FIFTH SECTIONCASE OF BUDAYEVA v. UKRAINE(Application no. 75485/12)      JUDGMENT STRASBOURG9 March 2023 This judgment is final but it may be subject to editorial revision.In the case of Budayeva v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Carlo Ranzoni, President, Mattias Guyomar, Mykola Gnatovskyy, judges,and Martina Keller, Deputy Section Registrar,Having regard to:the application (no. 75485/12) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 27 July 2012 by a Ukrainian national, Ms Svetlana Andreyevna Budayeva (“the applicant”), who was born in and lives in Odesa;the decision to give notice of the application to the Ukrainian Government (“the Government”), represented by their Agent, most recently Ms M. Sokorenko, from the Ministry of Justice;the parties’ observations;Having deliberated in private on 9 February 2023,Delivers the following judgment, which was adopted on that date:SUBJECT MATTER OF THE CASE1. The present case concerns the applicant’s complaints under Articles 2 and 13 of the Convention about the ineffectiveness of the investigation and subsequent court proceedings concerning the circumstances of her son’s death, which allegedly involved State agents, and those under Article 6 § 1 of the Convention about the length of the consideration of her civil claim lodged within the criminal proceedings.2. The facts of the case, as submitted by the parties, may be summarised as follows.3. On 28 May 1993 the applicant’s son, driving a motorcycle with two passengers, collided with a police car in a street in Odesa. The next day he died in a hospital from the injuries sustained.4. On 4 June 1993 the Kyivskyy District Prosecutor’s Office of Odesa instituted criminal proceedings concerning the death of the applicant’s son.5. On 22 December 1993 the applicant was granted victim status.6. On 25 December 1993 G., the police officer who had been driving the police car, was served with a written obligation not to abscond. On 3 January 1994 this preventive measure was lifted.7. On 17 July 1994 the investigator terminated the criminal proceedings against G. on account of the lack of corpus delicti in his actions. That decision was set aside in December 1994.8. On 5 January 1995 G. was identified as an accused person and the next day he was again served with a written obligation not to abscond.9. On 16 April 1996 the investigation was completed and on 8 May 1996 the criminal case was sent for trial.10. On 19 August 1996 G. was put on the wanted list because of his numerous failures to appear at court hearings and an order was made for his arrest and detention.11. On 24 October 2005 and on 11 November 2008 the applicant was informed that the police were still searching for G. and that following an internal police inquiry, it had been established that the search measures had not been appropriate and the police officers in charge had been disciplined.12. On 24 September 2009 G. was arrested.13. On 14 April 2010 the Kyivskyy District Court of Odesa delivered a guilty judgment, finding that G. had violated traffic safety rules, exceeded his powers and left the applicant’s son in danger and that all those actions had resulted in the latter’s death. The court sentenced G. to eight years’ imprisonment with a three-year driving ban and five years’ prohibition on holding any post with the law-enforcement authorities.14. On 2 December 2010 the Odesa Regional Court of Appeal quashed the above-mentioned judgment as ill-founded and remitted the case to the prosecutor for additional investigation. The appellate court noted that the available evidence in support of the applicant’s version of events indicated that G. might have acted deliberately in order to stop the motorcycle and his actions might not have been properly categorised under the criminal law. It also considered that the measures taken to locate G. had been inappropriate taking into account his uncontested statements that he had always lived in his apartment in Russia and had known nothing about being wanted by the police in Ukraine.15. On 23 August 2011, after the completion of the additional investigation, the Prymorskyy District Court of Odesa delivered a guilty verdict reiterating that G. had violated traffic safety rules and exceeded his powers and that those actions had resulted in the death of the applicant’s son. The court then exempted G. from criminal punishment because the limitation period had expired. He was released from custody on that day.16. On 24 January 2012 the Odesa Regional Court of Appeal quashed the verdict of 23 August 2011 and remitted the case to the first-instance court for fresh examination.17. On 8 October 2014 the Prymorskyy District Court of Odesa remitted the case to the prosecutor for additional investigation in order to establish the circumstances in which G.’s actions could have been incorrectly categorised.18. On 10 November 2015 the prosecutor approved a bill of indictment against G. and sent the case for trial.19. On 16 November 2016 the Kyivskyy District Court of Odesa returned the bill of indictment to the prosecutor for the elimination of procedural shortcomings.20. As of February 2017, the additional investigation was ongoing. The parties did not inform the Court of any further developments in this connection.21. The applicant complained under Article 2 and Article 13 of the Convention that the investigation and subsequent court proceedings concerning the circumstances of her son’s death had not been effective. The applicant also complained under Article 6 § 1 of the Convention that her civil claim for damages had remained undetermined for a considerable time.THE COURT’S ASSESSMENTALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION22. The Court, which is master of the characterisation to be given in law to the facts of the case, finds that the complaints at issue fall to be examined under Article 2 of the Convention alone (see Igor Shevchenko v. Ukraine, no. 22737/04, § 38, 12 January 2012).23. The Government submitted that the period of the investigation prior to 11 September 1997 (the date of entry into force of the Convention in respect of Ukraine) fell outside the Court’s jurisdiction ratione temporis, but relevant events that had taken place before that date should be taken into account. They further noted that the competent investigating authorities had demonstrated a willingness to conduct a thorough investigation and had acted with the requisite diligence in order to establish the circumstances surrounding the death of the applicant’s son and the identities of the persons involved in the crime.24. The applicant disagreed and maintained her complaints.25.

Article of the Convention at issue: Article 2
Outcome: violation