CASE OF BAKANOVA v. LITHUANIA

FOURTH SECTION

CASE OF BAKANOVA v. LITHUANIA

(Application no. 11167/12)

JUDGMENT

STRASBOURG

31 May 2016

FINAL

31/08/2016

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Bakanova v. Lithuania,

The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:

András Sajó, President,
Vincent A. De Gaetano,
Boštjan M. Zupančič,
Nona Tsotsoria,
Paulo Pinto de Albuquerque,
Krzysztof Wojtyczek,
Egidijus Kūris, judges,
and Marialena Tsirli, Section Registrar,

Having deliberated in private on 19 April 2016,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 11167/12) against the Republic of Lithuania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Lithuanian national, Ms Liudmila Bakanova (“the applicant”), on 17 February 2012.

2. The applicant was represented by Mr H. Mackevičius, a lawyer practising in Klaipėda. The Lithuanian Government (“the Government”) were represented by their Agent, Ms K. Bubnytė.

3. The applicant complained about the lack of sufficient investigation into the circumstances of her husband’s death.

4. On 10 September 2014 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1951 and lives in Klaipėda.

6. The applicant’s husband, V.B., born in 1953, worked as a mechanic in cargo ships. On the morning of 24 October 2007, while on a work voyage to Brazil on the private ship Vega, he was found dead in his cabin. He was lying on his back in bed, with the blanket drawn up to his chest, his right hand bent and pressing his chest. On the same day, the ship’s captain assembled a commission to investigate the death. Having inspected V.B.’s cabin, the captain sent a report about the death to his superiors in Klaipėda, the Limarko shipping company.

7. The following day, 25 October 2007, a Brazilian doctor, P.C.J., gave acute heart attack (ūmus miokardo infarktas) as V.B.’s cause of death. The Brazilian authorities also issued an authorisation to preserve V.B.’s body (žmogaus palaikų konservavimo aktas). The authorisation noted that there were no indications against preserving the body, and therefore V.B.’s remains were set to be embalmed with the help of chemicals (phenol, formalin and others) at 8 a.m. that day. Afterwards, the body of the applicant’s husband’s was put in a zinc coffin and shipped to Lithuania, which it reached on 1 December 2007.

On 25 October 2007 the ship’s captain and chief engineer were questioned by the Brazilian police authorities. The police also inspected the cabin where V.B. had been found dead. Considering that no crime had taken place and that V.B. had died of a heart attack, the Brazilian police sent the investigation material to a local court.

8. The death certificate issued by the Brazilian authorities on 5 November 2007 gave heart attack as V.B.’s cause of death.

A. Criminal proceedings on the cause of V.B.’s death

9. On 25 October 2007 a Lithuanian prosecutor opened a criminal investigation on the basis of Article 176 of the Criminal Code (see paragraph 51 below), after receiving notification of V.B.’s death from Limarko. The prosecutor ordered the Klaipėda Seaport Police to conduct the investigation.

10. On 9 November 2007 Limarko provided the investigators with the following documents: the captain’s service report; an extract from the ship’s logbook of 24 October 2007; a report on the circumstances of V.B.’s death, signed by the captain and two assistant captains; two reports (one by the captain and one by the chief engineer) to the Brazilian authorities; statements by twelve members of the crew; the death certificate issued on 5 November 2007 in Brazil; documents about the work instructions given to V.B.; his qualifications and photographs from his cabin.

11. On 21 November 2007 the applicant requested that the prosecutor and the State Labour Inspectorate (Valstybinė darbo inspekcija, a State body responsible for safety at work, hereinafter – “the SLI”) examine her husband’s body and investigate the cause of his death and his working conditions on the ship. She submitted that conditions on the Vega were dangerous, and could have led to her husband’s death.

12. In the meantime, on 16 November 2007 the applicant was granted victim status in the criminal proceedings.

13. On 29 December 2007 the prosecutor refused to continue the criminal investigation, finding that there had been no signs of a crime or anything to disprove a finding that the victim had died because of a heart illness. In particular, the forensic report from Brazil had shown no sign of poisonous chemicals in V.B.’s body fluids; there had also been no traces of alcohol, and V.B.’s body had been embalmed because there had been no indications against such a procedure. Preservation of the body by chemical means irreparably altered the chemical composition of the blood, and therefore there had been no reason to carry out a further examination of the body. The prosecutor noted that in April 2007 V.B. had passed medical check, which showed that he had been fit to serve at sea. The Vega’s logbook had had no entry about V.B. ever complaining about his health.

14. After a complaint by the applicant, that decision, however, was quashed by the Klaipėda Regional Court on 13 February 2008. The court held that the prosecutor had failed properly to investigate the applicant’s submission that her husband had died because of dangerous conditions on the Vega. The pre-trial investigation resumed.

15. Between January and April 2008, the Klaipėda Seaport Police questioned as witnesses the sailors who had worked on the Vega with V.B. The sailors testified that V.B., who was a refrigerator mechanic, worked in the machinery section of the ship, where the refrigerators were placed. There had been frequent fires in the machinery section of the ship during the voyage by the Vega. When fires broke out, there was a strong smell of fumes. When there was a fire in the machinery section, the air conditioning in the ship’s cabins did not work, and the temperature would rise as high as 50˚C. In the run up to 24 October 2007, the ship had been preparing to have goods loaded. For that reason, V.B. had worked for about a week prior to his death in the machinery section preparing refrigerators for the shipment. The applicant’s husband was seen working in the machinery section both with and without a gas mask. In the week before his death, V.B. had worked intensively and rested little. No repairs in the machinery section had been carried out until V.B.’s death. After the death, the ship had been repaired in a Brazilian port, after which there had been no smell of gas in the machinery section. The witnesses also stated that V.B. had not complained about his health or stated that he had any heart problems.

16. The applicant was also questioned. Citing conversations with her late husband, the applicant said that in reality the conditions of work on the Vega had been very difficult as the ship had been in a bad technical state and its mechanics had had to deal permanently with fires and leaks of gas, without any adequate protection.

17. The SLI’s report of 27 March 2008, no. SD-5662, stated that the SLI had examined the possible cause of V.B.’s death. The SLI held that the reasons for V.B.’s death were not connected to his work. The SLI discontinued its investigation, on the grounds that V.B.’s death certificate had indicated that he had died of a heart attack, and that the authorisation to preserve his body had read that there had been no indication against such an action. When examining the applicant’s complaint, the SLI had obtained internal correspondence between Limarko and the Vega, which showed that the working conditions on the ship had been hard – the ship’s machinery, including the main engine, would often break down, and the engine emitted combustion gases into the ship; there had also been frequent fires. However, according to the SLI, V.B.’s duties did not include repairs to the main engine or extinguishing fires, and he had not done such jobs. The SLI did not have any other proof that the working conditions on the Vega had been harmful. The SLI also observed that they had not performed any readings on the ship, because they had not been able to check it when it was at sea.

18. On 7 April 2008 Limarko stated that it had been informed about a breakdown of the main engine, which could have led to a worsening of the working conditions on the Vega. Repairs had taken place in the summer of 2007, and the problems had finally been solved in November 2007.

19. On 31 December 2008 the pre-trial investigation was discontinued by the prosecutor for a second time. The prosecutor held that no crime had taken place and that the applicant’s husband had died of a heart attack, when ‘the ship was on a voyage in the Atlantic Ocean near the Brazilian port of Imbituba’. The prosecutor also relied on the testimony given by an expert, V.A. during the hearing in April 2008 before the Klaipėda Regional Administrative Court (see paragraph 49 below). On the basis of V.B.’s medical record of 15 June 2001 that expert had testified that V.B. had a partial blockage of the nerve in the heart which makes the heart contract. If the nerve did not work properly, heart arrhythmia could occur, which could in turn cause a heart attack. The position of V.B.’s body was typical of someone who had died of a heart attack. According to that expert, fire could cause a heart attack if a person had been in a smoky environment or a closed space, and there had been a lack of oxygen. However, a heart attack would happen at a slower pace than a person would die of suffocation. Death from a heart attack caused by a fire could not take a day or week to happen.

The prosecutor noted that, according to the Brazilian authorities who had considered that the cause of death was a heart attack, no poisons or other toxic materials had been found in the applicant’s body fluids. The prosecutor also pointed out that V.B.’s health had been checked on 24 April 2007, and it had been concluded that he had been “fit to work in the fleet”.

20. Following a request by the applicant, on 8 January 2009 she was allowed access to the entire criminal case file, which by then comprised 279 pages.

21. On 16 January 2009 the applicant appealed against the prosecutor’s decision to discontinue the criminal investigation. She argued that there had been many flaws in the investigation and that the conclusions as to her husband’s death had been unclear. In particular, the applicant submitted that the SLI’s decision not to treat the death as an accident at work had been hasty. The applicant was also dissatisfied that the SLI had not inspected the Vega itself, nor had it questioned the crew members, who could have confirmed the unsafe working conditions on board. There had also been no autopsy, nor any test for toxins in her husband’s skin or hair. The body had been embalmed too quickly, without such examinations. The applicant further submitted that Lithuanian diplomats had not been present when the body had been embalmed. The applicant also pointed out that her husband had been healthy: he had been examined by a doctors’ commission in April 2007 and that that conclusion was valid for one year; moreover, her husband had not complained about any heart issue. The applicant also maintained that even local journalists in the town in Brazil where V.B.’s death had been given as a heart attack had not been able to find contact data for doctor P.C.J., thus raising doubts about his credentials.

22. On 21 February 2009 the Klaipėda City District Court granted the applicant’s appeal. The court observed that on 10 September 2008 the applicant had asked the prosecutor to order an expert examination to establish whether the constant breathing of combustion gases could cause a heart attack, and to ask the Brazilian authorities to provide the report on her husband’s autopsy and the results of blood tests, as those documents had not been present among those brought back with V.B.’s body. She had also asked for documents confirming whether it had been verified that V.B. could have died of poisoning by combustion gases; for the questioning of doctor V.G., who had signed the conclusion of the doctors’ commission (of April 2007) as to V.B.’s health; and for other investigative actions. Given that the applicant had had the status of a victim, the prosecutor had been under an obligation to take a decision on those requests. However, he had ignored the applicant’s requests for three months, until he had taken the decision to discontinue the criminal investigation, which had been in breach of Article 178 of the Code of Criminal Procedure (see paragraph 52 below).

23. On 20 March 2009 the Klaipėda Regional Court upheld the lower court’s decision. It emphasised that what was at issue was a criminal investigation into charges of a violation of requirements to protect health and safety at work. Having examined the pre-trial investigation material, the regional court concluded that the kind of breaches alleged by the applicant had not been properly examined during the criminal investigation. Furthermore, as could be seen from the SLI’s report of 27 March 2008, the inquiry performed by that body had not been sufficiently comprehensive either (see paragraph 17 above). Accordingly, it could not be stated that the pre-trial investigation into the circumstances of V.B.’s death had been performed thoroughly. In the opinion of the Klaipėda Regional Court, it was therefore vital to continue the pre-trial investigation and to eliminate the doubts raised by the applicant as to the reliability of the results of the medical examination of V.B.’s body, and to establish whether V.B. had indeed worked in harmful conditions during the voyage, including whether regulations on hours of work had been observed. Should breaches of working conditions be established, it was also necessary to order a forensic expert to perform an objective investigation and to establish whether such breaches had had any impact on V.B.’s death. Without a comprehensive examination of those aspects, it had not been reasonable or lawful to discontinue the pre-trial investigation.

24. On 24 March 2009 the prosecutor ordered the Klaipėda Seaport Police to establish the whereabouts of the Vega and whether it was possible to inspect the ship; to question everyone who worked on it, including about working conditions, as noted in the applicant’s complaint; to obtain documents from Limarko related to safety at work; and to ask the SLI whether they had examined the actual working conditions on the ship. The prosecutor also asked the Klaipėda Seaport Police to prepare a request to the Brazilian authorities for legal assistance.

25. On 31 March 2009 the Klaipėda Seaport Police asked Limarko for documents about the technical state of the ship on 24 October 2007, information about the ship’s whereabouts, and whether it was possible to inspect it.

On 10 April 2009 the shipping company Limarko replied that the ship usually worked in the region of south west Africa; currently it was near the coast of Namibia. The ship had passed its yearly check by authorised certification company Det Norske Veritas on 21 August 2007 in Walvis Bay port in Namibia, and the inspector of that company had had no remarks as to the technical state of the ship’s machinery. That report was given to investigators.

26. On 9 June 2009 the prosecutor again asked the Klaipėda Seaport Police to “take active measures” to question everyone who had been working on the ship at the relevant time. It was also necessary to obtain V.B.’s medical records and question the doctor who on 15 June 2001 had diagnosed V.B. with a heart problem, and to obtain documents from Limarko related to repairs in the machinery section of the ship, to fires on board and to issues of safety at work.

27. In reply to the investigators’ inquiry of 26 May 2009, on 16 June 2009 the SLI wrote that its inspectors had not examined the working conditions on the Vega because, as far as they knew, the ship had not returned to Lithuanian ports after V.B.’s death. It had not been technically possible to examine the ship in the ports of other countries. The SLI noted that the circumstances of V.B.’s death had been examined on the basis of the documents provided by Limarko and on the experts’ conclusions.

28. On 22 July 2009 the applicant wrote to the prosecutor, questioning why Limarko had not requested that the Brazilian authorities perform a test for toxic substances in the body as such an examination could have been performed within four to six weeks. She stated that she had not been asked whether any other reports by experts should have been done, yet V.B.’s body had been taken straight away to a funeral parlour on 24 October and embalmed at 8 a.m. the following day. The applicant emphasised that the ship at that time had been put up for sale. She asked that the ship’s documents up to the time of the sale be examined to establish whether there were any toxic gases in the machinery room or other factors that made for unsafe working conditions. She mentioned the records in the logs of the machinery room; the service reports to Limarko by the captain and chief mechanic; the description of repairs to the main engine; and the work which her husband performed on the ship. Lastly, the applicant asked the prosecutor to inform her whether and when Limarko had been ordered to keep copies of its communications with the ship during its voyage.

29. Between April 2009 and August 2010 investigators questioned crew from the Vega, some of them repeatedly.

30. In addition, on 7 July 2009 doctor V.G. stated that from February 2001 he had worked as chief doctor at the sailors’ health-care centre (Jūrininkų sveikatos priežiūros centras) in Klaipėda. On 15 June 2001 V.B. had passed a medical board exam as being fit to serve at sea. The conclusion of the medical board examination had been signed by doctor V.G. himself, and it meant that the applicant’s husband was healthy enough to work at sea. The partial blockage of the nerve on the right side of his heart, as seen in the cardiogram, had no effect on V.B.’s health, nor on his ability to work at sea. In the doctor’s opinion, inhalation of combustion gases could lead to poisoning, but not to an acute heart attack.

31. On 9 September 2009 another witness, V.S., stated that he had been a chief mechanic on the Vega in June 2007, but had later refused to work on the ship because of poor working conditions. Failures of the main engine meant that fires on the ship had been frequent, happening almost daily. All the fires and repairs had been registered in the machinery logbook. Limarko had been notified of those facts. The crew had worked in the machinery room wearing respirator masks, but no gas masks had been provided. V.B. would spend about four hours (per day) in the machinery room.

32. On 13 October 2009 the Klaipėda Seaport Police transferred the criminal file to the applicant so that she could acquaint herself with it. By then, the file comprised 418 pages.

33. On 7 January 2010, in reply to a request made the same day by the prosecutor, the Lithuanian Maritime Safety Administration (Lietuvos saugios laivybos administracija) noted that the Vega had been taken off the register of Lithuanian ships, because a foreign company, Pantex Trading Limited (Nevis), had bought the ship.

34. In reply to a question from the Klaipėda Seaport Police of 18 January 2010, Limarko confirmed that it had sold the Vega to a third party. It noted that the records from the ship’s machinery room, which the investigators had been seeking, had been destroyed before the ship had been transferred to the new buyers, and thus could not be provided.

35. On 25 February 2010 the investigators again provided the case file to the applicant. It by then comprised three volumes and 565 pages.

36. On 26 May 2009 the Klaipėda Seaport Police sent documents to Klaipėda prosecutors concerning a request for legal assistance to be sent to the Brazilian authorities. The police stated that in order to establish whether V.B.’s death had been caused by dangerous conditions on the Vega, it was important to establish whether an autopsy of V.B. had been performed and his blood tested (and, if so, to provide the results of the autopsy and the tests), and whether the Brazilian authorities had inspected the Vega after the death to examine the working conditions on board.

37. On 13 October 2010 the Klaipėda Seaport Police submitted a fresh request to the Klaipėda prosecutors for legal assistance from the Brazilian authorities, this time adding a request that doctor P.C.J. be questioned. The prosecutor then returned the documents, because they had not met the right requirements. On 1 February 2011 the General Prosecutor’s Office sent a request for legal assistance to the Brazilian authorities.

38. On 3 December 2010 a response to the request for legal assistance was received from the Brazilian authorities. However, according to the Lithuanian investigators, the documents contained only internal correspondence between the Brazilian authorities about the fact that V.B. had died. As a result, there had been no new information relevant for the investigation.

39. On 24 August 2010 the Klaipėda Seaport police asked experts from the State Forensic Medicine Service (Valstybinės teismo medicinos tarnyba) to answer the following questions: 1) what is characteristic evidence that a person has died from an acute heart attack and is it possible to conclude that a person has died from a heart attack without an autopsy; 2) could a dangerous working environment in a non-ventilated ship machinery room (where emission gases were present) have had an impact on V.B.’s death, that is, could such conditions have caused an acute heart attack; 3) how long must a person work in a harmful working environment, where there is an elevated level of emission gases, before getting a heart attack.

40. On 7 December 2010 the forensic experts J.R. and R.S. prepared a report stating that they had not been provided with any medical documents about V.B.’s autopsy (if one had ever been performed), any blood results or other medical records. Neither were they provided with documents, confirmed by special diagnostic methods, about the exact level of combustion gases on the ship. Therefore, they could rely only on the testimony of the crew who had worked on the ship with V.B.

41. Proceeding on that basis, the experts stated that, in medical practice, death certificates without an autopsy were delivered only when there was documented medical data that the person had been ill with a long-term disease (sirgo lėtine liga), that the circumstances of death were clear, and that there was no evidence that the cause of death could have been due to physical injuries or other external factors.

42. For the experts, it was known from the criminal case file that V.B. had been found dead in a cabin. Without examining the body, and in the absence of any data about V.B.’s state of health, or information about any physical injuries or external factors (for example, acute gas poisoning), which could have caused his death, it was possible only to state (galima tik teigti) that the cause of V.B.’s death was that his heart had stopped for unknown reasons. In that case, it was impossible to either confirm or deny that an acute heart attack had been the cause of V.B.’s death. Accordingly, it was not possible to establish a possible link between V.B.’s working in harmful conditions and his death.

43. The experts also stated that the main reason for an acute heart attack was a failure of arterial blood vessels. That happened when physical exhaustion or nervous tension caused the heart muscle suddenly to need a lot of oxygen. Long working hours, in an environment where there were elevated levels of emission gases, was not a risk factor for a heart attack.

44. The prosecutor then discontinued the investigation on 14 December 2010, concluding that no crime had been committed ‘on the ship, which sailed under a Lithuanian flag’. According to him, although the existence of harmful working conditions and leaks of gases in the engine room of the ship had been confirmed, they could not have caused the victim’s heart failure.

45. That decision was upheld by a higher prosecutor, and then by the Klaipėda City District Court on 11 August 2011. The first instance court noted, inter alia, that the cause of V.B.’s death had already been established by final decisions in administrative courts.

46. The applicant appealed against the decision to discontinue the criminal investigation, arguing that the report by the specialist, J. R., had not definitely confirmed that her husband had died of a heart attack, given that no autopsy had been carried out. She pointed to shortcomings in the investigation, such as the absence of blood test results and toxicology tests, and the lack of documents concerning safety at work on the ship. The applicant also pointed out that the ship’s logbooks had not been obtained, and that the ship had not been inspected.

47. By a final ruling of 12 September 2011, the Klaipėda Regional Court dismissed the appeal. The court noted that the cause of death had already been established by the final and binding decision of 5 February 2009 by the Supreme Administrative Court in the administrative case (see paragraph 50 below). In addition, the criminal court held that the investigation had been wide-ranging, that numerous witnesses and experts had been questioned and that the necessary forensic examinations had been carried out. As concerned the applicant’s argument about the collection of additional evidence, it was considered as serving no purpose given the amount of time which had elapsed. The criminal court also noted that at certain stage the expert, V.A., had been questioned by the first-instance court of criminal jurisdiction, and had testified that V.B. could have died from his heart condition.

B. Administrative proceedings as to suspected accident at work

48. In parallel to the ongoing criminal investigation, the applicant also started administrative court proceedings, asking that her husband’s death be recognised as a work accident.

49. By a decision of 7 April 2008, the Klaipėda Regional Administrative Court acknowledged, on the basis of the SLI report of 18 December 2007, that work conditions on Vega were bad, and the main engine would often break down, causing leaks of dangerous gases. For that reason many mechanics had left the ship. However, the administrative court also took into account the conclusion by a forensic expert V.A. about V.B.’s earlier heart condition and that fire or smoke on the ship, even if they had been present, could not have caused V.B.’s heart attack (see paragraph 19 above). As a result, the applicant’s claim before the administrative courts for her husband’s death to be recognised as a work accident was dismissed.

50. On 5 February 2009 the Supreme Administrative Court upheld the lower court’s decision.

II. RELEVANT DOMESTIC LAW AND PRACTICE

51. The Criminal Code provides that an employee or a person authorised by him who violates the requirements of safety or health protection at work where this results in an accident involving people may be punished by a fine or by imprisonment for a term of up to eight years (Article 176 § 1).

52. The Code of Criminal Procedure, as in force at the relevant period, provided that when the elements of a crime had been discovered, the prosecutor or investigating authorities had to take all the measures provided for by law in order to investigate and uncover the crime within the shortest time possible, within the limits of their competence (Article 2). The Code also stipulated that an investigating officer or prosecutor had the right to order individuals or legal entities to provide objects or documents of relevance to a criminal investigation (Article 97). The victim of a crime could ask the prosecutor in writing to perform certain investigative actions and the prosecutor had to examine such a request. Appeal against a negative answer by the prosecutor could be made to a pre-trial investigation judge (Article 178).

53. The Law on Maritime Shipping (Prekybinės laivybos įstatymas) at the relevant time provided that legal acts of the Republic of Lithuania were applicable to the ships registered in the Republic of Lithuania and located outside the boundaries of the territory of the Republic of Lithuania, to the extent that they did not contradict the legislation of the State in whose territory the ships in question were located or unless this Law provided otherwise. The right of ownership of a ship sailing outside the territorial boundaries of the Republic of Lithuania was to be determined based on the laws of the State whose flag the ship was sailing under. The legal status of the ship’s crew was to be determined by the laws of the State whose flag the ship was sailing under. Relations between the ship’s crew and the captain were to be determined by the legal acts of the State whose flag the ship was sailing under, unless an agreement regulating such relations provided otherwise. The provisions of civil, administrative, labour and other laws of the Republic of Lithuania applied accordingly to civil and administrative relations and those related to work on board ships and other legal relations arising from maritime shipping and not falling within the sphere of regulation of the Law in question (Article 5 §§ 1, 4, 5 and 17). The right to sail under the State flag of Lithuania was to be granted to ships which were entered in the Register of Ships of the Republic of Lithuania (Article 7). A ship was to be registered in the Register of Ships of the Republic of Lithuania if its owner was a Lithuanian citizen or legal entity registered in Lithuania (Article 8). A ship registered in the Register of Ships of the Republic of Lithuania and sailing under a Lithuanian flag was considered to be a subject of the Republic of Lithuania (laivas, įregistruotas Lietuvos Respublikos jūrų laivų registre ir plaukiojantis su Lietuvos valstybės vėliava, turi Lietuvos Respublikos nacionalinę priklausomybę) (Article 9).

As regards the rights, obligations and responsibilities of the ship’s captain, the Law on Maritime Shipping also provided that the captain was the sole commander of the ship. The members of the crew and passengers had unconditionally to obey the captain. The captain was to be responsible for the safety of the ship, crew, passengers and cargo. The captain acted based on the laws and other legal statutes of the Republic of Lithuania and supervised compliance with such laws on board the ship. If a criminal act was committed on board a ship while it was at sea, the captain of the ship was to perform the functions of the authorities responsible for the preliminary investigation. Disciplinary, administrative, criminal or civil action was to be taken against a captain for failure to perform the obligations specified in the Law (Article 13 §§ 1, 2, 4, 14).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

54. The applicant complained that the investigation into the circumstances of her husband’s death had not been effective. She relied on Articles 6 § 1 and 13 of the Convention.

55. The Court considers that the complaint falls to be examined only under Article 2 of the Convention, which reads as follows:

“1. Everyone’s right to life shall be protected by law...”

A. Submissions by the parties

1. The applicant

56. The applicant submitted that the main reason she had sought a pre‑trial investigation had been her justified interest to know the true cause of her husband’s death. Even so, she accepted that it was no longer possible to investigate V.B.’s death owing to the loss of evidence and the long period of time that had passed since the events in question.

57. The applicant considered that had there been a fast and thorough investigation, then the experts could have been given more information which in turn could have helped establish the real cause of V.B.’s death. Firstly, she was dissatisfied that the pre-trial investigation had been twice discontinued by the prosecutor, which had further unreasonably delayed the criminal inquiry. The applicant also pointed out that although the fact of death had been brought to the Lithuanian authorities’ attention as early as in autumn 2007, the experts had been ordered to establish the cause of death only in spring 2010. There had also been unjustified delays in preparing a request to the Brazilian authorities for legal assistance. Lastly, the applicant emphasised that her husband’s employer, the shipping company Limarko, had destroyed the ship’s logbooks, in spite of the investigators’ request to provide them for examination. The investigation therefore had been inept.

2. The Government

58. The Government firstly maintained that the applicant had failed to exhaust available domestic remedies because she had not instituted civil proceedings for damages, if she considered that the criminal investigation into the circumstances of her husband’s death had been deficient.

59. The Government also argued that the inquiry into V.B.’s death had been prompt and thorough. The Lithuanian authorities had performed all the necessary investigative acts, making a serious effort to establish what had happened. The investigators’ actions had been overseen by the prosecutor, and then reviewed by the courts. The applicant had been granted the status of a victim and had thus been fully involved in the criminal proceedings.

60. The length of the pre-trial investigation had been caused by the complexity and scope of the case, which had demanded many investigative acts, some of which had been extremely time-consuming. The investigators had had to question a large number of witnesses, who had also worked at sea for long periods. Contrary to the applicant’s submission, the shipping company had provided investigators with all the available documentation from the Vega, except for certain materials which had been destroyed by the company due to the sale of the ship. As to the request for legal assistance, there had been objective reasons for it taking several months to send it out after it had been prepared. Firstly, because of the specific rules on asking for legal assistance, and, secondly, because of the need to translate the documents into Portuguese, when there were few competent translators for such work in Lithuania. In addition, the investigators had also relied on the findings of the domestic administrative courts, which had separately looked at the issue of whether the applicant’s husband’s death could be recognised as a workplace accident. In the view of the Government, if the administrative courts had had any doubts about V.B.’s death being due to natural causes, then those courts would have stayed proceedings until the criminal case, pending at the time of the administrative court proceedings, had been decided.

61. In conclusion, the Lithuanian authorities had done everything that could have been expected from them in such exceptional circumstances. The State’s procedural obligations under Article 2 of the Convention had thus been respected.

B. The Court’s assessment

1. Admissibility

62. The Court firstly notes that the applicant has fully exhausted both the administrative and criminal law avenues in pursuit of her complaint that her husband’s death was a result of an accident at work. Accordingly, it does not share the Government’s view that she ought to have used a separate remedy of civil proceedings (see, mutatis mutandis, Nada v. Switzerland [GC], no. 10593/08, § 142, ECHR 2012). The Government’s argument as to the non-exhaustion of domestic remedies must therefore be dismissed.

63. The respondent Government have not argued that the investigation into the death of the applicant’s husband did not attract Lithuania’s responsibility because he died when ‘the ship was on a voyage in the Atlantic Ocean near the Brazilian port of Imbituba’ (see paragraph 19 above). Be that as it may, the Court has already recognised that instances of the extraterritorial exercise of jurisdiction by a State to include cases involving the activities on board of ships registered in, or flying the flag of, that State (see Banković and Others v. Belgium and Others (dec.) [GC], no.52207/99, §§ 59-61, ECHR 2001‑XII, and Medvedyev and Others v. France [GC], no. 3394/03, § 65, ECHR 2010). In the instant case the Court observes that the Vega belonged to a Lithuanian company Limarko, the ship was registered in the Register of Ships of the Republic of Lithuania and sailed under a Lithuanian flag (see paragraphs 6, 33, 44 and 53 above). Under Lithuanian legislation, the Vega’s captain exercised exclusive control over the ship while it was on a voyage (see, mutatis mutandis, Medvedyev, cited above, §§ 65-67). The relations between the ship’s crew and the captain, including those related to safety at work, were determined by Lithuanian laws (see paragraph 53 above). The Court therefore considers that the special features of this case do not absolve Lithuania from an obligation to carry out an effective investigation (see Rantsev v. Cyprus and Russia, no. 25965/04, §§ 243-247, ECHR 2010 (extracts)).

64. The Court also finds that this complaint 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.

2. Merits

(a) Applicable principles

65. The Court reiterates that 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 Česnulevičius v. Lithuania, no. 13462/06, § 91, 10 January 2012, and the case-law cited therein).

66. The Court has found that the obligation under Article 2 to carry out an effective investigation has evolved into a “separate and autonomous duty” (see Šilih v. Slovenia [GC], no. 71463/01, § 159, 9 April 2009). However, it would emphasise that this obligation may differ, both in content and in terms of its underlying rationale, depending on the particular situation that has triggered it (see Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 51, ECHR 2002-I, and Banks and Others v. the United Kingdom (dec.), no. 21387/05, 6 February 2007). The essential purpose of such an investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility (see Anguelova v. Bulgaria, no. 38361/97, § 137, ECHR 2002-IV).

67. In as much as different considerations apply in cases such as the present one, in which the death has not been caused by use of force or similar direct official action, the standard against which the investigation’s effectiveness is to be assessed may be less exacting. However, even in such situations, those concerned are entitled to an independent and impartial official investigation procedure that satisfies certain minimum standards as to its effectiveness (see Jasinskis v. Latvia, no. 45744/08, § 73, 21 December 2010, and the case-law cited therein). In that regard, the Court would point out that this is not an obligation of result, but of means (see, among other authorities, Emars v. Latvia, no. 22412/08, § 76, 18 November 2014; Mulini v. Bulgaria, no. 2092/08, § 42, 20 October 2015), and 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 indeed in a particular sentence (see Öneryıldız v. Turkey [GC], no. 48939/99, §§ 94 and 96, ECHR 2004-XII). Nevertheless, in this context the Court also recalls that the authorities must take the reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness 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 (see Kalicki v. Poland, no. 46797/08, § 51, 8 December 2015). Any deficiency in the investigation which undermines its ability to establish the cause of death, or identify the person or persons responsible, will risk falling foul of this standard (see Olszewscy v. Poland, no. 99/12, § 68, 3 November 2015). Whatever mode is employed, the authorities must act of their own motion once the matter has come to their attention. They cannot leave it to the initiative of the next-of-kin either to lodge a formal complaint or to take responsibility for the conduct of any investigative procedures (see Rantsev, cited above, § 232).

(b) Application to the instant case

68. The Court acknowledges at the outset that there was no evidence that V.B. died as a result of the use of force. However, as noted above (see paragraph 67 above), this does not preclude the existence of an obligation to investigate his death under Article 2. In light of the ambiguous and unexplained circumstances surrounding V.B.’s death and the allegations of fires and leaks of gases on the Vega in the period leading up to his death, the Court observes that a procedural obligation of effective criminal inquiry did arise in respect of the Lithuanian authorities to investigate the circumstances of V.B.’s death (see paragraphs 51 and 52 above). By necessity, the investigation was required to consider not only the immediate circumstance of V.B.’s heart attack but also the broader context of V.B.’s working conditions on the Vega, in order to assess whether there was a link between the allegations of hazardous working conditions and V.B.’s death.

69. Contrary to what has been suggested by the Government, the Court does not attach particular weight to the fact that the circumstances of the applicant’s work on the Vega, and the possible causes of his death, were examined in two separate sets of court proceedings – criminal and administrative. It is true that the administrative proceedings dealt with the question of whether the death of the applicant’s husband could be considered as a work accident. Those proceedings terminated with the Supreme Administrative Court’s conclusion of 5 February 2009, dispelling the applicant’s version of events (see paragraph 50 above). That being so, for the Court it is sufficient to note that on 20 March 2009, when the administrative court proceedings were already over, the Klaipėda Regional Court held that the criminal investigation as to the true cause of V.B.’s death had not been thorough. In fact, to dispel any remaining doubts, the prosecutor was ordered to continue the pre-trial investigation, and a number of investigative measures were conducted afterwards (see paragraphs 23 and 24 above).

70. As to the adequacy of the criminal investigation, the Court accepts that the ship’s captain and other members of its crew examined the scene and that photographs were taken. The following day, the Brazilian police took statements from the captain and the chief engineer (see paragraph 7 above). Aside from those actions, as the applicant rightly noted to the Lithuanian criminal court (see paragraph 21 above), her husband’s body was quickly embalmed the same day without her being asked whether she wished any further investigative actions to be taken. As a result, the experts could subsequently only discuss hypothetical possible causes for V.B.’s death, given that the lack of an autopsy prevented them from stating with certainty that he had died of a heart attack (see paragraphs 40-42 above). On this point the Court also notes that the ship’s captain performs the role of an investigative officer if a criminal act takes place on his ship (see paragraph 53 above). Whilst acknowledging that it was mostly not within the captain’s competence to decide what investigative measures the Brazilian authorities should have undertaken before embalming the body, it cannot turn a blind eye to the fact that a heart attack as the cause of death was opportune in the face of the overall suspicions of hazardous work conditions on that ship. That being so, and whilst any possible failure to undertake investigative measures on 24 or 25 October 2007 on Brazilian territory is mostly not down to the Lithuanian ship’s captain and thus not down to the Lithuanian authorities (see paragraph 53 above), it also transpires from the facts of the case that there were numerous deficiencies once the investigation into the circumstances of the applicant’s husband’s death was conducted in Lithuania.

71. Turning to the criminal investigation, the Court firstly shares the applicant’s view, also confirmed by the Klaipėda Regional Court, that on 29 December 2007 the Lithuanian prosecutor acted hastily in discontinuing the criminal proceedings, essentially relying only on what by then appears to have been a fairly limited amount of evidence, and quickly accepting the fact that V.B. had died of heart attack, as had been indicated in V.B.’s Brazilian death certificate (see paragraphs 13 and 14 above).

72. The Court also observes that after the criminal case had been returned for further investigation, in 2009 the Klaipėda Seaport Police eventually asked the SLI to provide information on whether the Vega had been inspected. It is particularly striking to note the SLI’s answer that they had not inspected the ship after V.B.’s death, which had taken place nearly two years before (see paragraphs 24 and 27 above). Although the applicant strongly believed that her husband had not died of natural causes, but had been a victim of poisoning by combustion gases, and abundant evidence about those gases and fires on the ship had been brought to the attention of the Lithuanian authorities as early as in spring 2008 (see paragraphs 15-17 above), the Lithuanian authorities made no effort to instruct the Limarko company to bring the ship back to Lithuania, where it could be properly examined, whereas Article 76 of the Code of Criminal Procedure appears to grant the prosecutor exactly that right (see paragraph 52 above). In that connection, the Court further notes that documents and medical experts have established, on the one hand, that the applicant’s husband was healthy, and that there were no obstacles to him serving on board a ship; on the other hand, those experts also concluded that in the absence of documents about the gases it was not possible to say that those gases were not the cause of V.B.’s death (see paragraphs 19 in fine, 30 and 40 above).

73. The Court further observes that on 10 September 2008 the applicant submitted a written request to the prosecutor to take particular actions to find out about the working conditions on the Vega at the material time. The prosecutor ignored her requests, which was recognised by the Klaipėda City District Court (see paragraph 22 above). Furthermore, although the applicant had as early as July 2009 alerted the prosecutor to the fact that Limarko intended to sell the Vega, and had asked the prosecutor to make sure that relevant documents would not be lost, her request again did not receive a timely response from the Lithuanian authorities. As a result, when half a year later the Klaipėda Seaport Police finally asked Limarko to submit documents regarding the Vega’s machinery section, the company confirmed that the ship had been sold to a third party, and the relevant logbooks had been destroyed (see paragraphs 28, 33 and 34 above). That being so, the Court finds that the Lithuanian authorities failed to secure all the relevant evidence, given the value of such evidence in helping to clarify matters which were central to the investigation. The Court also considers that even if the applicant had been granted victim status at the beginning of the criminal investigation, her participation appears to have been limited to being able only to gain access to the investigation file (see paragraphs 12, 20 and 32 above). Accordingly, the Lithuanian authorities failed to ensure that the applicant was able to participate effectively in the proceedings, despite her constant and strenuous efforts to remain involved.

74. Finally, the Court turns to the question of legal assistance. It cannot but note that it took the Lithuanian authorities some eight months to prepare and send such a request to the Brazilian authorities (see paragraphs 36 and 37 above). In any case, given that the request was sent more than three years after the death and after the opening of the pre-trial investigation, it is not astounding that no relevant information was received from the Brazilian authorities (see paragraph 38 above). That notwithstanding, the Court cannot but hold that the Lithuanian prosecutors once again simply accepted the lack of information as a fact, without considering whether it was necessary, for example, to submit another request for legal assistance to their Brazilian colleagues (see, mutatis mutandis, Rantsev, cited above, § 241). In this context the Court also is not persuaded by the Government’s argument about difficulties in finding a translator from Portuguese language in Lithuania.

75. The Court accordingly finds that there has been a procedural violation of Article 2 of the Convention as regards the failure of the Lithuanian authorities to conduct an effective investigation into V.B.’s death.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

76. 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

77. The applicant claimed 50,000 euros (EUR) in respect of non‑pecuniary damage.

78. The Government submitted that there was no good reason to claim such a sum, and that the amount was excessive. In addition, the applicant failed to submit any evidence to substantiate such a claim.

79. The Court reiterates, firstly, that an applicant cannot be required to furnish any proof of the non-pecuniary damage he has sustained (see Gridin v. Russia, no. 4171/04, § 20, 1 June 2006). The Court further observes that it has found a violation of Article 2 in the present case. In those circumstances, it considers that the applicant’s suffering and frustration cannot be compensated for by a mere finding of a violation. Nevertheless, the particular amount claimed appears excessive. Making its assessment on an equitable basis, it awards the applicant EUR 10,000 in respect of non‑pecuniary damage.

B. Costs and expenses

80. The applicant also claimed EUR 2,420 for the costs and expenses incurred before the Court.

81. The Government disputed the claim as excessive and unreasonable.

82. According to the Court’s case-law, an applicant is entitled to the 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 award the sum of EUR 2,420 for the proceedings before the Court.

C. Default interest

83. 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

1. Declares, unanimously, the application admissible;

2. Holds, by four votes to three, that there has been a violation of the procedural aspect of Article 2 § 1 of the Convention;

3. Holds, by four votes to three,

(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:

(i) EUR 10,000 (ten thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 2,420 (two thousand four hundred and twenty 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, unanimously, the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 31 May 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Marialena TsirliAndrás Sajó
RegistrarPresident

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the joint separate opinion of Judges Sajó, Zupančič and Wojtyczek is annexed to this judgment.

A.S.
M.T.

JOINT DISSENTING OPINION OF JUDGES SAJÓ, ZUPANČIČ AND WOJTYCZEK

To our regret we cannot follow the majority in this case. The applicant’s husband, who worked on a Lithuanian ship, was found dead in his cabin. There was never any sign or indication, nor even any allegation by the applicant, that he was killed. The applicant claimed in the domestic proceedings that her husband had passed away on account of an alleged gas leak on board that was due to the bad technical state of the engine. Experts ruled out the possibility of a causal link between the heart attack and the gas leak. This was the uncontested finding of the administrative courts. Nevertheless, in a situation where there could not be any criminal responsibility, the Court found a procedural violation of Article 2 because of a lack of a proper criminal investigation.

However, as the judgment itself admits, in accordance with Calvelli and Ciglio v. Italy ([GC], no. 32967/96, § 51, ECHR 2002‑I), the duty of effective investigation differs depending on the particular situation that has triggered it. Secondly, the next sentence from that paragraph is not quoted:

“However, if the infringement of the right to life or to personal integrity is not caused intentionally, the positive obligation imposed by Article 2 to set up an effective judicial system does not necessarily require the provision of a criminal-law remedy in every case.”

In a situation where it was clear that there could not be any causal link and therefore any responsibility, even for negligence, we find it more than strange to hold the Lithuanian State responsible for delays in an unnecessary and groundless criminal investigation. Therefore, we cannot agree with the following conclusion (paragraph 70):

“... whilst any possible failure to undertake investigative measures on 24 or 25 October 2007 on Brazilian territory is mostly not down to the Lithuanian ship’s captain and thus not down to the Lithuanian authorities (see paragraph 53 above), it also transpires from the facts of the case that there were numerous deficiencies once the investigation into the circumstances of the applicant’s husband’s death was conducted in Lithuania.”

From the time when the ship was in the Brazilian harbour and the local investigation authorities took over the investigation, no State responsibility could be attributed to Lithuania, as Lithuania (represented by the Captain, who acted in conformity with the law) had no effective control over the autopsy. The alleged numerous deficiencies of the investigation had no bearing on its outcome and the delays, even if otherwise problematic, had no bearing on the case. We find that the available forensic evidence enabled the establishment of the cause of death (natural causes) as required by the case-law, and the additional deficiencies of the investigation (e.g. failure, due to delays, to obtain relevant logbooks to enable the authorities to determine the possibility of fumes which could not have caused the heart attack) had no bearing on the elements which had to be determined under the Kalicki test (Kalicki v. Poland, no. 46797/08, § 51, 8 December 2015). You cannot blame the chef of the restaurant for too much salt in the soup where you are entitled to a steak only and the soup has not been served to you.

Whatever inadequacies there may have been in the criminal investigation, these were immaterial and therefore there has not been any procedural violation of Article 2 in the present case.

 

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