CASE OF BASYUK v. UKRAINE
Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)
Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Josep Casadevall;Vincent A. De Gaetano
5. The applicant was born in 1940 and lives in Odessa. 6. On 4 September 2005 the applicant’s daughter, Ms Ye., and her child D., when crossing a road, were hit by a car driven by Ms M. It appears that the driver called an ambulance and the police. According to her statements to the police, Ms Ye. and the child had stopped at first in the middle of the road giving her the impression that they would wait until the car passed, but then had unexpectedly started running further across the road making the collision inevitable. 7. On the same day the police inspected the site and questioned some witnesses. They submitted that Ms. Ye. and her daughter had been crossing the road at some distance from the marked pedestrian crossing. 8. On 21 November 2005 the applicant’s daughter died in hospital. As to the injuries of his granddaughter, they were not dangerous for life. 9. On 12 December 2005 a forensic medical examination of the body of Ms Ye., which had been started on 23 November 2005, was completed. It established that she had died from the injuries sustained in the accident. The expert also established the victim’s position in respect of the car at the collision. 10. On 28 December 2005 another expert report was issued. It stated that it had been technically impossible for Ms M. to avoid the accident. 11. On 29 December 2005 an investigator of the Traffic Accidents Investigation Unit of the Odessa Regional Department of the Ministry of the Interior (слідчий відділу розслідування дорожньо-транспортних пригод ГУ МВС в Одеській області) delivered a ruling refusing to initiate criminal proceedings in respect of the accident. It was established that Ms Ye. and her daughter had been crossing the road unexpectedly and not on a pedestrian crossing, and when the driver, Ms M., had seen them, it had been technically impossible for her to avoid the accident. 12. On unspecified dates thereafter three additional witnesses of the accident, whom the applicant had identified in the meantime, stated that the collision had taken place at the pedestrian crossing. 13. The Government submitted to the Court a copy of the notarised agreement of 14 March 2006 signed by Ms M. and her father, for one part, and the applicant, his wife, Ms Ye.’s widower Mr Dr. (the applicant’s son-in-law) and Ms Y.A., another daughter of Ms Ye., for the other part. Its contents are as follows. Ms M. and her father undertook to pay the other party UAH 101,000 (then equivalent of about 16,700 euros (EUR)) “in respect of pecuniary and non-pecuniary damage caused by the traffic accident”. This obligation would be considered discharged if the payment was made to anyone of the cosignatories for the other party. It was additionally noted that, by that time, Ms M. had also paid UAH 87,264 (then equivalent of EUR 14,400) in respect of the victims’ medical treatment. In exchange, the victims’ family undertook not to seek initiation of criminal proceedings and not to lodge any claims or complaints against Ms M. In case they did not comply, they would have to pay back to Ms M., within three days, the amount of the compensation received. As an attachment to the agreement, there was a receipt signed by Mr Dr., the applicant’s son-in-law, in confirmation that he had received the money in question. 14. The case file did not contain any further information or documents regarding the aforementioned agreement or any follow-up to it. The applicant neither mentioned it in any of his submissions to the Court nor commented on it in reply to the Government’s observations. Accordingly, on 5 June 2015 the Court sent a factual request to the applicant with a view to clarifying the matter. More specifically, the applicant was requested to comment on the agreement of 14 March 2006, namely, to specify whether his family had received the amounts in question and, if so, whether he had had to recover them to the other party given his subsequent criminal complaints in her respect. The applicant replied that he had signed the agreement in question without reading it while being affected by the stress and sorrow caused by the death of his only child. He further noted that it was not him, but his son-in-law, who had received the money from the driver’s family (see also paragraph 31 below). 15. On 4 April 2006 the applicant complained to the Main Investigation Department of the Ministry of the Interior that the investigation of the traffic accident, which had caused the death of his daughter, had been lengthy and ineffective. 16. On 13 April 2006 the Ministry of the Interior replied to him that the investigation had been entrusted to the Odessa law-enforcement authorities. 17. On 6 May 2006 the Odessa Police Department further informed the applicant that it remained open for him to challenge the decision of 29 December 2005 refusing to initiate criminal proceedings in respect of the accident (see paragraph 11 above). 18. On 20 May 2006 the applicant complained to the Odessa City Prosecutor’s Office (“the city prosecutor”) about the ineffectiveness of the investigation into the death of his daughter. 19. As a result, on 7 June 2006 the city prosecutor quashed the decision of 29 December 2005 as premature and based on incomplete investigation. He ordered additional investigation, which was to include, in particular, the following measures: establishing the gravity of the child’s injuries and considering the possibility of her questioning in a pedagogue’s presence; questioning the applicant as to how he had identified some additional eye-witnesses of the accident, of whom he had informed the investigation; questioning those witnesses; and considering the possibility of an additional on-site inspection. 20. On 20 July 2006 another decision not to open a criminal case in respect of the accident was delivered. 21. On 10 January 2007 the Odessa Regional Prosecutor’s Office (“the regional prosecutor”) quashed the decision of 20 July 2006 as premature and remitted the case to the traffic police for additional investigation. 22. On 25 January 2007 another forensic technical expert examination report was issued. This time the expert had, in particular, to assess the conflicting accounts of the events given by the witnesses (some of them submitted that the accident had taken place at an unregulated pedestrian crossing, while others maintained that the victims had been crossing the road at some distance from that crossing). It was found impossible to reconcile those two versions. 23. On 1 March 2007 the investigator again refused to initiate criminal proceedings having found that there was no case to answer. 24. On 24 March 2009 the regional prosecutor quashed the above decision and opened a criminal case against Ms M. on suspicion of a breach of traffic rules causing the death of the applicant’s daughter. The investigator previously dealing with the case was disciplined for the inadequate and lengthy investigation. 25. On 20 May 2009 the applicant was attributed the status of an aggrieved party. 26. On the same day the applicant signed a statement in confirmation that his right to lodge a civil claim had been explained to him. He noted that he intended to lodge such a claim later in the course of the pre-trial investigation once he decided on the amount of the damages. 27. On 1 June 2009 a forensic medical expert established that the death of Ms Ye. had resulted from the injuries sustained by her in the accident. 28. On 26 October 2009 the investigator ordered a complex forensic medical and technical expert examination. On 30 November 2009 it was completed. Having analysed the injuries sustained by Ms Ye. and her daughter, as well as the damages to the car of Ms M., the expert established the position of the victims at the time of the accident. 29. In November 2009 the applicant complained to the regional prosecutor once again that the investigation was not progressing. 30. On 18 May 2010 yet another technical examination was assigned, and on 30 September 2010 it was completed. The expert concluded that, if the victims had been crossing the road not on the pedestrian crossing, it had been technically impossible for the driver to avoid the accident. If, however, they had been on the pedestrian crossing, it had been possible for her to avoid the accident. 31. On 25 May 2010 the father of the driver involved in the accident, Mr M., lodged a civil claim against the applicant and his family seeking the termination of the agreement of 14 March 2006 and the recovery of the amounts paid under that agreement (see paragraph 13 above). On 19 August 2010 Mr M., however, withdrew that claim for unknown reason. The information about these events has been provided to the Court by the applicant in his reply to the factual request of 5 June 2015 (see paragraph 14 above), without any further details. 32. On 7 January 2011 the investigator requested the Odessa transport police to establish the whereabouts of the car involved in the accident and to find who its owner was at that time. 33. On 18 March 2011 the car involved in the accident was attached as material evidence in the criminal investigation. 34. On 24 May 2011 a reconstruction of the circumstances of the accident was conducted with the applicant’s participation. He showed where his granddaughter and the body of his daughter had been found. 35. Having regard to those statements of the applicant, on 6 June 2011 the investigator assigned another forensic technical expert examination. On 9 September 2011 it was completed. The expert found it impossible to establish the exact place of the accident owing to the absence of the documentation regarding the car’s brake trace. Nor could the expert establish whether it had been technically possible for the driver to avoid the accident. 36. On 10 May 2012 the investigator terminated the proceedings for want of evidence of the driver’s guilt. As noted in his decision, three witnesses stated that the accident had taken place on the pedestrian crossing, while other four witnesses stated that it had been outside the crossing, and it appeared impossible to establish the truth. 37. On 6 June 2012 the regional prosecutor quashed the above decision and ordered additional investigation. He noted that the initial investigative measures, such as the accident reconstruction, had not reflected all the issues essential for the subsequent technical expert evaluations to establish the pertinent facts with precision. Furthermore, the inquiry authorities had inadequately complied with the assignments given by the investigator. 38. On 5 July 2012 the investigator ordered an additional forensic medical and technical expert examination. On 6 August 2012 it was completed. It established, in particular, the position of the victims in relation to the car. The examination also confirmed that the applicant’s daughter had died as a result of the accident. Lastly, the expert found it impossible to establish at what speed Ms M. had been driving at the time of the accident. 39. On 28 January 2013, following the entry into force of the new Code of Criminal Procedure, the information on the case was entered in the Unified Register of Pre-Trial Investigations. 40. On 15 March 2013 the investigator repeatedly questioned a number of witnesses. 41. On 12 July 2013 another technical expert examination was assigned. Its results are unknown. 42. According to the most recent information from the Government, as of 29 November 2013 the investigation was ongoing.