CASE OF DUDNYK v. UKRAINE
Violation of Article 2 - Right to life (Procedural aspect)
Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Renate Jaeger
5. The applicant was born in 1959 and lives in Chapayivka. 6. On 30 May 2000 an unidentified individual broke the skull of I.D., the applicant's son, in the corridor of a dormitory at Cherkasy Technological University. 7. On 7 June 2000 the Prydniprovsky district police department of Cherkasy initiated criminal proceedings into a suspected offence of inflicting grievous bodily harm. 8. On 8 June 2000 I.D. died without regaining consciousness. Subsequently the investigation amended the characterisation of the suspected offence to inflicting grievous bodily harm resulting in death. 9. On 25 July and 15 August 2000 the Prydniprovsky district prosecutor's office advised the investigation as to various procedural steps to be taken. 10. As no leads concerning the perpetrator had been picked up by 25 September 2000, the police suspended the investigation. 11. On 1 February 2001, following complaints by the applicant's family, the Prydniprovsky district prosecutor's office annulled the decision to suspend the proceedings, finding that the police had not fully complied with the requirements of the applicable procedural law and had also failed to comply with the instructions issued by the prosecutor's office on 25 July and 15 August 2000. 12. On 5 April 2001 the applicant was granted leave to join the proceedings as an injured party and a civil claimant. 13. On 15 June 2001 the Cherkasy regional prosecutor's office acknowledged to the applicant's family that the investigation had been beset by unnecessary delays for which it could not provide a plausible explanation. Moreover, the investigator in charge of the case had been subjected to disciplinary action on account of serious procedural omissions. The prosecutor's office also informed the applicant's family that progress in the case had twice been discussed at recent staff meetings and assured her that the investigation would be closely monitored. 14. On 20 September and 27 November 2001 the applicant's family received further similar acknowledgments from the Cherkasy regional prosecutors' office and the Ministry of the Interior. 15. By a letter of 5 December 2001 the General Prosecutor's Office acknowledged to the applicant's family that the investigation into the circumstances leading to I.D.'s death had been perfunctory as the instructions given by the prosecutor's office had not been carried out in full. They further informed the applicant's family that they had instructed the Cherkasy regional prosecutor's office as to the specific steps to be taken and had advised that the case should be transferred to an experienced investigator. 16. On 14 December 2001 the case was transferred for investigation to the Cherkasy regional police department. 17. On several occasions (on 19 May and 6 December 2002, 17 March 2003 and 23 October 2004) the investigation was suspended on account of a failure to pick up any leads as to the perpetrator's identity. 18. These decisions were annulled by the supervising prosecutors (on 22 November and 20 December 2002, 18 April 2003 and 12 January 2009 respectively), with reference to the inadequacy of the measures taken. 19. On several occasions (in particular, on 7 May and 1 July 2003 and 20 October 2004) the prosecutor's office and the Ministry of the Interior acknowledged to the applicant's family that the investigative work aimed at identifying the person responsible for I.D.'s wounding had been inadequate. In October 2004 the Prydniprovsky district prosecutor's office further proposed that the police department carry out an official internal investigation into the reasons for the inadequate performance. No information regarding the outcome of this internal investigation has been provided by the parties. 20. On 20 September 2005 and 25 December 2008 the Cherkasy Regional Department of the Ministry of Interior studied the case-file and gave additional instructions to the investigative authorities. On 12 January 2009 the Prosecutor of the Prydniprovskyy District of Cherkasy quashed the investigator's order of 23 October 2004 to suspend the investigation and formal proceedings were resumed. 21. Overall, in the course of the investigation the law-enforcement authorities carried out forty-seven interviews, one confrontation and two line-ups. They further ordered two medical expert assessments. 22. The criminal proceedings are currently pending. 23. On 25 May 2003 the applicant's family instituted civil proceedings in the Prydniprovsky District Court of Cherkasy seeking damages from Cherkasy Technological University for failure to ensure security in its dormitory, thus leading to I.D.'s wounding and death. 24. On 1 October 2003 the Prydniprovsky District Court dismissed this claim, having found that I.D. had been injured through no fault of the University. On 20 November 2003 and 17 August 2004 the Cherkasy Regional Court of Appeal and the Supreme Court of Ukraine respectively upheld this judgment. 25. The relevant provisions of the Constitution and the Code of Criminal Procedure can be found in the judgment in the case of Sergey Shevchenko v. Ukraine (no. 32478/02, §§ 36-39, 4 April 2006).