FIFTH SECTION
DECISION
Application no. 43641/14
Britt and Anna Midttveit BAKKE
against Norway
The European Court of Human Rights (Fifth Section), sitting on 28 June 2016 as a Chamber composed of:
Angelika Nußberger, President,
Ganna Yudkivska,
Khanlar Hajiyev,
Erik Møse,
Faris Vehabović,
Síofra O’Leary,
Carlo Ranzoni, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 2 June 2014,
Having deliberated, decides as follows:
THE FACTS
1. The applicants, Ms Britt Bakke (A) and Ms Anna Midttveit Bakke (B), are Norwegian nationals, born in 1954 and 1930, respectively, and living in Steinsland. A is the mother of C, a Norwegian national born in 1983 who was found dead in her apartment on 11 March 2007, and B is the grandmother of C. The applicants are represented before the Court by Mr J.P. Rui, a lawyer practising in Bergen.
The circumstances of the case
2. The facts of the case, as submitted by the applicants, may be summarised as follows.
3. In the morning of 11 March 2007 C’s partner found her lifeless body in the shower in their common apartment. He called the emergency service centre at Haukeland University Hospital, requesting help. The phone operator advised him to start performing cardiopulmonary resuscitation (CPR) and ordered an ambulance to the apartment. When the medical personnel arrived at the apartment they continued to perform CPR, but shortly after their arrival the doctor declared C to be deceased. According to the doctor’s report from the scene there were signs of strangulation on C’s neck and his conclusion was that the cause of death had been strangulation.
4. The Hordaland Police (Hordaland politidistrikt) was called to the apartment. According to their report from that day, C, when they entered the apartment, had been lying naked on the floor in the living room covered with a blanket. It was also noted that her partner had told the police that he and C had been attending a party the night before and had drunk some alcohol. When they had returned to the apartment after the party, they had quarrelled. The quarrel had ended with C going to the bathroom, locking the door and turning on the water in the shower, while he had gone to bed to sleep. The next morning, he had discovered that C was not sleeping next to him in their bed and he had therefore searched for her in the apartment. As she had not been in the living room and the door to the bathroom had still been locked, he had broken up the lock on the bathroom door and found C lying in the shower with the shower hose around her neck. He had not been able to describe how C had been lying there. He had also said to the police that C had been depressed occasionally but that she had never told him that she had wished to commit suicide. The police photographed the scene as well as some marks on C’s neck.
5. On 12 March 2007 the police requested a forensic examination from the Department of Forensic Medicine of the University of Bergen (Avdeling for rettsmedisin). In the report from the examination, which was conducted on 13 March 2007, it was noted that there had been marks on C’s skin around the neck and point-shaped bleedings in the membranes of her eyes, eyelids and on her heart’s surface. The latter injury was thought to have resulted from the resuscitation attempts and it was very unlikely that it had anything to do with the cause of death. It had not been clarified how C had been lying when her partner had found her, but death spots on the front of her right thigh with imprints from the drain on the floor indicated that she had been lying slightly bent forward with the front of the right thigh down to the floor. The report concluded that the likely cause of death was suffocation by hanging. This conclusion was confirmed in an addendum to the report, dated 23 May 2007, which otherwise contained the chemical and microscopical analysis of the examination and showed that C had had 1.2 ‰ ethanol in her blood.
6. Since there was no suspicion of criminal conduct, the police decided to terminate the investigation on 23 July 2007. A requested the police to take further investigative steps to clarify what had happened in the apartment the night when C had died. However, on 14 August 2007, the police notified A that it upheld its previous decision. Nevertheless, C’s partner was formally questioned by the police on 21 September 2007.
7. A appealed to the public prosecutor in Hordaland (Hordaland statsadvokatembeter), which, on 16 October 2007, rejected the appeal stating, inter alia, that further measures would not be useful considering the time that had elapsed since the death. The public prosecutor noted that some investigative measures (for example the questioning of C’s partner) ought to have been carried out at an earlier stage of the investigation and that the photographs taken by the police at the scene should have been added to the case file.
8. On 25 November 2009 a private investigator, whom A had hired to scrutinise the investigation and to carry out further investigative measures, provided a report (which has not been submitted to the Court) where he concluded that it could not be excluded that C had been subjected to criminal conduct. However, since there was no concrete evidence indicating that a criminal act had been committed, he found that C most likely had taken her own life. In his overall assessment, he criticised the investigation, in particular its initial phase, and considered that the police should take further complementary investigative measures.
9. In a lawsuit against the State, brought before the Oslo City Court (tingrett) by A, she requested compensation, claiming police negligence. She stated that the investigation into C’s death had been deficient in several respects. On 26 October 2010 the court rejected the claim, although it acknowledged that some aspects of the investigation had been deficient.
10. On 23 May 2011 the police requested a complementary technical report, asking for a specialist assessment of the existing theories compared to the forensic evidence and other information available in the case. In the ensuing report of 11 August 2011 it was noted that a reconstruction of the scene had been made, from which it had been possible to determine the position of C’s body in the shower. The specialists came to the conclusion that it was possible that C had hanged herself using the shower hose and that there were no indications contradicting that conclusion.
11. Another technical report involving a reconstruction of the scene, dated 6 August 2013 and drawn up by external consultants at the request of A’s lawyer, concluded that it was possible that C had hanged herself in the shower using the shower hose but that it could not be excluded that someone else had strangled her with the hose. The consultants pointed out that the investigation had been deficient and had provided a poor basis for finding a clear result as to the cause of C’s death.
12. On 17 September 2013 A requested the public prosecutor to reopen the case, but on 7 October 2013 the request was rejected. The public prosecutor noted that, even if there were flaws in the initial investigation, the police had carried out several investigations after that point, for example the technical reconstruction of the scene, and since all the results pointed in the same direction, there were no reasons to carry out further investigative measures. A appealed to the Director of Public Prosecutions (DPP – Riksadvokatembetet), who, on 6 January 2014, upheld the decision. On 13 January 2014 the public prosecutor informed A about that decision. The letter stated that the decision was final but that A could take legal action by instituting private prosecution proceedings.
COMPLAINTS
13. The applicants complained under Article 2 of the Convention that the investigation into C’s death had been deficient and that the decision of the Director of Public Prosecutions not to undertake further investigative measures had effectively granted impunity in C’s case.
14. The applicants also asserted, under Article 8 of the Convention, that they had been profoundly hurt by the way the authorities had handled the matter. Furthermore, there had allegedly not been an effective remedy within the meaning of Article 13. Finally, they argued, under Article 14 in conjunction with Article 2, that the decision of the Director of Public Prosecutions had been discriminatory on grounds such as sex, social origin, property, birth or other status.
THE LAW
A. The applicants’ complaint under Article 2 of the Convention
15. The applicants alleged a violation of Article 2 of the Convention in its procedural aspect. The relevant part of this Article reads:
“1. Everyone’s right to life shall be protected by law. ...”
16. 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 some form of effective official investigation when individuals have been killed as a result of the use of force (see, for example, Ramsahai and Others v. the Netherlands [GC], no. 52391/99, § 321, ECHR 2007-II). The procedural obligation to carry out an effective investigation has evolved into a separate and autonomous duty and the obligation is not confined to cases where it has been established that the death was caused by an agent of the State. On the contrary, the mere fact that the domestic authorities have been informed of the death will give rise to an obligation to carry out an effective investigation into the circumstances in which it occurred (see, for example, Šilih v. Slovenia [GC], no. 71463/01, § 159, 9 April 2009, and Emars v. Latvia, no. 22412/08, § 75, 18 November 2014).
17. In order for such an investigation to be effective, the persons responsible for and carrying out the investigation must be independent and impartial, in law and in practice. The investigation must also be effective in the sense that it is capable of leading to the identification and punishment of those responsible. This is not an obligation of result, but of means. The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident. The investigation’s conclusions must be based on thorough, objective and impartial analysis of all relevant elements. Any deficiency in the investigation which undermines its capability of establishing the circumstances of the case or the person responsible is liable to fall foul of the required measure of effectiveness. In all cases the next of kin of the victim must be involved in the procedure to the extent necessary to safeguard his or her legitimate interest (see, for example, Ramsahai and Others v. the Netherlands, cited above, § 321). This does not mean, however, that Article 2 entails a right to have third parties prosecuted or sentenced for a criminal offence or an absolute obligation for all prosecutions to result in conviction, or indeed in a particular sentence (see Armani Da Silva v. the United Kingdom [GC], no. 5878/08, § 238, ECHR 2016, with further references).
18. Turning to the circumstances of the present case, the Court observes that C was found dead by her partner in their common apartment and that the investigation into her death was terminated since there was no indication of criminal conduct. At that stage the police had visited and photographed the scene, held an informal interview with C’s partner there, ordered a forensic examination of C’s body and received the results of that examination. Furthermore, after A had appealed against the decision terminating the investigation, the police held a formal questioning of C’s partner and later on also conducted a reconstruction of the scene. Moreover, it should be noted that A hired a private investigator, with the task of scrutinising the police investigation and carrying out some further investigative measures, as well as two consultants, who made a reconstruction of the scene.
19. As has been acknowledged by the national authorities, the early stages of the investigation in the case reveal certain shortcomings, for instance the initial lack of a more formal questioning by the police of C’s partner. However, while the police rejected A’s request for further investigations, it did, in fact, take additional steps. In the Court’s view, all the measures, when taken together, must be considered satisfactory. In this respect, it is of importance that each individual investigative measure, including those initiated by A, pointed in the same direction and revealed no evidence of criminal conduct. Moreover, there is nothing to indicate that the police were not independent and impartial when conducting the investigation and evaluating the evidence.
20. Furthermore, the applicants were able to exercise their procedural rights throughout the investigation, by appealing the decisions taken by the police and by bringing a civil law suit against the State requesting compensation for the alleged breaches. In this connection, it should also be reiterated that the police, following A’s complaints, took further investigative measures. Thus, the authorities appear to have taken the applicants’ legitimate interests into consideration when investigating the case and have informed them of any developments.
21. As regards the fact that no prosecution was brought before the courts in the present case, the Court observes that it is not necessary to bring a prosecution before the national courts in order for an investigation to be effective. The public prosecutor must be able to determine, based on the particular facts of the case established in a proper investigation, whether to bring a prosecution before the courts or not and individuals must also be protected against arbitrary decisions and unjustified prosecutions. Finally, it should also be noted that according to national law the applicants could have brought a private prosecution.
22. In the light of the foregoing considerations, the Court concludes that, as a whole, the investigation complained of fulfilled the requirements of being efficient as well as independent and impartial.
23. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
B. The remainder of the application
24. The applicants further complained that the authorities’ handling of the matter had violated their rights under Article 8 of the Convention, that there had not been an effective remedy as envisaged by Article 13 and that the decision not to bring prosecution against C’s partner had been discriminatory in violation of Article 14 in conjunction with Article 2.
25. The Court, reiterating that the issue of effective remedy has already been examined in the context of the procedural requirements under Article 2 and that the latter complaint has been found to be manifestly ill-founded, has given careful consideration to the applicants’ complaints as they have been submitted. However, in the light of all the material in its possession, and in so far as the criteria set out in Article 35 § 1 of the Convention have been complied with and the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
26. It follows that these complaints must also be declared inadmissible as being manifestly ill-founded in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Done in English and notified in writing on 21 July 2016.
Claudia WesterdiekAngelika Nußberger
RegistrarPresident
Full & Egal Universal Law Academy