CASE OF NEŠKOSKA v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

FIRST SECTION

CASE OF NEŠKOSKA v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA

(Application no. 60333/13)

JUDGMENT

STRASBOURG

21 January 2016

FINAL

06/06/2016

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

In the case of Neškoska v. the former Yugoslav Republic of Macedonia,

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

Päivi Hirvelä, President,
Mirjana Lazarova Trajkovska,
Ledi Bianku,
Paul Mahoney,
Aleš Pejchal,
Robert Spano,
Armen Harutyunyan, judges,
and André Wampach, Deputy Section Registrar,

Having deliberated in private on 15 December 2015,

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

PROCEDURE

1. The case originated in an application (no. 60333/13) against the former Yugoslav Republic of Macedonia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Macedonian national, Ms Lenka Neškoska (“the applicant”), on 20 September 2013.

2. The applicant was represented by Mr S. Dukoski, on behalf of the Helsinki Committee for Human Rights in Skopje. The applicant is the mother of M.N., who was killed at the age of twenty-one in the circumstances described below. The Macedonian Government (“the Government”) were represented by their Agent, Mr K. Bogdanov.

3. The applicant alleged under Articles 2 and 13 of the Convention that the investigation into her son’s death had not been effective and that she had no remedy in this respect.

4. On 28 May 2014 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1964 and lives in Skopje.

A. Background to the case

6. As established in the criminal proceedings described below (see paragraphs 8-18 below), on 6 June 2011 at about 12.20 a.m., I.S., a member of the Special Police Forces Unit (Единица за специјални задачи) of the Ministry of the Interior (“the Ministry”), killed M.N. at the central square in Skopje during a public celebration of the results of the parliamentary elections that coincided with a local cultural event. The killing occurred after M.N. attempted to climb onto a podium in order to approach certain high-ranking politicians. After I.S. warned him to desist, M.N. ran away. I.S. followed him and hit M.N. on the back of his neck. As a result, M.N. fell over. I.S. continued punching and kicking M.N., despite M.N. shouting for I.S. to stop beating him. As established in a post-mortem report of 6 June 2011 drawn up by the Forensic Institute (Институт за Судска Медицина), M.N. sustained numerous severe bodily injuries. According to the report, the cause of death was a brain haemorrhage. M.N. died at 12.30 a.m. The courts established (contrary to I.S.’s testimony) that at the relevant time I.S. had not been on duty, but had attended the ceremony in a private capacity.

7. According to the applicant, after Ministry officials had issued a number of conflicting statements regarding M.N.’s death, hundreds of people gathered at the main square during the night of 6 June 2011 in order to protest. After the Ministry’s spokesperson announced on 7 June 2011 that a police officer was suspected of having caused M.N.’s death, thousands of people took to the streets of Skopje to protest. Those protests lasted for forty days and turned into a movement called “Stop Police Brutality” (Стоп на полициската бруталност). On 14 June 2011 over six thousand people signed a petition containing several demands, namely that the relevant authorities establish the truth regarding M.N.’s death and punish those responsible, and that they introduce legislative, structural and other measures concerning the operation, employment and accountability of the Ministry’s officials.

B. Criminal proceedings against I.S.

8. On 8 June 2011 the public prosecutor asked an investigating judge to open an investigation in respect of I.S. related to the death of M.N.

9. In the course of this investigation, A.N. (M.N.’s brother) requested the Professional Standards Inspectorate (“the PSI”) of the Ministry of the Interior to investigate the circumstances surrounding M.N.’s death and the actions of the police officers concerned alleging that unidentified police officers had committed the crimes of “assisting an offender after the commission of a crime” and “failure to report an offence or perpetrator”, punishable under Articles 364 and 365 of the Criminal Code.

10. On 28 June 2011 the PSI replied as follows:

“... a police officer I.S., member of the Special Unit within the Ministry of the Interior, was on duty on 5 June 2011 between 8 a.m. and midnight on the basis of an operative plan prepared before. After the activities in the Special Unit had ended, at 12.10 a.m. [I.S.] left the Unit and went, in plain clothes and in a private car, to the centre of the city, where (a cultural event) and post-election celebrations were taking place.

At around 4 a.m. there was a verbal fight at the square ‘Macedonia’ between the suspect I.S. and M.N. After that, M.N. started to run ... after M.N. had fallen to the ground, I.S. punched and kicked him in the head and body. M.N. lost consciousness; I.S. pulled him up and placed him in a sitting position on a nearby bench. He took a bottle of water ... and poured it over [M.N.’s] head in order to resuscitate him. After that, I.S., together with other persons, pulled [M.N.] up and placed him in the greenery of the car park ... where again they were helping him, tried to revive him and in the meantime they informed the emergency unit.

Soon after two uniformed police officers, who were employed to secure the celebration, arrived on the scene. I.S. left for an unknown destination ...

(Police) inspectors from the police crime department (Одделение за крвни, сексуални и сообраќајни деликти) were informed about the event. After they had arrived on the scene, they informed a public prosecutor and an investigating judge of the incident. They (both) did not arrive on the scene, but delegated to the police investigation department (Одделение за истрага) responsibility for conducting an on-site inspection.

The police investigation department conducted the on-site inspection for which report was drawn up and photos were taken.

On the basis of an order by the investigating judge M.N.’s corpse was handed over to the Forensic Institute in order to establish the reasons for the death.

After the (post mortem) examination had confirmed that M.N.’s death had been violent, the police crime department took measures to establish the facts, including interviewing eyewitnesses.

At around 2.30 p.m. on 7 June 2011 the suspect I.S. handed himself in to a police station (in Skopje). After an interview had been held, the investigating judge ordered that an identity parade with eyewitnesses be organised in the presence of the public prosecutor.

The police crime department submitted a criminal complaint of murder against I.S... The investigating judge remanded him in custody ...

On 9 June 2011 the Ministry established the identity of one of the persons who together with I.S. had moved M.N.’s corpse from the bench into the greenery of the car park for which a Special report was communicated to the public prosecutor.

... On 15 June 2011 the Minister of the Interior terminated I.S.’s employment.”

11. In a letter to A.N. of 15 September 2011 the Ombudsman noted that he had asked the relevant authorities to undertake immediate measures to establish the relevant facts and stated that the incident “was a result and a consequence of irresponsible and unprofessional conduct on the part of the police, which [the Ombudsman] had repeatedly pointed out.”

12. On 3 October 2011 the public prosecutor brought an indictment against I.S., charging him with murder. In the indictment, the prosecutor requested that the trial judge examine I.S., the applicant, twenty-seven witnesses and four experts, and admit considerable material evidence.

13. The trial against I.S. commenced in the Skopje Court of First Instance (“the trial court”). The trial court heard over thirty witnesses, and examined evidence and records of the identity parade; the evidence produced by medical experts; other expert evidence; photographs; and other documentary evidence.

14. Z.J. and P.K., the uniformed police officers who had arrived at the scene after M.N.’s death, stated, in particular, that before the incident, I.S. had introduced himself as a member of the Prime Minister’s security service and had told them to keep an eye on M.N., who had attempted to climb onto the podium. Soon afterwards, they had seen I.S. chasing M.N. and had heard people calling for police assistance. When they had arrived at the scene, they had seen M.N. lying on a bench unconscious. I.S. and others had been trying to resuscitate him with water. I.S. had told them that M.N. had fallen ill (му се слошило) and had asked that they call the emergency services. Soon afterwards, a third person, whom they did not know, had arrived. Z.J. had ordered that M.N.’s corpse be removed in order to enable the ambulance to access the scene more easily. I.S. and a person in plain clothes had pulled M.N. up from the bench and had placed him among nearby greenery. Then I.S. had left the scene and the person in plain clothes had remained until the ambulance came. Z.J. accepted that he should have identified that person. He had not realized that M.N. had been beaten, as he had not noticed any visible injuries on him.

15. V.B., employed in a State-owned public utility (electricity) company, who witnessed the incident, confirmed, in particular, that I.S. had pursued M.N. and had hit him in the back, as a result of which M.N. had fallen to the ground, hitting the back of his head upon impact. I.S. had punched M.N. twice in the stomach; M.N. had lost consciousness. I.S. had pulled M.N. up, placed him on a bench and tried to resuscitate him. After the police officers had arrived, V.B. and I.S. had pulled M.N. up from the bench and moved him so that the ambulance would have easier access to the scene. He had stayed next to M.N. until the ambulance came. He said that there had been no visible injuries on M.N.

16. That M.N. had no visible injuries immediately after the incident was confirmed by L.K. and V.C. (the doctor and nurse respectively), who arrived at the scene in the ambulance soon after the incident.

17. On 16 January 2012 the trial court delivered a judgment (of forty-three pages) in which it found I.S. guilty of murder and sentenced him to fourteen years’ imprisonment. The court further advised the applicant (who had joined the prosecution as the legal representative of the late M.N.) to pursue a compensation claim by means of a separate civil action for damages.

18. On 9 July 2012, the Skopje Court of Appeal upheld the facts established by the lower court and I.S.’s conviction and sentence. On 7 May 2013 the Supreme Court dismissed a request by I.S. for an extraordinary review of the final judgment (барање за вонредно преиспитување на правосилна пресуда) and upheld the lower courts’ judgments.

C. Criminal proceedings against Z.J., P.K.,V.B. and D.I.

19. On 12 October 2011, while the criminal investigation concerning I.S. was underway, the applicant submitted a criminal complaint against Z.J., P.K., V.B. and an unidentified police officer. She alleged that Z.J. and P.K. had failed to determine the identity of I.S. and – instead of apprehending him – had allowed him to leave the scene. As regards V.B., the applicant alleged that he had known that I.S. had murdered her son, but that he had attempted to cover up the crime by moving M.N.’s corpse to the nearby greenery and not reporting I.S. as the perpetrator of the offence. The applicant alleged that the unidentified police officer (who was later identified as D.I.) had wrongly told the public prosecutor and an investigating judge that M.N. had died as the result of a drug overdose. As a consequence, neither the prosecutor nor the investigating judge had made an on-site inspection after the incident. The applicant alleged an abuse of office in relation to the alleged crime of “assisting a perpetrator after the commission of a crime” (Article 365 of the Criminal Code).

20. On 29 December 2011 the public prosecutor rejected the applicant’s complaint, finding no grounds to suggest that Z.J., P.K., V.B. and D.I. had committed the alleged crimes. The prosecutor found that, on the basis of all available evidence (including the available material in the case file against I.S.), Z.J. and P.K. had not been present when I.S. had hit M.N. They had arrived at the scene later and had not determined the identity of I.S., who had told them that M.N. was feeling sick. They had called the emergency services and had notified the relevant police station. V.B. and I.S. had moved M.N. to the nearby greenery in order to enable the ambulance to access the scene more easily. I.S. had left the scene, and Z.J., P.K. and V.B. had stayed at the scene until the ambulance arrived. A report (no. 025084 of 6 June 2011) by the medical staff who had responded to the emergency call noted that the staff had established M.N.’s death and had noticed no visible signs of violence on him.

21. The prosecutor found that the failure of Z.J. and P.K. to determine the identity of I.S. was an unintentional error caused by the urgency of the need to save the life of M.N. They had arrived at the scene after the incident and they had not known that a crime had been committed. As regards V.B., the prosecutor found that although he had witnessed the incident, he had not been aware that a criminal offence had been committed. Consequently, it could not be established that he had intentionally assisted I.S. after the latter had committed the murder. The removal of M.N. from the scene of the crime and his being placed amongst the nearby greenery had been aimed at facilitating the access of the ambulance. The police officers had called the emergency services and D.I. had informed the police control centre, as suggested by the medical staff, that the cause of death could not be established (незнаена смрт), but that it was possible that M.N. had been a drug addict. Given the circumstances, the prosecutor established that there was no evidence that the accused officers had taken any actions with the intention of obstructing the investigation or preventing the identity of the perpetrator from being discovered, or that they had concealed any evidence. On the contrary, they had taken all necessary measures to facilitate the determination of the perpetrator’s identity. The incident had been reported to the local police station and the police control centre. The inspection unit of the Ministry of the Interior (увидна група) had arrived at the scene.

22. On 12 March 2012 the higher public prosecutor’s office found that this decision had been lawful and correct and based on all available material.

23. In the meantime, on 18 January 2012, the applicant took over the prosecution as a subsidiary prosecutor and lodged an indictment against Z.J., P.K., V.B. and D.I. before the trial court on the same counts (abuse of office, assisting a perpetrator after the commission of a crime and failure to report a crime or the offender).

24. At a hearing held in private on 10 May 2012, a three-judge panel of the trial court accepted a recommendation of 20 April 2012 by the president of an adjudicating panel of the trial court that the applicant’s subsidiary prosecution should not be allowed to go ahead. Accordingly, the three-judge panel rejected the applicant’s complaint, finding no grounds to depart from the public prosecutor’s decision of 29 December 2011.

25. The applicant appealed against that decision, arguing that no procedural steps or hearing had taken place before the panel. On 10 September 2012 the Skopje Court of Appeal dismissed the applicant’s appeal and upheld the lower court’s decision. The applicant was served with this decision on 20 March 2013.

D. Additional evidence submitted by the applicant

26. On 15 June 2015 the applicant submitted in evidence a CD-ROM with audio material and a transcript (in English) of taped telephone conversations which involved, allegedly, high-ranking public officials. The material concerned conversations regarding the possible direct perpetrator, which apparently took place soon after the incident. As stated by the applicant, on 5 May 2015 the audio material was revealed in public by the political opposition in the respondent State and was also made available on-line.

II. RELEVANT DOMESTIC LAW

27. The relevant provisions of the Criminal Proceedings Act, consolidated version of 2005, (Закон за кривичната постапка), as worded at the time, may be summarised as follows:

28. Section 16 provided that criminal proceedings must be instituted at the request of an authorised prosecutor. In cases involving offences subject to ex officio prosecution by the State or on an application by the injured party, the authorised prosecutor was the public prosecutor, whereas in cases involving offences subject to merely private charges, the authorised prosecutor was the private prosecutor. If the public prosecutor found no grounds for the institution or continuation of criminal proceedings, his role could be assumed by the injured party, acting as a subsidiary prosecutor under the conditions specified in the Act.

29. Section 17 set forth the duty of the public prosecutor to proceed with a criminal prosecution if there was sufficient evidence that a crime subject to ex officio prosecution has been committed (the principle of legality).

30. In accordance with section 42, in discharging this statutory right and duty, the public prosecutor was empowered to take measures to detect crimes, to identify their perpetrators and to coordinate preliminary criminal inquiries; to request the opening of an investigation; to file and to defend an indictment or application for prosecution before the competent court; to lodge appeals against decisions which have not become final; and to make use of extraordinary judicial remedies against final court decisions.

31. Under section 55, the injured party and the private prosecutor were entitled to submit relevant evidence and facts. At the trial, they were entitled to propose evidence; put questions to the accused, witnesses and experts; as well as to review case files.

32. Section 56 provided, inter alia, that where the public prosecutor found that there were no grounds for prosecuting an offence subject to ex officio prosecution, he should notify the injured party of his decision within eight days. He should also inform the injured party that that party may conduct the prosecution himself.

33. Under section 59, the injured party, acting as a private prosecutor, enjoyed the same rights as the public prosecutor except for the rights which the public prosecutor enjoyed as a State body.

34. Section 144 provided for measures which the Ministry was authorised to take on account of suspicion that an offence had been committed.

35. Section 152 provided that the public prosecutor was to dismiss the criminal complaint if it transpired, inter alia, that the act reported was not a criminal offence subject to ex officio prosecution or that there was no reasonable suspicion that the person in question committed the offence. The public prosecutor should have notified the injured party of the dismissal of the complaint and of the grounds for the dismissal within eight days (section 56) and, if the complaint was filed by the Ministry, he should have notified the latter accordingly. He could request the Ministry to gather the necessary information and to take other measures to investigate the offence and identify the offender. The public prosecutor could at any time require the Ministry, other State bodies, public institutions and other relevant entities to inform him about the measures taken.

36. Section 160 provided that an investigation was to be opened in respect of a particular person where a reasonable suspicion existed that he has committed an offence.

37. Under section 161 the investigation was to be opened on request by the public prosecutor.

38. Section 164 provided that the investigation was to be taken by an investigating judge.

39. In accordance with section 179, the injured party and the private prosecutor could seek that the investigating judge opened an investigation. Rules concerning investigation opened on request by the public prosecutor applied likewise to the investigation opened on request by the injured party or the private prosecutor.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

40. The applicant complained that the investigation into her son’s death had not met the requirements of effectiveness under Article 2 of the Convention, given the decision of the prosecuting and judicial authorities not to investigate all aspects of the incident or to attach any responsibility to all of the persons concerned. Article 2 of the Convention reads as follows:

“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:

(a) in defence of any person from unlawful violence;

(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

(c) in action lawfully taken for the purpose of quelling a riot or insurrection.”

A. Admissibility

41. The Government disputed the victim status of the applicant, arguing that she had not been directly affected by the alleged violations complained of. In this connection they submitted that she had not been recognised as a victim in the proceedings against Z.J., P.K., V.B. and D.I.

42. The applicant contested that assertion as being contrary to the Court’s case-law and referred, inter alia, to the cases of Varnava and Others, and Biç and Others (see Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, § 111, ECHR 2009, and Biç and Others v. Turkey, no. 55955/00, § 22, 2 February 2006). Furthermore, she submitted that both the prosecuting and judicial authorities had dismissed her criminal complaint as unsubstantiated and not on the ground that she had lacked the requisite capacity to institute such proceedings.

43. The Court considers that the applicant, as the mother of the deceased, could legitimately claim to be a victim of any deficiencies in the investigation into an event as tragic as the death of her son (see Emars v. Latvia, no. 22412/08, § 51, 18 November 2014). It follows that the Government’s objection must be dismissed.

44. The Court notes 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.

B. Merits

1. The parties’ submissions

45. The Government submitted that the respondent State had fulfilled its procedural obligation under Article 2 of the Convention in that it had established the circumstances under which M.N. had been killed; and identified and punished I.S. as the perpetrator of the crime. The charges brought against Z.J., P.K., V.B. and D.I. had concerned an alleged abuse of office, failure to report a crime or an offender, and assisting an offender after the commission of a crime. Those charges had concerned alleged actions or omissions on the part of the defendants, which had not affected the investigation into M.N.’s death. The offences with which those defendants had been charged had not been decisive for the identification and punishment of I.S., whom the courts had found responsible for M.N.’s death. Lastly, the Government sought that the Court did not take the additional evidence submitted by the applicant (see paragraph 26 above) into consideration since it was neither submitted to any domestic authority nor have its authenticity and veracity been verified.

46. The applicant submitted that the procedural obligation under Article 2 of the Convention concerned all aspects of an incident involving the unlawful killing of a citizen by a State agent. That Article imposed a duty on the State to carry out an effective investigation into allegations of abuse of power by the police – particularly if there was reasonable suspicion of accomplice liability, as in the present case. There had been serious shortcomings in the investigation, which had affected the determination of the circumstances that had led to M.N.’s killing and the role of Z.J., P.K., V.B. and D.I. The effect of those shortcomings on the effectiveness of the investigation could have been established only in adversarial judicial proceedings. Therefore, the charges brought against those persons were to be considered as falling within the ambit of the procedural obligation under Article 2 of the Convention. This was so since the procedural obligation concerned not only the direct perpetrator of the crime (I.S.), but also the other four persons who had allegedly acted as accomplices by helping I.S. avoid criminal liability and obstructing the investigation.

2. The Court’s assessment

(a) General principles

47. 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 there is reason to believe that an individual has died in suspicious circumstances. The essential purpose of such an investigation is to secure the effective implementation of the domestic laws safeguarding the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility (see Ramsahai and Others v. the Netherlands [GC], no. 52391/99, § 321, ECHR 2007‑II).

48. Such an investigation must be effective in the sense that it is capable of leading to the establishment of the relevant facts and the identification and punishment of those responsible. The authorities must have taken all reasonable steps available to them to secure all the evidence concerning the incident in question. The investigation’s conclusions must be based on a thorough, objective and impartial analysis of all the relevant elements. While there is no absolute obligation for all prosecutions to result in conviction or in a particular sentence, 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. The national courts should not under any circumstances be prepared to allow life-threatening offences to go unpunished (see Mustafa Tunç and Fecire Tunç v. Turkey [GC], no. 24014/05, § 175, 14 April 2015; Mojsiejew v. Poland, no. 11818/02, § 53, 24 March 2009, and Esat Bayram v. Turkey, no. 75535/01, § 47, 26 May 2009).

49. For an investigation to be effective, the persons responsible for and carrying out the investigation must be independent and impartial, both in law and in practice. This means not only a lack of hierarchical or institutional connection with those implicated in the events but also a practical independence. The effective investigation required under Article 2 serves to maintain public confidence in the authorities’ maintenance of the rule of law, to prevent any appearance of collusion in or tolerance of unlawful acts, and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility. 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 interests (see Ramsahai and Others, cited above, §§ 321‑32; Khaindrava and Dzamashvili v. Georgia, no. 18183/05, §§ 59-61, 8 June 2010; Tahsin Acar v. Turkey [GC], no. 26307/95, §§ 222‑25, ECHR 2004‑III; and Güleç v. Turkey, 27 July 1998, § 82, Reports of Judgments and Decisions 1998‑IV).

(b) Application of these principles in the present case

50. The Court notes that the applicant’s grievances concern the alleged misconduct of Z.J., P.K., V.B. and D.I. and the way in which the State responded to the allegations of police complicity. In this connection, she complained that the actions or omissions on the part of these persons had affected the effectiveness of the investigations into the killing of her son and had constituted an attempt to conceal the murder and/or the perpetrator.

51. The Court notes that these complaints were the subject of a review by the domestic authorities, which acknowledged the following: (a) Z.J. and P.K., the police officers who had arrived at the scene after I.S. had already beaten M.N. to death, had failed to determine the identity of I.S.; (b) V.B. had witnessed the incident and had (together with I.S.) moved M.N.’s body from the scene of the crime to nearby greenery; and (c) D.I. had informed the police control centre that the cause of M.N.’s death could not be established, but suggested that M.N. had been a drug addict. These findings were based to a large extent on the evidence admitted in the criminal proceedings against I.S.

52. The Court further notes that on 6 June 2011, the day of the incident, an on-site examination was carried out by the responsible police department and that a post-mortem report on M.N.’s corpse (commissioned by the investigating judge) was drawn up by the Forensic Institute. On 7 June 2011 I.S. reported to a police station and an identification parade was held. The investigating judge remanded I.S. in custody. On 8 June 2011 the public prosecutor requested that an investigation be opened into the incident. On 15 June 2011 the Ministry dismissed I.S. from his employment. In October 2011 the public prosecutor indicted I.S. On 16 January 2012 the trial court convicted I.S. of murder and sentenced him to fourteen years’ imprisonment, having determined that I.S. had inflicted on M.N. numerous severe bodily injuries, which had resulted in his death. The trial court’s findings of facts and law were based on considerable oral and documentary evidence. These findings were confirmed at three levels of jurisdiction over less than two years. The Court underlines that the applicant did not challenge the facts the domestic courts had established regarding I.S.’s role in the incident.

53. Accordingly, the Court considers that the alleged misconduct complained of was not prejudicial to the effective conduct of the investigation for the purposes of Article 2 of the Convention in so far as it concerns the establishment of the relevant facts and the identification and punishment of I.S., the person responsible for M.N.’s death (see, conversely, Emars, cited above, § 82). It is so since the availability and quality of the evidence heard was not compromised by any of the alleged shortcomings complained of.

54. It is true that the applicant also maintained that the investigation into her allegations of misconduct on the part of Z.J., P.K., V.B. and D.I. did not meet the requirements of effectiveness within the meaning of Article 2 of the Convention. In this regard, the Court emphasises that the applicant’s allegations concerned actions or omissions on the part of the four persons concerned after I.S. had already killed M.N. No allegation was made, either to the domestic authorities or the Court, that any other person (including the four persons concerned) had been involved, in any capacity, in the killing of the applicant’s son. For those reasons, the present case is distinct from the Enukidze and Girgvliani case, which concerned the failure of the authorities to investigate credible allegations of complicity between the direct perpetrators and high-ranking police officials regarding the killing of the applicants’ son (see Enukidze and Girgvliani v. Georgia, no. 25091/07, 26 April 2011). Although the Court emphasises the importance of the adequate investigation of any crime, it considers that the investigation into the allegations brought against Z.J., P.K., V.B. and D.I. did not have a material bearing to the detriment of the effectiveness of the investigation into the death of the applicant’s son for the purpose of Article 2 of the Convention. Similar considerations apply to the additional evidence submitted by the applicant (see paragraph 26 above), the use of which was contested by the Government (see paragraph 45 above). Therefore, the Court does not consider necessary to examine the parties’ submissions as regards this evidence.

55. There has accordingly been no violation of Article 2 of the Convention in its procedural aspect.

II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

56. The applicant also complained that none of the remedies that she had used in the proceedings against the four police officers had been effective within the meaning of Article 13 of the Convention, which reads as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

57. Having regard to the finding relating to Article 2 (see paragraph 55 above), the Court considers that, whilst the complaint under Article 13 taken in conjunction with Article 2 is admissible, there is no need for a separate examination of this complaint (see, mutatis mutandis, Khumaydov and Khumaydov v. Russia, no. 13862/05, § 141, 28 May 2009 and Zakriyeva and Others v. Russia, no. 20583/04, § 108, 8 January 2009).

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;

2. Holds that there has been no violation of Article 2 of the Convention;

3. Holds that there is no need to examine the complaint under Article 13 of the Convention;

Done in English, and notified in writing on 21 January 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              André WampachPäivi Hirvelä
Deputy RegistrarPresident

 

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