CASE OF IGOR SHEVCHENKO v. UKRAINE
Preliminary objections dismissed (Article 35-1 - Exhaustion of domestic remedies;Article 35-3 - Ratione materiae;Ratione temporis);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award;Pecuniary damage - claim dismissed
André Potocki;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Karel Jungwiert;Mark Villiger;Mykhaylo Buromenskiy
5. The applicant was born in 1979. 6. On 26 January 1993 the applicant, in the presence of numerous witnesses, was hit by a car on a pedestrian crossing. He sustained grievous bodily injuries and was diagnosed, inter alia, with serious head injury, concussion, spinal cord haematoma, a broken lower jaw, and other serious injuries. From that time on, and until his death on 24 March 2010, he was severely disabled. In particular, between 1993 and 1996 he was in a coma and later he had been suffering from persistent after-effects of the head injury, was unable to take care of himself and in 2005 was declared legally incapable by the court. 7. On 5 February 1993 the Investigation Unit of the Kharkiv State Department of the Ministry of Internal Affairs (слідчий відділ ХДУ УМВС України в м. Харкові) (hereinafter “the Investigation Unit”) instituted criminal proceedings against the driver, K., for a violation of traffic rules. 8. On 27 October 1993 the applicant’s mother was declared a victim of the alleged crime, since the applicant was a minor and had serious health problems. 9. On 30 November 1994 the investigation was completed and the case was transferred to the Frunzenskyy District Court, Kharkiv. 10. On 9 December 1994 the case was returned by the court for additional investigation. 11. On 25 January 1995 the Investigation Unit terminated the criminal proceedings in the case for absence of proof of K.’s guilt. 12. On 7 April 1995 the Kharkiv Prosecutor quashed this decision. 13. On 23 October 1995 the Investigation Unit terminated the criminal proceedings on the same grounds as before. 14. On 16 April 1997 this decision was quashed by the Kharkiv Prosecutor and the case was sent for further investigation. 15. On 28 January 1998 the investigation was completed and the case was transferred to the Frunzenskiy District Court, Kharkiv. It was later transferred to the Kominternovskiy District Court, also Kharkiv. 16. On 22 March 2000 the court returned the case for further investigation. 17. On 25 April 2000 the Kharkiv Regional Court, upon an application for review lodged by the Kharkiv Prosecutor, quashed the decision of 22 March 2000 and transferred the case to the Kominternovskiy District Court for consideration on the merits. 18. On 10 August 2001 the latter court returned the case for further investigation. 19. On 26 September 2001 the Kharkiv Regional Court of Appeal (formerly the Kharkiv Regional Court) upheld this decision. 20. On 19 June 2002 the case was sent back to the court after additional investigation. 21. On 27 July 2002 the Kominternovskiy District Court returned the case for further investigation. 22. On 15 August 2002 the case was transferred for investigation to the Poltava Regional Police Department (слідче управління УМВС України в Полтавській області). 23. By a letter of 10 December 2002 the General Prosecutor’s Office informed the applicant’s mother that, in order to clarify inconsistencies in previous expert conclusions, a new technical forensic examination of K.’s car had been ordered. It stated that it would be conducted in spring 2003. 24. On 7 November 2003 the investigation was terminated and the case transferred to the Kharkiv Regional Prosecutor for further transfer to a court. 25. On 12 November 2003 the case was sent back to the Poltava Regional Police Department. 26. On 30 December 2003 the case was transferred to the Central Department of the Ministry of Internal Affairs of Ukraine in order to determine its territorial jurisdiction. 27. On 21 August 2004 K. died. 28. On 23 September 2004 the Investigation Unit terminated the criminal proceedings on account of K.’s death. 29. No copies of the above decisions were submitted by the parties. Copies are available only of the decisions of 5 February 1993 and 23 September 2004. 30. On 20 December 2005 the applicant’s mother instituted proceedings in the Frunzenskiy District Court, Kharkiv, against the Frunzenskiy District Department of the Pension Fund of Ukraine and against the Labour and Social Security Department of the Frunzenskiy District Council, Kharkiv, claiming various payments allegedly due to the applicant and compensation for non-pecuniary damage. On 17 February 2006 the court dismissed the applicant’s mother’s claims. On 6 April 2006 the Kharkiv Regional Court of Appeal upheld this decision. No appeal was lodged on points of law. 31. According to Article 215 of the Criminal Code of Ukraine of 1960 a driver, who, having breached the rules of road safety or of operation and maintenance of his vehicle, has caused a human death or inflicted grievous bodily harm, may be divested of his driver’s licence and sentenced to a term of imprisonment of up to ten years. Article 286 of the Criminal Code of Ukraine of 2001, which replaced the above provision, reduced the maximum term of imprisonment for the same offence to eight years. 32. The relevant provisions of the Constitution of Ukraine and the Code of Criminal Procedure of Ukraine can be found in the judgment in the case of Muravskaya v. Ukraine (no. 249/03, §§ 35-36, 13 November 2008). 33. The relevant provisions of the Civil Code of Ukraine and the Code of Civil Procedure of Ukraine can be found in the judgment in the case of Fedina v. Ukraine (no. 17185/02, §§ 43-45, 2 September 2010).