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FOURTH
SECTION
CASE OF
RAILEAN v. MOLDOVA
(Application
no. 23401/04)
JUDGMENT
STRASBOURG
5 January
2010
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 Railean v. Moldova,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas
Bratza,
President,
Lech
Garlicki,
Giovanni
Bonello,
Ljiljana
Mijović,
David
Thór Björgvinsson,
Ledi
Bianku,
Mihai
Poalelungi,
judges,
and
Fatoş Aracı, Deputy
Section Registrar,
Having
deliberated in private on 1 December 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 23401/04) against the Republic
of Moldova 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, Mr Mihail Railean (“the
applicant”), on 26 May 2004.
- The
Moldovan Government (“the Government”) were represented
by their Agent, Mr V. Grosu.
- The
applicant alleged, in particular, that the domestic authorities had
failed to conduct an appropriate investigation into his son's death,
contrary to their obligations under Article 2 of the Convention.
- The
application was allocated to the Fourth Section of the Court. On
6 November 2008 the President of that Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3). On the same date the Ukrainian
Government were informed of their right to intervene in the
proceedings in accordance with Article 36 § 1 of the Convention
and Rule 44 § 1(b), but they did not communicate any intention
to avail themselves of this right.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1956 and lives in
Krutoyarovka, Ukraine.
- On 2 January 2001 the applicant's son was hit by a car
and died a few hours later in hospital. The driver fled from the
scene of the accident. A criminal investigation was initiated, but
was suspended on 14 November 2001 because it had been impossible
to identify the driver. The car had belonged at some stage to a
police officer (S.) working in Chişinău. On the same day, a
prosecutor sent a letter to the applicant informing him of the
decision taken and of his right to read that decision in the
prosecutor's office.
- On 29 November 2002 Mr Papuc, the Moldovan Minister of
Internal Affairs, informed the applicant that the investigation had
established the identity of the driver, and that the case had been
sent for further investigation by the prosecution. According to the
letter, the criminal investigation had started on 11 January 2001. In
response to the applicant's complaint that his son had been killed in
order to obtain his internal organs for a transplant, the Minister
informed him that the autopsy of the applicant's son's body had not
revealed any missing internal organs.
- On 8 September 2003 a prosecutor decided to reopen the
investigation into the applicant's son's death. He found that the
decision of 14 November 2001 (see paragraph 6 above) had been
taken unlawfully since the investigation into the circumstances of
the case had been carried out “in a manifestly unilateral and
superficial manner”. He noted, in particular, that during the
interviews in early 2001 witness R.H., who had said that she was a
passenger in the car which had hit the applicant's son, had mentioned
that her son B.H., who was 13 years old at the time and could not be
held criminally liable, had been driving the car at the time of the
accident. B.H. confirmed that statement. However, subsequently both
withdrew their statements. B.H. declared that I., his relative living
in Tatarbunar, had been driving the car. Moreover, it became clear
during the investigation that B.H. did not know how to drive a car.
The prosecutor had not identified and interviewed the driver of the
taxi which had allegedly taken R.H. home from the scene of the
accident. The list of telephone calls made by R.H. and by S. before
and after 2 January 2001 had not been obtained and analysed. In
addition, eyewitness P.O. remembered the face of the driver and
subsequently recognised him at an identity parade as being officer S.
- In reply to a complaint made by the applicant on an
unknown date, on 31 January 2003 the Prosecutor General's Office
informed him that operational measures were being taken to identify
the person responsible for his son's death.
- On an unspecified date in August 2004 the applicant
wrote to the Prosecutor General's Office, asking about the reasons
for the delays in the investigation. He also inquired as to why no
complaint had been lodged and no investigation had been carried out
into the theft of the car which had hit his son. If that car had not
been stolen, then it was unclear why its owner had not been
prosecuted.
- In a letter dated 10 October 2004, the Prosecutor
General's Office informed the applicant that it had established a
failure to perform, in a timely manner, the required investigation
and operational measures. Consequently, the decision to discontinue
the investigation was annulled and the case was sent for further
investigation. The case was transferred to a group of prosecutors
from the Chişinău prosecutor's office, under the
supervision of the Prosecutor General's Office. The letter ended with
apologies to the applicant for the delay in investigating the case.
- In
a letter to the Prosecutor General's Office in August 2004, the
applicant complained about the failure to exhume his son, as he had
requested earlier, in order to verify whether any of his internal
organs had been removed. He also complained about the failure to
initiate a criminal investigation into the alleged hijacking of the
car which had hit his son, which led him to believe that this had
only been an excuse for not prosecuting the policeman who owned the
car. He finally stated that he did not have the means to hire a
lawyer or travel to Moldova in order to examine the materials in the
case file, but asked for a copy of the decision to discontinue the
proceedings to be sent to his address in Ukraine.
The
applicant addressed similar letters to the President of Moldova and
the Human Rights Centre.
- S.
was eventually charged and put on trial. On 23 May 2007 he was
acquitted by the Botanica District Court since it had not been proved
that he had committed the crime. It was established that he had sold
the car a couple of weeks before the accident. That judgment was
upheld by the Chişinău Court of Appeal on 26 September
2007.
- On
22 November 2007 the prosecutor lodged an appeal in cassation with
the Supreme Court of Justice, requesting S.'s conviction and
referring to evidence showing that he had been driving his car at the
time of the accident.
- On 9 December 2008 the Supreme Court of Justice upheld
the lower court's judgment, finding that it had not been established
that S. had been in the car at the time of the accident.
II. RELEVANT DOMESTIC LAW
- The relevant provisions of the Code of Criminal
Procedure (“the CCP”), in force before 12 June 2003, read
as follows:
“Article 195. Complaints against acts of the
prosecutor in charge of the investigation.
Complaints against acts of the prosecutor in charge of
the investigation or other investigative measures shall be addressed
to the hierarchically superior prosecutor.”
“Article 1951. Challenging before
the court the actions of the investigation authority or the
prosecutor.
The ... victim ... may challenge before the court the
actions of the investigation authority or the prosecutor, if the
relevant complaint has been rejected by the prosecutor.
The persons mentioned in paragraph (1) of the present
Article may challenge in court ... decisions concerning the
suspension ... of an investigation ...”.
- Article 93 of the Code of Criminal Procedure, as in
force at the material time, provided that after receiving a complaint
about a criminal offence the investigating body could request only
supplementary material or explanations but could not conduct any
investigative measures until after criminal proceedings had been
formally instituted. It had to decide within three days whether or
not to institute criminal proceedings. In exceptional cases such a
decision was to be taken within fifteen days.
THE LAW
- The
applicant complained of a violation of Article 2 of the Convention in
that no effective investigation was carried out into the
circumstances of the accident which resulted in the death of his son.
Article 2 § 1 of the Convention reads:
“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
applicant also complained of a violation of Article 6 of the
Convention since he had not obtained any decision concerning the
investigation into his son's death. The relevant part of Article 6
reads as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
- The
Government disputed this.
I. ADMISSIBILITY
A. The Government's preliminary objection
- The
Government submitted that the applicant had failed to exhaust
available domestic remedies. In particular, he had failed to
challenge in court the decision of 14 November 2001 to suspend the
investigation (see paragraph 6 above), as he was allowed to do under
Articles 195 and 1951 of the Code of Criminal Procedure in
force at the relevant time (see paragraph 16 above).
- The
Court considers that the issue raised by the Government is closely
related to the substance of the complaint under Article 2 of the
Convention. It will therefore examine this objection together with
the arguments concerning the complaint under Article 2.
B. The applicant's complaint under Article 6 of the
Convention
- The
applicant complained of a violation of Article 6 of the Convention in
view of the alleged failure to provide him with the relevant
decisions concerning his son's case. The Court considers that this
complaint raises essentially the same issue as that raised under
Article 2 of the Convention, namely, whether the authorities complied
with their procedural obligations under Article 2. It will therefore
not examine this complaint separately.
C. Conclusion as to admissibility
- The
Court considers that the applicant's complaint under Article 2 of the
Convention raises questions of fact and law which are sufficiently
serious that their determination should depend on an examination of
the merits, and that no other grounds for declaring this complaint
inadmissible have been established. The Court therefore declares this
complaint admissible. In accordance with its decision to apply
Article 29 § 3 of the Convention (see paragraph 4 above), the
Court will immediately consider the merits of these complaints.
II. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
- The
applicant complained of a violation of Article 2 of the Convention as
a result of the failure to carry out a full and timely investigation
into his son's death. Moreover, he was not kept fully informed of the
course of the proceedings and did not receive any decisions made
during the investigation phase.
- The Government submitted that a thorough investigation
had been carried out immediately after the car accident which had
resulted in the applicant's son's death. Witnesses had been heard on
the same day and the house of the main suspect (S.) had been
searched, his telephone tapped for a month, and information
concerning the sale of his car to a third person verified. The
obligation to carry out an effective investigation was one of means,
not of result, so that when it was impossible to identify the person
responsible for another person's death the State could not be held
responsible. The investigators verified all the versions of the
applicant's son's death and found that he had died as a result of an
accident. On 20 April 2006 the investigation was completed and
the case was submitted to the trial court. Moreover, the applicant
had not submitted any evidence that he had tried to obtain access to
any materials of the case and was refused such access. Furthermore,
the prosecutors had kept him informed of the course of the
investigation.
- The
Court reiterates that by requiring a State to take appropriate steps
to safeguard the lives of those within its jurisdiction (see L.C.B.
v. the United Kingdom, 9 June 1998, § 36, Reports of
Judgments and Decisions 1998 III), Article 2 § 1
imposes a duty on that 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 (see Osman v. the United Kingdom, 28 October 1998,
§ 115, Reports of Judgments and Decisions
1998 VIII).
- 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”, requires by implication that there should be an
effective official investigation when individuals have died in
suspicious circumstances. This obligation is not confined to cases
where it has been established that the killing was caused by an agent
of the State. The mere fact that the authorities have been informed
of the death will give rise ipso facto to an obligation
under Article 2 of the Convention to carry out an effective
investigation into the circumstances in which it occurred (see
Sabuktekin v. Turkey, no. 27243/95, § 98, ECHR
2002 II (extracts); Kavak v. Turkey, no. 53489/99, §
45, 6 July 2006; and Al Fayed v. France (dec.), no.
38501/02, 27 September 2007). The investigation must be capable of
establishing the cause of the injuries and the identification of
those responsible with a view to their punishment. Where death
results, the investigation assumes even greater importance, having
regard to the fact that the essential purpose of such an
investigation is to secure the effective implementation of the
domestic laws which protect the right to life (see mutatis
mutandis, Paul and Audrey Edwards v. the United Kingdom,
no. 46477/99, § 69, ECHR 2002 II).
- The
scope of the above-mentioned obligation is one of means, not of
result. Thus, the authorities must have taken the reasonable steps
available to them to secure the evidence concerning the incident,
including inter alia eye witness testimony, forensic evidence
and, where appropriate, an autopsy which provides a complete and
accurate record of injury and an objective analysis of clinical
findings, including the cause of death. Any deficiency in the
investigation which undermines its ability to establish the cause of
death, or the person or persons responsible will risk falling foul of
this standard (see Menson v. the United Kingdom (dec.), no.
47916/99, ECHR 2003 V, and Rajkowska v. Poland (dec.),
no. 37393/02, 27 November 2007).
- The
Court recalls that in the above-cited Al Fayed and Rajkowska
cases it was not disputed that the State's obligations under Article
2 of the Convention arose in the context of a death resulting from a
traffic accident. In the present case, the Court notes that a number
of investigative measures were carried out on the day of the fatal
accident (2 January 2001), as described by the Government (see
paragraph 26 above).
- However,
it is also clear from the Minister of Internal Affairs' letter to the
applicant that the criminal investigation into the matter started
only on 11 January 2001, that is, nine days later. In this connection
the Court reiterates its finding that “in accordance with
Articles 93, 96 and 109 of the Code of Criminal Procedure, no
investigative measures at all could be taken in respect of the
offence allegedly committed [...] unless criminal proceedings were
formally instituted ...” (see, mutatis mutandis, Guţu
v. Moldova, no. 20289/02, § 61, 7 June 2007). This
suggests that the failure to initiate a criminal investigation as
soon as it became clear that a hit-and-run offence resulting in the
victim's death had occurred may have limited the authorities' ability
to carry out all reasonable investigative measures aimed at
discovering the identity of the driver responsible for the
applicant's son's death. The Government submitted no reasons for the
delay.
- The
Court observes that in 2003 the prosecuting authority found that the
investigation had been “manifestly unilateral and superficial”
(see paragraph 8 above). A number of serious deficiencies in the
investigation made in 2001 were identified, and the decision
suspending the examination was annulled. The Court notes that B.H.
told the prosecutors that his relative I. had been driving the car at
the time of the accident, and identified the place where I. lived.
However, it appears from the documents submitted to the Court that no
attempt was made to find that person and verify his whereabouts at
the time of the accident. The Court also notes that if it was
considered that B.H. had been driving the car, it appears from the
documents that nobody was prosecuted for letting an underage person
without a driving licence drive a car. Similarly, the owner of the
car at the time of the event was only questioned as a witness and was
never charged with any crime, even though in the official version of
events it still remains unclear who was driving the car, which
belonged to R.H. at some stage. In a subsequent letter to the
applicant on 10 October 2004 the Prosecutor General's Office also
acknowledged deficiencies in the investigation (see paragraph 11
above).
- The
Court further notes that the investigation lasted for over five years
(January 2001 - 20 April 2006, see paragraphs 6 and 26 above),
with interruptions, which the authorities themselves subsequently
considered unlawful (see paragraph 8 above) and protracted (see
paragraph 11 above). The Court considers that such a long period of
investigation, in the absence of complicating factors (apart from the
disappearance of the perpetrator) and with the shortcomings mentioned
above does not satisfy the requirement of promptness implied in the
procedural obligation under Article 2 of the Convention.
- The Court notes that starting from 2002 the applicant
made complaints to various State authorities, including the
Prosecutor General's Office and the President of Moldova, and that he
was informed that while the investigation had been suspended,
measures aimed at identifying the perpetrator were ongoing (see
paragraphs 7 and 9 above). Moreover, following his complaints the
investigation was reopened, but continued for another three years. In
such circumstances, the Court considers that a challenge in court to
the decision of 14 November 2001 to suspend the investigation
could not offer sufficient redress since the court could only order
the investigator to reopen the investigation (see, for example,
Corsacov v. Moldova, no. 18944/02, §§ 15, 21-32 and
34-44, 4 April 2006), which was exactly what he obtained from the
Prosecutor General's Office. Therefore, the Government's objection
concerning the applicant's failure to exhaust available domestic
remedies must be rejected.
- There
has, accordingly, been a violation of Article 2 in the present case.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
- The applicant did not make any claims for just
satisfaction.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Joins to the merits the Government's preliminary
objection regarding non-exhaustion of domestic remedies and declares
the application admissible;
- Holds that there has been a violation of Article
2 of the Convention under its procedural limb and dismisses in
consequence the Government's above-mentioned preliminary objection.
Done in English, and notified in writing on 5 January 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President
