Communicated on 16 September 2014
THIRD SECTION
Application no. 4936/12
Oleg TOMAC and Rodica TOMAC
against the Republic of Moldova
lodged on 5 January 2012
STATEMENT OF FACTS
1. The applicants, Mr Oleg Tomac and Ms Rodica Tomac, are Moldovan nationals, who were born in 1966 and 1971 respectively and live in Drochia. They are represented before the Court by Mr V. Pleșca, a lawyer practising in Chișinău.
2. The facts of the case, as submitted by the applicants, may be summarised as follows.
A. The death of the applicants’ son
3. The applicants’ son (T.) was a student at the Police Academy in Chișinău. On 24 February 2010 at approximately 1 pm he had a quarrel with another student (M.) at the same institution, during which M. punched I. in his face and into the stomach.
4. On 25 February 2010 a medical report found light injuries on his face. Allegedly, M. continued to bully the applicant’s son.
5. On 28 February 2010 the first applicant (I.’s step father) went to the Police Academy and asked an officer to take action so as to stop the bullying of his son. The latter no longer had any injuries on his face on that date. According to a report made on 26 February 2010 by the officer responsible for students in I.’s class, he had witnessed the end of the conflict between M. and I. and had stopped it. He noted that I. had insulted M., while the latter had pushed him slightly. He did not mention having seen any injuries caused to any of the two students.
6. On 2 March 2010 the psychologist working at the Police Academy wrote a report concerning the events of 24 February 2010. He noted that both students had realised their respective mistakes and after the incident went to a pizza restaurant in the city, having friendly conversation. The students’ psychological state was described as “gratitude, satisfaction, psychological balance stemming from the fact of ... having resolved the conflict ...”. The psychologist did not mention having noticed injuries on any of the two students.
7. On 2 March 2010 at 2 pm I. called his mother and told her that he and M. had met with a psychologist and that everything came back to order. However, at midnight on the same day the applicants were called and were told that their son was in a coma. At 1.30 am on 3 March 2010 they were told that their son had committed suicide, possibly due to an unshared love.
8. Also on 3 March 2010 the first applicant saw his son’s body. His face and head were covered with injuries and had cuts on all of his limbs, cuts which had been sawn. The doctor allegedly told the first applicant to keep a piece of material impregnated with a special substance in order to remove the haematomas. Failing that, the cadaver’s face would have black spots. During the religious ceremony the cadaver’s mouth was opened a bit and the applicants saw that one of its teeth was broken. The applicants also submitted photographs of their son’s body made before it was buried. Those photographs show haematomas around I.’s eyes, on his front, nose, cheeks, lips and chin, as well as cuts on both his lips.
B. The investigation of I.’s death
9. No criminal investigation was opened, but a “verification” was carried out. The investigator established that I. had been found at 9.10 p.m. on 2 March 2010 hanging on the belt of his own winter coat at the entrance into the cellar of the Police Academy. A farewell message to his parents was found in I.’s telephone, but the parents declared that the text had been written by him since the manner of addressing them was not at all that which he had always used.
10. According to an autopsy report on examination of I.’s body between 3 March and 8 April 2010, death occurred as a result of suffocation caused by hanging. The expert also noted the presence of excoriations on I.’s face, both lips, the left side of the jaw, the left ankle and the left leg. No traces of alcohol or narcotic drugs had been found in I.’s blood.
11. On 8 June 2010 the applicants’ lawyer asked the Prosecutor General’s Office to hear a number of witnesses who could have knowledge of circumstances relevant for the case. He received no response.
12. On 23 July 2010 the applicants’ lawyer complained to the Prosecutor General’s Office about the inefficient investigation, including the failure to gather any evidence on the case or to examine the evidence (witnesses) identified by the lawyer. On 11 August 2010 he was informed that on 26 July 2010 a decision had been taken not to initiate a criminal investigation since no crime had been committed.
13. On 17 August 2010 the applicants’ lawyer asked for a copy of the decision of 26 July 2010 and for access to the materials in the file. On 20 August 2010 he was sent a copy of the relevant decision, but was refused access to the file.
14. On 10 September 2010 the applicant’s lawyer again asked for access to the file and for hearing a number of witnesses, but eventually received no reply.
15. On 10 September 2010 the lawyer challenged the decision of 26 July 2010 before a higher-ranked prosecutor.
16. By the decision of 17 September 2010 of the Chișinău Prosecutor’s Office, the decision of 26 July 2010 was annulled as groundless and a further verification was ordered.
17. On 29 October 2010 the applicants’ lawyer made another request to have witnesses heard, adding that in order to properly exercise their rights as the representatives of the victim, the applicants wanted their lawyer to be present during the interviewing of those witnesses.
18. In reply, on 10 November 2010 he was informed that on 20 October 2010 the prosecutor had decided not to initiate a criminal investigation since no crime had been committed.
19. On 18 November 2010 the applicant’s lawyer asked for a copy of the decision of 20 October 2010, as well as for access to the materials in the file. In an undated letter he was sent a copy of the relevant decision. He was not given access to the file. He made a similar request on 8 December 2010, but received no access and was informed that he had the right to challenge the relevant decision before the investigating judge.
20. On 14 January 2011 the applicants’ lawyer challenged before the Prosecutor General’s Office the decision of 20 October 2010. That complaint was forwarded to the Chișinău Prosecutor’s Office, which on 4 February 2011 annulled that decision and ordered a further verification.
21. On 4 March 2011 the Chișinău Prosecutor’s Office decided not to initiate a criminal investigation since no crime had been committed. Following the applicants’ complaint, on 7 July 2011 the investigating judge of the Centru District Court annulled that decision. The judge found that in accordance with the applicable provisions of the Code of Criminal Procedure the data obtained by the investigators (explanations given by witnesses, autopsy report) were not considered as evidence since they had been gathered outside the framework of a criminal investigation. As a result, the first applicant’s procedural rights as the representative of the victim had been breached.
22. By the date of lodging the present application, the applicants and their lawyer had not been informed of any additional steps in the investigation.
COMPLAINT
The applicants complain under Article 2 of the Convention that the authorities have not undertaken an effective investigation into their son’s death.
They also complain under Article 3 of the Convention about the suffering caused to them due to the manner of investigating their son’s death.
QUESTIONS TO THE PARTIES
1. Has there been a violation of Article 2 of the Convention? In particular, did the authorities carry out an effective investigation into the applicants’ son’s death?
2. Has there been a violation of Article 3 of the Convention, notably regarding the applicants’ suffering following the manner in which the investigation into their son’s death had been conducted?
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