SECOND SECTION
DECISION
Application no. 29056/15
Regina BALIUTIENĖ and Juozas BALIUTIS
against Lithuania
The European Court of Human Rights (Second Section), sitting on 20 October 2015 as a Committee composed of:
Jon Fridrik Kjølbro, President,
Egidijus Kūris,
Stéphanie Mourou-Vikström, judges,
and Abel Campos, Deputy Section Registrar,
Having regard to the above application lodged on 8 June 2015,
Having deliberated, decides as follows:
THE FACTS
1. The applicants, Ms Regina Baliutienė and Mr Juozas Baliutis, are Lithuanian nationals, who were born in 1960 and 1951 respectively and live in Klaipėda.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicants, may be summarised as follows.
1. Death of the applicants’ son A.B.
3. The applicants had a son A.B. who was born in 1982.
4. On 21 May 2011 A.B. participated in an amateur triathlon competition Nykštietiškas triatlonas 2011 in the region of Anykščiai. There were around 120 participants in the competition and the tasks included running, cycling and kayaking. About 14:55, when kayaking in the river of Šventoji, A.B. and his teammate A.Č. sailed into the territory of a dam, fell into a fish ladder and began drowning. A.Č. was rescued by passers-by but A.B. died.
5. A subsequent medical expertise determined that A.B. had died from drowning and that at the time of his death he had been sober.
2. Investigation into A.B.’s death
6. On 25 May 2011 the Anykščiai Region Police Department launched an investigation into the death of A.B. The investigation was supervised by the Anykščiai Region District Prosecutor’s Office (hereinafter “the district prosecutor’s office”).
7. In the following months the district prosecutor’s office questioned A.B.’s teammate A.Č., three organisers of the competition, two passers-by who witnessed the drowning of A.B.’s kayak, and one other participant of the competition. They were asked about the level of danger posed by the dam and the safety measures taken by the organisers to warn the participants about the dam.
8. On 20 June 2011 the applicants submitted a request to the chief prosecutor of the district prosecutor’s office to start criminal proceedings against the organisers of the competition, to recognise the applicants as victims and to question certain other witnesses. The applicants noted that there had been previous incidents when people nearly drowned at the dam, so the organisers of the competition must have known that the dam was dangerous and must have taken all possible measures to warn the participants. The applicants argued that the maps which had been distributed to the participants did not clearly mark the dam and that there had been no warning signs along the river to signal the dam. The prosecutor informed the applicants that their request had been added to the investigation file and that the actions which they requested would be carried out.
9. On 21 September 2011 the applicants submitted a complaint to the Prosecutor General of Lithuania. They complained that they still had not been recognised as victims, that the investigation had been too long, that the prosecutor in charge of the investigation had been replaced and that the newly appointed prosecutor may have connections with the potential suspects in the case. They requested to transfer the investigation to a different territorial prosecutor’s office in order to avoid possible bias. Their complaint was dismissed by the Panevėžys Regional Prosecutor’s Office, which noted that no individuals had been charged yet, so the question of bias could not arise.
10. On 30 November 2011 the prosecutor went to the location of the incident to examine the dam, the distance from which A.B. and A.Č. first saw the dam, and the place where A.B. had drowned.
11. On an unspecified date a document was appended to the case file, in which 22 participants of the competition confirmed that they had been warned not to sail through the dam.
12. On 27 April 2012 and 1 June 2012 the two main organisers of the competition, M.R. and B.V., were charged with negligent homicide under Article 132 § 3 of the Criminal Code. The applicants were recognised as victims on an unspecified date. On 19 June 2012 the investigation was concluded.
13. On 29 June 2012 the applicants’ lawyer submitted a request to the district prosecutor’s office to question additional witnesses. The request was dismissed on the grounds that enough evidence had been collected in the case and that the lawyer had not specified which particular individuals should be questioned.
14. On 25 September 2012 the Anykščiai Region District Court (hereinafter “the district court”), at the request of the defendants, returned the case to the prosecutor to correct errors in the indictment.
15. The case was transferred to the district court for judicial examination on 30 January 2013. The defendants were charged with negligent homicide under Article 132 § 1 of the Criminal Code.
16. On 7 May 2013 the applicants’ lawyer requested the district court to examine three additional witnesses: two more participants of the competition and the cameraman who was filming the competition. The request was granted.
3. Domestic court proceedings
(a) Anykščiai District Court
17. The proceedings before the district court focused on the question whether the defendants (the organisers) had taken adequate measures to warn the participants of the competition about the existence of and the danger posed by the dam. The measures taken by the organisers were: (1) a security briefing delivered to the participants before the start of the competition; and (2) maps provided to the participants, indicating the route of the triathlon.
18. The district court heard the following testimonies:
(a) The defendants M.R. and B.V. stated that the security briefing had been delivered by M.R. and another colleague D.K. via a loudspeaker 15 minutes before the start of the competition. They claimed that the attendance of the security briefing had been mandatory and that during this briefing the participants had been explicitly told not to sail through the dam because several people had nearly drowned there. The defendants also noted that the dam had been marked on the map with a symbol. They acknowledged that the map had not provided an explanation of the symbol, however, they argued that the competition had been targeted at people who had previous experience in similar competitions – including A.B. – and thus knew how to read maps. The defendants also stated that even though there had been no warning signs on the river, the dam was visible from the distance of at least three meters and that was sufficient to stop and turn the kayak.
(b) D.K. confirmed that he had given the security briefing via a microphone before the competition. He stated that he had repeated several times that there was a dam on the river which could not be sailed through and that there had been incidents of drowning. D.K. could not confirm that all the participants had attended the briefing. However, he claimed that the maps were distributed at the briefing, so if someone had not been present, they would not have received a map and would not have been able to participate, which meant that all the participants must have attended.
(c) The cameraman who filmed parts of the competition stated that M.R. had clearly instructed the participants via a microphone not to sail through the dam.
(d) A.B.’s teammate A.Č. stated that he had not been aware of the dam: no such information had been presented at the start of the competition and the marking on the map had been unclear – he and A.B. had thought that the marked object was a bridge. They only realised that it was a dam when they were about two metres away from it and at that distance it was impossible to stop or turn the kayak.
(e) A.Z., a participant in the competition, stated that he had heard the warning about a dangerous dam during the security briefing. He could not confirm whether the marking on the map was clear: he did not use the map because he was a local and knew the area. A.Z. believed that the dam could be seen from a distance of 20 meters and it was enough to stop and turn the kayak.
(f) Another participant D.M. stated that he had not attended the security briefing but his teammate R.A. had. D.M. claimed that the marking on the map had not been clear: he understood that there was an artificial object on the river but could not tell if it was a dam or a bridge. D.M. stated that he had noticed the dam when it was about 60 meters away because the constructions were visible. His teammate R.A. confirmed that she had attended the security briefing, although she believed that it had not been mandatory and not all the participants had been present. She also stated that the marking on the map had been unclear.
(g) R.S., A.S. and D.R. had witnessed the drowning of A.B. and A.Č.’s kayak. They claimed that the dam was very dangerous but that it was clearly visible from the river. They also stated that A.B. and A.Č.’s kayak was the only one which had sailed towards the dam – the other participants had carried their kayaks on the ground.
(h) The applicants claimed that their son had been very experienced in similar sports and risk-averse, so that if he had known about the dangerous dam, he would not have decided to sail through it.
19. The district court also examined photographs of the dam and of the location of the incident, the map provided to the participants, and a short video recording of the competition and the security briefing.
20. On 9 December 2013 the district court acquitted M.R. and B.V. of negligent homicide. The court noted that negligent homicide under Article 132 of the Criminal Code could be committed either through criminally false assumption (Article 16 § 2 of the Criminal Code) or criminal negligence (Article 16 § 3 of the Criminal Code). Criminal negligence meant that the defendant had not anticipated that his acts or omissions may cause another person’s death, although he ought to have anticipated it due to the circumstances of the act and his own personal characteristics.
21. The district court found that the testimonies of witnesses proved that there had been a security briefing in which the participants had been explicitly informed via a microphone that they should not sail through the dangerous dam. The court dismissed the testimony of A.B.’s teammate A.Č. as unreliable due to his interest in the outcome of the case.
22. The court also found that A.B. had been experienced enough to understand the marking on the map, and that, in any event, the dam had been sufficiently visible from the river to stop and turn the kayak in time. The court did not find it established that the organisers had any specific obligation to place warning signs along the river to indicate the dam.
23. On these grounds, the court concluded that it appeared that A.B. and A.Č. had themselves decided to sail through the dam, despite the information provided by the defendants (the organisers), and thus the latter could not be held criminally responsible for A.B.’s death.
(b) Panevėžys Regional Court
24. The applicants appealed against the acquittal. On 17 March 2014 the Panevėžys Regional Court (hereinafter “the regional court”) satisfied their appeal and convicted M.R. and B.V. of negligent homicide under Article 132 § 1 of the Criminal Code.
25. The regional court held that even though there had been a security briefing, it had been carried out deficiently, because the organisers had not ensured the attendance of all the participants, as seen from the testimonies of A.Č., D.M. and R.A. (see paragraphs 18 (d) and (f) above). The court also noted that all the witnesses had agreed that the dam was dangerous, so this demanded a greater responsibility from the organisers to place warning signs near the dam.
26. The regional court found no reason to doubt the credibility of A.Č. because he was not a victim in the proceedings and his testimony had been consistent. The testimony of A.Č. and other witnesses showed that the marking of the dam on the map had been unclear, irrespective of the participants’ previous experience (see paragraphs 18 (d) and (f) above). The court also noted that the witness testimonies concerning the visibility of the dam differed, so it could not be clearly established that the dam had been visible from a sufficient distance and that it had been possible to stop the kayak when it was close to the dam (see paragraphs 18 (a) and (d)-(g) above).
27. The regional court concluded that A.B.’s death had been caused by the combination of all the above factors. As a result, it held that M.R. and B.V. had acted negligently and had not ensured adequate safety for the participants of the triathlon. They were found guilty of negligent homicide of A.B. and given suspended sentences of eight and six months of imprisonment, respectively. The applicants were awarded 8,388 Lithuanian litai (LTL, approximately 2,429 euros (EUR)) of pecuniary damages and LTL 50,000 (EUR 14,481) of non-pecuniary damages.
(c) Supreme Court of Lithuania
28. The defendants appealed against their conviction. On 9 December 2014 the Supreme Court of Lithuania quashed the judgment of the regional court and acquitted the defendants.
29. The Supreme Court noted that in order to establish criminal responsibility for negligent homicide it was necessary to determine that: (1) the victim’s death had been caused specifically by the defendant’s acts or omissions, i.e. the death had been a logical and not accidental consequence of the defendant’s acts or omissions; and (2) the defendant had been guilty of these acts or omissions in the form of criminally false assumption or criminal negligence. The court also noted that organisers of sports events were in general responsible for ensuring safe conditions for the participants, however, this did not mean that they could be held criminally responsible whenever there had been a death or injury during the event.
30. In the present case, the Supreme Court found that it could not be established that A.B. had died specifically because of the acts or omissions of the two defendants. The court held that the organisers had made the effort to inform all the participants about the dam during the security briefing and by marking it on the map; the fact that A.B. and A.Č. had not attended the briefing indicated their own negligence but not the negligence of the organisers.
31. The court also held that it could not be established why exactly A.B. and A.Č. decided to sail through the dam and whether they had the ability to safely stop their kayak before the dam, since witness testimonies in this respect were contradictory (see paragraphs 18 (a) and (d)-(g) above); however, such doubts had to be interpreted to the benefit of the defendants.
32. Accordingly, the Supreme Court concluded that A.B.’s death had not been caused specifically by the acts or omissions of the defendants but had to be qualified as an accident which the defendants could not have anticipated. The judgment of the regional court was quashed and the judgment of the district court was restored in its entirety.
33. The Supreme Court also noted that the finding that there had not been a negligent homicide did not preclude the applicants from lodging a civil claim for damages against the organisers.
B. Relevant domestic law and practice
1. Statutory provisions
34. Relevant parts of Article 132 of the Criminal Code provide:
Article 132. Negligent Homicide
“1. A person who commits a homicide through negligence shall be punished by arrest or by imprisonment for a term of up to four years ...
3. A person who commits the act provided for in [paragraph 1] of this Article in violation of special conduct security rules, as specified by relevant legal acts, shall be punished by imprisonment for a term of up to eight years ...”
35. Relevant parts of Article 16 of the Criminal Code provide:
Article 16. Commission of a Crime or Misdemeanour through Negligence
“1. A crime or misdemeanour shall be committed through negligence where it has been committed through a criminally false assumption or criminal negligence.
2. A crime or a misdemeanour shall be committed through a criminally false assumption if the person who committed the act had anticipated that his or her act or omission may cause the consequences provided for by this Code, but recklessly expected to avoid them.
3. A crime or a misdemeanour shall be committed through criminal negligence if the person who committed it had not anticipated that his or her act or omission might cause the consequences provided for by this Code, although the person could and ought to have anticipated such a result based on the circumstances of the act and his or her personal traits ...”
2. Practice of the Supreme Court
36. In case no. 2K-342/2009 of 24 November 2009, the Supreme Court held as follows:
“The Chamber notes that courts only accept a necessary causal link, which is determined on the basis of whether the defendant’s acts or omissions were a necessary condition for the consequence to arise (i.e. the latter would not arise without the former) and whether the consequence was a logical result of the acts or omissions. An accidental causal link means that the consequence was caused not by the defendant’s acts or omissions but by other reasons (for example, a person dies not because of the injury caused by the defendant but because of a trauma suffered on his or her way to the hospital, etc.). Such a causal link is not recognised as legally significant in criminal law and does not constitute the grounds to find the defendant responsible for accidental consequences.”
COMPLAINT
37. The applicants complained under Article 2 of the Convention that the State had failed to fulfil its procedural obligation to investigate the death of their son. They argued that the criminal investigation was ineffective because it did not unambiguously determine whether the security briefing had been adequate, whether the marking of the dam on the map had been clear, whether the dam had been clearly visible from the river, and whether the kayak could have been stopped close to the dam. The applicants submitted that these ambiguities could have been clarified by questioning all 120 participants of the competition, but only four of them were questioned. They also claimed that it was essential to examine the psychological character of their son and whether he had been prone to taking risks, as well as to collect statistical data about previous accidents at the dam. Finally, the applicants complained that the domestic courts had unjustifiably dismissed the testimony of the key witness A.Č., who was the only person present during the incident, and that exonerating testimonies had been accorded more weight than incriminating ones.
THE LAW
38. The applicants complained that the investigation into their son’s death had not been effective and 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.”
39. The Court reiterates that Article 2 requires that there should be some form of effective official investigation when there is reason to believe that an individual has sustained life-threatening injuries in suspicious circumstances, even where the presumed perpetrator of the fatal attack is not a State agent. In order to be “effective”, an investigation must firstly be adequate: it must be capable of leading to the establishment of the facts and, where appropriate, the identification and punishment of those responsible (see Mustafa Tunç and Fecire Tunç v. Turkey [GC], no. 24014/05, §§ 169‑172, 14 April 2015, and the cases cited therein).
40. The obligation to conduct an effective investigation is an obligation not of result but of means: the authorities must take the reasonable measures available to them to secure evidence concerning the incident at issue, including eyewitness testimony and forensic evidence. The investigation’s conclusions must be based on thorough, objective and impartial analysis of all relevant elements. Nevertheless, the nature and degree of scrutiny which satisfy the minimum threshold of the investigation’s effectiveness depend on the circumstances of the particular case (ibid., §§ 173-178).
41. In addition, the investigation must be accessible to the victim’s family to the extent necessary to safeguard their legitimate interests; however, Article 2 does not impose a duty on the investigating authorities to satisfy every request for a particular investigative measure made by a relative in the course of the investigation (ibid., §§ 179-180).
42. The requirements of Article 2 go beyond the stage of the official investigation, where this has led to the institution of proceedings in the national courts: the proceedings as a whole, including the trial stage, must satisfy the requirements of the positive obligation to protect lives through the law (see B. and Others v. Croatia, no. 71593/11, § 61, 18 June 2015, and the cases cited therein).
43. In the present case, the Court notes that there is no dispute that the death of the applicants’ son did not result from the acts of the State and that it was not intentional. The cause of the death (drowning) and the identity of the suspects (the organisers of the event) were known as well. The applicants did not complain before the Court that the investigation or the domestic court proceedings had been too long or lacked independence, or that they were not given sufficient opportunity to participate. What they complained about was that the prosecutor had not carried out certain investigative actions, which the applicants believed had been necessary, and that the domestic courts had erred in weighing the testimonies of different witnesses.
44. In this connection the Court notes that the domestic proceedings focused on the question whether the measures taken by the organisers of the competition to warn the participants about the dangerous dam had been sufficient to absolve them of criminal responsibility for the death of the applicants’ son. The testimonies of the witnesses examined by the courts indicated that the dam was dangerous, and there were different views concerning its visibility from the river. The testimonies also established certain deficiencies in the measures taken by the organisers, notably that they had not ensured the attendance of all the participants at the security briefing, during which the latter were warned about the dam, and that the marking of the dam on the map had not been clear for everyone. Nonetheless, the Supreme Court held that these deficiencies were insufficient to meet the threshold of criminal responsibility for negligent homicide under the domestic law (see paragraphs 29-32 above).
45. Accordingly, the Court is not persuaded that the investigation carried out by the prosecutor was ineffective. The fact that the prosecutor chose not to question every single participant in the competition or to collect information about the victim’s character did not preclude the investigation from establishing the circumstances of A.B.’s death and the measures taken by the defendants (the organisers) to ensure the safety of the participants, as well as the deficiencies in those measures. In this connection the Court notes that the defendants were acquitted not because of insufficient information collected during the investigation, but because the acts and omissions of the organisers did not meet the threshold of criminal responsibility under the domestic law. The fact that the applicants disagree with the conclusion as to the defendants’ criminal responsibility does not suffice to find that the investigation was ineffective in establishing the factual circumstances of their son’s death. In this connection the Court reiterates that Article 2 does not entail the right to have others prosecuted or sentenced for an offence, or an absolute obligation for all prosecutions to result in conviction, or in a particular sentence (see Jasinskis v. Latvia, no. 45744/08, § 73, 21 December 2010).
46. The applicants further complained that the domestic courts had unjustifiably dismissed the testimony of their son’s teammate A.Č., who was the only person present during the incident, and that exonerating testimonies were accorded more weight than incriminating ones. With regard to the testimony of A.Č., the Court notes that it was dismissed as unreliable only by the court of first instance (the district court), whereas the regional court and the Supreme Court both examined A.Č.’s testimony, albeit drawing different conclusions from it (see paragraphs 26 and 30-31 above). Concerning the applicants’ complaint that the domestic courts erred in according the weight to the testimonies of different witnesses, the Court reiterates that, as a general rule, it is for the national courts to assess the evidence before them (see Ramanauskas v. Lithuania [GC], no. 74420/01, § 52, ECHR 2008). Having examined the material of the present case, the Court does not find anything to indicate that the conclusions of the domestic courts regarding the witness testimonies were arbitrary or in any other way calling into question the overall fairness of the domestic proceedings.
47. Lastly, notwithstanding the fact that a criminal investigation and a trial were in any event carried out, the Court reiterates that if the infringement of the right to life is not caused intentionally, the procedural obligation imposed by Article 2 does not necessarily require the provision of a criminal-law remedy in every case. This obligation may also be satisfied if the legal system affords victims a remedy in the civil courts, either alone or in conjunction with a remedy in the criminal courts, enabling any responsibility of the individuals concerned to be established and any appropriate civil redress, such as an order for damages, to be obtained (see Gray v. Germany, no. 49278/09, § 81, 22 May 2014). As noted by the Supreme Court, even after the acquittal of the two defendants the applicants still had the opportunity to submit a civil claim for damages resulting from their son’s death (see paragraph 33 above).
48. Therefore, the Court concludes that there are no grounds to find that the State has breached its procedural obligations under Article 2. It follows that the application is manifestly ill-founded and must be rejected pursuant to 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 19 November 2015.
Abel CamposJon Fridrik Kjølbro
Deputy RegistrarPresident
Full & Egal Universal Law Academy