CASE OF GOROVENKY AND BUGARA v. UKRAINE
Remainder inadmissible;Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
Angelika Nußberger;Dean Spielmann;Elisabet Fura;Karel Jungwiert;Mark Villiger;Mykhaylo Buromenskiy
5. The first applicant was born in 1938 and lives in the town of Novomoskovsk, Ukraine. The second applicant was born in 1941 and died in 2006. The third, fourth and fifth applicants were born in 1960, 1984 and 1992 respectively and live in the town of Pyatykhatky, Ukraine. 6 7. On 22 November 1999, shortly after midnight, D., the then deputy head of the criminal investigation department (заступник начальника відділення карного розшуку) at the Pyatykhatky District Police Office (П’ятихатський районний відділ УМВС України в Дніпропетровській області), was on his way back from a private trip in a car driven by an acquaintance of his, Mr V. Bugara. The third applicant was also in the car. Having quarrelled with Mr V. Bugara, D., who was drunk, deliberately fired on and instantly killed him, using the police gun which he carried on him at all times. D. then attempted to shoot the third applicant but missed. The third applicant managed to run away. 8. After that D. tried to stop passing cars. Mr A. Gorovenko, who happened to be driving by at that time, stopped and spoke to D., who pretended that his car had broken down and asked for help. However, Mr A. Gorovenko suspected that something was wrong and tried to get away. D. shot Mr A. Gorovenko and attempted to shoot R., who was a passenger in Mr A. Gorovenko’s car, and seriously wounded her. 9. Soon D. was apprehended by passers-by and taken to the police station. 10. Shortly after the incident the police launched an internal investigation. The report, signed on 23 November 1999, brought to light a number of “causes and pre-conditions” stemming from poor regulation by the Pyatykhatky District and Dnipropetrovsk Regional Police Offices which had led to the incident in question. It mentioned, among other things, that the superior officers had failed to adequately examine D.’s character when recruiting and promoting him. In particular, several incidents which demonstrated D’s unsuitability for service in the police department were mentioned. When studying at police college D. had been dismissed from the position of section commander for alcohol abuse. In 1994 he had inflicted light bodily injuries on Sh. and had been sanctioned on three occasions for disciplinary offences. It was further mentioned that his superior officers had failed to enforce and maintain discipline over their subordinates. In particular, several incidents involving police officers from the Pyatykhatky District Police Office were referred to. The superior officers had failed to exercise due control when permitting their subordinates to keep and carry police guns at all times. The report stated that the superior officers had not checked the conditions in which D. kept his police gun at home and had not supervised D.’s behaviour when he was off duty. Furthermore, although D. was known to abuse alcohol, his superiors had not withdrawn his police gun in due time. In particular, on 13 November 1999, while the elections of the President of Ukraine were taking place and the police were operating under a special “reinforced” regime, D. had returned home intoxicated. 11. It was decided that two officers (including the head of the Pyatykhatky District Police Office) were to be dismissed and six others subjected to disciplinary sanctions. 12. On 22 November 1999 the local prosecutor’s office instituted criminal proceedings against D. In the course of these proceedings the applicants brought civil claims against both D. and the Dnipropetrovsk Regional Police Office (Управління МВС в Дніпропетровській області), seeking compensation for pecuniary and non-pecuniary damage. 13. By a judgment of 14 November 2000 the Dnipropetrovsk Regional Court (from June 2001 – “the Dnipropetrovsk Regional Court of Appeal”) found D. guilty of multiple murders, among other crimes, and sentenced him to life imprisonment. The court found that in March 1999 a decision had been taken allowing D. to carry a gun at all times. However, D. had systematically contravened the provisions of the Police Act both while on duty and at home and had abused alcohol on numerous occasions. The court awarded the two applicants’ families amounts totalling 57,786.12 and 62,532.26 Ukrainian hryvnias (UAH) respectively in compensation for pecuniary and non-pecuniary damage − the sums to be paid by D. The court further decided that the applicants’ claim against the Dnipropetrovsk Regional Police Office should be examined in separate civil proceedings. 14. On the same date the Dnipropetrovsk Regional Court issued a special ruling (окрема ухвала) informing the head of the Dnipropetrovsk Regional Police Office of “serious deficiencies in the activities of the Pyatykhatky District Police Office”. Referring to the above-mentioned findings, the court stated that D. had shot two persons with his police gun, which he had been using in the course of his duties. It went on to say: “Such deliberate disregard for the [Police Act] by a police officer [...], the serious deficiencies in the maintenance of discipline over subordinate officers, and the lack of proper control over the issuing and keeping of police guns in [the Pyatykhatky District Police Office] were the cause of [the incident in question]” 15. The first and second applicants appealed against the judgment and on 16 January 2001 the Supreme Court of Ukraine dismissed their appeal. The judgment became final. 16. By a letter of 9 September 2005, the Dnipropetrovsk Regional Court of Appeal notified the applicants that in 2004 D. had paid them UAH 5 in total. According to the applicants, the judgment of 14 November 2000 remains unenforced in the part concerning the compensation award. 17. In February 2003 the applicants brought actions against the Dnipropetrovsk Regional Police Office and the local department of the State Treasury of Ukraine before the Babushkinskyy District Court of Dnipropetrovsk, seeking compensation for non-pecuniary damage. In support of their claims they relied on the findings in the judgment, the special ruling of 14 November 2000 and the internal investigation report of 23 November 1999. 18. On 5 March 2003 the court rejected the applicants’ claims. In so doing the court reasoned as follows: “... According to the legislation in force, redress for non-pecuniary damage has to be made by the person who has caused it by his own malicious acts. A finding of guilt and a link of causality between the impugned acts and the damage are the necessary conditions for liability.” “The claimants’ argument that negligent acts and omissions by the administration of the Dnipropetrovsk Regional Police Office brought about the detrimental consequences in issue and caused non-pecuniary damage to the claimants cannot be accepted as no causal link between the acts and omissions of the Dnipropetrovsk Regional Police Office and the consequences in question was established by the internal investigation. According to section 441 of the Civil Code, an organisation has to pay compensation for damage caused by its employees in the course of their employment. It was established in the course of the criminal proceedings that [D.], being the deputy head of the criminal investigation department at the Pyatykhatky District Police Office, had committed the crimes while off duty and for purely violent motives. In the light of the foregoing, the court has reached the conclusion that the claims should be rejected.” 19. On 10 July 2003 and 4 April 2005 the Dnipropetrovsk Regional Court of Appeal and the Supreme Court of Ukraine respectively rejected appeals by the applicants. 20. The Instruction on the Regulations for the Permanent Keeping and Bearing of Police Firearms, Ammunition and Special Equipment by Police Officers was adopted on 25 January 1995 by order no. 60 of the Ministry of the Interior (Інструкція про порядок постійного збереження і носіння табельної зброї, боєприпасів і спеціальних засобів працівниками міліції, затверджена наказом МВС України № 60 від 25 січня 1995 р.). It sets forth the requirements for police officers to be permitted to keep and bear firearms, ammunition and special equipment at all times, the procedure for applying for such permits, and the conditions under which firearms, ammunition and special equipment must be kept and carried by police officers. In particular, according to part 2.3 of the Instruction, it is forbidden to issue guns to those persons who do not have appropriate equipment for its safe keeping at work and at home. The superior officers are ordered “to strengthen their supervisory role” in the implementation of this Instruction. 21. The provisions of the Constitution of Ukraine and the 1963 Civil Code of Ukraine regarding the responsibility of the State for acts or omissions by its agents are set out in Lovygina v. Ukraine (dec.), no. 16074/03, 22 September 2009. 22. The United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials were adopted on 7 September 1990 by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, which provides, inter alia: “11. Rules and regulations on the use of firearms by law enforcement officials should include guidelines that: (a) Specify the circumstances under which law enforcement officials are authorised to carry firearms... ... (d) Regulate the control, storage and issuing of firearms, including procedures for ensuring that law enforcement officials are accountable for the firearms and ammunition issued to them. ... 18. Governments and law enforcement agencies shall ensure that all law enforcement officials are selected by proper screening procedures, have appropriate moral, psychological and physical qualities for the effective exercise of their functions and receive continuous and thorough professional training. Their continued fitness to perform these functions should be subject to periodic review. 19. Governments and law enforcement agencies shall ensure that all law enforcement officials are provided with training and are tested in accordance with appropriate proficiency standards in the use of force. Those law enforcement officials who are required to carry firearms should be authorised to do so only upon completion of special training in their use.” 23. The commentary to Article 37 of the European Code on Police Ethics (Explanatory Memorandum of the Recommendation (2001) 10 of the Committee of Ministers of the Council of Europe to member States on the European Code on Police Ethics) reads inter alia as follows: “...The importance of recruitment of suitable personnel to the police, as well as their training cannot be underestimated ...