CASE OF SHEPELENKO v. UKRAINE
Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)
André Potocki;Ganna Yudkivska;Síofra O’Leary
4. The applicants are spouses who were born in 1960 and 1961 respectively and live in the village of Shchorsove, in the Odessa Region. 5. Late in the evening of 18 June 1997 A., the applicants’ son (born in 1982), died in a traffic accident. According to the applicants, on that day D., the driver of the car, compelled A. to sit in the vehicle and travel with him. During the drive, D. exceeded the speed limit and the car turned over. The applicants’ son died from his injuries. The driver and other passengers survived. 6. Between 00.40 a.m. and 1.55 a.m. on 19 June 1997 the police prepared a site inspection report. They also questioned witnesses on the same day. 7. On 20 June 1997 the police instituted criminal proceedings related to the death of the applicants’ son. 8. On 1 October 1997 D. was charged with violating traffic safety rules and causing the death of the applicant’s son. Given that D. had not appeared before the police and that his whereabouts were unknown, the investigator, following approval by the prosecutor of the Ivanivka District of Odessa Region (“the District Prosecutor”), on the same day ordered the placing of D. in custody as a preventive measure. 9. On 11 November 1997 D. was placed on the list of wanted persons. 10. On 14 April 1998 D. visited the police department in charge of the criminal case and stated that between August 1997 and February 1998 he had been undergoing medical treatment outside Ukraine. On the same day the investigator, following approval by the District Prosecutor, changed the preventive measure from pre-trial detention to a written undertaking not to abscond. 11. On 24 June 1998 the first applicant brought civil claims for damages and requested that D.’s property be held as security for the claims. The claims were joined to the criminal case file. 12. In July 1998 the case was referred to the Ivanivka District Court of Odessa Region (“the District Court”) for consideration on the merits. 13. On 20 January 1999 the District Court put D. on the list of wanted persons, stating that he had failed to appear for court hearings on several occasions. The court ordered that he be placed in custody. 14. On 29 March 2010 the police informed the president of the District Court that D. had been arrested and taken to the local pre-trial detention centre. 15. On 20 April 2010 the applicants brought new civil claims, seeking damages within the criminal proceedings against D. 16. On 14 May 2010 the District Court closed the criminal proceedings on the basis of an Amnesty Act passed in 1998, releasing D. from criminal liability and punishment. The District Court dismissed the civil claims without considering them on the merits. 17. The applicants appealed. 18. On 26 August 2010 the Odessa Court of Appeal upheld the District Court’s decision concerning the termination of the criminal case against D. As to the civil claims, it found that the District Court dismissed them unlawfully and ordered that they be considered further by the District Court in accordance with civil procedure. 19. On 22 September 2011 the Higher Specialised Court for Civil and Criminal Matters dismissed the appeal by the applicants on points of law as unsubstantiated. 20. On 22 May 2013 the District Court partly allowed the applicants’ civil claims. Referring to the results of the criminal proceedings, the court found that D. had been responsible for the traffic accident, causing the death of the applicants’ son. It awarded each applicant 400,000 Ukrainian hryvnias (UAH) in respect of non-pecuniary damage and a further UAH 16,050 to the first applicant in respect of pecuniary damage. 21. On 1 October 2013 the Odessa Court of Appeal considered an appeal by D. and reduced the non-pecuniary damage award to UAH 50,000 for each applicant. 22. On 24 October 2013 the Higher Specialised Court for Civil and Criminal Matters dismissed an appeal on points of law by the applicants, who sought to increase the amount of damages. 23. On 24 June 2014 the State Bailiffs Service returned letters of execution to the applicants, stating that no funds or property belonging to the debtor could be found.