CASE OF SHULGA v. UKRAINE
Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)
Angelika Nußberger;Vincent A. De Gaetano
4. The applicant was born in 1952 and lives in the village of Baybuzy, Cherkassy region, Ukraine. 5. On 26 September 2003 at around 8 p.m. the applicant’s wife, while riding a bicycle, was hit by a car and died on the spot. 6. On the same day police examined the accident spot in the presence of two witnesses, V. and M. (both inhabitants of Baybuzy who arrived at the spot after the accident) and the accident sketch map was drawn. The driver of the car, P., was questioned. He testified that he had been temporarily blinded by the long-distance headlights of an approaching car. After that he saw a bicycle rider 7-8 meters in front of his car. He did not brake and his car hit the bicycle. Similar testimonies were given by the car passenger, S. The driver also underwent a test for the blood alcohol and drugs level. 7. On 27 September 2003 a forensic medical expert concluded that the applicant’s wife’s death had been caused by a basal skull fracture. 8. On 29 September 2003 criminal proceedings into the accident were instituted by the Cherkassy District Police Office (Черкаський районний відділ Управління Міністерства внутрішніх справ України в Черкаській області) for an alleged breach of traffic rules which caused a person’s death (Article 286 paragraph 2 of the Criminal Code). On the same day an investigation officer requested the head of the Cherkassy District Police Office to order a search for the accident witnesses, if any. 9. On the next day the applicant was recognised as a victim in the above criminal proceedings. 10. On 7 October 2003 a police officer informed the head of the Cherkassy District Police Office that it was impossible to identify witnesses who could have seen the accident. 11. On 17 October 2003 a reconstruction of events was carried out and a decision to perform an auto-technical forensic examination was adopted. The expert was requested to determine interposition of the car and the bicycle at the moment of collision, whether the driver had had a technical possibility to avoid the collision and whether the driver and the bicycle rider had breached the traffic rules. 12. On 27 October 2003 the applicant lodged a civil claim within the criminal proceedings. 13. On 18 November 2003 an expert concluded that the applicant’s wife had breached the traffic rules when riding a bicycle since there had been no lights and light reflectors on the bicycle and that the car driver had had no technical possibility of avoiding the accident. 14. On 26 November 2003 the proceedings were terminated for absence of evidence of a crime. 15. On 6 February 2004 the Cherkassy District Prosecutor’s Office (прокуратура Черкаського району Черкаської області) quashed this decision and remitted the case for additional investigation. A prosecutor instructed the head of the police investigation department in charge of the investigation to perform numerous additional investigation actions. It was noted, inter alia, that the questioning of P. and S. had been superficial, a number of details had not been clarified, the witnesses of the accident had not been properly sought, and the reconstruction of events had been conducted improperly. There were significant corrections on the accident sketch map and there was contradictory evidence in the case-file materials. It was also noted that “the expert conclusion was based actually on the testimonies of P. and S.” Consequently, another auto-technical forensic examination should be performed and an expert should be provided with objectively received data. It was also noted that an investigation officer should verify the facts and circumstances indicated by the applicant in his complaints. 16. By a letter of 22 March 2004 the Cherkassy District Prosecutor’s Office informed the applicant, in reply to his complaint to the General Prosecutor’s Office, that the investigation had been indeed protracted and there were disciplinary proceedings against two investigation police officers pending. The district prosecutor ordered to accelerate the proceedings. 17. In June 2004 P. and S. were again questioned and in July 2004 several other witnesses were questioned (M., V. and the persons who stopped at the spot after the accident). On 29 September 2004 the reconstruction of events was conducted. It was established that after passing an on-coming car the bicycle had become visible to the car driver and at that moment the distance to the bicycle had been 20 metres. 18. On 5 May 2005 a decision was taken to conduct an auto-technical forensic examination. The expert was requested to give an opinion, inter alia, on how the driver should have acted in the circumstances and whether he had had a possibility of avoiding the collision. On 19 July 2005 the expert concluded that P. had had no technical possibility of avoiding the collision. It was not safe to overtake the bicycle rider “since the collision had happened when P. had been passing an on-coming car”. An expert indicated that, according to the circumstances of the accident described by an investigation officer, there had been no breach of the traffic rules by the car driver which could have provoked the accident. The expert also separately noted that the reconstruction of events of 29 September 2004 had been performed with a breach of procedure. 19. On 1 November 2005 the proceedings were terminated for the absence of evidence of a crime. 20. By letter of 3 November 2005 the Cherkassy Regional Department of the Ministry of Internal Affairs of Ukraine (Управління Міністерства внутрішніх справ України в Черкаській області) informed the applicant, inter alia, that the investigation officer, K., in charge of the case, had been disciplinarily sanctioned for protracting the proceedings. 21. On 23 November 2005 the decision of 1 November 2005 was quashed by the Cherkassy District Prosecutor’s Office and the case was remitted for additional investigation. It was noted that more witnesses should be questioned, a police officer should be questioned about the corrections on the accident sketch map, a reconstruction of events should be conducted, if necessary, but with the assistance of a traffic specialist. 22. On 26 December 2005 the proceedings were stayed since “it was impossible to establish the guilt of the person who caused the collision with the applicant’s wife”. By letter of 7 March 2007 the Cherkassy Regional Prosecutor’s Office informed the applicant, however, that a forensic automobile technical examination was pending in his case. 23. In August 2008 the case was transferred to another investigation officer. On 9 August 2008 a decision similar to the one of 26 December 2005 was adopted. 24. On 24 June 2009 the decision of 9 August 2008 was quashed by the Cherkassy District Prosecutor’s Office. It was noted, inter alia, that a number of witnesses had to be questioned, a reconstruction of events should be conducted and the police officers should be questioned about corrections on the accident sketch map. 25. On the next day, however, an investigation officer of the Cherkassy Regional Police Department again terminated the proceedings for the absence of evidence of a crime. 26. On 15 June 2011 this decision was quashed by the Cherkassy District Prosecutor’s Office and the case was remitted for additional investigation. It was noted that the instructions of the prosecutor’s office issued on 23 November 2005 and 24 June 2009 had to be complied with. 27. On 8 August 2011 an auto-technical forensic examination was ordered. 28. On 25 June 2012 an expert concluded that it was impossible to answer the questions about a possibility for P. of having avoided a collision and whether P. had breached the traffic rules that had resulted in a traffic accident. The expert noted that the reconstruction of events of 29 September 2004 had been conducted with a breach of procedure therefore the obtained data could not be used for an expert conclusion. The expert, however, noted that the applicant’s wife had breached the traffic rules since there had been no lights on her bicycle and that had caused the collision. 29. On 29 June 2012 an investigation officer, referring to the above expert conclusion, terminated the proceedings in the case. 30. On 10 August and 22 September 2004 the applicant brought two claims for damages against P. On 14 September and 28 October 2004 the Cherkassy District Court dismissed the applicant’s claims for procedural shortcomings. The applicant neither appealed against these decisions nor submitted new claims in compliance with procedural requirements. 31. On 26 March 2006 the applicant took part in the local elections as a candidate for the position of the head of the village territorial community and came second with three votes less. On 3 April 2006 the Cherkasskyy District Court invalidated the results of the elections. On 6 April 2006 the Cherkassy Regional Court of Appeal quashed the decision of 3 April 2006 and rejected the applicant’s complaint that some of the voters had been prevented from voting. On 25 May 2006 the Higher Administrative Court of Ukraine rejected the applicant’s request for leave to appeal in cassation as the decision of 6 April 2006 was not subject to appeal.