and 222 of the Russian Criminal Code (assault on law-enforcement officers, membership of an illegal armed group and unlawful possession of firearms).
The decision stated, inter alia, the following: “... on 11 February 2017, in the forest about 4.5 km from Arshty village in the Sunzhenskiy district ...a group of members of illegal armed groups of at least 14 persons made an attempt on the lives of servicemen of the Federal Security Service who had been conducting a special operation aimed at finding and arresting members of illegal armed groups.
As a result of the armed clash, which lasted until 12 February 2010, the fourteen unidentified persons received gunshot wounds from which they died on the spot.” On 18 February 2010 the first applicant complained to prosecutors in Chechnya and Ingushetia respectively.
He described the circumstances of the incident and stressed that the authorities had provided no information to residents about the special operation.
He said the forest area had been neither cordoned off nor protected with any warning signs.
After leaving the forest, the applicant had told two Ingush police officers that the military servicemen should stop firing as about 100 to 120 ramsons pickers remained in the forest.
However, the officers had paid no attention to him.
After spending several hours being guarded at gunpoint by Russian servicemen, the applicant had been taken to Nesterovskaya village at about 7.30 p.m., where he and the other pickers had been fingerprinted and questioned.
At about noon on the following day, 12 February 2010, he had learnt that four civilians had been killed, including his son.
The applicant requested that the authorities take steps to prosecute, firstly, the people responsible for failing to warn residents about the special operation and cordon off the area and, secondly, the culprits who had opened fire on the civilians without provocation.
On 18 February 2010 the third applicant complained to the prosecutors of Chechnya and Ingushetia respectively.
She provided a description of the events that was similar to that of the first applicant (see above), requested that a criminal case be opened into her son’s murder and that she be granted victim status in that case.
On unspecified dates in February or March 2010 the investigators examined the bodies of the applicants’ four relatives and ordered a forensic examination of the bullets and splinters of shell found in the bodies.
On an unspecified date in February or March 2010 the investigators questioned the senior operational search officer of the 5th inter-district unit of the 2nd operational-search bureau of the Main Directorate of the Russian Ministry of the Interior in the Southern Federal District (5й межрайонный отдел 2го оперативно-розыскного бюро ГУ МВД России по ЮФО) (“the operational-search bureau”) Mr A. Sh.
He stated that on 11 February 2010 he and his colleagues had been informed about a special operation against illegal armed groups.
They had been dispatched to the area, which was close to Arshty village.
However, they had been stopped by federal servicemen next to the forest, who had told them that the operation was still in progress and that officers from local law‐enforcement agencies were not allowed to enter the area.
He had later learnt that Federal Security Service (the FSB) officers from the central part of Russia had conducted the special operation, with the assistance of the military and the local department of the Federal Security Service.
No local policemen had participated in the operation.
He and his colleagues had been allowed to enter the operational area on 12 February 2010, when the cordon had already been removed.
Among the numerous local law-enforcement agency officers, there had been many residents from the nearby area, who had been looking for relatives who had gone ramsons picking in the forest on 11 February and had not returned.
On the afternoon of 12 February 2010 he had gone to the forest with his colleagues.
They had found fourteen bodies, including those of the applicants’ four relatives who had been in civilian clothing.
The group had been given permission to take the bodies of the four civilians, but not the others.
Overall, they had found twenty-two bodies, including the four civilians, between 12 and 13 February 2010.
On an unspecified date in February or March 2010 the investigators questioned Officer A.Da.
from the operational-search bureau, whose statement was similar to that of his colleague Mr A. Sh.
On an unspecified date in February or March 2010 the investigators obtained copies of the permission for ramsons picking issued by the Achkhoy-Martan village administration to Shamil Katayev and the fifth applicant.
On an unspecified date in February or March 2010 the investigators questioned the head of the Ingushetia Government, Mr Vorobyev, who stated that on 7 or 8 February 2010 he had informed the head of the Sunzhenskiy district administration that a large-scale special operation was to be carried out there.
That official had been supposed to inform residents of villages situated in the area on the Ingush side of the administrative border and villages on the Chechen side.
Within twenty-four hours the head of the Sunzhenskiy district administration had reported to him that the task had been carried out.
On an unspecified date in February or March 2010 the investigators questioned the head of the Ingushetia Department of the FSB, General Gurba, who stated, amongst other things, that on 7 or 8 February 2010 he had asked Mr Vorobyev to inform residents of the border area about the special operation.
On 1 March 2010 the investigators questioned FSB officer Yu.B., who stated that between 11 and 12 February 2010 the FSB had carried out a special operation in the vicinity of Bamut district (Chechnya) and Sunzhenskiy district (Ingushetia) to eliminate members of illegal armed groups.
Police and Interior Ministry troops had also participated in the operation.
Local residents had been warned about the operation beforehand through the heads of local administrations.
As a result of the operation eighteen militants had been eliminated.
FSB officers had not caused any gunshot or splinter wounds to civilians.
As for the four civilians who had been killed during the operation, it remained undetermined whether they had indeed been civilians or why they had been in the forest during the special operation.
Furthermore, lethal force had been used to secure officers’ safety and to stop the criminal activities of members of illegal armed groups.
On 1 or 2 March 2010 the investigators questioned the fourth applicant, whose statement concerning the circumstances of the special operation was similar to the applicants’ submissions to the Court.
In addition, he stated that shortly after the end of the operation, he had gone to the forest with local police officers.
They had found the bodies of many people who had been killed during the operation, but not that of his brother, Mayr-Ali Vakhayev, who had gone missing.
The applicant provided a photograph of his missing brother to the investigators.
On 4 March 2010 the investigators granted the first applicant victim status in criminal case no.
10600021.
The applicant was informed of that decision on 10 March 2010.
On 4 March 2010 the investigators granted the fifth applicant victim status in criminal case no.
10600021, informing him on 12 March 2010.
On 4 March 2010 the investigators granted the third applicant victim status in criminal case no.
10600021.
She was informed on 11 March 2010.
On 9 March 2010 the investigators questioned Mr E.Y., who stated that he owned a PAZ bus which he regularly used to transport Achkhoy-Martan district residents for ramsons picking.
He usually picked them up at about 6 a.m. and they arrived at the forest at about 7 a.m. On 11 February 2010 he had driven twenty-one people from Achkhoy-Martan to the vicinity of Arshty, including the applicants’ relatives Movsar Tatayev, Shamil Katayev, Mayr-Ali Vakhayev and the fifth applicant.
The passengers had left the bus and gone to the forest, agreeing to return at 4.30 p.m.
He had not seen any servicemen or military vehicles on the way to or from the forest and there had been no signs of a special operation.
He had driven back to the forest from Achkhoy-Martan at about 3 p.m. and had seen a lot of military vehicles, State servicemen and police and the artillery which had been firing into the forest next to Arshty.
He and a number of local residents had been ordered to stay in the bus and at about 8 p.m. they had been taken in the bus to Nesterovskaya police station, where they had been fingerprinted.
On the following day he had found out about the four civilian casualties and the wounding of the fifth applicant.
On 10 March 2010 the investigators questioned the first applicant, whose statements were similar to the applicants’ submissions to the Court.
In addition, he stressed that neither he nor his fellow ramsons pickers had been warned about the special operation in the area.
When he had asked the servicemen to stop firing at the civilians who had not yet come out of the forest, their commander had replied to him by saying, “We did not ask you to come here, you should have stayed at home”.
The applicant stressed that in his opinion, his son, the applicants’ three other relatives and the fifth applicant had been intentionally subjected to gunfire.
On 12 March 2010 the investigators questioned Mr I.Ch., who stated that like many other residents of Achkhoy-Martan district he regularly participated in the seasonal ramsons picking.
He stated that he had gone to pick the plants on 11 February 2010 and his statement concerning the events was similar to those given to the authorities by the first applicant and in the applicants’ submissions to the Court.
On 12 March 2010 the investigators also questioned the second applicant, who stated that on the morning of 11 February 2010 he had stayed at home, while his son, Ramzan Susayev, had gone to pick ramsons with his fellow villagers.
He had learnt that afternoon that a number of villagers had been detained in Arshty by State servicemen and he had gone there.
However, the servicemen who had cordoned off the area had not allowed him to approach the forest to find out what had happened to his son.
His son’s body had been released by the authorities and taken home on 13 February 2010.
On 12 March 2010 the investigators questioned the fifth applicant’s brother, Mr A.M., who was a minor of fifteen or sixteen.
He stated that like many other residents of Achkhoy-Martan district he had regularly participated in the seasonal picking of ramsons.
He and the fifth applicant had gone to pick the plant on 11 February 2010.
On the way to the forest with the other villagers he had seen neither signs warning of the special operation nor State servicemen.
At about 2.30 p.m., as he and several villagers had been walking on a path in the forest, they had been subjected to automatic gunfire.
He had fallen to the ground and cried to the people to stop shooting.
The men, who were military servicemen, had asked him what they were doing in the forest and he had explained that they were picking ramsons.
The servicemen had been not visible in the snow as they had been in white camouflage uniforms.
The servicemen had then asked him to take his clothes off and show them what he had in his backpack.
When he got up, he had seen that Movsar Tatayev had been shot dead and that Shamil Katayev had been wounded.
He had asked the servicemen to provide medical assistance to the wounded Mr Katayev and pull him out of the ditch, but the servicemen had refused and told him to do it himself.
He had tried, but to no avail.
The servicemen had then made him take his shoes off and had blindfolded him.
He had been transferred by the servicemen to a military unit where he had spent the night.
On the following morning, he had been handed over to the head of Arshty village administration and had then gone home.
On 13 February 2010 he had returned to the forest with his relatives and Ingush policemen to search for the fifth applicant.
He had learnt later that day that the fifth applicant had managed to get out of the forest and had been taken home by residents of Achkhoy-Martan who had arrived at the forest to look for missing relatives.
On 25 March 2010 the investigators ordered a forensic expert examination of the fifth applicant to determine the gravity of his injuries.
On the following day the expert examined the applicant and on 23 April 2010 issued a report, which stated that his gunshot wounds were classified as having caused “slight harm to the health.” (b) Refusal by military investigators to investigate the incident On 26 March 2010 the investigators decided to sever part of the investigation file in criminal case no.
10600021, comprising 1,107 pages, and send it to military investigators for further investigation.
The decision stated as follows: “As established by the investigation, the death of Movsar Dokhayev, Shamil Katayev, Ramzan Susayev and Movsar Tatayev and the wounding of Adlan Multayev were caused by the servicemen who participated in the special operation against members of illegal armed groups ...” On 30 April 2010 the investigators forwarded the severed part of the criminal case file to the military investigations unit of the Tverskoy Garrison in the Tver Region (“the military investigators”).
On 30 May 2010 the military investigators refused to initiate a criminal investigation into the killing of the applicants’ relatives and the wounding of the fifth applicant for lack of corpus delicti in the actions of the FSB officers.
They stated that it had been impossible during the special operation to establish who was a civilian and who belonged to illegal armed groups.
The applicants were not informed of that decision.
(c) Termination of the investigation in the criminal case On 6 May 2010 the investigation in the criminal case was joined with the investigation of criminal case no.
10600038, opened on 16 March 2010 against a Mr Sh.
Buzurtanov under Article 208 of the Criminal Code (membership of an illegal armed group).
With accomplices, he had participated in shooting at servicemen during the special operation but had managed to escape (see below).
On 26 February 2014 the investigators obtained information that Mr Buzurtanov had actually died on 22 June 2009.
On 28 February 2014 the investigators decided to terminate the investigation of criminal case no.
10600021 owing to the suspect’s death.
(d) Court complaints against the investigators On 24 December 2013 the first, second and third applicants complained to the head of the Ingushetia investigations department in Magas that the investigation into their relatives’ killing had been ineffective and that they had not been informed of the progress of the proceedings.
The applicants requested access to the entire contents of the investigation file in criminal case no.
10600021.
They received no reply.
On 10 February 2014 the first and second applicants complained to the Magas District Court (“the District Court”) that the investigation into the killing had been ineffective, that the investigators had not informed them of the progress of the criminal case and requested access to the entire contents of the investigation file in criminal case no.
10600021.
The outcome of the complaint is unknown.
Meanwhile, the investigation in the criminal case was terminated on 28 February 2014 (see above).
The applicants were not informed of that decision.
Nonetheless, on 2 March 2015 the applicants appealed to the District Court against the decision of 28 February 2014 to close the investigation.
They stated, in particular, that the investigation had only looked into the theory that their relatives had been killed by members of illegal armed groups and that no steps had been taken to check whether they could have been killed by State agents; the investigators had not even established the location of any members of illegal armed groups or of State agents in order to determine who had been at the origin of the lethal gunfire that had targeted their relatives.
They also stressed that the authorities had not warned residents of the special operation and had allowed civilians to enter the forest for ramsons picking.
The investigation had failed to establish who had been responsible for the failure to provide that vital information and prevent the pickers from going into the area.
Finally, they complained that the investigators had failed to provide them with information on the progress of the investigation and requested that the decision to terminate the proceedings be overruled as premature and unlawful.
On 10 March 2015 the District Court rejected the applicants’ complaint as unsubstantiated.
On 20 March 2015 the applicants appealed against that decision to the Ingushetia Supreme Court.
On 14 April 2015 the Supreme Court upheld the impugned decision.
2.
Investigation into the disappearance of Mr Mayr-Ali Vakhayev (a) Steps taken by the investigation On 12 March 2010 investigators at Sunzhenskiy district investigations department opened criminal case no.
10600034 in connection with the disappearance of Mr Mayr-Ali Vakhayev under Article 105 of the Criminal Code (murder).
On 7 March 2010 the investigators questioned Mr Z.A., who stated that he had gone to the forest to pick ramsons with other villagers on 11 February 2010.
His statement concerning the circumstances of the incident was similar to the account given by the applicants to the Court.
In addition, he stated that at about 11 a.m. on 11 February 2010, when he and the other ramsons pickers had heard the shooting, they had decided to go to another part of the forest.
Mr Mayr-Ali Vakhayev, who had been walking at the back of their group, had suggested that they stay in the same place as it would be safer.
He and the others had disagreed and had kept walking.
At about 4 p.m., when he had been leaving the forest, he had not seen Mr Vakhayev among the dozens of pickers who had been there.
On 12 April 2010 the investigators granted the fourth applicant victim status in the criminal case.
On 23 April 2010 the investigators questioned the fourth applicant.
His statement was similar to the applicants’ submissions to the Court.
In addition, he stated that in his opinion the servicemen had intentionally opened fire on the civilians as the wounds on their bodies showed that they had been caused by well-aimed gunfire.
On 23 and 26 April 2010 the investigators questioned Mr R.M., Mr I.E.
and Mr Sh.O., who had all gone to pick ramsons on 11 February 2010 with other residents of Achkhoy-Martan and whose statements were similar to the applicants’ submissions to the Court.
In addition, they stated that they and relatives of Mayr-Ali Vakhayev had tried to search for him on 12 February 2010 but had been stopped from entering the forest by the servicemen.
On 26 April 2010 the Sunzhenskiy district investigations department transferred the investigation of the criminal case to the Ingushetia investigations department in Magas.
The fourth applicant was not informed of that decision.
On 10 November 2010 the fourth applicant asked to have access to the entire contents of the investigation file.
On 15 November 2010 the investigators refused to allow him to have access to the entire file but gave him access to documents concerning the steps he had taken part in.
On 18 January 2012 the fourth applicant’s lawyer requested access to the entire contents of the investigation file.
On 19 January 2012 the investigators only allowed access to documents concerning investigative steps taken that had involved the fourth applicant.
It appears that the proceedings are still ongoing.
(b) Appeals against the investigators’ actions On 8 April 2013 the fourth applicant complained to the Sunzhenskiy District Court (the District Court) that the investigation into his brother’s disappearance and the circumstances of the special operation had been ineffective and that the investigators had not allowed him to have full access to the contents of the criminal case file to assess the progress of the proceedings.
On 26 September 2013 the District Court found that the criminal case file had been transferred from the Sunzhenskiy district investigations department to the Ingushetia investigations department in Magas.
Therefore, the Court left the complaint without examination and stated that the complaint should have been lodged with another court.
On 15 January 2014 the fourth applicant complained to the Magas District Court that the investigation into his brother’s disappearance and the circumstances of the special operation had been ineffective and that the investigators had not allowed him to have full access to the entire contents of the criminal case file to assess the investigation.
On 29 January 2014 the Magas District Court left the complaint without examination as on 24 January 2014 the investigators of the criminal case had allowed the applicants’ request of 18 January 2012 to access the contents of the case file in part (see above).
C. Relevant domestic law For a summary of relevant domestic law see Abakarova v. Russia (no.
16664/07, §§ 59-62, 15 October 2015).
COMPLAINTS The applicants complain under the substantive limb of Article 2 of the Convention that the authorities failed to comply with their positive obligation to safeguard the right to life of their four killed relatives and that of the fifth applicant and the disappeared Mr Vakhayev by failing to warn them about the special operation.
Furthermore, the applicants allege that the authorities also failed to comply with the negative obligation of that provision as their four relatives and the fifth applicant had been shot intentionally by State agents and Mr Vakhayev had been abducted by them during the special operation.
The applicants complain under the procedural limb of Article 2 that the authorities failed to carry out an effective investigation into the matter.
Under Article 3 of the Convention, the fourth and seventh applicants complain of the mental suffering caused to them by the disappearance of their brother Mayr-Ali Vakhayev.
Under Article 13 of the Convention, the applicants complain of a lack of effective remedies in respect of the above-mentioned complaints

Judgment

FIFTH SECTION
CASE OF BOZHENKO v. UKRAINE
(Application no.
42595/14)

JUDGMENT
STRASBOURG
14 October 2021

This judgment is final but it may be subject to editorial revision.
In the case of Bozhenko v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Stéphanie Mourou-Vikström, President, Jovan Ilievski, Mattias Guyomar, judges,and Viktoriya Maradudina, Acting Deputy Section Registrar,
Having deliberated in private on 23 September 2021,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.
The case originated in an application against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 10 July 2014. 2. The applicant was represented by Mr O. Suprun, a lawyer practising in Kyrylivka. 3. The Ukrainian Government (“the Government”) were given notice of the application. The Government objected to the examination of the application by a Committee. Having considered the Government’s objection, the Court rejects it. THE FACTS
4.
The applicant’s details and information relevant to the application are set out in the appended table. 5. The applicant complained of ineffective investigation into the death of her husband, who had died in a traffic accident. THE LAW
6.
The applicant complained of the ineffective investigation into the death of her husband in a traffic accident. She relied on Articles 2, 6 § 1 and 13 of the Convention. 7. The Court, which is master of the characterisation to be given in law to the facts of the case, finds that the complaints at issue fall to be examined under Article 2 of the Convention (see Igor Shevchenko v. Ukraine, no. 22737/04, § 38, 12 January 2012). This provision, in so far as relevant, reads as follows:
Article 2 § 1
“1.
Everyone’s right to life shall be protected by law.”
8.
The Court notes at the outset that the present case falls to be examined from the perspective of the State’s obligation to conduct an effective investigation under the procedural limb of Article 2 of the Convention. The relevant general principles concerning the effectiveness of the investigation were summarized in Mustafa Tunç and Fecire Tunç v. Turkey [GC] (no. 24014/05, §§ 169-82, 14 April 2015). In particular, once the investigative obligation is triggered, compliance with the procedural requirement of Article 2 is assessed on the basis of several essential parameters: the adequacy of the investigative measures, the promptness of the investigation, the involvement of the deceased person’s family, and the independence of the investigation. These elements are inter‐related and each of them, taken separately, does not amount to an end in itself (ibid., § 225). 9. Moreover, this is not an obligation of results to be achieved but of means to be employed. The Court accepts that not every investigation is necessarily successful or comes to a conclusion coinciding with the claimant’s account of events. However, it should, in principle, be capable of leading to the establishment of the facts of the case and, if the allegations prove to be true, to the identification and punishment of those responsible (see Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 71, ECHR 2002-II). 10. Reviewing the facts of the present case in the light of those principles, the Court considers that the investigation was marked by various shortcomings, which had undermined the ability of the investigating authorities to establish the circumstances surrounding the death of the applicant’s husband, and who, if anyone, was responsible. The specific shortcomings are indicated in the appended table. 11. In the leading cases of Basyuk v. Ukraine (no. 51151/10, 5 November 2015), Pozhyvotko v. Ukraine (no. 42752/08, 17 October 2013) and Kachurka v. Ukraine (no. 4737/06, 15 September 2011), the Court already found violations in respect of issues similar to those in the present case. 12. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the investigation failed to meet the criteria of effectiveness. 13. These complaints are therefore admissible and disclose a breach of Article 2 of the Convention under its procedural limb. 14. 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.”
15.
Regard being had to the documents in its possession and to its case‐law (see, in particular, Basyuk v. Ukraine, no. 51151/10, §§ 74-80, 5 November 2015), the Court considers it reasonable to award the sums indicated in the appended table and it rejects any additional claims for just satisfaction raised by the applicant. 16. 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, the amounts indicated in the appended table, 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 amounts 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 14 October 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Viktoriya Maradudina Stéphanie Mourou-VikströmActing Deputy Registrar President

APPENDIX
Application raising complaints under Article 2 § 1 of the Convention
(ineffective investigation into death, caused by private parties or in circumstances that exclude involvement of State agents)
Application no.
Date of introduction
Applicant’s name
Year of birth
Representative’s name and location
Background to the case and domestic proceedings
Key issues
Amount awarded for pecuniary and non-pecuniary damage per applicant
(in euros)[1]
Amount awarded for costs and expenses per application
(in euros)[2]
42595/14
10/07/2014
Nadiya Sergiyivna BOZHENKO
1945
Suprun Oleg Mykolayovych
Kyrylivka
1.
The circumstances of the incident:
(i) 12/02/2004 – L. was driving a bus on the wrong lane and his bus collided with another bus, driven by P.; as a result of collision the latter bus was thrown away and crushed down the applicant’s husband, V., who was walking nearby and was seriously injured.
On the same day he died from the injuries sustained. 2. The course of the criminal investigation and its findings:
(i) 13/02/2004 – the criminal investigation into the accident was instituted; namely into the fact of breach of traffic rules that caused death of a person;
(ii) 21/02/2004 – the applicant was given a victim status;
(iii) 5/07/2004 – a prosecutor informed the applicant that the disciplinary proceedings were instituted against an investigator in charge of her case, because of the delays in investigation;
(iv) 25/01/2005 – an expert institution refused to conduct the expert examination of the vehicle, because it did not receive necessary information as regards the accident;
(v) 4/10/2005 – the applicant lodged a civil claim for damages within the criminal proceedings;
(vi) 20/01/2006 – L. was charged;
(vii) 16/02/2006 – the case was sent to the Kupyanskyy District Court for consideration;
(viii) 29/08/2008 – an expert institution informed the court that there had been no possibility to conduct an expert trace examination, because the information requested by the institution was not provided;
(ix) 17/07/2009 – the Kupyanskyy District Court found L. guilty of having violated traffic rules which caused the death of V. The court released L. from criminal liability under the Amnesty Act of 2008.
The court also partly allowed the applicant’s civil claim;
(x) 10/12/2009 – the Kharkiv Regional Court of Appeal quashed that judgment and remitted the case to the first instance court for fresh examination; it reasoned that there had been no grounds to apply Amnesty Act; and the spot of the collision of the buses had not been established by the first-instance court and, thus, those responsible had not been identified;
(xi) 13/03/2013 – the Kupyanskyy District Court remitted the case to the Kharkiv Regional Prosecutor’s Office for an additional investigation; the court reasoned that: the reconstruction of the scene of the accident had not been comprehensive, there had remained discrepancies as to the measurements, and the exact spot of the accident had not been established; the exact adhesion coefficient of tire-pavement interface had not been established and, thus, there remained discrepancies between the results of various expert examinations; it had not been established from what distance L. could have spotted the other bus; the investigating authorities had not analysed the information that at the moment of the accident there had been road sign “movement to the right is prohibited” and that P. had had no licence to drive a bus and had had no relevant experience in that regard;
(xii) 25/03/2014 – the Kupyanskyy Prosecutor’s Office opened another set of criminal proceedings against P., the driver of the second bus, on account of a breach of traffic rules that caused death of V.;
(xiii) 26/05/2014 the Kupyanskyy District Court terminated the criminal proceedings against L. as time-barred;
(xiv) 17/06/2014 – the Kharkiv Regional Court of Appeal left the applicant’s appeal without consideration and gave her a time-limit to rectify shortcomings of her appeal; namely, arguments invoked in her appeal had concerned not the decision of 26/05/2014, but another unknown decision, etc.
(xv) 01/07/2014 – the Kharkiv Regional Court of Appeal returned the appeal to the applicant, because she did not rectify its shortcomings. (xii) according to the most recent information, as of 19/06/2015 the investigation against P. was pending. insufficient measures during the preliminary stage of the investigation (Kachurka v. Ukraine, no. 4737/06, § 52, 15 September 2011);
investigation criticised by the national authorities themselves for lack of efficiency (Pozhyvotko v. Ukraine, no.
42752/08, § 40, 17 October 2013; Prynda v. Ukraine,
no.
10904/05, § 56,
31 July 2012);
lack of thoroughness and promptness which undermined the authorities’ ability to establish the circumstances of the case (Lyubov Efimenko v. Ukraine, no.
75726/01,
§§ 76-80, 25 November 2010);
numerous shortcomings in collection of evidence (Basyuk v. Ukraine, no.
51151/10, § 67, 5 November 2015; Antonov v. Ukraine, no. 28096/04, § 50, 3 November 2011; Prynda v. Ukraine, no. 10904/05, § 56,
31 July 2012);
repeated remittals of the case for additional investigation owing to the insufficiency of the measures taken by the investigators (Basyuk v. Ukraine, no.
51151/10, § 69,
5 November 2015).
6,000
250

[1] Plus any tax that may be chargeable to the applicant.
[2] Plus any tax that may be chargeable to the applicant. FIFTH SECTION
CASE OF BOZHENKO v. UKRAINE
(Application no.
42595/14)

JUDGMENT
STRASBOURG
14 October 2021

This judgment is final but it may be subject to editorial revision.
In the case of Bozhenko v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Stéphanie Mourou-Vikström, President, Jovan Ilievski, Mattias Guyomar, judges,and Viktoriya Maradudina, Acting Deputy Section Registrar,
Having deliberated in private on 23 September 2021,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.
The case originated in an application against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 10 July 2014. 2. The applicant was represented by Mr O. Suprun, a lawyer practising in Kyrylivka. 3. The Ukrainian Government (“the Government”) were given notice of the application. The Government objected to the examination of the application by a Committee. Having considered the Government’s objection, the Court rejects it. THE FACTS
4.
The applicant’s details and information relevant to the application are set out in the appended table. 5. The applicant complained of ineffective investigation into the death of her husband, who had died in a traffic accident. THE LAW
6.
The applicant complained of the ineffective investigation into the death of her husband in a traffic accident. She relied on Articles 2, 6 § 1 and 13 of the Convention. 7. The Court, which is master of the characterisation to be given in law to the facts of the case, finds that the complaints at issue fall to be examined under Article 2 of the Convention (see Igor Shevchenko v. Ukraine, no. 22737/04, § 38, 12 January 2012). This provision, in so far as relevant, reads as follows:
Article 2 § 1
“1.
Everyone’s right to life shall be protected by law.”
8.
The Court notes at the outset that the present case falls to be examined from the perspective of the State’s obligation to conduct an effective investigation under the procedural limb of Article 2 of the Convention. The relevant general principles concerning the effectiveness of the investigation were summarized in Mustafa Tunç and Fecire Tunç v. Turkey [GC] (no. 24014/05, §§ 169-82, 14 April 2015). In particular, once the investigative obligation is triggered, compliance with the procedural requirement of Article 2 is assessed on the basis of several essential parameters: the adequacy of the investigative measures, the promptness of the investigation, the involvement of the deceased person’s family, and the independence of the investigation. These elements are inter‐related and each of them, taken separately, does not amount to an end in itself (ibid., § 225). 9. Moreover, this is not an obligation of results to be achieved but of means to be employed. The Court accepts that not every investigation is necessarily successful or comes to a conclusion coinciding with the claimant’s account of events. However, it should, in principle, be capable of leading to the establishment of the facts of the case and, if the allegations prove to be true, to the identification and punishment of those responsible (see Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 71, ECHR 2002-II). 10. Reviewing the facts of the present case in the light of those principles, the Court considers that the investigation was marked by various shortcomings, which had undermined the ability of the investigating authorities to establish the circumstances surrounding the death of the applicant’s husband, and who, if anyone, was responsible. The specific shortcomings are indicated in the appended table. 11. In the leading cases of Basyuk v. Ukraine (no. 51151/10, 5 November 2015), Pozhyvotko v. Ukraine (no. 42752/08, 17 October 2013) and Kachurka v. Ukraine (no. 4737/06, 15 September 2011), the Court already found violations in respect of issues similar to those in the present case. 12. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the investigation failed to meet the criteria of effectiveness. 13. These complaints are therefore admissible and disclose a breach of Article 2 of the Convention under its procedural limb. 14. 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.”
15.
Regard being had to the documents in its possession and to its case‐law (see, in particular, Basyuk v. Ukraine, no. 51151/10, §§ 74-80, 5 November 2015), the Court considers it reasonable to award the sums indicated in the appended table and it rejects any additional claims for just satisfaction raised by the applicant. 16. 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, the amounts indicated in the appended table, 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 amounts 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 14 October 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Viktoriya Maradudina Stéphanie Mourou-VikströmActing Deputy Registrar President

APPENDIX
Application raising complaints under Article 2 § 1 of the Convention
(ineffective investigation into death, caused by private parties or in circumstances that exclude involvement of State agents)
Application no.
Date of introduction
Applicant’s name
Year of birth
Representative’s name and location
Background to the case and domestic proceedings
Key issues
Amount awarded for pecuniary and non-pecuniary damage per applicant
(in euros)[1]
Amount awarded for costs and expenses per application
(in euros)[2]
42595/14
10/07/2014
Nadiya Sergiyivna BOZHENKO
1945
Suprun Oleg Mykolayovych
Kyrylivka
1.
The circumstances of the incident:
(i) 12/02/2004 – L. was driving a bus on the wrong lane and his bus collided with another bus, driven by P.; as a result of collision the latter bus was thrown away and crushed down the applicant’s husband, V., who was walking nearby and was seriously injured.
On the same day he died from the injuries sustained. 2. The course of the criminal investigation and its findings:
(i) 13/02/2004 – the criminal investigation into the accident was instituted; namely into the fact of breach of traffic rules that caused death of a person;
(ii) 21/02/2004 – the applicant was given a victim status;
(iii) 5/07/2004 – a prosecutor informed the applicant that the disciplinary proceedings were instituted against an investigator in charge of her case, because of the delays in investigation;
(iv) 25/01/2005 – an expert institution refused to conduct the expert examination of the vehicle, because it did not receive necessary information as regards the accident;
(v) 4/10/2005 – the applicant lodged a civil claim for damages within the criminal proceedings;
(vi) 20/01/2006 – L. was charged;
(vii) 16/02/2006 – the case was sent to the Kupyanskyy District Court for consideration;
(viii) 29/08/2008 – an expert institution informed the court that there had been no possibility to conduct an expert trace examination, because the information requested by the institution was not provided;
(ix) 17/07/2009 – the Kupyanskyy District Court found L. guilty of having violated traffic rules which caused the death of V. The court released L. from criminal liability under the Amnesty Act of 2008.
The court also partly allowed the applicant’s civil claim;
(x) 10/12/2009 – the Kharkiv Regional Court of Appeal quashed that judgment and remitted the case to the first instance court for fresh examination; it reasoned that there had been no grounds to apply Amnesty Act; and the spot of the collision of the buses had not been established by the first-instance court and, thus, those responsible had not been identified;
(xi) 13/03/2013 – the Kupyanskyy District Court remitted the case to the Kharkiv Regional Prosecutor’s Office for an additional investigation; the court reasoned that: the reconstruction of the scene of the accident had not been comprehensive, there had remained discrepancies as to the measurements, and the exact spot of the accident had not been established; the exact adhesion coefficient of tire-pavement interface had not been established and, thus, there remained discrepancies between the results of various expert examinations; it had not been established from what distance L. could have spotted the other bus; the investigating authorities had not analysed the information that at the moment of the accident there had been road sign “movement to the right is prohibited” and that P. had had no licence to drive a bus and had had no relevant experience in that regard;
(xii) 25/03/2014 – the Kupyanskyy Prosecutor’s Office opened another set of criminal proceedings against P., the driver of the second bus, on account of a breach of traffic rules that caused death of V.;
(xiii) 26/05/2014 the Kupyanskyy District Court terminated the criminal proceedings against L. as time-barred;
(xiv) 17/06/2014 – the Kharkiv Regional Court of Appeal left the applicant’s appeal without consideration and gave her a time-limit to rectify shortcomings of her appeal; namely, arguments invoked in her appeal had concerned not the decision of 26/05/2014, but another unknown decision, etc.
(xv) 01/07/2014 – the Kharkiv Regional Court of Appeal returned the appeal to the applicant, because she did not rectify its shortcomings. (xii) according to the most recent information, as of 19/06/2015 the investigation against P. was pending. insufficient measures during the preliminary stage of the investigation (Kachurka v. Ukraine, no. 4737/06, § 52, 15 September 2011);
investigation criticised by the national authorities themselves for lack of efficiency (Pozhyvotko v. Ukraine, no.
42752/08, § 40, 17 October 2013; Prynda v. Ukraine,
no.
10904/05, § 56,
31 July 2012);
lack of thoroughness and promptness which undermined the authorities’ ability to establish the circumstances of the case (Lyubov Efimenko v. Ukraine, no.
75726/01,
§§ 76-80, 25 November 2010);
numerous shortcomings in collection of evidence (Basyuk v. Ukraine, no.
51151/10, § 67, 5 November 2015; Antonov v. Ukraine, no. 28096/04, § 50, 3 November 2011; Prynda v. Ukraine, no. 10904/05, § 56,
31 July 2012);
repeated remittals of the case for additional investigation owing to the insufficiency of the measures taken by the investigators (Basyuk v. Ukraine, no.
51151/10, § 69,
5 November 2015).
6,000
250

Application no.
Date of introduction
Applicant’s name
Year of birth
Representative’s name and location
Background to the case and domestic proceedings
Key issues
Amount awarded for pecuniary and non-pecuniary damage per applicant
(in euros)[1]
Amount awarded for costs and expenses per application
(in euros)[2]
42595/14
10/07/2014
Nadiya Sergiyivna BOZHENKO
1945
Suprun Oleg Mykolayovych
Kyrylivka
1.
The circumstances of the incident:
(i) 12/02/2004 – L. was driving a bus on the wrong lane and his bus collided with another bus, driven by P.; as a result of collision the latter bus was thrown away and crushed down the applicant’s husband, V., who was walking nearby and was seriously injured.
On the same day he died from the injuries sustained. 2. The course of the criminal investigation and its findings:
(i) 13/02/2004 – the criminal investigation into the accident was instituted; namely into the fact of breach of traffic rules that caused death of a person;
(ii) 21/02/2004 – the applicant was given a victim status;
(iii) 5/07/2004 – a prosecutor informed the applicant that the disciplinary proceedings were instituted against an investigator in charge of her case, because of the delays in investigation;
(iv) 25/01/2005 – an expert institution refused to conduct the expert examination of the vehicle, because it did not receive necessary information as regards the accident;
(v) 4/10/2005 – the applicant lodged a civil claim for damages within the criminal proceedings;
(vi) 20/01/2006 – L. was charged;
(vii) 16/02/2006 – the case was sent to the Kupyanskyy District Court for consideration;
(viii) 29/08/2008 – an expert institution informed the court that there had been no possibility to conduct an expert trace examination, because the information requested by the institution was not provided;
(ix) 17/07/2009 – the Kupyanskyy District Court found L. guilty of having violated traffic rules which caused the death of V. The court released L. from criminal liability under the Amnesty Act of 2008.
The court also partly allowed the applicant’s civil claim;
(x) 10/12/2009 – the Kharkiv Regional Court of Appeal quashed that judgment and remitted the case to the first instance court for fresh examination; it reasoned that there had been no grounds to apply Amnesty Act; and the spot of the collision of the buses had not been established by the first-instance court and, thus, those responsible had not been identified;
(xi) 13/03/2013 – the Kupyanskyy District Court remitted the case to the Kharkiv Regional Prosecutor’s Office for an additional investigation; the court reasoned that: the reconstruction of the scene of the accident had not been comprehensive, there had remained discrepancies as to the measurements, and the exact spot of the accident had not been established; the exact adhesion coefficient of tire-pavement interface had not been established and, thus, there remained discrepancies between the results of various expert examinations; it had not been established from what distance L. could have spotted the other bus; the investigating authorities had not analysed the information that at the moment of the accident there had been road sign “movement to the right is prohibited” and that P. had had no licence to drive a bus and had had no relevant experience in that regard;
(xii) 25/03/2014 – the Kupyanskyy Prosecutor’s Office opened another set of criminal proceedings against P., the driver of the second bus, on account of a breach of traffic rules that caused death of V.;
(xiii) 26/05/2014 the Kupyanskyy District Court terminated the criminal proceedings against L. as time-barred;
(xiv) 17/06/2014 – the Kharkiv Regional Court of Appeal left the applicant’s appeal without consideration and gave her a time-limit to rectify shortcomings of her appeal; namely, arguments invoked in her appeal had concerned not the decision of 26/05/2014, but another unknown decision, etc.
(xv) 01/07/2014 – the Kharkiv Regional Court of Appeal returned the appeal to the applicant, because she did not rectify its shortcomings. (xii) according to the most recent information, as of 19/06/2015 the investigation against P. was pending. insufficient measures during the preliminary stage of the investigation (Kachurka v. Ukraine, no. 4737/06, § 52, 15 September 2011);
investigation criticised by the national authorities themselves for lack of efficiency (Pozhyvotko v. Ukraine, no.
42752/08, § 40, 17 October 2013; Prynda v. Ukraine,
no.
10904/05, § 56,
31 July 2012);
lack of thoroughness and promptness which undermined the authorities’ ability to establish the circumstances of the case (Lyubov Efimenko v. Ukraine, no.
75726/01,
§§ 76-80, 25 November 2010);
numerous shortcomings in collection of evidence (Basyuk v. Ukraine, no.
51151/10, § 67, 5 November 2015; Antonov v. Ukraine, no. 28096/04, § 50, 3 November 2011; Prynda v. Ukraine, no. 10904/05, § 56,
31 July 2012);
repeated remittals of the case for additional investigation owing to the insufficiency of the measures taken by the investigators (Basyuk v. Ukraine, no.
51151/10, § 69,
5 November 2015).
6,000
250
[1] Plus any tax that may be chargeable to the applicant.
[2] Plus any tax that may be chargeable to the applicant.