THIRD SECTION
CASE OF
VASÎLCA v. THE REPUBLIC OF MOLDOVA
(Application no.
69527/10)
JUDGMENT
STRASBOURG
11 February 2014
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 Vasîlca v. the Republic of Moldova,
The European Court of Human
Rights (Third Section), sitting as a Chamber composed of:
Josep Casadevall,
President,
Alvina Gyulumyan,
Ján Šikuta,
Luis López Guerra,
Kristina Pardalos,
Johannes Silvis,
Valeriu Griţco, judges,
and Santiago Quesada, Section Registrar,
Having deliberated in private on 21 January 2014,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
69527/10) 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 Moldovan national, Ms Elena Vasîlca (“the
applicant”), on 11 November 2010.
The applicant was represented by Mr I. Petcov, a lawyer
practising in Chişinău. The Moldovan Government (“the Government”)
were represented by their Agent, Mr L. Apostol.
The applicant alleged, in particular, that the
authorities had failed to carry out an effective investigation into her son’s
death.
On 10 April 2012 the application was communicated
to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1965 and lives in Chişinău.
On 8 March 2008 at around 4.40 p.m. the applicant’s
seventeen-year-old son (V.) died after falling from one of the common-use
balconies in an apartment block.
The police opened a preliminary inquiry into the
causes of V.’s death, the most likely explanation being suicide.
On 8 March 2008 the investigator in charge of the
case (F.) ordered a medical expert report in order to establish precisely the
cause of death, the presence and origin of any injuries on V.’s body and
whether there was any trace of alcohol or narcotic drugs in his blood. That
report was completed on 10 March 2008 and found that V. had died from severe
injuries caused by his fall; no traces of alcohol or narcotic drugs had been
found in his blood.
Some fifteen persons were questioned as witnesses
during the following three months. According to the applicant, some of the witnesses
mentioned that V. had talked to two men on the day of his death. Three witnesses
(B.A., B.O. and S.V.) allegedly stated that they had seen a young man and a
young woman exiting the building and leaving the place in a hurry, taking a
taxi shortly after V. had fallen. The applicant also stated that her son had
been contacted on his mobile phone number by persons unknown to her and that
her son had been upset after these discussions and had destroyed his subscriber
identity module (SIM) card. She confirmed her son’s phone number and asked the
prosecution to verify who had called him. She also stated that someone had
visited her son the evening before the incident and had run away when she went
out to see what was going on.
On 24 March 2008 F. proposed that no criminal
investigation be initiated since there was no evidence that any offence had
been committed, V. having committed suicide. On 4 July 2008 a prosecutor of the
Ciocana prosecutor’s office decided not to initiate a criminal investigation.
On 1
August 2008 the applicant challenged that decision before a superior
prosecutor. She stated that witnesses had not been questioned in respect of
their allegation that they had seen two young persons exiting the building in a
hurry immediately after the incident and that no one had asked the relevant
mobile phone company to provide information about the phone calls made to her
son prior to his death. Moreover, two assistants in a nearby shop had claimed
that they had seen V. in their shop some hours prior to his death and that he
had fainted there, and had then been taken away by two young men.
On 18 August 2008 a supervising prosecutor annulled
the decision of 4 July 2008 as having been taken prematurely without considering
other possible causes of death, such as murder by pushing V. from above or
provoking him into committing suicide. The investigator was ordered to question
the applicant and the witnesses identified by her.
After that date, the preliminary inquiry was
extended on many occasions at the request of investigator F. On 12 December
2008 F. proposed that no investigation be initiated. It appears that this proposal
was rejected by a superior prosecutor on an unknown date, since F. made similar
proposals on 4 February and 29 April 2009. Both times a prosecutor
accepted that no investigation should be initiated, but each time a supervising
prosecutor found the decision premature and ordered a re-examination of the
material by the investigator. The prosecution adopted a further decision not to
initiate a criminal investigation on 11 May 2009.
On 17
September 2009 the investigating judge of the Ciocana District Court annulled
the prosecutor’s decision of 11 May 2009, finding that the preliminary inquiry
conducted before that date had been superficial and “with unexplained
omissions”. The investigating authority had not established the place from
which V. had jumped or had been pushed, or from what height, and a number of
actions that the investigator had requested be taken by various authorities had
not been fully carried out. Similarly, the directions given by the prosecutor
to the investigator had not been fully followed. Moreover, during the medical
expert report regarding V.’s body, the applicant’s rights as an aggrieved party
had not been assured since she had not been allowed to ask the expert any
questions or to ask for another expert or panel of experts to examine V.’s
body, as she had the right to do under the applicable legislation.
Having re-examined the case, on 5 November 2009
investigator F. proposed to the prosecutor that no criminal investigation be
initiated. This proposal was rejected on 12 November 2009.
On 8
December 2009 the applicant complained to the Ciocana prosecutor’s office of
delays in the investigating authority’s activity in respect of her son’s case.
She received no reply.
After that
date the investigator proposed to the prosecutor on 29 December 2009 and
19 April 2010 that no criminal investigation be initiated, but both times the
prosecutor sent the case for re-examination. In his report of 29 December 2009
the investigator noted, inter alia, that he had held “talks with the
medical expert who had carried out the [autopsy], who refused to give any
explanations concerning the case, stating that he had indicated all that he
knew about this case in the autopsy report”.
On 23 June 2010 the investigator proposed to the
prosecutor that no criminal investigation be initiated, listing the medical
evidence gathered and the witness statements made. He stated that every time a superior
prosecutor had annulled a prosecutor’s decision not to initiate a criminal
investigation, the directions given in order to carry out a full investigation
had been fully complied with, as far as had been objectively possible. In
conclusion he stated that, with the passage of time, any further investigating
action was futile, since all possible measures had already been taken.
On 5 July 2010 a prosecutor from the Ciocana
prosecutor’s office approved the investigator’s proposal, since there was no
evidence confirming that V. had been killed or provoked into committing
suicide.
On 20
August 2010 the investigating judge of the Ciocana District Court dismissed the
applicant’s complaint as unfounded. That decision was final.
II. RELEVANT DOMESTIC LAW
The relevant
provisions of the Code of Criminal Procedure read as follows:
“Article 59. The injured party (partea
vătămată)
(1) An injured party is considered to be anyone
who has been caused non-pecuniary or pecuniary damage as a consequence of a
crime and is recognized as such according to the law, with the victim’s consent.
...
Article 60. Rights and obligations of
the injured party
(1) The injured party has the right:
1) to be informed of the essence of
the accusation;
2) to make submissions and provide
explanations;
3) to submit documents and other items
of evidence that can be attached to the criminal case file and examined at the
court hearing;
4) to request the removal of the
person carrying out the criminal prosecution, the judge, the prosecutor, the expert,
the interpreter, the translator or the court clerk from the proceedings;
5) to raise objections against actions
of the investigating authority and to ask for those objections to be included
in the record of the respective procedural action;
6) to access the records of all procedural
actions in which he or she participated and to request their completion or the
inclusion of his or her objections in the respective record;
7) to access the contents of the
criminal case file from the moment the criminal prosecution ends and to note
down any information in the file;
8) to participate in court hearings,
including in the examination of the contents of the case file;
9) to make submissions in court regarding
the damage caused;
10) to be informed by the prosecuting
authority of all decisions regarding his or her rights and interests and to request
and obtain, free of charge, copies of those decisions, decisions concerning the
discontinuation of the proceedings, the dropping of charges in the respective
case or the refusal to initiate a criminal investigation, sentences and other
final court decisions or judgments;
11) to submit complaints against the
actions and decisions of the investigating authority and to appeal against the
court judgment on the damage caused;
12) to withdraw complaints submitted
by him or herself or by his or her representative, including complaints against
illegal acts committed against him or her;
13) to reconcile with the suspect,
accused, or defendant in the cases provided by law;
14) to contest the complaints of other
participants in the proceedings of which he or she was informed by the criminal
prosecution body or about which he or she became aware in other circumstances;
15) to participate in the examination of
the case in ordinary appeal proceedings;
151) to appeal against court
judgments;
16) to be reimbursed for the expenses incurred
in the criminal proceedings and to be compensated for damage caused by unlawful
acts on the part of the investigating authority;
17) to have all goods seized by the investigating
authority or submitted by him or herself as evidence, all goods belonging to
him or her that were recovered from the person who committed an offence under
the criminal law, and all original documents belonging to him or her restored
to him or her;
18) to be represented by the lawyer of
his or her choice or, if he or she does not have the means to pay for legal
assistance, to be assisted by a pro bono lawyer under the conditions
established by law.
19) to complain to the hierarchically
superior prosecutor or, if applicable, the judge, about the excessive length of
the proceedings.
...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 2 OF THE
CONVENTION
The applicant complained that the authorities
had not carried out an effective investigation into her son’s death, contrary
to the requirements of Article 2 of the Convention, which reads 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. ...”
A. Admissibility
The Court notes that the application is not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that it is not inadmissible on any other grounds.
It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
The applicant submitted that at no point had an
official criminal investigation been started, not even one limited to the issue
of whether her son had been provoked into committing suicide. This limited the
powers of the prosecution. For instance, it had not been possible to warn the
medical expert and witnesses of their criminal liability for false statements, as
this could be done only within the framework of a proper criminal
investigation. What the investigator had had to work with were “explanations”
from the witnesses, a notion not provided for in the Code of Criminal
Procedure, as opposed to proper witness statements. Moreover the period of
investigation - approximately two and a half years - had been excessive. The
investigator had failed to request information about phone calls made to V.’s
mobile phone number before his death or to question the assistants from the
grocery store, to whom the applicant had referred in her complaint of 1 August
2008 (see paragraph 11 above). In addition, the applicant’s procedural right to
be properly involved in the investigation had not been observed, as established
by the investigating judge (see paragraph 14 above). She had not been kept
informed of the progress of the “investigation” and had even had to complain
about its slow pace (see paragraph 16 above).
The Government submitted that the investigation
into V.’s death had been effective. All investigating measures had been undertaken
promptly after the discovery of V.’s body, including an autopsy and interviews
with witnesses. While certain omissions had initially occurred, they were not
of a serious nature that would undermine the effectiveness of the investigation
and they had been redressed. In particular, even though the proposal that no
criminal investigation be initiated had been rejected or annulled three times,
all of the evidence gathered confirmed the conclusion that this was a case of
suicide and that no criminal offence had been committed. All the witnesses
mentioned by the applicant had been questioned and they had not supported her
version of events.
As for the applicant’s involvement in the
investigation, the Government argued that it was only where an investigation
established that a crime had occurred that one could speak of a victim or an aggrieved
party. Given the conclusion in this case, namely that no crime had been
committed, there had been no crime victim and so the applicant had no
entitlement to be actively involved. Even so, the applicant had been able to
exercise certain procedural rights and had been kept informed of the course of
the investigation. The applicant had no basis on which to suggest that her son
had been murdered. The Government concluded that the applicant’s complaint was
of a fourth-instance nature.
2. The Court’s assessment
(a) General principles
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 1998-VIII).
The obligation to protect the right to life
under Article 2 of the Convention, taken 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 death
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; 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 a death results, the investigation assumes even greater
importance, given 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 as to means, not as to results. Thus, the authorities must have taken the
reasonable steps available to them to secure the evidence concerning the
incident. 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).
(b) Application of the general principles to the
present case
In the present case it is to be noted that the
investigator in charge of the case proposed on at least eight different
occasions that no criminal investigation into V.’s death be initiated, and that
on all but the last of those occasions his proposals were eventually rejected
by the prosecutor, his superiors or the investigating judge as having been premature
or, as the investigating judge put it, “with unexplained omissions”.
The investigating judge found further
shortcomings in the investigation, such as a failure to fully carry out a
number of actions which the investigator had requested various authorities to
take (see paragraph 14 above).
. The
Court also notes that the prosecutor’s decisions not to initiate a criminal
investigation and the decision of the investigating judge of 20 August
2010 completely failed to mention her request to obtain information from the
relevant mobile phone operator about the person(s) who had called V. prior to
his death or the statements made by the assistants from the nearby shop, which
the applicant had mentioned in her complaint of 1 August 2008 (see paragraph 11 above).
. As
stated above, the procedural obligation deriving from Article 2 is primarily
one of means. It is apparent that in response to the investigator’s proposals that
no criminal investigation be initiated, the various supervising
authorities had to intervene seven times. On each occasion they ordered the investigator
to reopen the procedure and conduct further inquiries into what were clearly
material issues. As a result, the investigation lasted approximately two and a
half years. The Court stresses the requirement of reasonable expedition in
cases concerning loss of life. The investigation did indeed commence promptly,
but the time taken for it to finally conclude - two years and five months -
cannot be justified by its complexity or any objective difficulties. The
applicant therefore had grounds to question to diligence of the authorities, all
the more so since she unsuccessfully complained about the delay and received no
reply (see paragraph 16 above).
Moreover, as is clear from the decision of the
investigating judge (see paragraph 14 above), the authorities did not involve
the applicant in the investigation sufficiently. The Court has stressed on many
occasions that the involvement of the next-of-kin serves to ensure public
accountability of the authorities and public scrutiny of their actions in such
situations (see Ramsahai and Others v. the Netherlands [GC], no.
52391/99, § 321, ECHR 2007-II), to the extent necessary to safeguard the
person’s legitimate interests. In this case, the applicant had a strong and
legitimate interest in the conduct of the investigation which would have been
served by granting her the special status under the Code of Criminal Procedure
(see paragraph 21 above; see also Guţu v. Moldova, no. 20289/02, §
61, 7 June 2007 and Mătăsaru and Saviţchi v. Moldova, no.
38281/08, § 90, 2 November 2010 concerning the procedural shortcomings where no
proper criminal investigation is initiated). The Court does not accept the
Government’s argument on this point, namely that it is only once the
investigation has established that a crime has been committed that the
next-of-kin can be recognised as having the right to participate in the
proceedings in the victim’s stead. The Court would emphasise that Article 2
requires more than merely informing the next-of-kin of the progress of the
investigation: it includes their active involvement in it (see Salgın
v. Turkey, no. 46748/99, § 89, 20 February 2007). The Court finds
that this was not done for the applicant. Moreover, substantial delays in
involving the next-of-kin in investigative procedures are not acceptable (see Mikayil
Mammadov v. Azerbaijan, no. 4762/05, § 132, 17 December 2009, and
Anusca v. Moldova, no. 24034/07, § 44, 18 May 2010).
. The
Court observes that while the inquiry into V.’s death began promptly, no formal
criminal investigation was initiated. The Court notes that the Government did
not comment in any specific manner on the applicant’s allegation that in the
absence of a proper investigation certain actions could not be lawfully taken,
such as warning experts and witnesses of their criminal liability for knowingly
making false statements or refusing to make statements. This would indeed have
prevented situations such as that described in the prosecutor’s decision of 29 December
2009 (see paragraph 17 above), where a medical expert refused to provide
further explanations concerning the autopsy on V.’s body which he had carried
out, or that described in the investigating judge’s decision of 17 September
2009 (see paragraph 14 above), where it was stated that a number of actions
requested by the investigator had not been fully carried out by other
authorities.
. In
conclusion, having regard to the manner in which V.’s death was investigated,
the time the investigation took, the failure to examine some of the evidence
referred to by the applicant, and the applicant’s very limited involvement in
the investigation, the Court considers that the investigation was not
“effective” within the meaning of its case-law. There has accordingly been a
violation of Article 2 of the Convention.
II. 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.”
A. Damage
The applicant claimed 100,000 euros (EUR) in
respect of non-pecuniary damage caused to her as a result of the failure to
carry out an effective investigation into her son’s death.
The Government considered that the amount
claimed was excessive in the light of the Court’s case-law on similar matters.
Having regard to the circumstances of the
present case, the Court awards the applicant EUR 12,000 in respect of
non-pecuniary damage.
B. Costs and expenses
The applicant also claimed EUR 422 for the costs
and expenses incurred before the Court. She submitted an itemised list of hours
worked by her lawyer on the case.
The Government submitted that the amount claimed
was excessive.
According to the Court’s case-law, an applicant
is entitled to reimbursement of costs and expenses only in so far as it has
been shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to the
documents in its possession and the above criteria, the Court considers it
reasonable to accept the applicant’s claim in full.
C. Default interest
The Court considers it appropriate that the
default interest rate should be based on the marginal lending rate of the
European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the application admissible;
2. Holds that there has been a violation of Article 2 of the
Convention in its procedural limb;
3. Holds
(a) that the
respondent State is to pay the applicant, within three months from the date on
which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following amounts, to be
converted into the currency of the respondent State at
the rate applicable at the date of settlement:
(i) EUR 12,000 (twelve
thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary
damage;
(ii) EUR 422 (four hundred
and twenty-two euros), plus any tax that may be chargeable to the applicant, in
respect of costs and expenses;
(b) that from the
expiry of the above-mentioned three months until settlement simple interest
shall be payable on the above amounts at a rate equal to the marginal lending
rate of the European Central Bank during the default period plus three
percentage points;
4. Dismisses the remainder of the applicant’s claim for just
satisfaction.
Done in English, and notified in writing on 11 February
2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep
Casadevall
Registrar President
