KOSITSINA proti Ukrajině

FIFTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 35157/02
by Lyudmila Vladimirovna KOSITSINA
against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 22 May 2006 as a Chamber composed of:

Mr P. Lorenzen, President,
Mrs S. Botoucharova,
Mr V. Butkevych,
Mrs M. Tsatsa-Nikolovska,
Mr R. Maruste,
Mr J. Borrego Borrego,
Mrs R. Jaeger, judges,
and Mrs C. Westerdiek, Section Registrar,

Having regard to the above application lodged on 24 March 2001,

Having deliberated, decides as follows:

THE FACTS

The applicant, Ms Lyudmila Vladimirovna Kositsina, is a Ukrainian national who was born in 1936 and lives in Odessa. The applicant is acting on her own behalf and on behalf of her deceased son, Mr Gennadiy Eduardovich Giulzadyan (G.E.G.).

The facts of the case, as submitted by the applicant, may be summarised as follows.

A. Criminal proceedings instituted upon the applicant’s son’s complaints as to unlawful deprivation of his liberty

From 27 February to 2 March 1995 G.E.G. was allegedly detained in the village of Balka of Odessa Region by T.N.T. and T.R.A. (private persons). T.N.T. and T.R.A. extorted a debt obligation for an amount of USD 10,300 from Mr G.E.G. by subjecting him to ill-treatment.

On 3 March 1995 the Illichevsk Department of the Ministry of the Interior obtained information from a medical clinic, where the applicant’s son underwent medical treatment, that he suffered from head injuries.

On 17 April 1995 the Malinovsky District Prosecutor’s Office of Odessa (“prosecution”) instituted criminal proceedings against T.N.T. and T.R.A.

On 6 June 1995, 30 December 1996 and 30 December 1997 the prosecution service terminated criminal proceedings against T.N.T. and T.R.A.

On 21 November 1998 the prosecution terminated the proceedings in the case against T.N.T. and T.R.A. On 25 January 1999 the Illichevsk District Court of Odessa (the “Illichevsk Court”) upheld that resolution, finding no irregularities in the Prosecutor’s decision to terminate the criminal proceedings.

On 7 April 1999 the Presidium of the Odessa Regional Court, acting upon a protest lodged by the Deputy Prosecutor of the Odessa Region, quashed this resolution and remitted the case for a fresh examination to a different judge.

On 19 July 1999 the Illichevsk Court quashed the prosecution’s resolutions and remitted the case for re-investigation. In particular, they found a number of deficiencies in investigation of the case and informed the prosecution of them, ordering to rectify them.

On 28 August 1999 the prosecution terminated criminal proceedings against T.N.T. and T.R.A. on 28 August 1999.

On 30 May 2000 the prosecution terminated criminal proceedings against T.R.A. and T.N.T. again. In accordance with this resolution the applicant’s son suffered from second degree chronic addiction to alcohol and underwent medical treatment for “chronic alcoholism” in the Odessa Regional Psychiatric Hospital No. 1 from 29 August to 15 October 1996. He refused to be treated for alcoholism and left the hospital on 15 October 1996.

On 27 June 2000 the Illichevsk Court quashed the prosecution’s resolutions and remitted the case for re-investigation. In particular, they referred to a number of deficiencies in investigation of the case and ordered the prosecution to rectify these deficiencies.

On 29 September 2000 the Malinovsky District Court of Odessa (the “Malinovsky Court”) gave a separate ruling finding deficiencies in the investigation of the case, which had been already pointed out to the prosecution service, but apparently had not been rectified.

On 22 February 2001 the prosecution terminated the criminal proceedings as being barred by the passage of time under a statute of limitations.

On 27 November 2001 the Illichevsk Court quashed the prosecution’s resolutions and remitted the case for re-investigation. In particular, they ordered prosecution to rectify the deficiencies in investigation of the case. On 21 February and 25 June 2002 the Odessa Regional Court of Appeal and the Supreme Court upheld these decisions.

On 8 August 2003 the prosecution terminated the criminal proceedings due to the lack of corpus delicti.

On 25 February and 22 November 2004 the prosecution terminated the criminal proceedings against T.R.A. and T.N.T. as being time-barred.

On 25 June 2004 the Malinovsky Court ordered the prosecution to inform the court about the investigative actions which the prosecution undertook to investigate the case. It emphasised on the failure of the prosecution to abide by the courts’ previous decisions. On the same date the court remitted the case for a new investigation to the prosecution service.

On 21 September 2004 the Odessa Regional Court of Appeal upheld the resolution of 25 June 2004, by which the case had been remitted for a new investigation.

On 10 June 2005 the prosecution terminated the criminal proceedings against T.R.A. and T.N.T. due to the absence of a crime.

On 3 October 2005 the Malinovsky District Court of Odessa refused to terminate the criminal proceedings against T.N.T. and T.R.A. as time-barred and remitted the case for a new investigation. In particular, the court ruled that the criminal investigation could be time-barred only if the suspects remained unknown. On 6 December 2005 the Odessa Regional Court of Appeal quashed this decision and remitted the case for a fresh judicial examination.

On 15 February 2006 the Malinovsky Court quashed the resolution of the investigator of the Malinovsky Prosecutor’s Office as they failed to serve this resolution upon the applicant, i.e. victim’s representative, and denied her access to the material contained in the case-file. The case-file was remitted back to the prosecution for a new investigation, which is still pending.

B. Criminal proceedings instituted by the applicant into the death of her son

On 10 February 1998 the ambulance service brought the unconscious G.E.G. to the Odessa City Clinical Hospital No. 1 (the “Hospital No. 1”) for medical treatment.

On 12 February 1998 he died in the hospital.

On 13 February 1998 the pathologist of the Hospital No. 1 performed an autopsy of G.E.G.’s body and found that G.E.G.’s death resulted from hypertonic disease. This diagnosis was confirmed by a medical commission in their conclusion of 4-5 May 1998.

On 25 May 1998 the Illichevsk District Prosecutor’s Office of Odessa refused to institute criminal proceedings against the doctors of the hospital and other alleged suspects because of the absence of a crime.

On 19 July 1999 the Illichevsk Court rejected the applicant’s appeal against a refusal to institute criminal proceedings, finding no irregularities in the decision to terminate criminal investigation in the case.

On 8 June 2005 the Malinovsky Court rejected the applicant’s requests to re-open the proceedings and re-examine the circumstances surrounding her son’s death.

On 9 August 2005 the Odessa Regional Court of Appeal examined the applicant’s request to hear the case on her son’s death and ruled that it had no jurisdiction as the criminal investigation was terminated on 25 May 1998 and no indictment was brought to the court after that date by the prosecution. The court also ruled that it could not find a violation of the European Convention of Human Rights in the case, as it only had jurisdiction to rule on compliance of the prosecution’s actions with the legislation of Ukraine.

C. Other events

On 11 November and 5 December 2002 the Registry of the Constitutional Court informed the applicant that it had no jurisdiction over the applicant’s complaints about the irregularities of the pending investigation.

COMPLAINTS

1. The applicant alleges that the length of the criminal investigation into the circumstances of her son’s unlawful deprivation of liberty in 1995 was unreasonable, contrary to Article 6 § 1 of the Convention. She complains that the unreasonable length of the investigation (that the violation of the applicant’s rights as to lengthy examination of the case) was not acknowledged by the domestic authorities and that no reparation was provided to her. She further complains, likewise referring to Article 6 § 1 of the Convention, of limitations imposed on her access to the domestic courts and the lack of effective remedies in respect of the length of the proceedings in her case, contrary to Article 13 of the Convention.

2. The applicant further alleges:

- under Articles 2 and 3 of the Convention that the State failed to institute criminal proceedings against the private persons and officials who allegedly conspired to murder her son and who unlawfully interfered with the physical integrity of his body after his death;

- under Articles 2 § 1, 3, 6 § 1, 13 and 14 of the Convention that the domestic authorities failed to act in a timely and effective manner in investigating the death of her son;

- under Article 14 of the Convention, that the authorities discriminated her on the grounds of her and her late son’s ethnic origin.

THE LAW

A. Length of the criminal proceedings instituted into the allegations of unlawful deprivation of liberty

The applicant complains that the criminal investigation exceeded the “reasonable time” requirement in Article 6 § 1 of the Convention, and that she had no effective remedies for her complaints under that Article, as required by Article 13. These provisions provide insofar as relevant:

“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Court considers that it cannot, on the basis of the case-file, determine the admissibility of these complaints, and that it is therefore necessary, in accordance with Rule 54 § 3 of the Rules of Court, to give notice of this part of the application to the respondent Government.

B. Remainder of the applicant’s complaints

In so far as the applicant raises various complaints under Articles 2 and 3 of the Convention concerning the circumstances of her son’s death and the inadequacy of the investigation in this respect and maintains that organs were taken from her son’s body, the Court notes that the applicant’s son died on 12 February 1998 and that the investigations in that respect were terminated on 25 May 1998, as approved on 19 July 1999 by the final ruling of the Illichevsk District Court of Odessa (see, mutatis mutandis, Zamula and Others v. Ukraine (dec.), no. 10231/02, 20 May 2003).

Accordingly, the Court finds that the complaints to which the applicant refers in this part of the application relate to events or decisions which intervened more than six months before 24 March 2001, the date of introduction of the application (see Koval v. Ukraine (dec.), no. 65550/01, 10 December 2002). It follows that these complaints have been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

The Court, having examined the remainder of the applicant’s complaints, and regardless of other possible grounds of inadmissibility, finds nothing in the case file which might disclose any appearance of a violation of these Convention provisions (see Ivanchenko and Others v. Ukraine (dec.), nos. 60726/00 and others, 17 February 2004). It follows that this part of the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaints concerning the length of the first set of criminal proceedings under Article 6 § 1 of the Convention and the lack of effective remedies in that respect, as required by Article 13 of the Convention;

Declares the remainder of the application inadmissible.

Claudia Westerdiek Peer Lorenzen
Registrar President