CASE OF LOVYGINY v. UKRAINE
Remainder inadmissible;Violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Angelika Nußberger;Carlo Ranzoni;Erik Møse;Ganna Yudkivska;Khanlar Hajiyev;Sergiy Goncharenko;Síofra O’Leary
5. The applicants were born in 1938 and 1939 respectively and live in the city of Kherson, Ukraine. 6. On 14 January 2000 a police training exercise was conducted in accordance with an operational plan entitled “Sirena” (оперативний план «Сирена») (hereinafter “Operation Sirena”). During the exercise the applicants’ son, a police officer at the material time, played the role of a criminal for the purposes of the exercise and was accidentally shot dead by another police officer. 7. Operation Sirena for the Kherson Region was approved in 1999 by the police, civil and military authorities of that region on the basis of order No. 230 (classified) of 24 April 1998 of the Ministry of the Interior (see paragraph 66 below). The plan set out the steps to be taken and the procedure to be followed in the event of a search for and the arrest of armed or other dangerous criminals, including those who had escaped from detention. 8. A senior traffic police inspector, L., following instruction no. 20/10-33 of 9 January 2000 issued by the Kherson Regional Department of the Ministry of the Interior (Управління Міністерства внутрішніх справ в Херсонській області) (“the Kherson Regional Department”) and pursuant to an order from a senior traffic police officer, Kos., drafted a training exercise for traffic police officers in the city of Kherson and the village of Antonivka in the context of Operation Sirena. 9. The one-page training scenario stipulated that the training was to take place on 14 January 2000 between 10 a.m. and 5 p.m. At 10 a.m. a police office on duty was to circulate information that armed criminals had hijacked a car and that Operation Sirena had been launched. The scenario stipulated that, in addition to the police officer who would drive the car, there should also be in the car a second police officer, O., who would observe the actions of police patrol officers. The hijacked car would be followed by a second car containing a police officer, Ts., who would film the exercise. The scenario was approved on 13 January 2000 by a deputy head of the Kherson Regional Department, S. 10. Senior traffic police officer Kos., who on 14 January 2000 was the acting head of the Traffic Police Department, later stated in the course of the criminal investigation that traffic police officers had been given prior notice of the training exercise on the day that it was held. 11. At 10.30 a.m. on 14 January 2000 a senior traffic police officer, So., briefed traffic police officers O., Ts., Ku., Sh. and the applicants’ son about the training. At 10.50 a.m. L. instructed a traffic police officer on duty to give the police unit on duty («чергова частина») prior notice of the training exercise and to issue a “lookout alert”. 12. At 10.56 a.m. a police officer on duty, P., was informed by a traffic police unit that two unknown armed criminals had hijacked a car and were moving in the direction of Tavriyskyy, a Kherson residential neighbourhood. He communicated this information to the patrol cars, to the city’s district police stations and to the head of the Kherson Regional Department. Two or three minutes later P. received additional information that the above-mentioned alert was part of a training exercise being conducted under Operation Sirena. According to the findings of the subsequent internal police investigation (see paragraph 19 below), P. forwarded that additional information to the head of the Kherson Regional Department, who instructed P. to pass it on to the city’s district police stations. It was established by the police internal investigation that P. failed to do so. 13. Having been informed of the alleged hijacking, Os., the First Deputy of the Dniprovskyy district police office, issued appropriate instructions to four police officers and placed them at various posts. In particular, police officer K. was placed, together with a traffic police officer, Ko., in the vicinity of the Antonovskyy Bridge over the River Dnipro. 14. The car containing the “criminals” (played by the applicants’ son and police officer Ku.) passed the aforementioned post without being stopped. According to Ko., his radio transmitter had not been working properly and he had left his post in order to inform the traffic police office in charge that the hijacked car had passed their post. Later Ko. testified that he had given K. prior notice of the training exercise. After Ko. had left, police officer Ts., who was in the second car and was filming the exercise, switched off his camera (see paragraph 26 below). 15. Traffic police officer O., who was an observer in the “hijacked” car, instructed the applicants’ son, who was driving, to drive by the post again. This time, police officer K. stopped the car, released his gun’s safety catch, and ordered the applicants’ son and police officer Ku. to get out of the car. While searching the applicants’ son, K. pulled the trigger since the applicants’ son had allegedly made a sudden movement. The applicants’ son was fatally wounded and died on the way to hospital. 16. The applicants submitted a copy of the video recording of the training exercise. However, the part containing the shooting incident involving the applicants’ son was missing. The original video recording has been lost (see paragraph 46 below). 17. On 15 January 2000 the Kherson Regional Board of the Ministry of the Interior adopted a decision by which it was concluded that the “extraordinary event” («надзвичайна подія») of 14 January 2000 had taken place because of low professional standards on the part of the police; K.’s failure to assess properly the “extraordinary circumstances” («екстремальні умови»), ignorance of the steps to be taken when arresting a suspect and failure to properly handle his weapon; and the irresponsible attitude of senior police officers towards the organisation of the training exercise. It was decided, inter alia, to dismiss K., O., P., Os. and A. 18. On 16 January 2000 the head of the Kherson Regional Department, I., approved the findings of an internal investigation conducted following the death of the applicants’ son. 19. The conclusion of that investigation provides, in so far as relevant, as follows: “The inspection established that: In accordance with instruction no. 20/10-33 of 9 January 2000 issued by the Kherson Regional Department of the Ministry of Interior ..., L. ... drafted a training scenario for traffic police personnel ... When doing so he did not take into consideration the provisions of Operation Sirena ... [It] is pointless and not efficient to conduct training only for the traffic police officers of Kherson and Antonivka. The procedure for the conduct of the training was not comprehensively set out; [failures included]: - the failure to stipulate an itinerary for the car containing the “criminals”; - the failure to provide for the necessary number of observers ... In their turn, the senior officers of the Kherson Regional Traffic Police ... acted in a perfunctory and irresponsible manner ..., did not properly study the scenario and did not correct its shortcomings... Moreover, no training instructor was appointed and the heads of services and subdivisions involved in the training were not informed of the details of the scenario. The deputy head of the Department ..., S. – approved the above-mentioned scenario on 13 January 2000 without correcting its shortcomings... So., a lieutenant-colonel, ... briefed those police officers who were due to participate in the training but failed to notify the head of the Department of the time of the training and did not personally supervise the progress of the training ... P. ... was briefed by the traffic police unit on duty that two unknown armed criminals had hijacked a car and were moving in the direction of Tavriyskyy [a residential neighbourhood of Kherson]. Two or three minutes later he was informed that this information was part of a training scenario being conducted under Operation Sirena. P. informed the head of the Department about it and was instructed to inform the Kherson district police stations accordingly. P., acting incompetently and ignoring those instructions, ... failed to inform the officers on duty at the district police stations about the ongoing training but only circulated descriptions of the criminals. ... G., the head of the police unit on duty at the Department, ... was informed by P. about the training exercise being held by the traffic police; G. ordered P. to follow prior practice but ... failed to supervise him. ... The senior officers of the Dniprovskyy District Police Department, Os. and A. ... negligently and lackadaisically implemented Operation Sirena ... ... instead of two police officers, who were to have been provided with transport and communication devices under Operation Sirena, ... only one police officer, K., was placed at the post, together with a traffic police officer, Ko. The latter states that he [gave] K. [prior notice of] the training ... At the same time K. and Ko. failed to properly regulate the traffic and to block the road ... Police officer O. ... failed to assess the situation in a timely manner, exhibited negligence and carelessness and, despite the fact that K. had released his gun’s safety catch, in blatant breach of order no. 230 of the Ministry of the Interior, failed to stop the progression of events which led to a police officer’s death. That extraordinary event became possible because of: - irresponsibility, insufficient professional standards, and incompetence in the conception and drafting of the training scenario ... on the part of police officer L.; - the formalistic and irresponsible approach to the planning and organising of the practical training ..., lack of cooperation with the regional police, and low level of supervision of subordinates on the part of the regional traffic police management (police officers Kos. and So.); - the negligence of official duties, formalistic approach to the organisation of the training (and the lack of supervision of its conduct), ... and failure to introduce comprehensive measures aimed at the prevention of extraordinary events on the part of police officer S.; - the low level of professionalism, irresponsible attitude to official duties, and disregard of instructions issued by the head of the Department on the part of the assistant to the head of the unit on duty (police officer P.); - the indifference and lack of supervision of the professional activities of his subordinates on the part of police officer G.; ... - the irresponsibility, negligent and indifferent attitude towards the performance of tasks assigned during the training and failure to take precautions in respect of the personal security of the police officers on duty on the part of police officer O.; - the low level of professional training and inability to act [appropriately] in extraordinary circumstances ... on the part of police officer K.” 20. As a result, it was concluded that police officers K., O., P., Os. and A. should be dismissed and that the dismissal of police officer S. should be initiated before the Ministry of the Interior. It was further proposed to discipline a number of the other police officers involved. The investigation concluded that the senior police officers involved had failed to properly train their personnel to act in emergency circumstances. 21. On 17 January 2000 the Ministry of the Interior issued an order which noted that even though safety and the prevention of death and injury in respect of police officers were priorities in police activities, there had been a number of serious shortcomings in the organisation and conduct of the training exercise, which had led to the incident in question. It was noted, inter alia, that since the beginning of his service with the Dniprovskyy District Police Office in November 1999 K. had not attended the relevant theoretical instruction classes. The Ministry also concluded that the police officers involved had failed to properly organise the training. 22. It was further noted that by order No. 17 of 16 January 2000, issued by I., the head of the Kherson Regional Department, Os., A., P., O., and K. had been dismissed and other police officers disciplined. For the most part, that decision was approved by the Ministry of the Interior. However, it was decided not to dismiss but rather to demote Os. and A. and to reprimand I. 23. On 14 January 2000 the Dniprovskyy District Prosecutor’s Office of Kherson (“the District Prosecutor’s Office”) instituted criminal proceedings in respect of the incident. On the same day it was decided to assign the case to three investigating officers and to conduct a forensic medical examination of the body of the applicants’ son. In particular, the expert was asked to determine what injuries were on the corpse. 24. On 15 January 2000 a forensic medical expert concluded that the applicants’ son had a gunshot wound to the chest and scratches on the left side of the face, possibly sustained when he fell down. 25. In the course of the investigation K. pleaded guilty. His testimonies regarding the events of 14 January 2000 coincided with the facts as described in paragraphs 13-15 above. 26. The testimony of different police officers involved in the organisation and conduct of the training exercise included, inter alia, the following: - P. testified that the “orders in force” had not required that information about the training be circulated; - the head of the police unit on duty at the Kherson Regional Department (начальник чергової частини штабу Управління МВС), G., testified that he had instructed P. to “comply with the Sirena plan, in accordance with the existing instructions”. G. also submitted that the police unit on duty had only received the training scenario on 15 January 2000 that is the day after the training exercise. It had been impossible to involve only the traffic police in the training since Operation Sirena had required joint action, involving both the police and the traffic police; - S., a deputy head of the Kherson Regional Department, testified that there had been no legal instruments governing the conduct of police training under Operation Sirena. S. stated that the police officer who had ordered the implementation of the training had been supposed to instruct police officers on duty as to what information should be given to the district police stations. S. stated that the training scenario had been discussed with Kos., who had told S. that the scenario had been approved by the head of the Kherson Regional Department; - police officer O. testified that the district police stations must have been aware of the training exercise. This information should have been circulated, together with a “lookout alert”; - police officer A. testified that nobody in the Dniprovskyy District Police Office had been aware of the training exercise; - police officer Ku. testified that he and the applicants’ son had been “aware that the police officers [would] have guns with live rounds”; - traffic police officer Ko. testified that he had told K. about the training; - police officer Ts. testified that he had stopped filming after traffic police officer Ko. had left (see paragraph 14 above), since he had “not known that the car would make a second attempt to pass this post”. 27. During a confrontation held between K. and traffic police office Ko., the latter insisted that he had informed K. about the training. 28. In the course of the investigation a number of other investigating measures were conducted, including a forensic ballistics examination and a reconstruction of events. 29. On 13 July 2000 the Dniprovskyy District Court (“the Dniprovskyy Court”), in the absence of the applicants, terminated the criminal proceedings against K. under the Amnesty Act, since he was the father of a minor and should thus not be liable to serve a punishment. It was noted that this decision was not subject to appeal. 30. On 3 April 2009 the Dniprovskyy Court rejected as unsubstantiated an application lodged by the second applicant on March 2009 for the renewal of the time-limit in respect of an appeal against the decision of 13 July 2000. On 19 May 2009 the Kherson Regional Court of Appeal upheld this decision. The court noted that although the second applicant had been absent from the court hearing on 13 July 2000, she had been aware of that decision since at least 2004 and had received a copy of it on 23 January 2008 at the latest. 31. In June 2000 the District Prosecutor’s Office refused to institute criminal proceedings against other police officers involved in the organisation and conduct of the training exercise. In particular, on 7 and 8 June 2000 the District Prosecutor’s Office refused to institute criminal proceedings against L., O., Kos., So., S., A., Ost. and G. in the absence of any evidence of a crime, given that there had been no causal link between their actions and the death of the applicants’ son. 32. On 27 and 28 June 2000, citing the same reasons, the District Prosecutor’s Office refused to institute criminal proceedings against P. and O. On 18 August 2000 those decisions were quashed by the Kherson Regional Prosecutor’s Office and the case was remitted for additional investigation. 33. On 1 September 2000 the District Prosecutor’s Office instituted criminal proceedings in respect of the alleged negligence on the part of the Kherson Regional Department police officers involved in the organisation and conduct of the training exercise. 34. On 30 October 2000 the District Prosecutor’s Office terminated the proceedings. It noted that, according to a Kherson Regional Department senior police officer, the legal instruments of the Ministry of the Interior had not stipulated that police officers should have been informed about the training. Such training was to be conducted under realistic conditions. It was further noted that no obligation to inform colleagues about the training exercise had been part of the duties of any police officer on duty. 35. On 28 November 2000 the Kherson Regional Prosecutor’s Office quashed that decision and remitted the case for additional investigation. It noted that the investigation had not been thorough and that the decision taken had been unsubstantiated. In particular, it had not been established whether there had been a causal link between the shortcomings on the part of the police officers and the death of the applicants’ son. It had also not been established which legal instruments regulated police training exercises. 36. By a letter of 29 December 2000 the Kherson Regional Department informed the District Prosecutor’s Office that, under (classified) order No. 230 of the Ministry of the Interior (see paragraph 66 below), the relevant skills were “to be mastered during training [conducted] under realistic conditions”. At the same time the relevant legal instruments did not specify any procedure for the conduct of training exercises. 37. On the same day the District Prosecutor’s Office terminated the criminal proceedings. 38. On 12 February 2001 the Kherson Regional Prosecutor’s Office quashed that decision, citing the failure to fully comply with the decision of 28 November 2000. The recommenced proceedings were again terminated on 29 March 2001. It was noted in the latter decision that the constituent elements of a crime (“negligence”) under Article 167 of the Criminal Code included failure to perform properly or at all certain duties. However, in the absence of any regulations governing procedure for the conduct of training exercises under Operation Sirena, the duties of the police officers involved in such training had not been defined. Moreover, there had been no causal link between the actions of the Kherson Regional Department police officers and the death of the applicants’ son, since the latter had died following K.’s mishandling of firearms. It was concluded that there was no indication of any crime in the actions of the police officers. 39. On 1 April 2004 the General Prosecutor’s Office quashed the decision of 29 March 2001. It was noted that the decision to terminate the criminal proceedings had been “premature and unlawful”. In particular, during the investigation it had not been clarified whether there had been a possibility to equip the police officers with blank cartridges and why O. had not intervened to prevent K. firing his gun after seeing that its safety catch had been released. 40. On 25 April 2004 the District Prosecutor’s Office again terminated the proceedings. When questioned again, O. stated that he had not known that K.’s gun had been loaded. Moreover, K. should have been aware that a training exercise was in progress. The tragic incident had happened within seconds, so O. had not had the possibility of preventing it. P. testified that, “under the Department’s instructions regarding the ‘Sirena’ training plan”, it had not been his responsibility to circulate the information that the announcement about the car hijacking was part of a training exercise. As to whether blank cartridges could have been used for the training exercise, the head of the Kherson Regional Department staff, D., testified that the regional police senior officers had decided to use live rounds for the training. The investigation concluded that the applicants’ son had died as a result of the mishandling of firearms on the part of K. 41. On 21 September 2004 the Kherson Regional Prosecutor’s Office quashed this decision and remitted the case for additional investigation. It was noted that a number of investigative actions had yet to be undertaken and a number of issues had yet to be clarified. In particular, the plans for the training exercise and Operation Sirena had to be seized and it had to be clarified who had briefed K. and why K. had been alone at his post. It was also noted that order No. 230 was not classified and should therefore be added to the case materials. 42. In January 2005 the applicants’ relatives testified that at the funeral of the applicants’ son they had noted that make-up had been applied to the applicants’ son’s face to cover a hole in his head. An ambulance doctor testified that he had not examined the body in detail since it had been evident that the applicants’ son had died after being shot. 43. On 20 January 2005 the investigating authorities decided to exhume the body. 44. On 24 March 2005 a forensic medical examination of the body of the applicants’ son was ordered because the applicants insisted that their son had not been accidentally shot but rather killed by either being hit on the head with a gun or shot in the head because he had possessed information regarding unlawful activity on the part of other police officers. They stated that the body had had a large haematoma on the head and there had been a crack in the skull. 45. After the forensic medical examination of the body of the applicants’ son, a forensic expert concluded that the crack in the skull of the applicants’ son had appeared during the initial forensic medical examination. 46. On 25 January 2006 the Deputy Prosecutor of the Kherson Regional Prosecutor’s Office upheld the conclusions of an internal investigation into the loss of the original video recording of the training exercise. It was proposed to discipline the investigating officer, I., who, between April 2004 and April 2005, had lost the video. 47. On 10 February 2006 it was again decided to terminate the criminal proceedings in the absence of any evidence of a crime. A deputy head of the Kherson Regional Department, T., submitted that the police officers had not been informed about the training exercise since, under (classified) order No. 230 of the Ministry of the Interior, police training should be conducted under conditions as realistic as possible. There were no legal instruments of the Ministry of the Interior stipulating the procedure for the conduct of training exercises and there was no obligation to inform police officers when any such training was being conducted. Consequently, the scope of duties of those involved in the training conducted under Operation Sirena had not been defined. 48. On 8 September 2006 the Suvorovskyy District Court (“the Suvorovskyy Court”) quashed this decision and remitted the case for additional investigation, since the prosecutor’s office had failed to take into account the fact that some police officers had been disciplined. The court also observed that “all necessary and possible investigative actions had not been undertaken”. 49. On 14 November 2006 the Kherson Regional Court of Appeal quashed the decision of 8 September 2006 and upheld the decision of 10 February 2006. The court concluded that the Suvorovskyy District Court had, in particular, failed to specify which facts had not been examined by an investigating officer. 50. The second applicant appealed against the decision of 14 November and that many aspects of the case remained unclear (whether there had been an obligation to inform the police officers about the training, what did the “near-reality” conditions mean etc.), therefore, the first instance court decision had been well-grounded and should not had been quashed. On 31 January 2008 the Supreme Court of Ukraine dismissed the second applicant’s appeal. It found that the applicant’s arguments about unlawfulness and lack of reasoning of the second instance court decision had been unsubstantiated. In particular, the court of appeal correctly concluded that the investigation had been comprehensive while the first instance court had failed to give reasons for the need for additional investigation. 51. On 16 October 2000 a lump-sum insurance payment in the amount of 18,270 Ukrainian hryvnias (UAH) (at the material time around 3,894.68 euros (EUR)) was paid jointly to the applicants and to their son’s widow and daughter pursuant to section 23 of the Police Act (see Lovygina v. Ukraine (dec.), no. 16074/03, 22 September 2009). 52. According to the Government, between 2002 and 2013 a total of UAH 21,320 (around EUR 2,558) was paid to the applicants in financial aid and the first applicant was furnished with a washing machine, construction materials for a house renovation and a table for a computer. 53. The applicants instituted proceedings against the Kherson Regional Department claiming compensation for damage inflicted by their son’s death. On 13 October 2000 the Suvorovskyy District Court awarded them UAH 23,600 (around EUR 5,000) as compensation for non-pecuniary damage. This decision was quashed and the case remitted for fresh consideration. 54. On 26 September 2001 the same court awarded the applicants UAH 20,000 (around EUR 4,000). On 15 January 2002 the Kherson Regional Court of Appeal upheld that decision. However, on 21 October 2002 the Supreme Court of Ukraine quashed it and dismissed the applicants’ claim, finding that, after having accepted a full insurance payment, the applicants no longer had a valid compensation claim. The parties did not submit copies of the applicants’ claim and the domestic courts’ decisions. 55. In March 2006 the applicants instituted proceedings against the prosecutor’s offices at various levels. The applicants complained that the investigation into their son’s death had been ineffective and claimed compensation for non-pecuniary damage. 56. On 8 September 2006 the Suvorovskyy District Court, examining the case under administrative procedure, found for the applicants. The court found that the investigation had lasted for six years and that on four occasions the Kherson Regional Prosecutor’s Office had quashed the decisions of the District Prosecutor’s Office terminating those proceedings. The court concluded that the case had been investigated improperly, with numerous breaches of the law, and awarded the applicants compensation. 57. On 23 January 2007 the Kherson Regional Court of Appeal quashed that decision and remitted the case for fresh consideration by the first-instance court. 58. After declining several times to consider the applicants’ case because of their failure to comply with procedural requirements, on 6 February 2008 the Komsomolskyy District Court (“the Komsomolskyy Court”) decided to terminate the proceedings, ruling that the applicants’ claim for damages should have been lodged under a civil procedure. On 24 December 2008 the Odessa Administrative Court of Appeal upheld this decision. The applicants appealed in cassation. 59. On 10 March 2011 the Higher Administrative Court upheld the above decisions and held that the applicants should have complained to a higher prosecutor about the allegedly unlawful actions of the lower prosecutor. 60. In April 2009 the applicants lodged a claim under civil procedure with the Komsomolskyy Court against the Kherson Prosecutor’s Office, claiming compensation for damage resulting from an ineffective investigation. On 22 April 2009 the court dismissed that claim on the ground that the applicants should have lodged their claim under administrative procedure. On 20 July 2009 the Kherson Regional Court of Appeal upheld that ruling. The applicants did not appeal against those rulings. 61. In February 2009 the second applicant instituted administrative proceedings in the Kherson Regional Administrative Court against the Ministry of the Interior and the Kherson Regional Department, complaining that their conduct relating to the organisation of the police training of 14 January 2000 had been unlawful. It is not clear whether she claimed any compensation in this respect. 62. On 26 June 2009 the Kherson Regional Administrative Court found against the second applicant. The court noted that the death of the second applicant’s son had been investigated several times; K. had been found guilty but amnestied, criminal proceedings against other police officers had been terminated in the absence of evidence of any crime, and police officers S. and I. had been disciplined. Moreover, the second applicant’s son had died in 2000, but the second applicant had only lodged her claim against the Ministry and the Kherson Regional Department in 2009. 63. On 4 January 2010 the Odessa Administrative Court of Appeal dismissed an appeal lodged by the second applicant, ruling that it had been lodged out of time. On 16 November 2010 the Higher Administrative Court of Ukraine upheld that ruling. 64. On 1 April 2003 the applicants lodged an application before this Court complaining that termination of the proceedings against K. had been in breach of the State’s positive obligation under Article 2 of the Convention to conduct an effective independent investigation into their son’s death. They also invoked Article 6 § 1 of the Convention complaining about the outcome of the proceedings in respect of their claim for compensation (see paragraph 54 above). 65. On 18 October 2005 the Court by a Committee decision declared their complaints inadmissible (application no. 15439/03).