CASE OF POZHYVOTKO v. UKRAINE
Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)
Aleš Pejchal;Angelika Nußberger;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger
5. The applicants live in Nosivka, Chernihiv Region. The first applicant is Mr Volodymr Pozhyvotko’s widow and the second applicant is his mother. 6. In the evening of 12 October 2004 Mr Volodymyr Pozhvotko was shot dead in a local bar. 7. On the same date the Nosivskyy District Prosecutor’s Office opened an investigation in connection with the death. 8. During the night of 12-13 October 2004 an investigator from the prosecutor’s office, together with other law-enforcement officers, experts and witnesses, carried out an on-site examination, including photographing and videotaping of the crime scene. Certain material evidence was seized, including two pistols, cartridges, bullets and other items. The victim’s body was sent for a forensic medical examination. 9. In the subsequent period the investigative authorities ordered forensic examinations of the seized evidence, questioned a number of witnesses and conducted searches in order to find additional evidence. 10. On 18 October 2004 the first applicant was admitted to the proceedings as an aggrieved party. 11. On 9 November 2004 the investigator charged T. with murder and put him on the list of wanted persons. 12. On 7 February 2005 L. voluntarily confessed to shooting the victim dead. On the same day L. was arrested. The decisions concerning T. were revoked. 13. On 16 February 2005 L. was released on the grounds that there was insufficient evidence to charge him with the crime. 14. On the same day the second applicant was granted the status of aggrieved party in the criminal proceedings. 15. By letter of 1 August 2005 the second applicant was informed that the case had been referred to the Chernihiv Regional Prosecutor’s Office for “a more qualified investigation”. 16. In its letter of 23 October 2005 the General Prosecutor’s Office informed the second applicant that the investigation had been delayed. They further noted that the Chernihiv Regional Prosecutor’s Office had been instructed to take comprehensive measures in the case. As regards her request for referral of the case to a different prosecutor’s office, she was informed that it would not be appropriate to do so. 17. On 1 November 2005 the investigator in charge of the case stated in writing that the video recording and photographs of the crime scene made on 12 October 2004 could not be found. 18. On 28 December 2005 the investigation was closed on the grounds that L. had acted in the state of necessary defence and the involvement of other individuals in the crime could not be established. 19. On 29 December 2005 the deputy prosecutor of the Chernihiv Region quashed that decision, noting that the dactylographic examination had not been completed and a number of witnesses had not been questioned. 20. On 20 March 2006, following the additional investigation, the case was closed once again on the grounds that L. had acted in the state of necessary defence, while the involvement of other individuals in the crime could not be established. 21. On 5 June 2006 the Novozavodskyy District Court of Chernihiv quashed that decision, finding that the investigation had not been comprehensive. It noted that there had been a significant number of investigative measures at the initial stage of the proceedings, including an on-site examination and forensic expert examinations, which had been carried out unprofessionally and in breach of procedural rules, and that the video recording and photographs of the crime scene could not be found. The court remitted the case for additional investigation, specifying, inter alia, that it was necessary to investigate the personality of the victim in more detail, establish the precise time of the crime, take measures to find the missing video recording and photographs, question witnesses, and conduct, if appropriate, additional expert examinations. 22. Following that decision, the investigation was renewed and conducted by the Chernihiv Regional Prosecutor’s Office. 23. In his letter of 24 May 2007 the Deputy Prosecutor of the Chernihiv Region informed the second applicant that the video recording of the crime scene had been found and a range of additional investigative measures had been undertaken. He indicated that the investigator of the Nosivskyy District Prosecutor’s Office should have been sanctioned for the inadequate investigation of the case, but he had been dismissed. 24. In August 2007 the case was referred to the Chernihiv Regional Police Department and in November 2008 it was referred to the Sumy Regional Police Department for further investigative measures. 25. On 12 November 2009 the police investigator terminated the proceedings on the grounds that L. had acted in the state of necessary defence. The applicants appealed against that decision. 26. On 15 November 2010 the Zarichnyy District Court of Sumy quashed that decision as unfounded and ordered further investigative measures. 27. In December 2010 and January 2011 the Sumy Regional Prosecutor’s Office gave instructions to the police investigator as to the further investigations to be carried out. Those instructions included, among other things, an additional examination of the crime scene, questioning of witnesses, a reconstruction of the crime, confrontations between witnesses, and additional expert examinations. 28. As of 25 April 2012 the proceedings were pending. 29. The applicants also instituted two sets of civil proceedings against the law-enforcement authorities, claiming that they had failed to investigate the case properly and had breached procedures during the investigation. The claims in the first set of proceedings were rejected. The applicants did not inform the Court of the outcome of the second set of proceedings. 30. The applicants also requested that an investigation be opened concerning the disappearance of the harvest of sunflower seeds which had allegedly belonged to Mr V. Pozhyvotko and had been entrusted to his business colleagues. The authorities refused to open an investigation, after finding that the matter was of a civil-law nature and that there was no evidence that Mr V. Pozhyvotko had ever owned the harvest in question. 31. The relevant domestic law can be found in the judgment of Muravskaya v. Ukraine (no. 249/03, §§ 35 and 36, 13 November 2008).