FIFTH SECTION      CASE OF IGOR SHEVCHENKO v. UKRAINE (Application no. 22737/04)     JUDGMENT  STRASBOURG 12 January 2012   FINAL 04/06/2012  This judgment has become final under Article 44 § 2 (c) of the Convention. It may be subject to editorial revision.In the case of Igor Shevchenko v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Dean Spielmann, President, Elisabet Fura, Karel Jungwiert, Mark Villiger, Ann Power-Forde, André Potocki, judges, Mykhaylo Buromenskiy, ad hoc judge,and Claudia Westerdiek, Section Registrar,Having deliberated in private on 6 December 2011,Delivers the following judgment, which was adopted on that date:PROCEDURE1. The case originated in an application (no. 22737/04) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Igor Aleksandrovich Shevchenko (“the applicant”), on 4 June 2004. The applicant having died on 24 March 2010, his mother, Mrs Lidiya Afanasyevna Shevchenko, expressed the wish to pursue the application.2. The applicant, who was severely disabled and recognised in 2005 as legally incapable, was represented by his mother. The applicant’s mother, who had been granted legal aid, was represented by Mrs Lyudmyla Tsybulko, a lawyer practising in Kharkiv, Ukraine. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev, of the Ministry of Justice of Ukraine.3. The applicant alleged, in particular, that the investigation of the traffic accident as a result of which he had become disabled, had been lengthy and ineffective.4. On 7 July 2009 the President of the Fifth Section decided to give notice of the application to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). Mrs G. Yudkivska, the judge elected in respect of Ukraine, was unable to sit in the case (Rule 28 of the Rules of Court). The President of the Chamber decided to appoint Mr Mykhaylo Buromenskiy to sit as an ad hoc judge (Rule 29 § 1(b)).THE FACTS5. The applicant was born in 1979.I. THE CIRCUMSTANCES OF THE CASE6. 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.A. Criminal proceedings7. 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.B. Civil proceedings30. 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.II. RELEVANT DOMESTIC LAWA. Relevant criminal law provisions31. 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.B. Other relevant provisions of domestic law32. 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).THE LAWI. THE LOCUS STANDI OF MRS SHEVCHENKO34. The applicant died in March 2010. On 13 April 2010 the applicant’s mother informed the Court that she wished to pursue the application.35. The respondent Government did not submit any comments in this respect.36. The Court observes that in various cases in which an applicant has died in the course of Convention proceedings it has taken into account statements from the applicant’s heirs or close family members expressing a wish to pursue the application (see, among other authorities, Bitiyeva and X v. Russia, nos. 57953/00 and 37392/03, § 92, 21 June 2007). The Court considers that the applicant’s mother, who stated her intention of continuing the proceedings, has a legitimate interest in obtaining a finding that there had been a breach of her son’s procedural rights under the Convention.

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