EHRM, 12-01-2012, nr. 36146/05, nr. 42418/05

On 22 November 1999, shortly after midnight, D., the then deputy head of the criminal investigation department (заступник начальника відділення карного розшуку) at the Pyatykhatky District Police Office (П'ятихатський районний відділ УМВС України в Дніпропетровській області), was on his way back from a private trip in a car driven by an acquaintance of his, Mr V. Bugara. The third applicant was also in the car. Having quarrelled with Mr V. Bugara, D., who was drunk, deliberately fired on and instantly killed him, using the police gun which he carried on him at all times. D. then attempted to shoot the third applicant but missed. The third applicant managed to run away.

After that D. tried to stop passing cars. Mr A. Gorovenko, who happened to be driving by at that time, stopped and spoke to D., who pretended that his car had broken down and asked for help. However, Mr A. Gorovenko suspected that something was wrong and tried to get away. D. shot Mr A. Gorovenko and attempted to shoot R., who was a passenger in Mr A. Gorovenko's car, and seriously wounded her.

Soon D. was apprehended by passers-by and taken to the police station.

Shortly after the incident the police launched an internal investigation. The report, signed on 23 November 1999, brought to light a number of ‘causes and pre-conditions’ stemming from poor regulation by the Pyatykhatky District and Dnipropetrovsk Regional Police Offices which had led to the incident in question. It mentioned, among other things, that the superior officers had failed to adequately examine D.'s character when recruiting and promoting him. In particular, several incidents which demonstrated D's unsuitability for service in the police department were mentioned. When studying at police college D. had been dismissed from the position of section commander for alcohol abuse. In 1994 he had inflicted light bodily injuries on Sh. and had been sanctioned on three occasions for disciplinary offences. It was further mentioned that his superior officers had failed to enforce and maintain discipline over their subordinates. In particular, several incidents involving police officers from the Pyatykhatky District Police Office were referred to. The superior officers had failed to exercise due control when permitting their subordinates to keep and carry police guns at all times. The report stated that the superior officers had not checked the conditions in which D. kept his police gun at home and had not supervised D.'s behaviour when he was off duty. Furthermore, although D. was known to abuse alcohol, his superiors had not withdrawn his police gun in due time. In particular, on 13 November 1999, while the elections of the President of Ukraine were taking place and the police were operating under a special ‘reinforced’ regime, D. had returned home intoxicated.

It was decided that two officers (including the head of the Pyatykhatky District Police Office) were to be dismissed and six others subjected to disciplinary sanctions.

On 22 November 1999 the local prosecutor's office instituted criminal proceedings against D. In the course of these proceedings the applicants brought civil claims against both D. and the Dnipropetrovsk Regional Police Office (Управління МВС в Дніпропетровській області), seeking compensation for pecuniary and non-pecuniary damage.

By a judgment of 14 November 2000 the Dnipropetrovsk Regional Court (from June 2001 — ‘the Dnipropetrovsk Regional Court of Appeal’) found D. guilty of multiple murders, among other crimes, and sentenced him to life imprisonment. The court found that in March 1999 a decision had been taken allowing D. to carry a gun at all times. However, D. had systematically contravened the provisions of the Police Act both while on duty and at home and had abused alcohol on numerous occasions. The court awarded the two applicants' families amounts totalling 57,786.12 and 62,532.26 Ukrainian hryvnias (UAH)1. respectively in compensation for pecuniary and non-pecuniary damage — the sums to be paid by D. The court further decided that the applicants' claim against the Dnipropetrovsk Regional Police Office should be examined in separate civil proceedings.

On the same date the Dnipropetrovsk Regional Courtissued a special ruling (окрема ухвала) informing the head of the Dnipropetrovsk Regional Police Office of ‘serious deficiencies in the activities of the Pyatykhatky District Police Office’. Referring to the above-mentioned findings, the court stated that D. had shot two persons with his police gun, which he had been using in the course of his duties. It went on to say:

The first and second applicants appealed against the judgment and on 16 January 2001 the Supreme Court of Ukraine dismissed their appeal. The judgment became final.

By a letter of 9 September 2005, the Dnipropetrovsk Regional Court of Appeal notified the applicants that in 2004 D. had paid them UAH 51. in total. According to the applicants, the judgment of 14 November 2000 remains unenforced in the part concerning the compensation award.

In February 2003 the applicants brought actions against the Dnipropetrovsk Regional Police Office and the local department of the State Treasury of Ukraine before the Babushkinskyy District Court of Dnipropetrovsk, seeking compensation for non-pecuniary damage. In support of their claims they relied on the findings in the judgment, the special ruling of 14 November 2000 and the internal investigation report of 23 November 1999.

On 5 March 2003 the court rejected the applicants' claims. In so doing the court reasoned as follows:

On 10 July 2003 and 4 April 2005 the Dnipropetrovsk Regional Court of Appeal and the Supreme Court of Ukraine respectively rejected appeals by the applicants.

The Government did not submit observations on the admissibility of this complaint.

The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

The Government considered that these complaints were inadmissible because of the applicants' non-compliance with the six-month rule. In particular, at the material time the law in force did not provide for a possibility to claim compensation from the State for any damage inflicted by a State official who was not acting in his/her official capacity. It had been established in the present case that at the time of the incidents D. had been off duty. Therefore, the applicants' claim for damages lodged against the State bodies had been devoid of any prospect of success from the very beginning. Consequently, the six-month time-limit should be calculated from the date of the incidents, namely, 22 November 1999. Given that the applicants had lodged their complaints on 29 September 2005, the Government considered that the applications were inadmissible in the part relating to the applicants' complaints about the absence of an effective domestic remedy for their complaints under Article 2 of the Convention.

The applicants disagreed.

The Court notes that on 14 November 2000 the national court, in its decision in the criminal case instituted against D., expressly mentioned that the applicants' claim against the Dnipropetrovsk Regional Police Office should be examined in separate civil proceedings. Therefore, the Government's argument that no such action was possible must be rejected.

The Court further notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible.

The applicants reiterated their complaints that the State had failed to award compensation.

The Government noted that as no causal link had been established by the national courts between the shortcomings in the organisation of the police department's work and the actions of D., the applicants had no grounds to claim compensation from the State for damage inflicted by D.

The Court considers that this complaint has the same factual background as the issues examined under Article 2 of the Convention. Moreover, in finding a violation of the latter provision the Court had regard to the domestic court's failure adequately to examine the applicants' allegations about the State's responsibility in the death of their relatives. That failure also deprived the applicants of an opportunity to obtain compensation. The Court deems it more appropriate to deal with the applicants' inability to obtain compensation for the death of their relative in examining their claims for just satisfaction under Article 41 of the Convention (see paragraphs53–55). In the light of that finding the Court considers that it is not necessary to examine the facts of the case separately under Article 13 of the Convention.

The first, third, fourth and fifth applicants claimed 100,000 euros (EUR) each in respect of non-pecuniary damage. The first applicant further claimed EUR 15,839 and the third, fourth and fifth applicants EUR 15,000 each in respect of pecuniary damage.

The Government found these claims excessive.

The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, deciding on an equitable basis,it awards the first, third, fourth and fifth applicants EUR 12,000 each in respect of non-pecuniary damage.

The applicants also claimed EUR 1,000 (the first applicant) and EUR 2,099 (the third applicant) for the costs and expenses incurred before the Court.

The Government did not comment on these claims.

According to the Court's case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession, the above criteria and to the fact that the first applicant was awarded legal aid, the Court considers it reasonableto award the sums of EUR 150 (first applicant) and EUR 2,099 (third applicant) to cover the costs of the proceedings before the Court.

The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.