FIFTH SECTIONCASE OF DAVYDENKO v. UKRAINE(Application no. 45903/16)    JUDGMENT STRASBOURG30 March 2023 This judgment is final but it may be subject to editorial revision.In the case of Davydenko v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Stéphanie Mourou-Vikström, President, Lado Chanturia, Mykola Gnatovskyy, judges,and Martina Keller, Deputy Section Registrar,Having regard to:the application (no. 45903/16) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 22 July 2016 by two Ukrainian nationals, Ms Nataliya Mykolayivna Davydenko (“the first applicant”) and Mr Ivan Mykolayovych Davydenko (“the second applicant”; together “the applicants”), who were born in 1964 and 1958 respectively and, according to the most recent available information, live in Kyiv, and were represented by Mr I. I. Pyatak, a lawyer practising in Kyiv;the decision to give notice of the application to the Ukrainian Government (“the Government”), represented by their then Agent, Mr I. Lishchyna;the parties’ observations; Having deliberated in private on 9 March 2023,Delivers the following judgment, which was adopted on that date:SUBJECT MATTER OF THE CASE1. The applicants’ property was destroyed in a fire which they believed was caused by arson. The case concerns their complaint that the authorities failed to take effective steps to investigate the incident and thus failed to fulfil their positive obligations under Article 1 of Protocol No. 1. The applicants also relied on Article 6 § 1 and Article 13 in that connection.2. Four construction workers, Mr B., Mr D., Mr M. and Mr T., were building a cottage for the applicants on their land. The applicants were not on the premises. On 17 April 2009, after a dispute (by telephone) between the applicants and the workers over pay, the workers broke windows in the cottage, destroyed some construction materials and stole some tools. On the same day a fire occurred on the applicants’ plot, causing damage to a trailer and to the cottage under construction. The applicants believed that the construction workers had intentionally set the property on fire.3. On 26 April 2009 a fire expert confirmed in a report that the fire had been caused by arson. On the same day criminal proceedings were instituted on suspicion of “intentional destruction of property by arson”.4. On 14 May 2009 the investigation was reclassified as concerning a suspected offence of a serious breach of fire safety rules.5. In June 2010 the construction worker T. died.6. On 25 October 2011 a commission of experts appointed by the investigator concluded that the fire had been caused by arson.7. On 5 December 2011 the investigating authority discontinued the investigation in respect of the “serious breach of fire safety rules” and reinitiated proceedings in respect of the intentional destruction of property by arson.8. On 11 September 2012 the criminal proceedings were discontinued. The investigating authority concluded that even though the workers B., D. and M. had in fact broken windows in the cottage and had therefore committed acts which could be characterised as offences of “intentional destruction of property”, the damage caused by those acts amounted to under the equivalent of 7,235 euros, the threshold for such acts to be criminally punishable.9. On 31 October 2012 the Kyiv Shevchenkivskyi District Court quashed that decision. It held that the investigating authority, in taking it, had erred in separating the damage caused by fire and the other damage to the property and had failed to refute the possibility that both actions had been part of the same criminal plan.10. On 11 November 2014 the proceedings were discontinued in respect of (i) the fire, on the grounds that its cause could not be established with any certainty, and (ii) the remainder of the damage to property, on the same grounds as those previously given (see paragraph 8 above).11. On 24 and 29 December 2014 the Boryspil Court quashed the decisions of 11 November 2014. The court held that the investigators had failed to assess the statements of the workers denying their involvement in the fire in the context of other evidence. Regarding the property damage not caused by the fire, the court took the same position as before.12. On 13 October 2015 the prosecutor decided to discontinue the investigation on the following grounds.(i) According to a summary of the collected evidence set out in the decision, the workers stated that on the relevant day T. had been extremely drunk. Because of the dispute with the second applicant over pay, they had decided to abandon the construction site and three of them had left but T. had initially stayed behind. T. had then joined the other three workers and they had gone to a train station, where they had taken a train bound for Kyiv. Those statements were corroborated by other witnesses, apparently the applicants’ neighbours.(ii) The expert reports had identified arson as the source of the fire and concluded that there had been two independent sources of fire, one in the trailer and one in the cottage.(iii) On the basis of that evidence, the prosecutor found it established that because the workers B., D. and M. had left the plot several hours before the fire had started, while T. had stayed behind, the involvement of those three workers in starting the fire could be ruled out. The fire had most probably been caused by T. He and the three other workers had not had a common plan to destroy the property. Since T. had died, the criminal proceedings against him had been discontinued.13. On 16 November 2015 the Boryspil Court quashed the decision of 13 October 2015, stating that the prosecutor had failed to check the witnesses’ statements concerning their movements and telephone calls on the day of the incident against the records of their telephone calls and the train schedule for that day. Therefore, the categorical conclusion as to the absence of a common plan to destroy property was not substantiated and was premature.14. In January 2017 the Kyiv regional prosecutor’s office informed the applicants that in April 2016, because of the unsatisfactory progress of the investigation, responsibility for it had been reassigned from the Boryspil district police to the Baryshiv district police. The officers previously in charge of the investigation had been reprimanded.15. On 22 January 2020 the Boryspil prosecutor’s office applied to the Baryshiv Court to discontinue the investigation since any prosecution for the investigated offences had become time-barred ten years after the offences had been committed.16. On 13 October 2020 the Baryshiv Court rejected that application. The court observed that the most recent document in the file contained instructions from the prosecutor, issued in 2017, on the steps which had to be taken to advance the investigation. Since then, nothing had been done in the case. Under such circumstances, the discontinuation of proceedings as time-barred would be contrary to the rules of criminal procedure, notably those requiring the investigating authorities to take all measures provided for by law to establish the facts of the criminal offence and to identify the guilty party.17. It appears that the investigation is still pending.THE COURT’S ASSESSMENTALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION18. The Court, being the master of characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia, nos. 37685/10 and 22768/12, § 114, 20 March 2018), finds it appropriate to examine the applicants’ complaint under Article 1 of Protocol No. 1.Scope of the complaint and admissibility19.

Outcome for Article P1-1: violation