SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 34056/02 
by Myroslava GONGADZE 
against Ukraine

The European Court of Human Rights (Second Section), sitting on 22 March 2005 as a Chamber composed of:

Mr J.-P. Costa, President
 Mr A.B. Baka
 Mr I. Cabral Barreto
 Mr K. Jungwiert
 Mr V. Butkevych
 Mrs A. Mularoni, 
 Ms D. Jočienė, judges
and Mrs S. Dollé, Section Registrar,

Having regard to the above application lodged on 16 September 2002,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mrs Myroslava Gongadze, is a Ukrainian national, who was born in 1972 and resides in Arlington, the United State of America (hereafter the US). She is represented before the Court by Ms. Sylvia Preuss-Laussinotte, a lawyer practising in Paris, France. The respondent Government were represented by their Agents, Mrs V. Lutkovska and Mrs Z. Bortnovska.

A.  The circumstances of the case

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

Georgiy Gongadze, the applicant's husband, was a journalist, who disappeared on 16 September 2000 under circumstances that have not yet been established by the Ukrainian authorities despite the numerous demands and requests of the applicant.

(a)  Events prior to the disappearance of the applicant's husband

Mr Gongadze was a political journalist and the editor-in-chief of the “Ukrainskaya Pravda” internet journal. He was known for his criticism of those in power and for his active involvement in awareness-raising in Ukraine and abroad as regards problems of freedom of speech in his country. He reported on such topics as the alleged undemocratic initiatives of the Ukrainian authorities and corruption amongst high level State officials.

For months before his disappearance, Mr Gongadze mentioned on many occasions to his relatives and colleagues that he was being subjected to threats and surveillance.

On 14 July 2000 Mr Gongadze wrote an open letter to the Prosecutor General complaining as follows:

-  His relatives and friends in Lviv, as well as his colleagues in Kyiv, were interviewed by law enforcement officers about him. These interviews were conducted under the pretext of an inquiry into a criminal incident in Odessa, in which Mr Gongadze was allegedly involved. (The applicant maintains that Mr Gongadze knew nothing about the incident or the people involved in it. He himself had never been interviewed about it.)

-  For some time, unknown persons in a car with the number plate 07309 KB followed Mr Gongadze from his home to his office and back.

In his open letter, Mr Gongadze requested the Prosecutor General to take measures to protect him from what he described as “moral terror”, and to find and punish those involved.

In response, the Prosecutor General sent the letter to the Regional Prosecutors' Office in Lviv, the city where Mr Gongadze was officially registered as a resident (propiska). The Lviv Prosecutor replied that the places and streets (of Kyiv) mentioned in Mr Gongadze's letter were unknown in Lviv.

Later, the then Minister of the Interior told representatives of the non-governmental organisation, “Reporters sans frontières” (as recounted in the latter's Report of 22 January 2001), that the car registration plate had been stolen from a police vehicle in February 2000.

On 1 September 2000 the General Prosecutors' Office (hereinafter the “GPO”) informed Mr Gongadze that there were no grounds for the adoption of any decision under Article 52-1 of the Code of Criminal Procedure (protective measures within criminal proceedings) regarding his letter.

Mr Gongadze disappeared on 16 September 2000.

(b)      The investigation into the disappearance and murder of the applicant's husband

On 17 September 2000 the applicant petitioned the Moskovskiy District Police Department of Kyiv about the disappearance of her husband.

On 18 September 2000 (19 September, according to the Government), the Pechersky District Prosecutors' Office initiated an inquiry into premeditated murder (the Gongadze case). The inquiry included the search of those places where Mr Gongadze had last been seen, and interviews with people who had been there at the time. The applicant maintains that the investigating prosecutor in charge of the case, Mr H., seemed to conduct a serious investigation. However, he was replaced at the beginning of November by another prosecutor, Mr V.

On 2 November 2000 the decapitated body of an unknown person was discovered in the vicinity of the town of Tarashcha, in the Kyiv Region.

On 3 November 2000 the Kyiv Prosecutors' Office initiated an inquiry into the premeditated murder of an unknown person (the Tarashcha case).

The first autopsy of the corpse was made by a local expert and the findings were presented on 8 November 2000. According to these findings, the time of death of the unknown person roughly corresponded to the time of the disappearance of Mr Gongadze.

On 10 November 2000 relatives learned from a brief article in the newspapers about the discovery of an unidentified body in the vicinity of Kyiv. On 15 November 2000, on examining the body, they identified jewellery belonging to Mr Gongadze and the marks of an old injury to the body that corresponded to that of the missing journalist. The contents of the stomach corresponded to the food which Mr Gongadze had eaten on the day of his disappearance. The relatives took a fragment of the skin from the body to be examined by independent experts.

From this date onwards, the prosecution allegedly changed their attitude and impeded the investigation. On 15 November 2000 the body was removed from the local morgue in Tarashcha. Three days later, the Kyiv Regional Prosecutors' Office admitted that the body had been transferred to Kyiv. All documents relating to the first forensic examination conducted in Tarashcha were confiscated. The local expert was prohibited from talking about the autopsy of the body and later became the subject of criminal proceedings. On 16 November 2000 the Deputy Minister of the Interior announced, contrary to the preliminary findings, that the body which had been discovered had been buried in soil for about two years.

On 21 November 2000 the applicant requested the investigator at the Pechersky District Prosecutor's Office:

-  to be recognised as a civil party to the proceedings in the Tarashcha case;

-  to identify the body and jewellery found with it; and

-  to organise a forensic medical examination in order to establish whether the body found in Tarashcha was that of her husband.

On 23 November 2000 the investigator rejected this request.

That day the applicant also requested the prosecutor of the Kyiv region not to cremate the body found in Tarashcha and to let her bury it if the body were to be identified as that of her husband.

On 29 November 2000 the Pechersky District Prosecutors' Office recognised the applicant as a civil party in the Gongadze case.

On 4 December 2000 the head of the investigation department of the Kyiv Prosecutors' Office informed the applicant that the criminal investigation into the murder of the unknown person had been initiated and that the forensic medical examination had been organised. However, there were no grounds to recognise the applicant as a civil party in the Tarashcha case. They promised to keep the applicant informed as to her possible participation in the identification of the objects found with the body. Accordingly, the applicant was not allowed to participate in the identification of the body at that stage.

On 6 December 2000 the applicant asked the GPO to be allowed to participate in the identification of the body and that the two proceedings be joined.

On 8 December 2000 the Prosecutor General announced that a DNA analysis could not be done for the time being due to the illness of Mrs Lesya Gongadze, the deceased's mother. This statement was denounced by the latter herself. The Prosecutor General then declared that he had been misunderstood.

On 10 December 2000, more than a month after the body had been discovered, the applicant was allowed to participate in its identification. Being under stress, she was unable to make a positive identification of the body as being that of her husband.

On 11 December 2000 a blood sample was taken from the deceased's mother for the DNA analysis.

On 14 December 2000 the applicant requested the Prosecutor General to involve foreign experts in the investigation of the case under the European Convention on Mutual Assistance in Criminal Matters, 1959.

On 15 December 2000 the Prosecutor General announced that the body found in Tarashcha was not that of Mr Gongadze.

On 18 December 2000 the GPO refused the applicant's request to involve foreign experts in the DNA expertise and informed her that the Ukrainian institutions were entrusted to conduct all necessary examinations.

Later, several DNA analyses were conducted in the case, including analyses made by foreign experts. The forensic medical examinations conducted by the Russian and American specialists confirmed that it was highly probable that the body found in Tarashcha was that of Mr Gongadze. However, within the framework of an investigation conducted by an ad hoc parliamentary committee, an examination conducted by German specialists did not confirm this finding.

The applicant maintains that she was never informed directly by the investigating authorities about the results of these examinations, but learned about them from the media.

On 10 January 2001 the Prosecutor General informed Parliament of the provisional findings of the forensic medical examination conducted by Russian experts, which showed that the body found in Tarashcha was that of Mr Gongadze (99,64% probability). Nevertheless, the identity of the body could not be confirmed as there were witnesses who claimed to have seen Mr Gongadze alive in Lviv after his disappearance in November and December 2000. This information had been checked but was also not confirmed.

On 12 January 2001 the applicant and the deceased's mother requested the GPO to be recognised as civil parties in the Tarashcha case and to conduct another examination of the body. The same day, the applicant was informed by the Prosecutor General that her status as a civil party, which had been granted by the Pechersky District Prosecutors' Office on 29 November 2000, was annulled. The applicant lodged a complaint with the Pechersky District Court of Kyiv.

On 13 January 2001 the GPO rejected the applicant's request to be recognised as a civil party, stating that it had not been established, beyond all doubt, that Mr Gongadze was dead or that the body found in Tarashcha was his.

On 15 January 2001 the Pechersky District Court recognised the right of the applicant and the deceased's mother to be civil parties and ordered the GPO to grant them this status. However, despite the order, the GPO again refused this status on 17 January 2001. However, exceptionally, the GPO agreed to give them the Tarashcha body for burial, whilst emphasising that the GPO was not competent to issue death certificates.

Also on 15 January 2001, the editor-in-chief of the Grani newspaper made public the names of four policemen who, allegedly, had participated in the surveillance of Mr Gongadze.

The applicant and the deceased's mother challenged the refusal to grant them aggrieved party status before the Pechersky District Court. On 9 February 2001 that court found the GPO's decision illegal. The GPO appealed.

On 24 January 2001 the investigators separated a defamation case involving a Mr Melnychenko1 from that of Gongadze.

Despite its appeal, on 26 January 2001 the GPO recognised the status of the applicant and the deceased's mother as civil parties, in the light of further forensic evidence. (The applicant maintains that it was done because of the influence of Resolution No. 1239 (2001) of the Parliamentary Assembly of the Council of Europe, adopted on 25 January 2001, which called for the conduct of “an expeditious, full and transparent investigation into the disappearance or death of Mr Gongadze, and to make known the results of the investigation as quickly as possible; ... to respect the rights of the victim's relatives, including their right to be the aggrieved side in the case of Mr Gongadze's death.”)

On 27 February 2001 the GPO informed the applicant that additional evidence had confirmed that the body found in Tarashcha was that of Mr Gongadze. The investigation into the murder of Mr Gongadze was initiated, with the applicant and the deceased's mother being granted the status of aggrieved parties.

On 16 March 2001 the applicant requested the Prosecutor General to give her access to the case-file materials concerning the forensic medical examination of the body. On 19 March 2001 the investigating officer refused, stating that it was part of the preliminary investigation, and the applicant could only have such access when the preliminary investigation was over. The applicant's lawyer unsuccessfully challenged this refusal before the Pechersky District Court of Kyiv.

On 30 March 2001 the applicant filed a complaint with the Pechersky District Court of Kyiv about the negligence of the investigators.

On 26 April 2001 the investigator in the presence of the deceased's mother and her lawyer, as well as the applicant's lawyer, carried out an inspection of the Tarashcha body. Additional forensic examination and a genetic identification test were carried out by US specialists. The joint examination by the US and Ukrainian experts confirmed that the Tarashcha body was that of Mr Gongadze.

On 8 May 2001 the applicant requested full access to the case-file, which was refused on 17 May 2001 pending the pre-trial investigation.

On 15 May 2001 the Minister of the Interior announced that two presumed murderers of Mr Gongadze, identified as drug-users, had died and the case was solved. The Minister further stated that the murder had been spontaneous with no political motive. On 17 May 2001 the GPO contradicted this announcement and recommended that the Minister refrain from disclosing any information about its criminal investigations.

On 18 May 2001 the applicant requested the GPO to confirm the Minister's statement and to notify her when she would be allowed access to the case-file. The same day, the GPO informed the applicant that important additional information had been obtained and needed further examination; therefore it would be premature to say that the preliminary investigation was over.

On 22 May 2001 the applicant requested the GPO to involve experts from the US Federal Bureau of Investigation (the FBI) in the investigation, a request refused on 25 May 2001.

By letter of 30 May 2001, the GPO authorised the Kyiv Office for Forensic and Medical Examination to deliver the remains of Mr Gongadze to his relatives for burial. A copy of this letter was handed to the representative of the deceased's mother and sent by mail to the applicant's representative. On 6 July 2001 the Forensic Office informed the deceased's mother that she could take the body for burial. However, according to the Government, the body is still in the Kyiv Office for Forensic and Medical Examination, although the burial decision remains exclusively with the deceased's mother and the applicant.

On 6 September 2001 the applicant's representative requested access to the results of all the forensic examinations in the case-file. It was also asked when the preliminary investigation would be finished. In its response of 7 September 2001, the GPO replied that it was not yet possible to say.

In a reply of 10 September 2001, the GPO stated that the representative of an aggrieved party had a right of access to the results of forensic examinations but only after the pre-trial investigation had been completed. According to the Government, the GPO noted that the representative had had access to the results of the forensic examinations and genetic tests within the limits permitted by the confidentiality of the investigation.

On 10 October 2001 the Kyiv City Justice Department informed the applicant that her claim against the investigators for negligence, lodged on 30 March 2001 with the Pechersky District Court of Kyiv, had not been registered and could not be found. The Department of Justice advised the applicant to file the complaint again with that court.

On 30 October 2001 the applicant requested the GPO to provide her with information about the forensic medical examination conducted by the FBI, and the reasons for the contradictory findings of the forensic medical examinations conducted by Russian and German experts. She requested that an additional forensic medical examination be held to answer these questions.

On the same date the applicant was informed by the GPO that the case-file could not be disclosed before the end of the preliminary investigation, and that the preliminary investigation would be finalised when the person guilty of the crime had been found.

On 31 October 2001 the GPO stated that the forensic medical examinations had established that the body found in Tarashcha was that of Mr Gongadze. It further informed the applicant that the results of the forensic medical examination conducted by the German experts could not be admitted to the case-file, as the tissue samples for that examination had been taken in breach of established procedures by an unauthorised person.

On 13 November 2001 the Kyiv City Justice Department again informed the applicant that her claim against the investigators for negligence, lodged with the Pechersky District Court of Kyiv, had not been registered and could not be found. The Department of Justice advised the applicant to file the complaint again with the Pechersky District Court.

On 3 December 2001 the applicant lodged a complaint with the Pechersky District Court of Kyiv against the GPO's refusal to allow access to the case-file materials concerning the forensic medical examination of the body.

On 11 February 2002 the Pechersky District Court held that the applicant's complaint against the GPO could not be considered prior to the transfer of the case to the court. It decided to attach the complaint to the case-file for consideration at a later date. The court stated that the Code of Criminal Procedure did not provide for a separate appeal against the investigators for their refusal of access to the case-file materials about the forensic medical examination.

On 20 February 2002 the State Civil Registration Office in Lviv refused to issue a death certificate for Mr Gongadze in the absence of any document confirming his demise.

On 28 March 2002 the applicant requested Mr Robert Ménard, the Secretary General of “Reporters sans frontières”, to be her representative in the case.

On 22 May 2002, while the power of attorney for this purpose was being prepared, Mr Ménard requested the GPO, on behalf of the deceased's mother, who was also a civil party to the case, to interview the four police officers named in the press as having followed Mr Gongadze. He further requested access to the case-file materials concerning the forensic medical examinations, and asked for another examination by foreign experts. His request was not answered.

Another request by Mr Ménard on 10 June 2002 was refused by the GPO on 18 June 2002, as he could not be recognised as the representative of the civil party. On 19 June 2002 Mr Ménard asked the GPO to annul that decision.

On 6 July 2002 a new Prosecutor General was elected, who confirmed on 3 September 2002 that the previous investigation had suffered numerous irregularities.

On 10 September 2002 the Prosecutor General announced an investigation into the alleged falsification of procedural documents by the prosecutor and investigator from the town of Tarashcha.

On 16 September 2002 the “Reporters sans frontières” requested access to all the forensic results in the case-file and their examination by an independent expert. They also requested the identity of the four persons who had followed Mr Gongadze before his disappearance.

In October 2002 a new forensic examination took place in Switzerland. On 11 March 2003 the “Reporters sans frontières” announced that the last DNA test undoubtedly identified the body as Mr Gongadze.

In November 2002 the prosecutor from the Tarashcha Prosecutors' Office was arrested and charged with negligence in the investigation of the criminal case. On 6 March 2003 that prosecutor was sentenced to two and a half years' imprisonment and absolved from this sentence by the Shevchenkivsky Local Court of Kyiv under an amnesty law.

On 15 January 2003 the chairman of the Parliamentary ad-hoc commission on the Gongadze case announced that the persons responsible for the death of Mr Gongadze worked in the police.

On 17 February 2003 Parliament requested the GPO to investigate the possible role of Mr Kravchenko, who was the Minister of the Interior at the time of the disappearance of Mr Gongadze, in the death of the journalist. This request was supported by 120 Members of Parliament (MPs).

On 24 February 2003 the Prosecutor General declared that they were checking the information about the involvement of the senior officials of the Ministry of the Interior in the death of Mr Gongadze.

On 28 February 2003 the Prosecutor General, Mr Piskun, openly criticized his predecessor, Mr Potebenko, for impeding the investigation into the murder of Mr Gongadze.

In May 2003 a former police officer, Mr G., was arrested and charged for the organisation of a criminal group with the participation of the police. He died in prison on 1 August 2003 in unclear circumstances. His lawyers maintained that he was beaten and tortured. The body of Mr G. was cremated on 3 August without an autopsy.

On 5 August 2003 the letters of late Mr G. appeared in the media. In these letters he accused the police and senior officials of the kidnapping and killing Mr Gongadze. These letters, as well as the documents attached to them, were sent to the GPO.

On 9 September 2003 the GPO confirmed that the handwriting of the letters was that of the late Mr G.

On 22 October 2003 lieutenant-general Mr Pukach, an official of the Ministry of the Interior, was arrested on suspicion of involvement in the disappearance of Mr Gongadze.

On 29 October 2003 the Prosecutor General, Mr Piskun, was dismissed by the President.

On 6 November 2003 the Kyiv City Court released Mr Pukach on his undertaking not to abscond.

(c)  The political context

The applicant noted that since 1991, 18 journalists had been killed in Ukraine.

The applicant maintained that, after the disappearance of her husband, the political situation which developed illustrated the attitude of the Ukrainian authorities towards freedom of the press.

Soon after the disappearance of Mr Gongadze, the President of Ukraine promised to employ every means to find him. After the motion voted by Parliament, the President entrusted three law-enforcement agencies – the GPO, the police and the security services - to work on the case.

On 18 September 2000, an anonymous person called the Embassy of Georgia in Kyiv with the information that the responsibility for the disappearance of the journalist lay with Mr K., the notorious leader of a criminal group, as well as the Minister of the Interior and an MP, Mr Volkov. The Ambassador of Georgia, who made the contents of the call public, was called back to Georgia several weeks later. The Ukrainian authorities denied any link between the two events.

At the end of September 2000, Parliament created an ad hoc investigating committee into the disappearance of Mr Gongadze. The Prosecutor General refused to collaborate with the committee as its request to interview experts and officers was considered unconstitutional.

On 28 November 2000 the Chairman of the Socialist Party, Mr Moroz, publicly announced the existence of audio records, secretly made in the office of the President, implicating President Kuchma and other high level State officials in the disappearance of Mr Gongadze. In one of the recorded conversations, allegedly between the President and the Minister of the Interior, the President asked that Mr Gongadze be threatened. The Minister had then proposed for this task people whom he called “real eagles”, capable of anything.

The applicant maintains that, due to doubts as to the quality of the records, it was not possible to establish their authenticity, though one of the US laboratories (BEK TEK) confirmed their authenticity. She refers to the report of 22 January 2001 by “Reporters sans frontières” that testified to the existence of special forces in the police, as well as groups of retired police officers recruited by the Mafia, who would commit acts of violence against political figures or journalists.

After the disappearance of Mr Gongadze, many media experienced pressure and censorship over their coverage of the case.

On 15 September 2001 several thousand opposition supporters demonstrated in memory of Mr Gongadze.

(d)  The international context

The case of the disappearance of Mr Gongadze attracted the attention of many international organisations. It was analysed in the context of media freedom in Ukraine, which had been criticised for several years at the international level.

On 25 January 2001, the Parliamentary Assembly of the Council of Europe (“PACE”) adopted Resolution 1239 (2001) expressing its concern about “the intimidation, repeated aggression and murders of journalists in Ukraine and the frequent abuse of power by the competent Ukrainian authorities in respect of freedom of expression”. It further stated that the investigation into the disappearance of Mr Gongadze “should be considered as a test for freedom of expression and the functioning of parliamentary democracy in Ukraine.”

A plea for a speedy and transparent investigation into all cases of violence against and the death of journalists, particularly in the Gongadze case, was repeated in the PACE Recommendation 1497 (2001) of 27 January 2001, Resolution 1244 (2001), Recommendation 1513 (2001) of 26 April 2001 and Resolution 1262 (2001) of 27 September 2001.

Similar pleas were made by the European Union (EU) in a statement on 5 February 2001, and by the Parliamentary Assembly of the Organization for Security and Co-operation in Europe (the “OSCE”) in its resolution of July 2001. The OSCE Assembly also awarded the 2001 OSCE Prize for Journalism and Democracy to Mr Gongadze posthumously.

The case of the disappearance of Mr Gongadze was also reported in the documents of certain United Nations bodies: the Working Group on Enforced or Involuntary Disappearances and the Human Rights Committee.

“Reporters sans frontières” conducted its own investigation into the disappearance of Mr Gongadze, the results of which were published in the special report of 22 January 2001 mentioned above. It concluded that the investigating authorities had been mostly preoccupied with proving the innocence of high level State officials.

On 2 July 2003 the report of Mr H.C. Krüger, Deputy Secretary General of the Council of Europe, was presented to the PACE. The documents attached to the report confirmed that, prior to the appointment of a new Prosecutor General on 6 July 2002, the investigation had been ineffective, although later developments raised hopes of more efficacy. According to the applicant, the further developments in the investigation demonstrated that the expressed hopes had been premature.

On 16 September 2003, the EU made a declaration in which concern was expressed at the lack of progress of the investigation.

The issue of the effectiveness of the investigation in the case was similarly raised by the US Congress and by NATO.

2.  Supplementary facts as submitted by the Government

(a)  The investigation into the disappearance and murder of the applicant's husband

On 19 September 2000 the Pechersky District Prosecutor's Office of Kyiv instituted a criminal investigation pursuant to Article 94 of the Criminal Code of Ukraine for premeditated murder. In order to determine the circumstances of the disappearance, an investigative group was formed. The group included officers of the Department of Criminal Investigations and the GPO. Three lines of inquiry were pursued:

-  that the disappearance involved family problems;

-  that Mr Gongadze was the victim of a criminal offence unrelated to his profession; or

-  that the disappearance was connected with his critical publications in the Internet newspaper Ukrainska Pravda.

From 19 September 2000 until 10 October 2000, a number of investigative measures were taken to identify witnesses, to check Mr Gongadze's contacts, to search localities, etc.

On 2 November 2000 the unidentified corpse of a man was found in a forest in the Tarashcha district. The law enforcement authorities were informed about this and immediately went to the site. On 3 November 2000 the investigative group examined the site and prepared the necessary procedural documents. The corpse was transferred to the morgue of the Tarashcha district for a forensic examination. The investigative officer of the Tarashcha District Prosecutors' Office instituted a criminal investigation into the premeditated murder of an unknown person, pursuant to Article 94 of the Criminal Code. The forensic expert found jewellery on the corpse that day and near the corpse in the nearby soil the following day.

The Pechersky District Prosecutor's Office made inquiries into whether the corpse could be that of Mr Gongadze. For this purpose the applicant was summoned to the prosecutor and requested to describe the jewellery which Mr Gongadze could have been wearing when he disappeared.

On 15 November 2000 a group of journalists, close friends of Mr Gongadze, went to Tarashcha, having learned about the unidentified body from a newspaper article. They met with the forensic expert who informed them about the jewellery and showed them the corpse. Upon the journalists' request, he made an X-ray of one of the arms of the corpse. The X-ray showed pieces of metal in the arm that could have corresponded to an old wound of Mr Gongadze. On this ground the journalists concluded that the corpse was that of Mr Gongadze. The same day, the Tarashcha prosecutor ordered and effected the transfer of the corpse to the Kyiv city morgue for further forensic examination.

On 7 December 2000 the GPO joined the investigations in the Gongadze and Tarashcha cases, as well as a case of defamation against senior State officials (the Melnychenko case) in order to ensure their comprehensive and speedy examination.

On 13 December 2000 the applicant was questioned as an aggrieved party. She consented to provide blood samples of herself and her children for forensic examination. The applicant insisted on her participation in the identification of the Tarashcha body, and said that she was certain that she could recognise her husband's jewellery.

On 14 December 2000 the applicant refused to give blood samples because of a family conflict. That day the applicant requested the GPO to conduct forensic examinations in a case which had arisen in one of Western countries. This request was rejected on 18 December 2000.

On 15 December 2000 the investigator reported to the Deputy Prosecutor General that the deceased's mother had refused to participate in the identification of the Tarashcha body, scheduled for 18 December 2000, as she did not feel well and wished to postpone her participation until the completion of the genetic identification tests.

On 18 December 2000 the applicant was summoned to the GPO to participate in the identification of the Tarashcha body and the jewellery. The applicant stated that there was a great probability that the corpse was that of her husband. She recognised the jewellery with absolute certainty. The same day the applicant requested to see the documents relating to the examination of the place of the events and the body. Her request was allowed, of which a note was made.

On 20 December 2000 the GPO received a letter from the deceased's mother, stating that she was under stress and could not come to Kyiv for the identification. She also stated that she would only participate in the identification once an independent forensic examination of the corpse had been made.

On 12 January 2001 the applicant and the deceased's mother requested the GPO to conduct an additional forensic examination with the assistance of US experts. They also requested that the head of the Tarashcha body be sought. The request for the forensic examination was allowed and, with the assistance of the FBI and the US Department of Defence, an additional forensic examination and a genetic identification test were conducted on 22 February 2001. The head, however, could not be found.

On 27 February 2001 the GPO sent a request for legal assistance to the competent German authorities asking for the official results of a genetic identification test made in that State following a request from Mr Holovaty, a Ukrainian MP. According to Mr Holovaty, the German experts had concluded that the Tarashcha body was not Mr Gongadze. However, according to the Government, this test had no legal effect, as neither the test nor the procedure for taking tissue samples had complied with Ukrainian legislation.

On 6 September 2001 the applicant's representative applied to the GPO, stating that, according to the media, journalists had visited Tarashcha on 15 October 2000. The journalists had examined the body in the Tarashcha morgue and made photographs of it. She asked the GPO to interrogate those journalists and to join the photographs to the criminal case file. On 7 September 2001 the applicant's representative was informed that the journalists had been identified and interrogated as witnesses in the course of investigation. They had been requested to submit their photographs for the case-file.

On 30 October 2001 the applicant's representative requested the GPO to fix the time-limits for completion of the pre-trial investigation into the murder of Mr Gongadze. The GPO replied that it could not fix such a time-limit given that the murderer had not yet been identified.

The same day, the applicant's representative requested an additional forensic examination of, inter alia, the following issues:

-  whether the X-ray of the corpse's hand made in Tarashcha and given to the journalists corresponded to the X-rays taken when Mr Gongadze was alive, and to those taken by the FBI on 27 April 2001;

-  whether the FBI analyses proved the presence of traces from bullets that corresponded to the previously known wounds of the late journalist;

-  whether the hair identification confirmed the corpse's identity; and

-  whether the DNA analysis confirmed the corpse's identity.

On 31 October 2001, in reply, the GPO refused to authorise an additional examination, as the Tarashcha body was undoubtedly that of Mr Gongadze and, during their examinations, the Ukrainian and American experts had already answered the applicant's questions.

On 11 June 2002 the applicant's representative petitioned for access to the resolution ordering a new forensic examination, allegedly to be carried out by German experts. She further requested to be allowed to put questions to these experts. She referred in her petition to the alleged statements of investigators disseminated by the media about this new examination.

On 21 June 2002 the GPO rejected the petition. The applicant's representative was informed that she could study the case-file after the pre-trial investigation was completed and that no statement about a new examination by German experts had been made by the Deputy Prosecutor General to the media.

On 17 July 2002 the newly appointed Prosecutor General ordered the creation of a new investigative group in the Gongadze case.

On 26 and 30 July 2002 the new group conducted two additional examinations of the site where the body was found, together with forensic experts. They took soil samples, made a thorough search and took a number of objects for analysis.

On 9 August 2002 an additional examination of the Tarashcha body was conducted and samples for further forensic tests were taken. The additional forensic examinations were ordered in order to establish more accurately the approximate time of Mr Gongadze's death.

On 3 September 2002 the deceased's mother was provided with the documents necessary for the burial of Mr Gongadze's remains.

On 24 September 2002 the GPO sent a letter to the director of the US FBI inviting them to assist Ukrainian specialists in investigating the case.

In September and October 2002, Mr Robert Ménard, Secretary General of “Reporters sans frontières”, visited Kyiv twice as the representative of the deceased's mother in the criminal case. He met the Prosecutor General and had access to the results of the forensic examinations in the case. Moreover, samples were taken for an additional forensic examination, which was held in Lausanne (Switzerland) from 20 to 25 January 2003.

(b)  The political context

On 11 December 2000 the GPO received a videotape with statements by Mr Melnychenko made in presence of several Ukrainian MPs. These statements concerned the involvement of the President of Ukraine and many other high ranking officials in giving illegal orders. Mr Melnychenko claimed to have made audio recordings of incriminating conversations, using a digital recorder placed under the sofa in the office of the President of Ukraine.

On 13 December 2000, Mr Moroz, a Ukrainian MP, lodged an application with the GPO, enclosing a copy of Mr Melnychenko's complaint of 16 November 2000 and a video tape of statements containing accusations about the involvement of senior State officials in the disappearance of Mr Gongadze. A forensic examination of the audio records was ordered which was unable to determine the authenticity of those records. (The applicant contended that a US laboratory had confirmed the authenticity of the tapes.)

On 15 December 2000 the GPO requested Interpol to establish the whereabouts of Mr Melnychenko.

On 16 September 2002 the GPO requested the US Department of Justice for their assistance in interrogating Mr Melnychenko as a witness in the Gongadze case.

Mr Melnychenko refused to provide the GPO with his records and recording equipment, but agreed to provide written answers to the GPO questions, which he had not done by the time the Government submitted their observations to the Court. (The applicant stated that Mr Melnychenko's implied lack of cooperation was explained by his well-founded fear of prosecution by the Ukrainian authorities.)

3.  Recent events

After Viktor Yushchenko was elected President of Ukraine on 26 December 2004, he pledged to re-open the investigation into the Gongadze case. It was reported in the press on 2 March 2005 that the Prosecutor General had announced the arrest of three security officers in connection with the present case - a general and two colonels. On 4 March 2005, the death by purported suicide of Yuriy Kravchenko, the Minister of the Interior at the time and mentioned above, was announced. He had been due to be interviewed by the GPO that morning.

B.  Relevant domestic law

1.  Constitution of Ukraine

Article 3

“The human being, his or her life and health, honour and dignity, inviolability and security are recognised in Ukraine as having the highest social value. ...”

Article 27

“Every person has the inalienable right to life.

No one shall be arbitrarily deprived of life. The duty of the State is to protect human life. ...”

Article 28

“Everyone has the right to respect for his or her dignity.

No one shall be subjected to torture, cruel, inhuman or degrading treatment or punishment that violates his or her dignity. ...”

2.  Code of Criminal Procedure

Article 28. A civil claim in a criminal case

“A person, who has suffered material damage as a result of a crime, shall be entitled to lodge within the criminal proceedings a civil claim against the accused ..., which shall be considered by the court together with the criminal case...”

Article 49. An aggrieved party

“A person who has suffered moral, physical or property damage from the crime can be recognised as an aggrieved party. ...

A citizen, who has been recognised as an aggrieved party from the crime, shall be entitled to give evidence in the case. An aggrieved party, or his or her representative, shall be entitled to: ... make requests; to study all the materials of the case-file when the pre-trial investigation is completed, ... to lodge complaints against the actions of inquirer, investigator, prosecutor and court, ...

In cases where the crime caused the death of the victim, the rights provided for in this Article shall be conferred upon the deceased's next kin.”

Article 94. Grounds for instituting a criminal action

“A criminal action shall be instituted on the following grounds:

1)  applications or communications from ... individuals; ...

5)  direct detection of signs of crime by a body of inquiry, investigation, prosecutor or court.

An action can be instituted only when there is sufficient information pointing to a crime.”

COMPLAINTS

1.  The applicant complained under Article 2 of the Convention that the death of her husband was the result of a forced disappearance and that the State authorities failed to protect his life.

2.  She further complained that the State failed to investigate the case in a coherent and effective manner, in violation of Article 2.

3.  The applicant maintained that the atmosphere of fear and uncertainty, as well as the incomplete and contradictory information provided during the investigation, had forced her to leave the country and caused her suffering, which amounted to inhuman and degrading treatment, contrary to Article 3 of the Convention.

4.  The applicant finally complained of the lack of effective remedies, contrary to Article 13 of the Convention.

THE LAW

The applicant complained that her husband's disappearance and murder had violated several provisions of the Convention.

1.  The Government maintained that the applicant's complaints under Articles 2 and 3 of the Convention, alleging the State's failure to protect her husband's life and her distress and uncertainty, had been submitted outside the period of six month period, prescribed by Article 35 § 1 of the Convention.

The applicant maintained that she had tried to use available domestic remedies but to no avail. She further maintained that raising the six month rule in the circumstances of the present case was improper.

The Court reiterates that where no domestic remedy is available in respect of an act alleged to be in violation of the Convention, the six month time-limit contained in Article 35 § 1 of the Convention in principle starts to run from the date on which the act complained of took place or the date on which an applicant was directly affected by, became aware or could have become aware of such an act. However, special considerations may apply in exceptional cases where applicants first avail themselves of a domestic remedy and only at a later stage become aware, or should have become aware, that the remedy is ineffective. In that situation, the six month period might be calculated from the time when the applicant becomes aware, or should have become aware, of these circumstances (see Aydın v. Turkey (dec.), nos. 28293/95, 29494/95 and 30219/96, ECHR 2000-III (extracts).

The Court notes that the availability and effectiveness of the remedy of criminal proceedings, in the case of disappearance or murder, is raised by the Government in respect of the applicant's complaint under Article 13 of the Convention (see below). The applicant pursued this remedy but, after alleged delays and deficiencies in the criminal proceedings, she lodged this application with the Court two years after her husband's disappearance, while the criminal proceedings were still pending.

In these circumstances, the Court considers that the Government's objection should be joined to the examination of the merits of the applicant's Article 13 complaint below.

2.  The applicant complained under Article 2 of the Convention that the death of her husband was a result of a forced disappearance and that the State authorities failed to protect his life. Article 2, insofar as relevant, provides as follows:

“1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.”

The Government maintained that the only element linking the murder of Mr Gongadze with State authorities were the audio records made by Mr Melnychenko. They contended that there was no evidence “beyond reasonable doubt” that the State authorities were responsible for a violation of the right to life of the applicant's husband.

The applicant maintained that, at the time of lodging her application with the Court, she was not certain of her husband's fate or the identity of the body found in Tarashcha. Therefore, she had based her complaint on his disappearance. Whilst she no longer claimed that her husband had disappeared, she alleged that he was killed in violation of Article 2 of the Convention.

The applicant submitted that the records made by Mr Melnychenko were not the only element linking State authorities to the murder of Mr Gongadze. The culpable negligence of the law-enforcement officers in conducting the investigation, in the applicant's view, could also be considered such an element.

The applicant concluded that the facts of the case clearly demonstrated that the State, whether directly or indirectly, was involved in the murder of her husband, and that there was a reasonable suspicion as to that involvement.

The Court considers, in the light of the parties' submissions, that these complaints raise serious questions of fact and law, the determination of which requires an examination on the merits. The Court concludes therefore that they are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring them inadmissible has been established.

3.  The applicant next complained that the State had failed to investigate the case in a coherent and effective manner, in violation of Article 2 of the Convention.

The Government maintained that there had been objective reasons for the delays in the investigation. Given that the GPO had performed many investigative activities in the case, the Government considered that the investigation had been sufficiently effective.

The applicant disagreed. She contended that number of investigative acts could not be the decisive factor of efficacy. The conviction of two law-enforcement officers for negligence in the investigation clearly demonstrated its ineffectiveness. Moreover, after some progress in the investigation in 2003, the proceedings were again impeded after the dismissal of Mr Piskun from the position of the Prosecutor General. These facts, according to the applicant, showed that the State fell short of its obligation to conduct an effective investigation into her husband's murder.

The Court considers, in the light of the parties' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

4.  The applicant maintained that the atmosphere of fear and uncertainty, as well as the incomplete and contradictory information provided during the investigation, forced her to leave the country and caused her suffering, in breach of Article 3 of the Convention, which provides as follows.

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

The Government agreed that the applicant had suffered from her husband's murder, but disagreed that a breach of Article 3 of the Convention had been caused by the conduct of any State authority.

The applicant submitted that the contradictory statements about the identity of the Tarashcha body, and the attitude of the investigative authorities towards her and the deceased's mother, had caused an atmosphere of fear and uncertainty. The applicant maintained that she had only been convinced that the body found in Tarashcha belonged to her husband in March 2003. She alleged that the further developments in the investigation, namely the death of a Mr G., a former police officer and possible witness in the Gongadze case, as well as the release of General Pukach, who had been suspected of organising the surveillance of Mr Gongadze, had made her despair of any effective outcome for the investigation.

The Court considers, in the light of the parties' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

5.  Finally, the applicant complains of a lack of effective remedies and invokes Article 13 of the Convention, which provides as follows:

“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 Government stated that the Code of Criminal Procedure provided a possibility for an aggrieved party to lodge a civil claim for material and moral damages caused by crime, but the applicant did not lodge pursue this channel. Moreover, the Government stressed that the investigation into the death of Mr Gongadze was sufficiently effective. They further maintained that the Code of Criminal Procedure provided rights for an aggrieved party to join the criminal proceedings, which rights the applicant had enjoyed. Insofar as this complaint is based on the refusal of full access to the criminal case-file, such a restriction was justified in the interests of the confidentiality and effectiveness of the investigation.

The applicant disagreed, maintaining her claim that there was no effective remedy for her complaints under Articles 2 and 3 of the Convention.

The Court considers, in the light of the parties' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court unanimously

Joins to the merits the Government's preliminary objection;

Declares the application admissible, without prejudging the merits of the case.

S. Dollé J.-P. Costa 
 Registrar President

1 cf. Melnychenko v. Ukraine, no. 17707/02, § 15, judgment of 19 October 2004


GONGADZE v. UKRAINE DECISION


GONGADZE v. UKRAINE DECISION