FIFTH SECTION

CASE OF SHEPELENKO v. UKRAINE

(Application no. 8347/12)

JUDGMENT

STRASBOURG

14 January 2016

This judgment is final but it may be subject to editorial revision.

In the case of Shepelenko v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
	André Potocki, President,
	Ganna Yudkivska,
	Síofra O’Leary, judges,
and Milan Blaško, Deputy Section Registrar,
Having deliberated in private on 15 December 2015,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 8347/12) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Ukrainian nationals, Mr Mykhaylo Mykolayovych Shepelenko (“the first applicant”) and Mrs Galyna Yaroslavivna Shepelenko (“the second applicant”), on 24 January 2012.
2.  The applicants were represented by Mr A. Kristenko, a lawyer practising in Kharkiv. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr B. Babin, of the Ministry of Justice.
3.  On 1 December 2014 the application was communicated to the Government.
THE FACTS
Article I.	I.  THE CIRCUMSTANCES OF THE CASE
4.  The applicants are spouses who were born in 1960 and 1961 respectively and live in the village of Shchorsove, in the Odessa Region.
5.  Late in the evening of 18 June 1997 A., the applicants’ son (born in 1982), died in a traffic accident. According to the applicants, on that day D., the driver of the car, compelled A. to sit in the vehicle and travel with him. During the drive, D. exceeded the speed limit and the car turned over. The applicants’ son died from his injuries. The driver and other passengers survived.
6.  Between 00.40 a.m. and 1.55 a.m. on 19 June 1997 the police prepared a site inspection report. They also questioned witnesses on the same day.
7.  On 20 June 1997 the police instituted criminal proceedings related to the death of the applicants’ son.
8.  On 1 October 1997 D. was charged with violating traffic safety rules and causing the death of the applicant’s son. Given that D. had not appeared before the police and that his whereabouts were unknown, the investigator, following approval by the prosecutor of the Ivanivka District of Odessa Region (“the District Prosecutor”), on the same day ordered the placing of D. in custody as a preventive measure.
9.  On 11 November 1997 D. was placed on the list of wanted persons.
10.  On 14 April 1998 D. visited the police department in charge of the criminal case and stated that between August 1997 and February 1998 he had been undergoing medical treatment outside Ukraine. On the same day the investigator, following approval by the District Prosecutor, changed the preventive measure from pre-trial detention to a written undertaking not to abscond.
11.  On 24 June 1998 the first applicant brought civil claims for damages and requested that D.’s property be held as security for the claims. The claims were joined to the criminal case file.
12.  In July 1998 the case was referred to the Ivanivka District Court of Odessa Region (“the District Court”) for consideration on the merits.
13.  On 20 January 1999 the District Court put D. on the list of wanted persons, stating that he had failed to appear for court hearings on several occasions. The court ordered that he be placed in custody.
14.  On 29 March 2010 the police informed the president of the District Court that D. had been arrested and taken to the local pre-trial detention centre.
15.  On 20 April 2010 the applicants brought new civil claims, seeking damages within the criminal proceedings against D.
16.  On 14 May 2010 the District Court closed the criminal proceedings on the basis of an Amnesty Act passed in 1998, releasing D. from criminal liability and punishment. The District Court dismissed the civil claims without considering them on the merits.
17.  The applicants appealed.
18.  On 26 August 2010 the Odessa Court of Appeal upheld the District Court’s decision concerning the termination of the criminal case against D. As to the civil claims, it found that the District Court dismissed them unlawfully and ordered that they be considered further by the District Court in accordance with civil procedure.
19.  On 22 September 2011 the Higher Specialised Court for Civil and Criminal Matters dismissed the appeal by the applicants on points of law as unsubstantiated.
20.  On 22 May 2013 the District Court partly allowed the applicants’ civil claims. Referring to the results of the criminal proceedings, the court found that D. had been responsible for the traffic accident, causing the death of the applicants’ son. It awarded each applicant 400,000 Ukrainian hryvnias (UAH) in respect of non-pecuniary damage and a further UAH 16,050 to the first applicant in respect of pecuniary damage.
21.  On 1 October 2013 the Odessa Court of Appeal considered an appeal by D. and reduced the non-pecuniary damage award to UAH 50,000 for each applicant.
22.  On 24 October 2013 the Higher Specialised Court for Civil and Criminal Matters dismissed an appeal on points of law by the applicants, who sought to increase the amount of damages.
23.  On 24 June 2014 the State Bailiffs Service returned letters of execution to the applicants, stating that no funds or property belonging to the debtor could be found.
Article II.	II.  RELEVANT DOMESTIC LAW
24.  The relevant provisions of domestic law can be found in the judgments of Muravskaya v. Ukraine (no. 249/03, §§ 35 and 36, 13 November 2008) and Zubkova v. Ukraine (no. 36660/08, § 27, 17 October 2013).
THE LAW
Article III.	I.  ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
25.  The applicants complained that the domestic proceedings concerning their son’s death had not been effective. The applicants relied on Articles 2, 5 and 6 of the Convention.
26.  The Court considers it appropriate to examine the case solely under the procedural aspect of Article 2 of the Convention. This Article, in so far as relevant, provides:
“1.  Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. ...”
Section 3.01	A.  Admissibility
27.  The Court notes that the incident resulting in the death of the applicant’s son took place on 18 June 1997 and that the authorities started their enquiries and investigations immediately afterwards. However, the Convention entered into force in respect of Ukraine on 11 September 1997. Accordingly, the period prior to that date falls outside the Court’s jurisdiction ratione temporis, with the result that the corresponding part of the application should be declared inadmissible under Article 35 §§ 3 (a) and 4 of the Convention. Nevertheless, in order to assess the context and the situation complained of as a whole the Court will take into account relevant facts prior to the date when the Convention entered into force in respect of Ukraine (see, mutatis mutandis, Milanović v. Serbia, no. 44614/07, § 78, 14 December 2010).
28.  As regards the period starting from 11 September 1997, the Court notes that the procedural aspect of Article 2 can be considered to be a detachable obligation, especially in cases where a significant proportion of the proceedings have been or ought to have been carried out after the critical date (see Šilih v. Slovenia [GC], no. 71463/01, § 159, 9 April 2009). Accordingly, this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
Section 3.02	B.  Merits
29.  In maintaining their complaint, the applicants insisted, in particular, that the authorities had failed to prevent D. from absconding for significant periods of time and had not taken requisite measures to search for him while he had been on the list of wanted persons. In fact, during that time D. had contacted the authorities. For example, he had to contact the authorities in 2004 when he divorced. No attempt had been made to take measures against him, however. Lastly, by the time D. had been ordered to pay damages, the bailiffs had been unable to find any funds or property belonging to him to seize.
30.  The Government submitted that the criminal investigation had been opened promptly and that comprehensive investigative measures had been carried out. The national authorities had taken all the necessary steps to collect evidence and to establish the circumstances of the death of the applicant’s son. Delays in the proceedings had not been attributable to the State. Most of the delay had been caused by D., who had been hiding from the authorities. As regards the first period of his absence between November 1997 and April 1998, the police authorities had checked D.’s addresses and other possible places of residence following which they had eventually found that he had moved abroad. As regards the second period of D.’s absence, between 1999 and 2010, the Government could not provide information because the police file containing material on the search for D. had been destroyed. Overall, the procedural requirements under Article 2 of the Convention had been complied with.
31.  The Court reiterates that the first sentence of Article 2 of the Convention requires States, in particular, to put in place a legislative and administrative framework designed to provide effective deterrence against threats to the right to life in the context of any activity, whether public or not, in which the right to life may be at stake (see, among other authorities, Öneryıldız v. Turkey [GC], no. 48939/99, §§ 89-90, ECHR 2004-XII). If the infringement of the right to life or to physical integrity was not caused intentionally, the positive obligation imposed by Article 2 to set up an effective judicial system does not necessarily require the provision of a criminal-law remedy in every case (see Vo v. France [GC], no. 53924/00, § 90, ECHR 2004-VIII).
32.  In the present case it has not been contended that the applicants could pursue the matter effectively outside the framework of the criminal proceedings which were instituted shortly after the traffic accident (compare Sergiyenko v. Ukraine, no. 47690/07, §§ 40 and 42, 19 April 2012). Moreover, given that the Code of Criminal Procedure afforded the possibility of a joint examination of criminal responsibility and civil liability arising from the same culpable actions, the applicants acted reasonably in relying on the procedures provided for by that Code. The Court will therefore examine whether the criminal proceedings concerning the death of the applicants’ son satisfied the criteria of effectiveness required by Article 2 of the Convention (see Antonov v. Ukraine, no. 28096/04, §§ 47-49, 3 November 2011; Prynda v. Ukraine, no. 10904/05, § 54, 31 July 2012; Zubkova v. Ukraine, no. 36660/08, § 38, 17 October 2013; and Prilutskiy v. Ukraine, no. 40429/08, § 42, 26 February 2015).
33.  The Court notes that by the time the Convention entered into force in respect of Ukraine the enquiries and investigations at issue had lasted for less than three months. The subsequent period of criminal proceedings, falling within the Court’s jurisdiction ratione personae, amounted to more than fourteen years. For most of that period – that is, for more than eleven years and seven months (between November 1997 and April 1998 and between January 1999 and March 2010) – the authorities considered that D. had been in hiding and had held him on the list of wanted persons. However, the mere fact that the suspect or defendant is in hiding does not remove the State’s responsibility to ensure the effectiveness of the domestic proceedings, including appropriate search measures (see Merkulova v. Ukraine, no. 21454/04, § 58, 3 March 2011).
34.  As regards the first period of D.’s absence (between November 1997 and April 1998), the Government provided submissions suggesting that certain search measures had been undertaken by the authorities. It appears, however, that the suspect had moved abroad as early as August 1997, whereas the decision to put him on the list of wanted persons was taken in November 1997. It is notable that while he was on that list, D. crossed the border into Ukraine in February 1998 and that in April 1998 he contacted the police on his own initiative about the criminal case. These considerations do not suggest that the search measures were timely and comprehensive.
35.  As regards the second period of D.’s absence (between January 1999 and March 2010), the Government did not provide any details stating that the police file with search material had been destroyed. However, the second period was more recent in comparison to the first period where the Government provided information on search measures. Moreover, they failed to submit any other relevant information available outside the police file, to disprove, at least, the applicants’ specific allegations that during that period D. had contacted the authorities on administrative matters.
36.  Accordingly, the material provided by the Government and the facts of the case do not suggest that the authorities took appropriate operational measures to search for D. when they considered him to be in hiding. The Court therefore cannot find that the criminal proceedings complied with the requirements of promptness and thoroughness, and that they were effective for the purposes of the Convention.
37.  As to the civil proceedings which continued after the criminal case against D. had been terminated, the effectiveness of this remedy cannot be considered in isolation, given that most of the evidence relevant for the civil claims, including expert examinations, had to be assembled by the investigating authorities in the course of the criminal investigation. With the material collected in the criminal case, the civil courts should not have experienced difficulties in resolving that dispute. Accordingly, assessing the overall length of both sets of proceedings cumulatively, the Court considers that the domestic authorities failed to carry out a prompt examination of the applicants’ civil claims.
38.  In the light of the foregoing, the Court finds that the applicants were not provided with effective legal procedures compatible with the procedural requirements of Article 2 of the Convention.
39.  There has therefore been a violation of the procedural aspect of Article 2 of the Convention.
Article IV.	II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
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.”
Section 4.01	A.  Damage
41.  Each applicant claimed 50,000 euros (EUR) in respect of non-pecuniary damage.
42.  The Government submitted that the claims were unfounded and excessive.
43.  The Court considers that the applicants must have suffered anguish and distress on account of the facts giving rise to the finding of a violation in the present case, and that such damage cannot be made good by a finding of a violation alone. Ruling on an equitable basis, the Court awards the applicants jointly EUR 6,000 in respect of non-pecuniary damage.
Section 4.02	B.  Costs and expenses
44.  The applicants claimed reimbursement of their lawyer’s fee at a level equal to 15% of the total amount awarded by the Court under all heads of damage. The applicants asked that any award in respect of this claim be paid directly into their representative’s the bank account.
45.  The Government submitted that the claims were unfounded.
46.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 900 for costs and expenses in the proceedings before the Court. The latter amount is to be paid directly into the bank account of the applicants’ representative (see, for example, Hristovi v. Bulgaria, no. 42697/05, § 109, 11 October 2011, and Singartiyski and Others v. Bulgaria, no. 48284/07, § 54, 18 October 2011).
Section 4.03	C.  Default interest
47.  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,
1.  Declares the complaint under the procedural aspect of Article 2 of the Convention, relating to the period of the domestic proceedings starting from 11 September 1997, admissible and the remainder of the application inadmissible;

2.  Holds that there has been a violation of the procedural aspect of Article 2 of the Convention;

3.  Holds
(a)  that the respondent State is to pay the applicants, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i)  EUR 6,000 (six thousand euros) to the applicants jointly, plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii)  EUR 900 (nine hundred euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses, to be paid into the bank account of the applicants’ lawyer, Mr A. Kristenko;
(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;

4.  Dismisses the remainder of the applicants’ claim for just satisfaction.
Done in English, and notified in writing on 14 January 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Milan Blaško	André Potocki
	Deputy Registrar	President