CASE OF VASÎLCA v. THE REPUBLIC OF MOLDOVA

THIRD SECTION

CASE OF VASÎLCA v. THE REPUBLIC OF MOLDOVA

(Application no. 69527/10)

JUDGMENT

STRASBOURG

11 February 2014

FINAL

11/05/2014

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

In the case of Vasîlca v. the Republic of Moldova,

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

Josep Casadevall, President,
Alvina Gyulumyan,
Ján Šikuta,
Luis López Guerra,
Kristina Pardalos,
Johannes Silvis,
Valeriu Griţco, judges,
and Santiago Quesada, Section Registrar,

Having deliberated in private on 21 January 2014,

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

PROCEDURE

1. The case originated in an application (no. 69527/10) against the Republic of Moldova lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Moldovan national, Ms Elena Vasîlca (“the applicant”), on 11 November 2010.

2. The applicant was represented by Mr I. Petcov, a lawyer practising in Chişinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr L. Apostol.

3. The applicant alleged, in particular, that the authorities had failed to carry out an effective investigation into her son’s death.

4. On 10 April 2012 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1965 and lives in Chişinău.

6. On 8 March 2008 at around 4.40 p.m. the applicant’s seventeen-year-old son (V.) died after falling from one of the common-use balconies in an apartment block.

7. The police opened a preliminary inquiry into the causes of V.’s death, the most likely explanation being suicide.

8. On 8 March 2008 the investigator in charge of the case (F.) ordered a medical expert report in order to establish precisely the cause of death, the presence and origin of any injuries on V.’s body and whether there was any trace of alcohol or narcotic drugs in his blood. That report was completed on 10 March 2008 and found that V. had died from severe injuries caused by his fall; no traces of alcohol or narcotic drugs had been found in his blood.

9. Some fifteen persons were questioned as witnesses during the following three months. According to the applicant, some of the witnesses mentioned that V. had talked to two men on the day of his death. Three witnesses (B.A., B.O. and S.V.) allegedly stated that they had seen a young man and a young woman exiting the building and leaving the place in a hurry, taking a taxi shortly after V. had fallen. The applicant also stated that her son had been contacted on his mobile phone number by persons unknown to her and that her son had been upset after these discussions and had destroyed his subscriber identity module (SIM) card. She confirmed her son’s phone number and asked the prosecution to verify who had called him. She also stated that someone had visited her son the evening before the incident and had run away when she went out to see what was going on.

10. On 24 March 2008 F. proposed that no criminal investigation be initiated since there was no evidence that any offence had been committed, V. having committed suicide. On 4 July 2008 a prosecutor of the Ciocana prosecutor’s office decided not to initiate a criminal investigation.

11. On 1 August 2008 the applicant challenged that decision before a superior prosecutor. She stated that witnesses had not been questioned in respect of their allegation that they had seen two young persons exiting the building in a hurry immediately after the incident and that no one had asked the relevant mobile phone company to provide information about the phone calls made to her son prior to his death. Moreover, two assistants in a nearby shop had claimed that they had seen V. in their shop some hours prior to his death and that he had fainted there, and had then been taken away by two young men.

12. On 18 August 2008 a supervising prosecutor annulled the decision of 4 July 2008 as having been taken prematurely without considering other possible causes of death, such as murder by pushing V. from above or provoking him into committing suicide. The investigator was ordered to question the applicant and the witnesses identified by her.

13. After that date, the preliminary inquiry was extended on many occasions at the request of investigator F. On 12 December 2008 F. proposed that no investigation be initiated. It appears that this proposal was rejected by a superior prosecutor on an unknown date, since F. made similar proposals on 4 February and 29 April 2009. Both times a prosecutor accepted that no investigation should be initiated, but each time a supervising prosecutor found the decision premature and ordered a re-examination of the material by the investigator. The prosecution adopted a further decision not to initiate a criminal investigation on 11 May 2009.

14. On 17 September 2009 the investigating judge of the Ciocana District Court annulled the prosecutor’s decision of 11 May 2009, finding that the preliminary inquiry conducted before that date had been superficial and “with unexplained omissions”. The investigating authority had not established the place from which V. had jumped or had been pushed, or from what height, and a number of actions that the investigator had requested be taken by various authorities had not been fully carried out. Similarly, the directions given by the prosecutor to the investigator had not been fully followed. Moreover, during the medical expert report regarding V.’s body, the applicant’s rights as an aggrieved party had not been assured since she had not been allowed to ask the expert any questions or to ask for another expert or panel of experts to examine V.’s body, as she had the right to do under the applicable legislation.

15. Having re-examined the case, on 5 November 2009 investigator F. proposed to the prosecutor that no criminal investigation be initiated. This proposal was rejected on 12 November 2009.

16. On 8 December 2009 the applicant complained to the Ciocana prosecutor’s office of delays in the investigating authority’s activity in respect of her son’s case. She received no reply.

17. After that date the investigator proposed to the prosecutor on 29 December 2009 and 19 April 2010 that no criminal investigation be initiated, but both times the prosecutor sent the case for re-examination. In his report of 29 December 2009 the investigator noted, inter alia, that he had held “talks with the medical expert who had carried out the [autopsy], who refused to give any explanations concerning the case, stating that he had indicated all that he knew about this case in the autopsy report”.

18. On 23 June 2010 the investigator proposed to the prosecutor that no criminal investigation be initiated, listing the medical evidence gathered and the witness statements made. He stated that every time a superior prosecutor had annulled a prosecutor’s decision not to initiate a criminal investigation, the directions given in order to carry out a full investigation had been fully complied with, as far as had been objectively possible. In conclusion he stated that, with the passage of time, any further investigating action was futile, since all possible measures had already been taken.

19. On 5 July 2010 a prosecutor from the Ciocana prosecutor’s office approved the investigator’s proposal, since there was no evidence confirming that V. had been killed or provoked into committing suicide.

20. On 20 August 2010 the investigating judge of the Ciocana District Court dismissed the applicant’s complaint as unfounded. That decision was final.

II. RELEVANT DOMESTIC LAW

21. The relevant provisions of the Code of Criminal Procedure read as follows:

“Article 59. The injured party (partea vătămată)

(1) An injured party is considered to be anyone who has been caused non-pecuniary or pecuniary damage as a consequence of a crime and is recognized as such according to the law, with the victim’s consent. ...

Article 60. Rights and obligations of the injured party

(1) The injured party has the right:

1) to be informed of the essence of the accusation;

2) to make submissions and provide explanations;

3) to submit documents and other items of evidence that can be attached to the criminal case file and examined at the court hearing;

4) to request the removal of the person carrying out the criminal prosecution, the judge, the prosecutor, the expert, the interpreter, the translator or the court clerk from the proceedings;

5) to raise objections against actions of the investigating authority and to ask for those objections to be included in the record of the respective procedural action;

6) to access the records of all procedural actions in which he or she participated and to request their completion or the inclusion of his or her objections in the respective record;

7) to access the contents of the criminal case file from the moment the criminal prosecution ends and to note down any information in the file;

8) to participate in court hearings, including in the examination of the contents of the case file;

9) to make submissions in court regarding the damage caused;

10) to be informed by the prosecuting authority of all decisions regarding his or her rights and interests and to request and obtain, free of charge, copies of those decisions, decisions concerning the discontinuation of the proceedings, the dropping of charges in the respective case or the refusal to initiate a criminal investigation, sentences and other final court decisions or judgments;

11) to submit complaints against the actions and decisions of the investigating authority and to appeal against the court judgment on the damage caused;

12) to withdraw complaints submitted by him or herself or by his or her representative, including complaints against illegal acts committed against him or her;

13) to reconcile with the suspect, accused, or defendant in the cases provided by law;

14) to contest the complaints of other participants in the proceedings of which he or she was informed by the criminal prosecution body or about which he or she became aware in other circumstances;

15) to participate in the examination of the case in ordinary appeal proceedings;

151) to appeal against court judgments;

16) to be reimbursed for the expenses incurred in the criminal proceedings and to be compensated for damage caused by unlawful acts on the part of the investigating authority;

17) to have all goods seized by the investigating authority or submitted by him or herself as evidence, all goods belonging to him or her that were recovered from the person who committed an offence under the criminal law, and all original documents belonging to him or her restored to him or her;

18) to be represented by the lawyer of his or her choice or, if he or she does not have the means to pay for legal assistance, to be assisted by a pro bono lawyer under the conditions established by law.

19) to complain to the hierarchically superior prosecutor or, if applicable, the judge, about the excessive length of the proceedings.

...”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

22. The applicant complained that the authorities had not carried out an effective investigation into her son’s death, contrary to the requirements of Article 2 of the Convention, which reads as follows:

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

A. Admissibility

23. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

24. The applicant submitted that at no point had an official criminal investigation been started, not even one limited to the issue of whether her son had been provoked into committing suicide. This limited the powers of the prosecution. For instance, it had not been possible to warn the medical expert and witnesses of their criminal liability for false statements, as this could be done only within the framework of a proper criminal investigation. What the investigator had had to work with were “explanations” from the witnesses, a notion not provided for in the Code of Criminal Procedure, as opposed to proper witness statements. Moreover the period of investigation – approximately two and a half years – had been excessive. The investigator had failed to request information about phone calls made to V.’s mobile phone number before his death or to question the assistants from the grocery store, to whom the applicant had referred in her complaint of 1 August 2008 (see paragraph 11 above). In addition, the applicant’s procedural right to be properly involved in the investigation had not been observed, as established by the investigating judge (see paragraph 14 above). She had not been kept informed of the progress of the “investigation” and had even had to complain about its slow pace (see paragraph 16 above).

25. The Government submitted that the investigation into V.’s death had been effective. All investigating measures had been undertaken promptly after the discovery of V.’s body, including an autopsy and interviews with witnesses. While certain omissions had initially occurred, they were not of a serious nature that would undermine the effectiveness of the investigation and they had been redressed. In particular, even though the proposal that no criminal investigation be initiated had been rejected or annulled three times, all of the evidence gathered confirmed the conclusion that this was a case of suicide and that no criminal offence had been committed. All the witnesses mentioned by the applicant had been questioned and they had not supported her version of events.

26. As for the applicant’s involvement in the investigation, the Government argued that it was only where an investigation established that a crime had occurred that one could speak of a victim or an aggrieved party. Given the conclusion in this case, namely that no crime had been committed, there had been no crime victim and so the applicant had no entitlement to be actively involved. Even so, the applicant had been able to exercise certain procedural rights and had been kept informed of the course of the investigation. The applicant had no basis on which to suggest that her son had been murdered. The Government concluded that the applicant’s complaint was of a fourth-instance nature.

2. The Court’s assessment

(a) General principles

27. The Court reiterates that by requiring a State to take appropriate steps to safeguard the lives of those within its jurisdiction (see L.C.B. v. the United Kingdom, 9 June 1998, § 36, Reports of Judgments and Decisions 1998‑III), Article 2 § 1 imposes a duty on that State to secure the right to life by putting in place effective criminal-law provisions to deter the commission of offences against the person, backed up by law-enforcement machinery for the prevention, suppression and punishment of breaches of such provisions (see Osman v. the United Kingdom, 28 October 1998, § 115, Reports 1998‑VIII).

28. The obligation to protect the right to life under Article 2 of the Convention, taken in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, requires by implication that there should be an effective official investigation when individuals have died in suspicious circumstances. This obligation is not confined to cases where it has been established that the death was caused by an agent of the State. The mere fact that the authorities have been informed of the death will give rise ipso facto to an obligation under Article 2 of the Convention to carry out an effective investigation into the circumstances in which it occurred (see Sabuktekin v. Turkey, no. 27243/95, § 98, ECHR 2002‑II; Kavak v. Turkey, no. 53489/99, § 45, 6 July 2006; and Al Fayed v. France (dec.), no. 38501/02, 27 September 2007). The investigation must be capable of establishing the cause of the injuries and the identification of those responsible with a view to their punishment. Where a death results, the investigation assumes even greater importance, given that the essential purpose of such an investigation is to secure the effective implementation of the domestic laws which protect the right to life (see mutatis mutandis, Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 69, ECHR 2002‑II).

29. The scope of the above-mentioned obligation is one as to means, not as to results. Thus, the authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident. Any deficiency in the investigation which undermines its ability to establish the cause of death, or the person or persons responsible, will risk falling foul of this standard (see Menson v. the United Kingdom (dec.), no. 47916/99, ECHR 2003‑V, and Rajkowska v. Poland (dec.), no. 37393/02, 27 November 2007).

(b) Application of the general principles to the present case

30. In the present case it is to be noted that the investigator in charge of the case proposed on at least eight different occasions that no criminal investigation into V.’s death be initiated, and that on all but the last of those occasions his proposals were eventually rejected by the prosecutor, his superiors or the investigating judge as having been premature or, as the investigating judge put it, “with unexplained omissions”.

31. The investigating judge found further shortcomings in the investigation, such as a failure to fully carry out a number of actions which the investigator had requested various authorities to take (see paragraph 14 above).

32. The Court also notes that the prosecutor’s decisions not to initiate a criminal investigation and the decision of the investigating judge of 20 August 2010 completely failed to mention her request to obtain information from the relevant mobile phone operator about the person(s) who had called V. prior to his death or the statements made by the assistants from the nearby shop, which the applicant had mentioned in her complaint of 1 August 2008 (see paragraph 11 above).

33. As stated above, the procedural obligation deriving from Article 2 is primarily one of means. It is apparent that in response to the investigator’s proposals that no criminal investigation be initiated, the various supervising authorities had to intervene seven times. On each occasion they ordered the investigator to reopen the procedure and conduct further inquiries into what were clearly material issues. As a result, the investigation lasted approximately two and a half years. The Court stresses the requirement of reasonable expedition in cases concerning loss of life. The investigation did indeed commence promptly, but the time taken for it to finally conclude – two years and five months – cannot be justified by its complexity or any objective difficulties. The applicant therefore had grounds to question to diligence of the authorities, all the more so since she unsuccessfully complained about the delay and received no reply (see paragraph 16 above).

34. Moreover, as is clear from the decision of the investigating judge (see paragraph 14 above), the authorities did not involve the applicant in the investigation sufficiently. The Court has stressed on many occasions that the involvement of the next-of-kin serves to ensure public accountability of the authorities and public scrutiny of their actions in such situations (see Ramsahai and Others v. the Netherlands [GC], no. 52391/99, § 321, ECHR 2007‑II), to the extent necessary to safeguard the person’s legitimate interests. In this case, the applicant had a strong and legitimate interest in the conduct of the investigation which would have been served by granting her the special status under the Code of Criminal Procedure (see paragraph 21 above; see also Guţu v. Moldova, no. 20289/02, § 61, 7 June 2007 and Mătăsaru and Saviţchi v. Moldova, no. 38281/08, § 90, 2 November 2010 concerning the procedural shortcomings where no proper criminal investigation is initiated). The Court does not accept the Government’s argument on this point, namely that it is only once the investigation has established that a crime has been committed that the next-of-kin can be recognised as having the right to participate in the proceedings in the victim’s stead. The Court would emphasise that Article 2 requires more than merely informing the next-of-kin of the progress of the investigation: it includes their active involvement in it (see Salgın v. Turkey, no. 46748/99, § 89, 20 February 2007). The Court finds that this was not done for the applicant. Moreover, substantial delays in involving the next-of-kin in investigative procedures are not acceptable (see Mikayil Mammadov v. Azerbaijan, no. 4762/05, § 132, 17 December 2009, and Anusca v. Moldova, no. 24034/07, § 44, 18 May 2010).

35. The Court observes that while the inquiry into V.’s death began promptly, no formal criminal investigation was initiated. The Court notes that the Government did not comment in any specific manner on the applicant’s allegation that in the absence of a proper investigation certain actions could not be lawfully taken, such as warning experts and witnesses of their criminal liability for knowingly making false statements or refusing to make statements. This would indeed have prevented situations such as that described in the prosecutor’s decision of 29 December 2009 (see paragraph 17 above), where a medical expert refused to provide further explanations concerning the autopsy on V.’s body which he had carried out, or that described in the investigating judge’s decision of 17 September 2009 (see paragraph 14 above), where it was stated that a number of actions requested by the investigator had not been fully carried out by other authorities.

36. In conclusion, having regard to the manner in which V.’s death was investigated, the time the investigation took, the failure to examine some of the evidence referred to by the applicant, and the applicant’s very limited involvement in the investigation, the Court considers that the investigation was not “effective” within the meaning of its case-law. There has accordingly been a violation of Article 2 of the Convention.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

37. 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

38. The applicant claimed 100,000 euros (EUR) in respect of non-pecuniary damage caused to her as a result of the failure to carry out an effective investigation into her son’s death.

39. The Government considered that the amount claimed was excessive in the light of the Court’s case-law on similar matters.

40. Having regard to the circumstances of the present case, the Court awards the applicant EUR 12,000 in respect of non-pecuniary damage.

B. Costs and expenses

41. The applicant also claimed EUR 422 for the costs and expenses incurred before the Court. She submitted an itemised list of hours worked by her lawyer on the case.

42. The Government submitted that the amount claimed was excessive.

43. According to the Court’s case-law, an applicant is entitled to reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to accept the applicant’s claim in full.

C. Default interest

44. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;

2. Holds that there has been a violation of Article 2 of the Convention in its procedural limb;

3. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 12,000 (twelve thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 422 (four hundred and twenty-two euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 11 February 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Santiago QuesadaJosep Casadevall
RegistrarPresident

 

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