Відповіді

• 2005.11.07 | Людмила Коваль

  Re: Рішення ЄСПЛ від 22.03.2005

  Поданий у попередньому дописі лінк не відкриває рішення суду.
  Передруковую текст.
  
  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 Melnychenko 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

• 2005.11.08 | Людмила Коваль

  Re: 8 листопада Євросуд поставить крапку у справі Гонгадзе?

  Як і передбачала, ЄСПЛ прийняв сьогодні остаточне рішення по справі Гонгадзе.
  Суд визнав:
  1.Порушення ст.2 Конвенцій (право на життя) відносно відмови влади захистити життя Георгія Гонгадзе;
  2. Порушення ст.2 Конвенцій (право на життя) відносно неадекватності розслідування смерті Георгія;
  3. Порушення ст.3 Конвенцій (заборона катувань) відносно заявника (тобто нелюдське, жорстоке поводження відносно Мирослави Гонгадзе);
  4. Порушення ст.13 Конвенцій (право на ефективний правовий захист), тобто відсутність ефективного розслідуванння справи Гонгадзе в Україні.
  
  Відповідно до ст. 41 Конвенції (право на матеріальну компенсацію) Суд надає Мирославі компенсацію у розмірі 100 000 євро, яку український уряд має виплатити у трьох місячний термін.
  
  Ось текст прес-релізу рішення Суду:
  CHAMBER JUDGMENT GONGADZE v. UKRAINE
  
  
  
  The European Court of Human Rights has today notified in writing a judgment[1] in the case of Gongadze v. Ukraine (application no. 34056/02).
  
  
  
  The Court held, unanimously, that there had been:
  
  a violation of Article 2 (right to life) of the European Convention on Human Rights, concerning the Ukrainian authorities’ failure to protect the life of the applicant’s husband, Georgiy Gongadze;
  a violation of Article 2, concerning the inadequate investigation into Mr Gongadze’s death;
  a violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention concerning the applicant;
  a violation of Article 13 (right to an effective remedy).
  
  
  Under Article 41 (just satisfaction), the Court awarded the applicant 100,000 euros (EUR) in respect of pecuniary and non-pecuniary damages. (The judgment is available only in English.)
  
  
  
  1. Principal facts
  
  
  
  The applicant, Myroslava Gongadze, is a Ukrainian national, who was born in 1972 and lives in Arlington (United States of America).
  
  
  
  Her late husband, Georgiy Gongadze, was a political journalist and editor-in-chief of the “Ukrainskaya Pravda” Internet journal. He was actively involved, both nationally and internationally, in raising awareness about the lack of freedom of speech in Ukraine. He reported on, for example, corruption among high-level State officials.
  
  
  
  For months prior to his disappearance, Mr Gongadze had complained about receiving threats and being under surveillance. On 14 July 2000 he wrote an open letter to the Prosecutor General complaining that his relatives, friends and colleagues were being questioned about him by law enforcement officers concerning an incident he knew nothing about and that he was being followed by people who had not been identified driving a car with the number plate 07309 KB. He asked the Prosecutor General to protect him and to find and punish those involved.
  
  Mr Gongadze disappeared on 16 September 2000 and, the following day, the applicant notified the Moskovskiy District Police Department of Kyiv.
  
  
  
  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 15 November 2000 relatives examining the body found jewellery belonging to Mr Gongadze and marks of an old injury.
  
  
  
  On 28 November 2000 the Chairman of the Ukrainian Socialist Party, Mr Moroz, publicly announced the existence of audiotapes (the “Melnychenko tapes”), 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 Minister of the Interior Yuriy Kravchenko, the President asked that Mr Gongadze be threatened. The Minister had then proposed certain people whom he called “real eagles”, capable of anything, to do the job.
  
  
  
  In December 2000 the Prosecutor General announced that the Tarashcha corpse was not Mr Gongadze. Then, on 10 January 2001, he publicly announced that it was highly probable that the corpse was Mr Gongadze while, at the same time, announcing that there were witnesses who had seen Mr Gongadze alive after his disappearance. Three days later, the General Prosecutor’s Office (GPO) informed the applicant that there was no evidence that the corpse was Mr Gongadze. A fortnight later, the applicant was recognised as an aggrieved party because there was enough evidence to believe that the corpse was her late husband.
  
  
  
  On 15 January 2001, the editor-in-chief of the Grani newspaper made public the names of four police officers who had allegedly been involved in the surveillance of Mr Gongadze.
  
  
  
  On 11 March 2003 Reporters Sans Frontières announced that, following a DNA test, the body had been identified as Mr Gongadze.
  
  
  
  On 22 October 2003 Lieutenant-General Pukach, an official of the Ministry of the Interior, was arrested on suspicion of involvement in the disappearance of Mr Gongadze. He was accused of ordering the destruction of important documents in the case. On 29 October 2003 the Prosecutor General, Mr Piskun, was dismissed by the President. On 6 November 2003 Kyiv City Court released Mr Pukach on his undertaking not to abscond.
  
  
  
  After Viktor Yushchenko was elected President of Ukraine on 26 December 2004, he promised 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 police officers in connection with the applicant’s case before the European Court of Human Rights. On 4 March 2005, the death by purported suicide of Yuriy Kravchenko was announced. He had been due to be interviewed by the GPO that morning.
  
  
  
  In August 2005 the applicant was allowed access to the file. In September 2005 the GPO announced that the latest DNA test conducted in Germany proved that the body found in Tarashcha was Mr Gongadze.
  
  
  
  On 15 September 2005 Mr Turchinov, dismissed from his post as Head of the Security Service, informed journalists, among other things, that the interim results of the laboratory examination of the “Melnychenko tapes” had not established any sign of tampering, and had identified voices recorded on the tapes.
  
  On 20 September 2005 the Parliament of Ukraine heard the report of the chairman of its ad hoc investigating committee on the murder of Mr Gongadze, which concluded that the kidnap and murder of Mr Gongadze had been organised by former President Kuchma and Mr Kravchenko and that the current speaker of Parliament, Mr V. Lytvyn, and a member of parliament, Mr L. Derkach, were involved in the crimes. The report finally noted that the GPO had failed to take any action or to react to the conclusions of the ad hoc committee.
  
  
  
  The GPO has recently announced that the criminal investigation concerning the offenders is complete and that it will be sent to the Court.
  
  
  
  2. Procedure and composition of the Court
  
  
  
  The application was lodged on 16 September 2002 and declared admissible on 22 March 2005.
  
  
  
  Judgment was given by a Chamber of seven judges, composed as follows:
  
  
  
  Jean-Paul Costa (French), President,
  András Baka (Hungarian),
  Ireneu Cabral Barreto (Portuguese),
  Karel Jungwiert (Czech),
  Volodymyr Butkevych (Ukrainian),
  Antonella Mularoni (San Marinese),
  Danute Jočienė (Lithuanian), judges,
  
  and also Sally Dollé, Section Registrar.
  
  
  
  3. Summary of the judgment[2]
  
  
  
  Complaints
  
  The applicant complained that the State authorities failed to protect the life of her husband and to investigate his disappearance and death, which caused her serious moral suffering. She relied on Articles 2, 3 and 13. She also submitted that the latest information provided by the Ukrainian Government confirmed the direct involvement of State agents in the murder of her husband, but that the investigation seemed to limit the case to the prosecution of direct offenders, and not those who ordered and organised it.
  
  
  
  Decision of the Court
  
  
  
  Article 2
  
  
  
  Alleged failure to protect right to life
  
  The Court noted that recent developments in the applicant’s case demonstrated with a high degree of probability that police officers were involved in the disappearance and murder of Mr. Gongadze. The question to be determined was whether the authorities failed to comply with their positive obligation to protect Mr Gongadze from a known risk to his life.
  
  
  
  The Court first noted that the applicant’s husband, in his open letter of 14 July 2000, had provided the GPO with information both about the interrogation of his relatives and colleagues by police officers and his surveillance. He had also called for an investigation to be undertaken and for measures be taken for his protection. Secondly, the authorities, primarily prosecutors, ought to have been aware of the vulnerable position of a journalist who covered politically-sensitive topics; at that time, 18 journalists had been killed in Ukraine since 1991. Thirdly, the GPO was entitled and obliged to supervise the activities of the police and investigate the lawfulness of any action taken by them. Despite clear indications in the letter of Mr Gongadze about the inexplicable interest in him shown by law-enforcement officers, the response of the GPO was not only formalistic, but also blatantly negligent. A fortnight later Mr Gongadze had disappeared.
  
  
  
  The Court found that the complaints from the late Mr. Gongadze and subsequent events, revealing the possible involvement of State officials in his disappearance and death, were neglected or simply denied without proper investigation for a considerable period of time. There was no reaction to the alleged involvement of the police in his disappearance, when information about such a possibility was disseminated publicly, by the editor-in-chief of the Grani newspaper. The fact that the alleged offenders, two of them active police officers, were identified and charged with the kidnap and murder of the journalist just a few days after the change in the country’s leadership, raised serious doubts as to the genuine wish of the authorities under the previous Government to investigate the case thoroughly.
  
  
  
  The Court therefore found that there had been a violation of Article 2 concerning the authorities’ failure to protect the life of the applicant’s husband.
  
  
  
  Failure to investigate the case
  
  The Court considered that, during the investigation, until December 2004, the State authorities were more preoccupied with proving the lack of involvement of high-level State officials in the case than discovering the truth about the circumstances of the disappearance and death of the applicant’s husband. The Court therefore concluded that there had been a violation of Article 2 concerning the failure to conduct an effective investigation into the case.
  
  
  
  Article 3
  
  
  
  The Court noted that the applicant’s husband disappeared in September 2000 but that, according to the applicant, only in March 2003 did she receive convincing information that the decapitated body, which had been found in Tarashcha in November 2000, was that of her husband. In the meantime, she had received numerous contradictory statements from the authorities about his fate. That uncertain situation continued so that, having raised doubts as to the identity of the Tarashcha corpse, and therefore the fate of her husband, the State authorities, at the same time, constantly refused to grant her full access to the relevant materials in the case file. Only in August 2005 was she allowed access to the file. In September 2005 the GPO announced that the latest DNA test conducted in Germany proved that the body found in Tarashcha was that of the applicant’s husband.
  
  
  
  The Court therefore found that the attitude of the investigation authorities to the applicant and her family clearly caused her serious suffering which amounted to degrading treatment, in violation of Article 3.
  
  
  
  Article 13
  
  
  
  The Court recalled that it was not in dispute that the authorities had an obligation to carry out an effective investigation into the circumstances of the killing of the applicant’s husband. However, for more than four years, no effective criminal investigation could be considered to have been conducted in accordance with Article 13. The Court therefore found that the applicant was denied an effective remedy in respect of the death of her husband.
  
  
  
  Furthermore, the absence of any outcome concerning the main criminal proceedings also prevented the applicant from receiving compensation, since in practice a civil claim for compensation would not be examined prior to a final determination of the facts in pending criminal proceedings. There had therefore also been a violation of Article 13.
  
  http://www.echr.coe.int/Eng/Press/2005/Nov/ChamberJudgmentGongadzevUkraine81105.htm
  
  
  ========================
  Що знали те й довідались.
  Це приклад ефективності ЄСПЛ.
  Із-за неприйняття в Україні досі закону про виконання рішень ЄСПЛ, це рішення носить для України чисто рекомендаційний характер і, крім обов"язку держави виплатити Мирославі компенсацію з держказни ( читай з Ваших податків), ні до чого її не зобов"язує.
  
  От такі справи.

• 2005.11.08 | Сергій Кабуд

  Ющенко особисто наглядає за цим! От шо шокує!(-)

• 2005.11.10 | Людмила Коваль

  Ось повне рішення ЄСПЛ.

  SECOND SECTION
  
  
  
  
  
  
  CASE OF GONGADZE v. UKRAINE
  
  (Application no. 34056/02)
  
  
  
  
  
  
  
  
  
  
  
  JUDGMENT
  
  
  
  STRASBOURG
  
  8 November 2005
  
  
  This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
  
  In the case of Gongadze v. Ukraine,
  The European Court of Human Rights (Second Section), sitting 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 deliberated in private on 22 March and 11 October 2005,
  Delivers the following judgment, which was adopted on the last mentioned date:
  PROCEDURE
  1. The case originated in an application (no. 34056/02) 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, Mrs Myroslava Gongadze (“the applicant”), on 16 September 2002.
  2. The applicant was represented by Ms S. Preuss-Laussinotte, a lawyer practising in Paris, France. The Ukrainian Government (“the Government”) were represented by their Agents, Mrs V. Lutkovska and Mrs Z. Bortnovska.
  3. The applicant alleged that the State authorities failed to protect the life of her husband and to investigate his disappearance and death, which caused her serious moral suffering.
  4. The application was allocated to the Second Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.
  5. By a decision of 22 March 2005, the Court declared the application admissible.
  6. The applicant and the Government each filed observations on the merits (Rule 59 § 1).
  
  THE FACTS
  I. THE CIRCUMSTANCES OF THE CASE
  7. The applicant was born in 1972 and resides in Arlington, the United State of America (hereafter the US).
  A. The facts of the case, as submitted by the parties
  8. Georgiy Gongadze, the applicant’s husband, was a journalist who disappeared on 16 September 2000 under circumstances that have not yet been fully established by the Ukrainian authorities despite the numerous demands and requests of the applicant. Recently, however, several police officers were charged with the kidnap and murder of Mr Gongadze.
  (a) Events prior to the disappearance of the applicant’s husband
  9. Mr Gongadze was a political journalist and the editor-in-chief of the “Ukrainska 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 the 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.
  10. 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.
  11. 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.
  12. 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.
  13. 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.
  14. 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.
  15. Mr Gongadze disappeared on 16 September 2000.
  (b) The investigation into the disappearance and murder of the applicant’s husband
  16. On 17 September 2000 the applicant petitioned the Moskovskiy District Police Department of Kyiv about the disappearance of her husband.
  17. 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.
  18. 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.
  19. On 3 November 2000 the Kyiv Prosecutors’ Office initiated an inquiry into the premeditated murder of an unknown person (the Tarashcha case).
  20. 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.
  21. 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.
  22. 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.
  23. 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.
  24. On 23 November 2000 the investigator rejected this request.
  25. 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.
  26. On 29 November 2000 the Pechersky District Prosecutors’ Office recognised the applicant as a civil party in the Gongadze case.
  27. 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.
  28. 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.
  29. 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.
  30. 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.
  31. On 11 December 2000 a blood sample was taken from the deceased’s mother for the DNA analysis.
  32. 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.
  33. On 15 December 2000 the Prosecutor General announced that the body found in Tarashcha was not that of Mr Gongadze.
  34. 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.
  35. 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.
  36. The applicant maintained that she was never informed directly by the investigating authorities about the results of these examinations, but learned about them from the media.
  37. 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.
  38. 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.
  39. 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.
  40. 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. Exceptionally, the GPO agreed to give them the Tarashcha body for burial, whilst emphasising that the GPO was not competent to issue a death certificate.
  41. Also on 15 January 2001, the editor-in-chief of the Grani newspaper made public the names of four policemen who had allegedly participated in the surveillance of Mr Gongadze.
  42. 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 that the GPO’s decision was illegal. The GPO appealed.
  43. On 24 January 2001 the investigators separated a defamation case involving a Mr Melnychenko from that of Gongadze.
  44. 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.”)
  45. 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.
  46. 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.
  47. On 30 March 2001 the applicant filed a complaint with the Pechersky District Court of Kyiv about the negligence of the investigators.
  48. 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. An 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.
  49. 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.
  50. On 15 May 2001 the Minister of the Interior announced that two presumed murderers of Mr Gongadze, identified as drug-users, had died and that, therefore, 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 the criminal investigation.
  51. 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.
  52. 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.
  53. 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.
  54. 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.
  55. 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.
  56. 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.
  57. 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.
  58. 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.
  59. 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.
  60. 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.
  61. 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.
  62. 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 relating to the forensic medical examination.
  63. 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.
  64. On 28 March 2002 the applicant requested Mr Robert Ménard, the Secretary General of “Reporters sans frontières”, to be her representative in the case.
  65. 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.
  66. 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.
  67. On 6 July 2002 a new Prosecutor General was elected, who confirmed on 3 September 2002 that the previous investigation had suffered numerous irregularities.
  68. 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.
  69. On 16 September 2002 “Reporters sans frontières” requested access to all the forensic results in the case file and their examination by an independent expert. They also requested information about the identity of the four persons who had followed Mr Gongadze before his disappearance.
  70. In October 2002 a new forensic examination took place in Switzerland. On 11 March 2003 “Reporters sans frontières” announced that the last DNA test had undoubtedly identified the body as Mr Gongadze.
  71. In November 2002 the prosecutor from the Tarashcha Prosecutors’ Office was arrested and charged with negligence in the investigation of the case. On 6 March 2003 that prosecutor was sentenced to two and a half years’ imprisonment but absolved from serving this sentence by the Shevchenkivsky Local Court of Kyiv under an amnesty law.
  72. On 15 January 2003 the chairman of the Parliamentary ad hoc committee on the Gongadze case announced that the persons responsible for the death of Mr Gongadze worked in the police.
  73. 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).
  74. On 24 February 2003 the Prosecutor General declared that they were checking the information about the involvement of senior officials of the Ministry of the Interior in the death of Mr Gongadze.
  75. 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.
  76. 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.
  77. On 5 August 2003 the letters of the late Mr G. appeared in the media. In these letters he accused the police and senior officials of kidnapping and killing Mr Gongadze. These letters, as well as the documents attached to them, were sent to the GPO.
  78. On 9 September 2003 the GPO confirmed that the handwriting of the letters was that of the late Mr G.
  79. On 22 October 2003 Lieutenant-General Pukach, an official of the Ministry of the Interior, was arrested on suspicion of involvement in the disappearance of Mr Gongadze. He was accused of ordering the destruction of important documents in the case.
  80. On 29 October 2003 the Prosecutor General, Mr Piskun, was dismissed by the President.
  81. On 6 November 2003 the Kyiv City Court released Mr Pukach on his undertaking not to abscond.
  82. On 15 August 2005 the applicant was allowed to have access to the criminal case file.
  (c) The political context
  83. The applicant noted that, since 1991, 18 journalists had been killed in Ukraine.
  84. 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.
  85. 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.
  86. 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.
  87. 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.
  88. 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 certain people whom he called “real eagles”, capable of anything, to do the job.
  89. The applicant maintained 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 that they were genuine. 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.
  90. After the disappearance of Mr Gongadze, many media experienced pressure and censorship over their coverage of the case.
  91. On 15 September 2001 several thousand opposition supporters demonstrated in memory of Mr Gongadze.
  (d) The international context
  92. 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.
  93. 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.”
  94. 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.
  95. 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.
  96. The case of the disappearance of Mr Gongadze was reported in the documents of certain United Nations bodies: the Working Group on Enforced or Involuntary Disappearances and the Human Rights Committee.
  97. “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.
  98. 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.
  99. On 16 September 2003, the EU made a declaration in which concern was expressed at the lack of progress of the investigation.
  100. The issue of the effectiveness of the investigation in the case was similarly raised by the US Congress and by NATO.
  101. On 13 September 2005 several international non-governmental organisations published a report about the progress of the investigation in the Gongadze case. They maintained that the GPO, supported by the President, had tried to limit the investigation and did not make enough efforts to find and prosecute the instigators of the kidnap and murder of Mr Gongadze. They further criticised the Ukrainian authorities for serious setbacks in the investigation, in particular:
  “- The disappearance of Lieutenant-General Pukach; the leaking of information that disrupted the work of Ukrainian and Israeli agencies who were preparing to detain him; the lack of any public scrutiny of that potentially criminal action; and the absence of any investigation into the process by which Lieutenant-General Pukach was previously released and the Pukach case closed in December 2003;
  - The death of former Internal Affairs Minister Kravchenko, who could have provided important information about the link between the conversations recorded by Melnichenko and the murder; and the lack of any public scrutiny of the possible negligence of the GPO in its handling of the Kravchenko case and in protecting him as a witness;
  - The failure to interview numerous witnesses in the Internal Affairs Ministry with a knowledge of the system of surveillance operated there; and the failure to investigate thoroughly the links between the “werewolves” and Honcharov cases with the Gongadze case;
  - The failure to resolve the problems surrounding the Melnichenko tapes, with a view to using them as primary evidence in court, caused mainly by the mistakes and sluggishness of the GPO;...”
  B. Supplementary facts as submitted by the Government
  (a) The investigation into the disappearance and murder of the applicant’s husband
  102. 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 to his critical publications in the Internet newspaper Ukrainska Pravda.
  103. 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.
  104. 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.
  105. The Pechersky District Prosecutor’s Office inquired 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.
  106. 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.
  107. 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.
  108. 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.
  109. 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 the forensic examinations in a Western country. This request was rejected on 18 December 2000.
  110. 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.
  111. 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.
  112. 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.
  113. 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.
  114. 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.
  115. 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 the investigation. They had been requested to submit their photographs for the case file.
  116. On 30 October 2001 the applicant’s representative requested the GPO to fix a time-limit for the completion of the pre-trial investigation into the murder of Mr Gongadze. The GPO replied that it could not do so until the murderer had been identified.
  117. The same day, the applicant’s representative requested an additional forensic examination of, inter alia, the following:
  - 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; and
  - whether the hair identification and DNA analysis confirmed the corpse’s identity.
  118. 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.
  119. 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.
  120. 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.
  121. On 17 July 2002 the newly appointed Prosecutor General ordered the creation of a new investigative group in the Gongadze case.
  122. 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.
  123. 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 to establish more accurately the approximate time of Mr Gongadze’s death.
  124. On 3 September 2002 the deceased’s mother was provided with the documents necessary for the burial of Mr Gongadze’s remains.
  125. 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.
  126. 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.
  127. On 14 January 2005 the GPO instituted proceedings against Lieutenant-General Pukach for an abuse of power. His case was joined to that of Mr Gongadze.
  128. On 24 January 2005 the Pechersky District Court of Kyiv ordered the arrest and detention of Mr Pukach. The Security Service and the Ministry of the Interior were ordered to find him, without success.
  129. During the investigation it was established that certain officers of the Department of Criminal Investigation, previously headed by Mr Pukach, had illegally surveyed Mr Gongadze in July-September 2000 until the day of his disappearance. It was also established that, in 2003, all the materials relating to this illegal surveillance had been destroyed.
  130. On 28 February 2005 the GPO instituted proceedings against police officers K. and Pr., as well as Mr Pukach, charging them with the intentional murder of Mr Gongadze. The same day Messrs K. and Pr. were arrested.
  131. On 3 March 2005 the Pechersky District Court remanded Messrs K. and Pr. in custody.
  132. On 5 March 2005 Messrs K. and Pr. were officially charged with premeditated murder. They confessed their involvement. The same day Mr K. was dismissed from his position as head of unit in the Intelligence Department of the Ministry of the Interior.
  133. On 5 March 2005 it was also decided to charge Mr Pukach, but he could not be found.
  134. On 17 March 2005 the investigation established that a fourth person, Mr P., had been involved in the disappearance and murder of Mr Gongadze. Mr P. was interrogated and admitted his role in this crime. The same day Mr P. was dismissed from his position as a senior officer of the Intelligence Department of the Ministry of the Interior.
  135. All three accused participated in an on-site reconstruction of the events of the crime. Other police officers who had followed Mr Gongadze before his disappearance were interrogated.
  136. Some objects belonging to the journalist were found and presented to his relatives for identification.
  137. The investigation pursued further forensic examinations of the corpse and the audiotapes of Mr Melnychenko, as well as certain other matters.
  (b) The political context
  138. On 11 December 2000 the GPO received a videotape with statements by Mr Melnychenko made in the 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.
  139. On 13 December 2000, Mr Moroz, a Ukrainian MP, lodged an application with the GPO, enclosing a copy of a complaint by Mr Melnychenko dated 16 November 2000 and video-recorded 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 their authenticity. (The applicant contended that a US laboratory had confirmed the authenticity of the tapes.)
  140. On 15 December 2000 the GPO requested Interpol to establish the whereabouts of Mr Melnychenko.
  141. 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.
  142. Mr Melnychenko refused to provide the GPO with his records and recording equipment, but agreed to provide written answers to the GPO’s 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.
  C. Recent events
  143. 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.
  144. Recently the GPO announced that the criminal investigation was complete and would be sent to the court. The aggrieved parties were given access to the case file. They stated that the latest forensic examination in September 2005 by German experts had confirmed that the Tarashcha body was that of Mr Gongadze.
  145. On 15 September 2005 Mr Turchinov, dismissed from his post as Head of the Security Service, informed journalists that the Service had been preparing for the arrest and extradition of Lieutenant-General Pukach from Israel, but the operation had failed due to a leak of information from the GPO. He stated that the interim results of the laboratory examination of the “Melnychenko” tapes had not established any sign of tampering, and had identified persons whose voices were recorded on the tapes.
  146. On 20 September 2005 the Parliament of Ukraine heard the report of the chairman of its ad hoc investigating committee on the murder of Mr Gongadze. This report concluded that the kidnap and murder of Mr Gongadze had been organised by former President Kuchma and the late Minister of the Interior, Mr Kravchenko. The report found that the then Head of the Presidential Administration and the current speaker of Parliament, Mr V. Lytvyn, and the then Head of the Security Service and a current Member of Parliament, Mr L. Derkach, were involved in the crimes. The report finally noted that, having been informed about the crimes and the names of suspects, the GPO had failed to take any action or to react to the conclusions of the ad hoc committee.
  II. RELEVANT DOMESTIC LAW
  147. The relevant provisions of the Constitution of Ukraine provide as follows:
  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. ...”
  148. The relevant provisions of the Code of Criminal Procedure provide as follows:
  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, ... [and] to lodge complaints against the actions of the 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.”
  149. The relevant provisions of the Prosecution Service Act, in the wording of 1995, provided:
  Article 5. Main functions of the Prosecution Service
  The main functions of the Prosecution Service are: ...
  2) supervision over compliance with law of the bodies that combat crimes and other offences and investigate actions that have signs of a crime;
  3) investigate actions that have signs of crime; ...
  THE LAW
  I. THE GOVERNMENT’S PRELIMINARY OBJECTION
  150. The Government submitted that the applicant’s complaints under Article 2 and Article 3 of the Convention about the alleged failure of the State to protect the life of her husband, and her state of distress and uncertainty, had been lodged with the Court outside the period of six months prescribed by Article 35 § 1 of the Convention.
  151. The Government stated that the refusal of the GPO to entertain the complaint of the applicant’s late husband about threats to his life was sent to Mr Gongadze on 1 September 2000, more than six months before this application was lodged with the Court.
  152. The Government maintained that the criminal proceedings about the murder of the applicant’s husband were initiated on 27 February 2001, and the applicant was recognised as an aggrieved party within those proceedings. The Government argued that the applicant should have raised her complaint under Article 2 of the Convention within six months of that date, but she had failed to do so.
  153. The Government contended that the applicant’s complaint under Article 3 of the Convention, in relation to the alleged atmosphere of fear and uncertainty, should equally be rejected for being out of time. From the moment of her recognition as an aggrieved party in the criminal proceedings, she could no longer claim that the atmosphere was uncertain because the body found in Tarashcha was identified with a high degree of certainty as being that of her husband, and criminal proceeding for murder were initiated.
  154. The applicant claimed to have tried the available domestic remedies, but to no avail. She maintained that raising the six month rule in the circumstances of the present case was improper.
  155. 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 laid down 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 the 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 may 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)).
  156. 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. The applicant pursued this remedy but, after delays and deficiencies in the criminal proceedings, she lodged her application with the Court two years after her husband’s disappearance, while the criminal proceedings were still pending.
  157. The Court observes that the applicant could arguably claim a lack of confidence in the information provided by the investigation, given the contradictory statements made throughout the proceedings, which allegedly contributed to the state of uncertainty of which the applicant complained. This uncertainty is also supported by the fact that the latest identification of the body was conducted in September 2005.
  158. Accordingly, the Court concludes that the application has been lodged in due time, in the exceptional circumstances of the case, and therefore it dismisses the Government’s preliminary objection.
  II. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
  A. Alleged failure to protect the right to life
  1. The parties’ submissions
  159. 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, in so far 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.”
  160. The Government originally maintained that the only element linking the murder of Mr Gongadze to State authorities was the audio recordings made by Mr Melnychenko. They contended that there was no evidence “beyond reasonable doubt” that the State was responsible for a violation of the right to life of the applicant’s husband. Later, however, they informed the Court about the arrest of several police officers who had confessed to having participated in the surveillance, kidnap and murder of Mr Gongadze.
  161. 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 had been killed in violation of Article 2 of the Convention.
  162. The applicant submitted that the records made by Mr Melnychenko, the authenticity of which had been confirmed by FBI experts, 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 a contributory element.
  163. The applicant originally concluded that the facts of the case clearly demonstrated that the State was involved in the murder of her husband or, at least, that there was a reasonable suspicion of involvement. She recently submitted that the latest information provided by the Government confirmed the direct involvement of State agents in the murder of her husband, but the investigation seemed to limit the case to the prosecution of direct offenders, and not of those who ordered and organised it.
  2. The Court’s assessment
  164. The Court recalls that the first sentence of Article 2 § 1 enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction. This involves a primary duty on the State to secure the right to life by putting in place effective criminal law provisions to deter the commission of offences against the person, backed up by law-enforcement machinery for the prevention, suppression and punishment of breaches of such provisions. It also extends, in appropriate circumstances, to a positive obligation on the authorities to take preventive operational measures to protect an individual or individuals whose life is at risk from the criminal acts of another individual.
  165. Bearing in mind the difficulties in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, the positive obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. Accordingly, not every claimed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. For a positive obligation to arise, it must be established that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk (see Kiliç v. Turkey judgment, no. 22492/93, §§ 62-63, ECHR 2000 III).
  166. The recent developments in the present case demonstrate with a high degree of probability that police officers were involved in the disappearance and murder of Mr. Gongadze. The question to be determined is whether the authorities failed to comply with their positive obligation to protect Mr Gongadze from a known risk to his life.
  167. The Court first notes that, in the instant case, the applicant’s husband in his open letter of 14 July 2000 to the Prosecutor General reported several facts concerning the interrogation of his relatives and colleagues by police officers about him and his surveillance by unknown persons. He requested the investigation of these facts and that measures be taken for his protection.
  168. Secondly, the authorities, primarily prosecutors, ought to have been aware of the vulnerable position in which a journalist who covered politically sensitive topics placed himself / herself vis-à-vis those in power at the material time (cf. the death of 18 journalists in Ukraine since 1991 – paragraph 83 above).
  169. Thirdly, the Court notes that, by virtue of powers conferred upon it under domestic law, the General Prosecutor’s Office (the “GPO”) is entitled and obliged to supervise the activities of the police and investigate the lawfulness of any actions taken by them. Despite clear indications in the letter of Mr Gongadze about the inexplicable interest in him shown by law-enforcement officers, the response of the GPO was not only formalistic, but also blatantly negligent (paragraph 12 above). A fortnight later the applicant’s husband disappeared.
  170. The Court finds that these complaints from the late Mr. Gongadze and subsequent events, revealing the possible involvement of State officials in his disappearance and death, were neglected or simply denied without proper investigation for a considerable period of time. There was no reaction to the alleged involvement of the police in the disappearance, when information about such a possibility was disseminated publicly (paragraph 41 above). The fact that the alleged offenders, two of them active police officers, were identified and charged with the kidnap and murder of the journalist just a few days after the change in the country’s leadership, raises serious doubts as to the genuine wish of the authorities under the previous Government to investigate the case thoroughly.
  171. In view of these considerations, the Court finds that there has been a substantive violation of Article 2 of the Convention.
  B. Failure to investigate the case
  1. The parties’ submissions
  172. The applicant next complained that the State had failed to investigate the case in a coherent and effective manner, in violation of the procedural requirements of Article 2 of the Convention.
  173. The Government maintained that there had been objective reasons for the delays in the investigation. Given that the GPO had performed many investigative acts in the case, the Government considered that the investigation had been sufficiently effective.
  174. The applicant disagreed. She contended that the mere number of investigative acts could not be the decisive factor. 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 Prosecutor General. These facts, according to the applicant, showed that the State had fallen short of its obligation to conduct an effective investigation into her husband’s murder.
  2. The Court’s assessment
  
  175. The Court recalls that the obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, also requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force (see, mutatis mutandis, the Kaya v. Turkey judgment of 19 February 1998, Reports 1998-I, § 105). The essential purpose of such an investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility. What form of investigation will achieve those purposes may vary in different circumstances. However, whatever mode is employed, the authorities must act of their own motion, once the matter has come to their attention. They cannot leave it to the initiative of the next of kin either to lodge a formal complaint or to take responsibility for the conduct of any investigatory procedure (see, for example, mutatis mutandis, İlhan v. Turkey [GC] no. 22277/93, § 63, ECHR 2000-VII).
  176. For an investigation into an alleged unlawful killing by State agents to be effective, it may generally be regarded as necessary for the persons responsible for and carrying out the investigation to be independent from those implicated in the events (see Güleç v. Turkey, judgment of 27 July 1998, Reports of Judgments and Decisions 1998 IV, §§ 81-82, and Oğur v. Turkey [GC], no. 21594/93, §§ 91-92, ECHR 1999 III). The investigation must also be effective in the sense that it is capable of leading to a determination of whether the force used in such cases was or was not justified in the circumstances (for example, the Kaya v. Turkey judgment, cited above, § 87) and to the identification and punishment of those responsible (Oğur v. Turkey, cited above, § 88). This is not an obligation of result, but of means. The authorities must have taken all reasonable steps to secure the evidence concerning the incident. Any deficiency in the investigation which undermines its ability to establish the cause of death or the persons responsible, whether the direct offenders or those who ordered or organised the crime, will risk falling foul of this standard.
  177. There is also a requirement of promptness and reasonable expedition implicit in this context (see Yaşa v. Turkey, judgment of 2 September 1998, Reports 1998 VI, §§ 102-104; Çakıcı v. Turkey [GC], no. 23657/94, §§ 80, 87, 106, ECHR 1999 IV). It must be accepted that there may be obstacles or difficulties which prevent progress in an investigation in a particular situation. However, a prompt response by the authorities in investigating the use of lethal force or disappearance may generally be regarded as essential in ensuring public confidence in their maintenance of the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts (see, in general, McKerr v. the United Kingdom, no. 28883/95, §§ 108-115, ECHR 2001 III, and Avşar v. Turkey, no. 25657/94, §§ 390-395, ECHR 2001 VII (extracts)).
  178. The Court observes that the applicant maintained that the investigation into the disappearance of her husband had suffered a series of delays and deficiencies. Some of these deficiencies were recognised by the domestic authorities on several occasions.
  179. The Court considers that the facts of the present case show that during the investigation, until December 2004, the State authorities were more preoccupied with proving the lack of involvement of high State officials in the case than by discovering the truth about the circumstances of disappearance and death of the applicant’s husband.
  180. In the light of these considerations, the Court concludes that there has been a procedural violation of Article 2.
  III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
  1. The parties’ submissions
  181. 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.”
  182