Yukhymovych v. Ukraine (Application no. 11464/12)
A selection of key paragraphs can be found below the judgment.CASE-OF-YUKHYMOVYCH-v.-UKRAINE
62. The Court notes that it is common ground between the parties that the death of the applicant’s son resulted from the use of lethal force by the police. The matters in dispute are whether the use of force against him was justified in the circumstances of the case and whether the investigation was effective. The Court will firstly assess the adequacy of the investigation into the death of the applicant’s son. It will then review the planning and control of the actions under examination. Lastly, it will turn to assessing the actions of the State agents who actually used lethal force.
82. As to the use of force, the Court notes that it is confronted with fundamentally different accounts of how the applicant’s son died. While the applicant maintained that his son had been killed by police officers as a result of disproportionate use of force, the Government asserted that he had died as a result of an armed clash which had taken place between him and the police, following his attempt to evade arrest.
83. The factual circumstances surrounding the death of the applicant’s son are not clear. The domestic courts, in the course of setting aside the decisions to terminate the proceedings, repeatedly pointed out the discrepancies in the evidence as regards whether or not the applicant’s son was actually in possession of a gun (see paragraphs 32 and 33 above). Moreover, it appears from the documents available to the Court that the only two witnesses that had consistently maintained that the applicant’s son had been armed and had posed a threat were the police officers M. and O. (see paragraphs 19 and 20 above); other witnesses had either changed their testimony during the course of the investigation (see paragraphs 22, 23 and 29 above) or could not testify to this having been the case (see, for example, paragraphs 21 and 26 above).
The Court further notes other omissions and shortcomings in the authorities’ investigation, in particular contradictions between the results of the forensic examinations concerning the way and order in which the injuries had been inflicted on the applicant’s son (see paragraph 43 above). Lastly, the Court observes that both gunshot wounds sustained by the applicant’s son were to his back (compare with Mansuroğlu, cited above, § 98).
84. Against this background the Court consequently has serious doubts as to how the shooting took place, in particular, whether the applicant’s son was armed and whether he posed a threat to the police officers, largely due to the manner in which the investigation has been conducted.
85. In view of the above, the Court concludes that the Government have not provided a satisfactory and convincing explanation of how the events in question occurred or presented solid evidence to refute the applicant’s allegations that the use of the lethal force against his son was not justified.
86. Having regard to the circumstances analysed above, the Government have not convinced the Court that the operation was planned and conducted in such a way as to minimise to the greatest extent possible recourse to lethal force and any risk to the life of the applicant’s son. The Government have not discharged the burden of proving that the force used by the police officers was justified; that it did not go beyond what was absolutely necessary and was strictly proportionate to the achievement of one or more of the purposes specified in Article 2 § 2 of the Convention.
87. In such circumstances, the Court finds that there has been a violation of Article 2 of the Convention under its substantive limb.