CASE OF PRILUTSKIY v. UKRAINE
No violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)
Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano
5. The applicant was born in 1960 and lives in Donetsk. 6. On the night of 30 September 2006 the applicant’s son (born in 1984) took part in “AutoQuest”, a location-based driving game in the city of Donetsk. In accordance with the rules of the game, the participants were divided into teams and each team had to move by car to different locations in the city. On arrival at an intermediary destination each team had to solve a riddle in order to establish the next destination point, and the winner was the team that reached the final destination first. 7. The applicant’s son was in the team of P., who was the driver. During the game P. lost control of the car and collided with a pillar. As a result of the accident, P. was injured and his three passengers, including the applicant’s son, died. 8. On 1 October 2006 the Donetsk Region police department opened an investigation under Article 286 § 3 of the Criminal Code in connection with the fatal car accident. 9. On 3 October 2006 the applicant was admitted to the proceedings as a victim. 10. On 19 February 2007, in reply to an enquiry from the applicant concerning the investigation, the Donetsk City prosecutor’s office informed him that the case was complicated and the police had to order various expert examinations; the activities of the organisers of the driving game were also being examined. 11. On 23 February 2007 the police refused to institute criminal proceedings against the organisers of the driving game. 12. On 10 July 2007 the board of forensic psychiatric experts completed their examination and found that at the time of the accident P. had been aware of his actions and able to control them. Following the injuries sustained in the accident, P. had developed a chronic mental disability. He was diagnosed with a complicated organic impairment of the brain and amnestic syndrome. The experts found that at the time of the examination P. had no longer been aware of his actions or able to control them and that he should therefore undergo mandatory psychiatric treatment. 13. On 24 October 2008, in reply to a complaint lodged by the applicant about the ineffectiveness of the investigation, the Donetsk Region prosecutor’s office maintained that the criminal investigation was being carried out in accordance with the requirements of the Code of Criminal Procedure and that there had been no grounds to change the investigator in the criminal proceedings. 14. On 5 February 2009 the case file was referred to the Kuybashevskyy District Court of Donetsk (“the first-instance court”) in order to determine whether it was appropriate to apply compulsory medical measures in respect of P. 15. On 15 March 2010 the chairman of the Donetsk Region Council of Judges requested that the chairman of the first-instance court ensure prompt consideration of the criminal case. He noted that the court hearings had been repeatedly adjourned and the length of the proceedings had not been reasonable. 16. On 28 February 2011 the board of forensic psychiatric experts issued a report repeating their previous conclusions as to P.’s mental state. 17. On 8 June 2011 the first-instance court found that P. had committed a crime by violating the traffic safety regulations, which had resulted in the death of the applicant’s son and the two other passengers. The court noted that P. had collided with a pillar because he had exceeded the speed limits and had lost control of the car. It further noted that, according to the forensic psychiatric examination reports of 10 July 2007 and 28 February 2011, P. had been mentally aware of and able to control his actions at the time of the accident but had later developed a mental disability; at the time of the examinations, P. had been suffering from an organic brain impairment and amnestic syndrome; as a result, he had no longer been aware of or able to control his actions and needed to be provided with compulsory medical treatment, namely outpatient psychiatric assistance. Bearing those medical reports in mind, the court ordered the compulsory medical measures. 18. The applicant appealed, claiming that he was a doctor by profession and could see that the medical findings were wrong. He further complained of a breach of procedural rules, arguing that P. should have been brought to the court room for the hearings. 19. On 24 January 2012 the Donetsk Regional Court of Appeal quashed the decision of 8 June 2011 and remitted the case for additional pre-trial investigation. The court noted that there were witness statements, including those obtained at the pre-trial stage of the proceedings, which suggested that at the time of the accident P. might have made a sharp turn in order to avoid hitting a pedestrian who had been crossing the road. The court considered that the facts had not been established properly and that additional investigatory measures were required. 20. Following the additional investigation, the case was referred to the first-instance court on 31 October 2012. The investigative authorities considered that P. had exceeded the speed limit, in violation of the traffic regulations; he had lost control of the car and caused the accident which had resulted in the deaths of his three passengers. P.’s actions amounted to a crime. However, due to the mental disability that he had developed after the accident, it was proposed that the court impose compulsory medical measures in respect of P. 21. As of 26 March 2013 the proceedings were pending.