CASE OF BUCHYNSKA v. UKRAINE
Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)
André Potocki;Ganna Yudkivska;Vincent A. De Gaetano
4. The applicant was born in 1980 and lives in Zhytomyr. 5. At about 9 a.m. on 7 August 2002 two men, one of them wearing a mask, entered the applicant’s house, tied the applicant and took the valuables belonging to her and other household members. Subsequently, the unmasked man put a revolver in the applicant’s ear and fired a shot. The applicant survived, having sustained a permanent disability. To this day the bullet remains in her head. 6. On the day of the assault, the Zhytomyr police instituted criminal proceedings into the incident, examined the crime scene, collected fingerprints and other evidence, questioned the applicant’s household members and neighbors and ordered several expert assessments. 7. On 9 August 2002 the applicant was admitted in the proceedings as an injured party. 8. On several occasions the applicant identified the photos of various persons presented by the police as those of the unmasked offender. Among them, on 24 September 2002 she identified a certain V.P. 9. On an unspecified date I. K., V.P.’s partner, acknowledged to the police that she had seen a revolver in his possession. She also noted that at about 8 a.m. on 7 August 2002 V.P. had left their home for an appointment with his friend S.K. On that date he had returned home at about 1 p.m., wearing a new suit and carrying some money, which, according to him, had been entrusted to him by S.K. for safekeeping. 10. On 25 September 2002 A.V., V.P.’s neighbor, identified S.K. on a photograph, as V.P.’s friend. 11. On 8 October 2002 I.K. also identified S.K. on a photograph as V.P.’s friend. 12. On several occasions in October 2002 the authorities questioned S.K. as a witness. 13. On 18 October 2002 the investigation was suspended on the ground that all possible measures to locate the perpetrators had been exhausted. 14. On 5 November 2002 the Zhytomyr City Prosecutor’s Office revoked this decision, having found that additional measures were warranted. 15. Two further decisions to suspend the proceedings taken on 26 November and 16 December 2002, respectively, were, in turn, revoked by the prosecutor’s office on 4 December 2002 and 8 January 2003. 16. According to the applicant, in January 2003 she informed the investigator in charge of her case that she suspected that O.M., her cousin, had been the masked offender. Having assured her that he would conduct the necessary inquiries, the investigator left this information without any follow-up. 17. On 31 March 2003 the proceedings were suspended on the ground that all possible measures to locate the perpetrators had been exhausted. According to the applicant, she was not informed of this decision and kept soliciting the authorities to investigate her suspicions in respect of O.M. 18. On 24 June 2003 the applicant and several other members of her family complained to the Zhytomyr Regional Prosecutor’s Office of the length of the proceedings and the failure of the investigator to react to the applicant’s suspicions with respect to O.M. 19. On 25 July 2003 the prosecutor’s office informed the complainants that the proceedings had been suspended since 31 March 2003. On the same date it revoked the suspension decision, noting that the measures taken to identify the perpetrators had not been comprehensive, and transferred the case to the Korolyovskiy District Prosecutor’s Office in Zhytomyr for supervising further investigative activities. 20. On 4 September 2003 O.M. was arrested and remanded in custody. On the same date he confessed to his participation in the crime and identified S.T. as his accomplice. 21. On 5 September 2003 S.T. was arrested. He denied his involvement in the crime and presented various pieces of evidence that he had been in Moscow, Russia, on the date of the incident. 22. On 6 September 2003 the applicant identified S.T. as the second offender during an identification parade. 23. On 12 September 2003 O.M. retracted his confession alleging that it had been given under duress. Since that time he pleaded innocent and presented various pieces of evidence that he had been at his job as a vendor of ice-cream at the time of the incident. 24. On 3 February 2004 the criminal proceedings in respect of O.M. and S.T. were discontinued for want of evidence of their involvement in the incriminated offence. The applicant appealed, insisting that O.M. and S.T. had been the perpetrators. 25. On 28 April 2004 the prosecutor’s office revoked the decision to discontinue the proceedings and ordered further investigative measures to verify the applicant’s allegations as well as O.M.’s and S.T.’s alibis. 26. On five further occasions between 2004 and 2006 (in particular, on 1 and 23 June 2004, 23 February, 30 May and 10 November 2005) the proceedings against O.M. and S.T. were discontinued, these decisions having been subsequently quashed with reference to insufficiency of the measures taken to verify the relevant facts. Eventually, on 25 April 2006 the proceedings against S.T. and O.M. were again closed for want of evidence that they had committed the incriminated offence. The decision referred, in particular, to testimonies by several witnesses and various sources of corporeal and forensic evidence in support of the defendants’ alibis and cited various reasons, why they considered the applicant’s submissions to be inconsistent and improbable. 27. On 6 July 2005 the General Prosecutor’s Office informed the applicant that following her complaints of inactivity on the part of the investigative authorities, the case had been transferred to the Vinnytsya Regional Prosecutor’s Office for further investigation. 28. On numerous occasions throughout the course of the investigation (in particular, on 14 July 2004, 15 August 2005, 25 April and 26 July 2006, 25 July 2008, 5 March 2009, 21 January and 20 August 2010, 11 March and 22 June 2011) the investigator in charge of the case requested the police to locate and question S.K. and V.P. as witnesses in connection with the proceedings at issue. A request to this end was also submitted to the Interpol and to the Polish police authorities. The parties did not inform the Court concerning any follow-up on these requests. 29. On eleven occasions between August 2005 and April 2012 (in particular, on 30 May, 19 August, 17 September 2005, 9 January, 8 February, 7 March, 27 April 2006, 31 March 2008, 20 July 2009, 11 October 2010 and 13 December 2011) the criminal proceedings in the applicant’s case were suspended on the ground that the measures available to the investigation had been exhausted without the perpetrators having been identified. These decisions were revoked by various branches of the prosecutor’s office, which found that the measures taken had not been exhaustive. 30. On 27 August 2007 the General Prosecutor’s Office acknowledged, in response to the applicant’s complaint, that the case had been protracted. 31. On 22 October 2007 the Vinnytsya Prosecutor’s Office reprimanded the Vinnytsya Police for inactivity in the investigation and ordered the officers responsible to speed it up. 32. On 1 July 2012 the K. family from Zhytomyr was robbed, several of its members having been shot. 33. On 7 July 2012 S.K. was arrested in Zhytomyr on suspicion of having committed the crime in respect of the K. family and remanded in custody. 34. By August 2012 S.K. confessed of having been involved in the above crime, as well as in a series of other robberies, assaults and murders, including the one in respect of the applicant. He further divulged that some of these crimes, including the one in the applicant’s respect, had been committed by him together with V.P. 35. The proceedings concerning V.P. were closed with reference to his death. 36. On 7 November 2012 the Deputy Zhytomyr Regional Prosecutor signed the bill of indictment accusing S.K. of numerous episodes of criminal activity. The evidence cited in respect of his assault on the applicant consisted, primarily, of S.K.’s own confessions and the sources collected in 2002 (see paragraphs 8-11 above). 37. On 9 November 2012 S.K. was committed to stand trial before the Korolyovskiy District Court in Zhytomyr. 38. As of June 2014 the case was pending before the first-instance court.