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27.11.2008

Strasbourg finds violation of the right to life in the case of Muravskaya v. Ukraine

   

Earlier this month the European Court of Human Rights passed judgment in the case of Muravskaya v. Ukraine, finding that Ukraine had breached Article 2 of the European Convention on Human Rights.  The applicant, Ms Muravskaya  was represented by Arkady Buschenko, KHPG lawyer and Chair of the Board of the Ukrainian Helsinki Human Rights Union (which KHPG is a member of).

The circumstances of the case

The applicant lives in Slavyansk, in the Donetsk Region.  Her son disappeared on 23 January 1999. On 1 February she learned that her son had been beaten and, a few days later, that he had been murdered.

The body of Mr M. was found in a lake on 18 March 1999. The applicant maintained that this lake had been deliberately omitted from the police search, although neighbouring lakes had been checked.

9. On 18 March 1999 the investigator of the Slavyansk Prosecutors’ Office (“the SPO”) ordered a forensic medical examination of the corpse. The examination was conducted the next day by a forensic expert, Mr D. The expert concluded that the cause of death of the applicant’s son could not be established and that the latter had been slightly drunk at the time of his death.

10. On 26 March 1999 the SPO investigator refused to institute criminal proceedings regarding the death of Mr M. The investigator based his decision on the evidence submitted by the witnesses, Messrs D., P., G., and P., who were with the applicant’s son on the day of his disappearance. They testified that Mr M. had been very drunk and had behaved badly, fighting with some of them. They also stated that Mr M. had left them to go home and that they did not see him again. Moreover, the forensic examination had not established the cause of death, only that Mr M. had been drunk.

11. On 6 August 1999 the Slavyansk Town Court quashed the decision of 26 March 1999 and remitted the case for further inquiry, finding, in particular, that the expert’s opinion had been incomplete and the investigator had failed to scrutinise the circumstances evidencing that the death of the applicant’s son could have been a violent one.

12. On 18 August 1999 the SPO investigator refused to open criminal proceedings regarding the death of Mr M., stating that the additional inquiry did not disclose any new circumstances. At the same time he instituted criminal proceedings concerning the beating of Mr M. that allegedly took place on the day of his disappearance. He transferred the case to the Slavyansk Internal Affairs Department ( “the SIAD”).

13. On 1 October 1999 the GPO prosecutor quashed the decision of 18 August 1999 refusing to open criminal proceedings, stating in particular that the inquiry had been carried out superficially and improperly. The prosecutor requested, in particular, that a further inquiry be held to clarify the following issues:

-  why the applicant submitted that some persons had initially confessed to the murder of her son;

-  which of the police officers were informed by the applicant of the trail leading to the ice-hole in the lake where Mr M.’s corpse had been found and who else had seen that trail;

-  why the police officers omitted the lake where Mr M.’s corpse was found when checking the neighbouring lakes.

14. On 29 October 1999 the SPO investigator refused to open criminal proceedings regarding the death of Mr M. since the cause of his death could not be established. Apparently, the SPO did not undertake any further inquiry into the applicant’s allegations.

15. On 11 November 1999 the SIAD investigator, in the course of the investigation of the alleged beating of Mr M., ordered a forensic examination to establish the circumstances of the death of Mr M.

16. The examination conducted by a group of experts of the Donetsk Forensic Medical Examination Bureau within the period between December 1999 and February 2000 reached the following conclusions:

-  it was not possible to establish the date of death of Mr M. with sufficient precision, although it could not be ruled out that he had died on the day of his disappearance;

-  Mr M. had bodily injuries, including serious facial ones, most of which could not have been caused by falling on to the ground;

-  the cause of death could not be established exactly, but it could be assumed that death had been caused by suffocation as a result of haemorrhaging; in that case, there was a causal link between the injuries and the death;

-  that Mr M. had drunk alcohol not less than one or two hours before his death; and

-  that his body had remained in water from one and a half to two months.

17. On 27 December 1999 an independent forensic expert, Mr P., gave his conclusions in the case. He stated that Mr M. had suffered bodily harm of different degrees of severity, including grievous injuries. As a result of this harm, Mr M. could no longer have acted consciously and could have lived no longer than an hour or so afterwards. He further presumed that a hole found in the skull could have been caused by a firearm, although it had been deemed to be a trepanation by the first forensic expert. Mr P. concluded that, in any event, death had been caused by violence.

18. Within the period between March and April 2000 the experts of the Donetsk Forensic Medical Examination Bureau drew an additional report in which they concluded that Mr M. had bodily injuries of varying degrees of severity, some of which were grievous. They established that such injuries were not deadly in themselves but would have caused unconsciousness, followed by haemorrhaging, suffocation and death. Until suffocation, Mr M. would have been capable of movement. They finally mentioned that there were no reliable data that Mr M. had been alive when he entered the lake. On the contrary, there were data in support of the opposite conclusion.

19. On 12 May 2000 the SIAD reclassified the case of beating the applicant’s son as a case of inflicting intentional grievous bodily harm on him, causing his death.

20. Within the period between March and May 2001 an additional expert examination was conducted in the Central Office of Forensic Examination in Kyiv. The expert commission concluded that there were no signs of a bullet wound to the skull. However, death could have been caused by a serious trauma to the facial part of the skull. They further stated that it was very unlikely that, given the severity of the injuries, Mr M. would have been capable of movement. They finally maintained that there were no data to conclude whether Mr M. had been alive or dead when he got into the lake water.

21. On 27 August 2001 the SIAD investigator refused to institute criminal proceedings against Messrs P., D., G., and P. for the beating of the applicant’s son since prosecution under this corpus delicti was time-barred.

22. By a letter of 18 October 2001 the GPO admitted to the applicant that the investigation into the death of her son had been carried out unprofessionally and unsatisfactorily, there had been unreasonable delays by the investigators, and as a result the crime had not yet been exposed. It further informed the applicant that local prosecutors and investigators dealing with the case as well as Mr D., the expert making the first medical examination of her son’s corpse, had been disciplined for their omissions.

23. On 17 December 2001 the SIAD investigator refused to institute criminal proceedings against Messrs P., D., G., and P. for inflicting grievous bodily harm causing the death of Mr M., since their guilt could not be sufficiently proved.

24. On 19 December 2001 the SIAD suspended the investigation into the infliction of grievous bodily harm on Mr M. causing his death as the perpetrators of the crime could not be identified.

25. On 28 January 2002 the GPO found that the investigation was flawed, quashed the decision of 19 December 2001 as unfounded and remitted the case for further investigation. The GPO ordered, in particular, the following:

-  a reconstruction of events with the participation of Mr P., Mr D., Mr G., Mr P. and the medical expert for the purpose of clarifying and specifying what blows were inflicted on Mr M. by each of the participants in the fight;

-  confrontations between all participants in the incident to clarify their testimonies;

-  additional forensic medical examination for the purpose of comparing the received data with the medical conclusions drawn in respect of the corpse of Mr M. and the cause of his death.

26. On 6 December 2002 the investigation was suspended again since the responsibility of Mr D., Mr P., Mr G., and Mr P. for the death of the applicant’s son could not be sufficiently proved, and the identity of other possible perpetrators could not be established.

27. On 24 March 2003 the GPO quashed the decision of 6 December 2002, finding that the investigation had flaws, and ordered further investigatory actions.

28. On 17 April 2003 the case was transferred to the Donetsk Regional Internal Affairs Department for further investigation.

29. In August 2003 the case was sent for additional forensic examination. On 17 December 2003 the case was sent to the Central Office for Forensic Medical Examination in Kyiv.

30. On 7 April 2004 the investigation was suspended since the perpetrators of the crime could not be identified.

31. On 21 July 2004 the investigation was renewed and additional forensic expertise ordered.

32. In April 2005 the additional forensic expertise was completed. In their conclusion the experts assumed, in particular, that Mr M. had received a craniocerebral facial injury followed by asphyxia and death. They further noted that due to the putrefaction process of the corpse they could not precisely establish the cause of death.

33. On 11 July 2005 the investigation was suspended for the reason that it was impossible to establish the identity of the persons responsible for the death of Mr M.

34. On 19 July 2005 the Donetsk Regional Prosecution Office quashed the decision of 11 July 2005 as unfounded and remitted the case for further investigation. The investigation is still pending.

b. Application in the present case

43. The Court observes that in the present case the efficiency of the investigation into the disappearance and death of the applicant’s son was seriously undermined at the initial stage for at least two major reasons.

44. Firstly, the law-enforcement bodies failed to carry out a prompt and comprehensive search for the corpse of the applicant’s son though, as appears from the case file, there were sufficient clues to where the corpse should have been searched for. Meanwhile, had they acted promptly and diligently the corpse would not have deteriorated that much and there would have been better chances of establishing more precisely the cause of Mr M.’s death.

45. Secondly, the primary forensic examination performed by Mr D. yielded no conclusions as to the possible cause of Mr M.’s death, though the results of subsequent forensic examinations contained consistent assumptions that his death had been caused by a serious facial injury to Mr M. that could not have happened by his falling on the ground and that after that injury he would not have been capable of movement. Meanwhile, the primary expert’s opinion had served as a strong argument not to investigate the version of the violent death of Mr M. straight after the discovery of his body. It was not until 12 May 2000, almost fourteen months after the corpse had been found, that the case about the beating of the applicant’s son was reclassified as a case of bodily harm causing a death. The Court also notes that the deficiencies of the primary forensic examination were acknowledged by the domestic authorities who disciplined Mr D. on that account.

46. The Court further observes that the investigators’ refusal to institute criminal proceedings had been quashed several times by the domestic authorities, who stated that the inquiry had been carried out superficially and indicated the specific actions that had to be taken by the investigative bodies.

47. The Court also notes that numerous investigators’ decisions suspending criminal proceedings were repeatedly quashed by the GPO as unfounded, whereupon the investigators were given clear instructions about further procedural steps that should have been taken to disclose the crime. These instructions, however, were not always followed.

48. The Court further observes that there was a series of delays in the investigation, the total duration of which cannot be reasonably justified. Meanwhile, the delays in the investigation significantly diminished the prospect of its success and completion.

49. Finally, the Court notes that the above deficiencies were acknowledged by the domestic authorities on several occasions and disciplinary measures taken with regard to the relevant persons.

50. In the light of these circumstances the Court concludes that the State authorities failed to carry out an effective investigation into the disappearance and death of the applicant’s son. There has accordingly been a violation of the procedural limb of Article 2 of the Convention.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

51. 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.”

52. The applicant did not submit a claim for just satisfaction within the time-limit fixed. Accordingly, the Court considers that there is no call to award her any sum on that account.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Declares the complaint under Article 2 of the Convention concerning ineffective investigation into the death of the applicant’s son admissible;

2. Holds that there has been a violation of Article 2 of the Convention under its procedural limb.

 

The case in full is available on the ECHR portal

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