FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 77928/01
by Tibor VRÁBEL
against Slovakia
The European Court of Human Rights (Fourth Section), sitting on 19 January 2010 as a Chamber composed of:
Nicolas Bratza, President,
Lech Garlicki,
Ljiljana Mijović,
David Thór Björgvinsson,
Ján Šikuta,
Päivi Hirvelä,
Mihai Poalelungi, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 7 November 2001,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Tibor Vrábel, is a Slovakian national who was born in 1952 and lives in Levice. He was represented before the Court by Ms Z. Kupcová, a lawyer practising in Bratislava. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. Fatal accident of the applicant’s son and preliminary investigation
On 6 June 1998 the applicant’s son, then 21 years old, was to participate in a triathlon competition at a lake near Senec. On the same day, an association of model boat builders from Senec organised an international competition of radio-controlled model boats in the adjacent part of the same lake. The organisers of the two events had arranged between themselves that no model boats would be on the lake between 1.45 and 3 p.m. when the triathlon competition was to take place.
After noon and prior to the start of the triathlon competition the applicant’s son had a swim in the lake. A model boat belonging to a participant from Ukraine suddenly changed its trajectory after having touched a buoy demarcating the race circuit. It hit the applicant’s son’s head and spine. After his body was brought to shore by divers, a physician established that the applicant’s son had suffered fatal head injuries.
Later the same day police officers drew up reports on the accident and on the examination carried out on the spot. They further photographed the victim and drew up a record concerning the identification of the body. The police retained the model boat which had apparently hit the applicant’s son and heard what its owner had to say. His replies were interpreted by the director of the model boat competition. A written report by the doctor who had examined the corpse was prepared on 6 June 1998. Several objects belonging to the victim were given to the applicant.
On 8 June 1998 the police in Senec appointed a forensic expert with a view to determining the cause of death of the applicant’s son.
On the same day the police concluded that there were no grounds for a criminal prosecution of the Ukrainian owner of the boat. The responsibility for safety of the event lay with the club which had organised the competition. The boat owner could not be held responsible for the fact that a swimmer, who was not supposed to be in the area of the competition, had entered the raceway.
The boat owner was allowed to return to Ukraine, but the police kept the model boat for the purpose of an examination by experts.
In a preliminary report of 9 June 1998 the forensic institute which had carried out an autopsy of the victim’s corpse concluded that the fatal injury had been inflicted by an object which had fractured the victim’s skull, concussed his cerebral tissue and caused bleeding in the brain chambers.
Between 8 and 16 June 1998 police officers interviewed twelve persons with a view to establishing the relevant facts.
In the meantime, on 10 June 1998, the applicant consulted the police file and copies of several documents included in it were given to him.
On 12 June 1998 the applicant complained to the Inspection Department of the Ministry of the Interior that the police had acted erroneously in that, inter alia, they had failed to accuse the owner of the model boat of an offence and to carry out an alcohol test on him. The applicant further expressed the view that the police had disregarded attempts by the organisers of the model boat race to distort the account of the events.
In a letter of 6 July 1998 a public prosecutor pointed out that, at that time, it had not been clearly shown whether the criminal liability for the accident lay with the Ukrainian participant, the organisers or whether it was attributable to the behaviour of the applicant’s son.
On 10 July 1998 the applicant complained to the Bratislava III District Prosecutor’s Office that the police had attempted to manipulate the investigation with a view to concealing the real cause of his son’s death. On 23 July 1998 the Bratislava III District Prosecutor replied to the applicant that his allegation was unsubstantiated.
According to a forensic report submitted to the police on 16 August 1998, the applicant’s son had drowned after a serious injury to the skull during a sporting activity performed in water. The injuries were so serious that death could not have been avoided, even if there had been immediate medical assistance.
On 26 August 1998 the Inspection Department of the Ministry of the Interior informed the applicant that the police investigation had been supervised by a public prosecutor and that his complaint about misconduct of the policemen concerned was unsubstantiated.
Between 7 and 17 September 1998 police officers questioned five people. On 10 November 1998 a public prosecutor heard the director and an organiser of the triathlon competition.
In a letter of 21 December 1998 a public prosecutor instructed the Bratislava III Investigation Office of the Police Corps to accuse the director of the model boats competition of having caused damage to another’s health. The letter stated that all documents submitted by the applicant should be included in the file.
On 4 January 1999 the Regional Prosecutor’s Office in Bratislava informed the applicant, in reply to his complaint, that the public prosecutor dealing with the case had concluded that the organisers of the model boat race had not complied with the statutory security measures, as a result of which his son had been fatally injured.
2. Police investigation in the context of criminal proceedings
On 25 January 1999 a police investigator accused the director of the model boats competition of having caused injury to another’s health. The director was accused of failing to take appropriate measures with a view to protecting the lives and health of other persons.
In the course of February 1999 the investigator obtained information about the accused from several authorities and institutions.
The investigator examined the accused from 8 a.m. to 4.30 p.m. on 23 February 1999. She heard the applicant from 9 a.m. to 2.20 p.m. on 24 February 1999. The applicant stated that he wished to join the proceedings as a civil party claiming compensation for pecuniary and non-pecuniary damage.
On 25 February 1999 the director of the triathlon race was examined for more than four hours. Another person involved in organising the triathlon race was heard as a witness on the same day. Between 26 February and 3 March 1999 the investigator heard ten other witnesses.
On 10 March 1999 the Bratislava Regional Prosecutor’s Office dismissed a complaint by the accused against the decision to start criminal proceedings against him.
Between 10 March and 25 March 1999 the police investigator examined sixteen witnesses.
In the meantime, on 22 March 1999, the applicant submitted his claim for damages as an injured party.
In a report of 26 April 1999 the police investigator indicated that the investigation could not be concluded within three months as, inter alia, the public prosecutor supervising the proceedings had concluded that there was a need to hear the Ukrainian competitor as a witness. For that purpose a request for legal assistance was to be sent quickly to the Ukrainian authorities.
Following his request of 10 May 1999, the applicant consulted the entire investigation file on 31 May 1999.
On 14 June 1999 the Bratislava III District Prosecutor’s Office submitted to the General Prosecutor’s Office a translation of the request for legal assistance in obtaining a statement from the Ukrainian boat owner. Subsequently the request was transmitted to the Ukrainian authorities.
In September 1999 and in February 2000 the investigator obtained further information about the accused.
The Ukrainian authorities heard the owner of the model boat in Kiev on 9 March 2000. The Bratislava III District Prosecutor’s Office received their reply on 5 May 2000. A Slovak translation of the statement was submitted to the police investigator on 6 June 2000.
In his statement the model boat owner explained that, because of an obstacle, he had had to change the trajectory of his model when passing around a buoy demarcating the race area. After that, the model had come to a standstill. The competitor expressed the view that the race area had not been sufficiently secured. The organisers had warned visitors and requested them to abstain from swimming in the lake or approaching its shore. However, several persons had disregarded that warning. The witness further stated that he had drunk no alcoholic beverage before the race. There had been several kiosks around the lake where such beverages were being sold. Nobody had moved the buoys after the accident.
During the course of the investigation the applicant complained of shortcomings to public prosecutors at several levels and to the Inspection Service of the Ministry of the Interior. He alleged that the policemen involved had committed an offence and that no effective investigation had been carried out into the case.
In particular, the applicant contended that the police had failed to inform him of his rights and about the procedure after the incident had occurred; had not checked whether the persons involved had consumed alcohol; had refused to record the applicant’s statement; that the first statement of the Ukrainian participant had not been interpreted by an authorised interpreter, and that photographs had neither been taken nor drawings made of the scene of the incident. The failure to carry out an appropriate investigation at the outset had been, according to the applicant, the result of undue influence of members of a political party then in government who had acted as patrons of the model boat race.
The applicant also maintained that the organisers of the race and divers involved had manipulated the scene of the accident, and complained that the model boat owner had not been prosecuted.
The applicant’s complaints were examined by several police and public prosecution authorities but they were dismissed as being wholly unsubstantiated. However, a public prosecutor of the Bratislava Regional Prosecutor’s Office admitted, in September 1999, that the police had proceeded erroneously in that they had let the director of the competition interpret the Ukrainian participant’s statement on 6 June 1998.
On 14 June 2000 the applicant examined the police file concerning the case and obtained copies of the relevant documents. According to the record of the examination, the applicant declared that he had no proposals for further action to be taken within the preliminary proceedings
On 19 July 2000 a public prosecutor charged the director of the model boats race with causing injury to another’s health before the Bratislava III District Court.
3. Proceedings before the trial court
The District Court held hearings on 16 October and 14 November 2000, and 16 and 19 January 2001. On the last-mentioned date it convicted the accused of causing injury to health. It imposed an eighteen-month prison sentence on him, conditionally suspended for a probationary period of three years.
At the main hearing the court heard the accused and the applicant, as well as nineteen witnesses. The statements of four other persons were read out. The court also had regard to extensive documentary evidence including forensic reports.
In his statement, the applicant affirmed that the area of the model boat race had not been duly secured. He accused the organisers of having manipulated the buoys after the incident. The applicant further referred to the Ukrainian participant’s statement according to which alcoholic beverages had been served at the place of the competition.
The District Court established that the accused, in his capacity as director of the model boat race, had acted negligently in that he had not taken appropriate measures, as required by sections 3, 4, 5 and 9 of Law no. 315/1992, with a view to preventing injury to other persons present. In particular, the model boat race had continued despite the fact that there had been swimmers in the lake. Safety barriers had not been arranged in an appropriate manner in order to ensure that visitors were kept separate from the competition area.
The applicant claimed 469,359 Slovakian korunas (SKK) in compensation for damage from the accused. The District Court found that the applicant had incontestably suffered damage of SKK 35,420. It awarded that sum to the applicant and referred him, with the remainder of his claim, to a civil court.
4. Appeal proceedings
The accused appealed, claiming that he had committed no offence.
At the hearing before the appellate court, the applicant requested that the first-instance decision on his claim for damages be upheld.
On 26 September 2001 the Bratislava Regional Court varied the first-instance judgment, reducing the sentence to one year’s imprisonment conditionally suspended for two years. The Regional Court held, in particular, that the sentence originally imposed was excessively severe as, inter alia, the accused was not the only person who was responsible for the accident. The appellate court expressed the view that other persons who had given authorisation for the two events to be held concurrently without ensuring that appropriate safety measures were taken also bore responsibility for the accident.
The Regional Court further quashed the first-instance decision on the applicant’s claim for damages. The appellate court noted that the sum awarded to the applicant had not been sufficiently specified and, more importantly, it was not clear whether the accused was liable for damage under the provisions of civil law or labour law. The determination of that issue depended on the legal status of the model builders’ club of which the accused was a member. If the club was a part of the Slovak Association of Model Builders, that association was liable for the damage. In such a case the question arose as to whether the Ministry of the Interior was not also liable. The appellate court held that the determination of those issues was beyond the scope of the criminal proceedings and that the applicant should bring his claim for damages before a civil court.
The judgment became final on 26 September 2001. It was served on the applicant on 7 December 2001.
5. Position of the General Prosecutor’s Office
On 1 March 2002 the applicant complained to the Prosecutor General of shortcomings in the investigation. He enquired why other persons responsible for the accident had not been prosecuted.
In a reply of 26 September 2002 a public prosecutor of the General Prosecutor’s Office disagreed with the Regional Court’s view according to which representatives of the municipality were also likely to be responsible for the accident.
In particular, the relevant law provided for the municipality concerned to be notified of a similar event, but no prior authorisation by it was required. Under the statutory provisions, the organisers were responsible for ensuring compliance with public order and safety on the site. They could ask a municipality or the police for assistance in case of difficulties preventing them from complying with their obligations.
In his letter, the public prosecutor expressed the view that criminal-law liability might arise in respect of the main referees who had the right to start and interrupt the race at any moment. However a possible offence in that respect had become statute-barred on 6 June 2001.
As to the model boat owner, he had probably seen neither his model nor the applicant’s son at the moment of the accident. It had occurred during a race in an area where no swimmers were supposed to have been. No negligent action could be imputed to him. The public prosecutor admitted, though, that the model boat owner should have been tested for alcohol in his blood immediately after the accident. Such failure was irreparable and likely to be qualified as a disciplinary offence.
No particular shortcomings had been established in the way in which the public prosecutor involved had acted.
6. Opinion of the Crime Victims Centre
In November 2001 the applicant sought assistance from the Crime Victims Centre with a view to obtaining compensation for damage which he had suffered.
In a letter of 24 October 2003 a lawyer of that Centre informed the applicant that the model boat competition had been organised by the club from Senec, which was a legal person. In accordance with Article 420 § 2 of the Civil Code, that club was liable for damage resulting from the criminal offence committed by its president when organising the competition. The applicant’s claim against the latter had not interrupted the running of the statutory limitation period, which had therefore expired on 6 June 2001.
The view was further expressed in the letter that, for similar reasons, the applicant’s right to claim compensation for non-pecuniary damage under Article 13 of the Civil Code had also lapsed on 6 June 2001.
It was therefore no longer possible for the applicant to claim compensation before the civil courts.
7. The applicant’s health problems
Since August 1998 the applicant has been treated as an outpatient for psychological trauma suffered as a result of his son’s death.
In 1999 the applicant’s contract of employment was terminated. The applicant submitted that, as a result of the mental problems which he had been experiencing, he was no longer able to carry out his job.
The Government contested that argument. Relying on the relevant document, they argued that the applicant’s contract had been terminated for redundancy.
In August 2000 the applicant was found to be fully disabled, one of the reasons being his mental disorder.
In 2005 a physician confirmed that the applicant continued to suffer from severe depression. For that reason an expert commission confirmed, in November 2005, that the applicant was still disabled.
B. Relevant domestic law and practice
1. Law no. 315/1992
At the relevant time Law no. 315/1992 governed the organisation of sporting and tourist events accessible to the public.
Under section 1(3), prior approval of a State authority is not required for a sporting event to be held.
Section 3 obliges the organiser to notify the municipality concerned in writing of the plan to organise a sporting event within its territory. Such notification must indicate, inter alia, the name and purpose of the event, its venue and time, the expected number of participants as well as the measures which the organiser will take with a view to maintaining public order and preventing harm to the lives or health of the participants or to the environment.
Section 4(1) provides for an obligation of the organiser of a sporting event to maintain public order both at the place where the event takes place and in the adjacent area, to comply with the relevant rules relating to security and health protection, to establish teams of organisers and to give relevant instructions to its members. It also provides that an organiser has to suspend or put an end to an event where public order has been disturbed and where it is not possible to restore it. Where an organiser is unable to maintain public order, he or she shall ask the municipal authority or the police for assistance.
Under section 6, the organiser is entitled, inter alia, to ask participants to refrain from inappropriate behaviour and to expel persons who, despite a prior warning, seriously disturb the event.
Section 8(1) gives municipalities the right to verify whether an event is held in accordance with the earlier notification submitted by the organiser.
Pursuant to section 8(4), a person whom the municipality has authorised in writing to supervise the event shall draw the organiser’s attention to any shortcomings established. The supervisor has to stop or suspend an event at which human rights and freedoms are being breached.
Section 9 provides that the area where an event is held is to be arranged in a manner permitting the effective control of all participants, appropriate placement of security barriers, and the designation and separation of individual sectors. An organiser is authorised to close an area where the circumstances or the participants’ behaviour indicate that the event could be disturbed. Finally, an event cannot start unless all relevant provisions of the Act are complied with.
2. The Criminal Code
Pursuant to Article 224 § 1, a person who negligently causes the death or serious damage to the health of another person is to be punished with a prison sentence of up to two years or a ban on any involvement in the activity in issue. Paragraph 2 of Article 224 provides that the perpetrator of such an offence is to be punished with a prison term of between six months and five years where the offence results from his or her failure to comply with an important obligation relating to his or her job, position or function or an important obligation imposed by law.
3. The Code of Criminal Procedure
Article 43 §§ 1 and 2 provide, inter alia, that a person who has suffered damage as a result of a criminal offence can claim compensation from the accused person and request that the court, in a judgment convicting the accused, order the latter to compensate for such damage.
Under Article 158 §§ 4-6, where no criminal proceedings can be brought because the person who could be liable for an offence has not yet been identified, the police or investigator can take action for the purpose of criminal proceedings, such as taking evidence, but only to the extent that such action cannot be delayed or repeated later. Within the meaning of this provision, an action or procedural step cannot be postponed until criminal proceedings are brought where, in view of the purpose of the criminal proceedings, there is a danger of it or its object being thwarted, destroyed or lost.
Under Article 229 § 1, a criminal court shall refer a person claiming damages to a civil court where the evidence available is not sufficient for determining that claim or where the taking of further evidence going beyond the scope of the criminal case is required and the criminal proceedings would be thereby unduly prolonged.
Article 246 § 1 (d) provides that an injured party may appeal against a first-instance judgment only to the extent that it concerns his or her claim for damages.
4. The Civil Code, the relevant practice and legal opinions
The following provisions are relevant in the present case.
Article 11
“Every natural person shall have the right to protection of his or her personal integrity, in particular his or her life and health...”
Article 13
“1. Every natural person shall have the right in particular to request an order restraining any unjustified interference with his or her personal integrity, an order cancelling out the effects of such interference and an award of appropriate compensation.
2. If the satisfaction afforded under paragraph 1 of this Article is insufficient, in particular because the injured party’s dignity or social standing has been considerably diminished, the injured party shall also be entitled to financial compensation for non‑pecuniary damage.
3. When determining the amount of compensation payable under paragraph 2 of this Article, the court shall take into account the seriousness of the harm suffered by the injured party and the circumstances in which the violation of his or her rights occurred.”
Article 15
“After the death of the injured party the right to the protection of his or her personal integrity shall pass to his or her spouse and children or, if none, to his or her parents.”
Article 16
“A person who by unjustified interference with another person’s personal rights causes [pecuniary] damage is responsible for it in accordance with the provisions of this law on liability for damage.”
Article 106
“1. The right to compensation for damage shall lapse two years from the date when the injured party learns about the damage and who is liable for it.
2. The right to compensation for damage shall lapse, at the latest, three years ... from the event which is at the origin of the damage ...”
Article 112
“Where the creditor, prior to the expiry of the limitation period, asserts his or her right before a court or other appropriate authority and where he or she duly pursues the proceedings, the limitation period does not run from the moment when the claim was submitted and during the period when the proceedings are pending...”
Article 420
“1. Everyone shall be liable for any damage he or she causes by breach of statutory duty.
2. Damage is considered to have been caused by a legal person ... when it has arisen in the context of an activity carried out by other persons whom [that legal person] has entrusted with carrying out that activity. Such other persons do not bear liability under the Civil Code for damage thus caused.” ...
Article 442
“1. Compensation shall cover actual damage and loss of profit.
2. Damage shall be made good in money. However, if the injured party so requests and it is possible and appropriate, damage shall be repaired by restitution in full...”
Article 444
“Indemnification for damage to health shall consist of a lump-sum payment for suffering (bolestné) and reduced capacity for work (sťaženie spoločenského uplatnenia).”
Article 449
...“2. In the event of fatal injury, the compensation shall cover reasonable funeral costs provided such costs have not been paid by the health insurer.”
Information on the legal opinion and domestic courts’ practice as regards the protection of one’s personal rights under Articles 11 et seq. of the Civil Code are set out in Kontrová v. Slovakia, no. 7510/04, decision of 13 June 2006 and judgment of 31 May 2007, §§ 33-35, ECHR 2007‑VI (extracts), and Furdík v. Slovakia (dec.), no. 42994/05, 2 December 2008.
COMPLAINTS
1. The applicant complained that the circumstances of his son’s death had not been examined in an appropriate manner, that his right to be informed of the investigation and to intervene in the criminal proceedings had been unduly restricted, and that the Slovakian authorities had failed to prosecute and punish all persons responsible for the accident. He relied on Article 2 of the Convention.
2. The applicant complained under Article 6 § 1 of the Convention that (i) the prosecution did not extend to all persons liable for the death of his son, (ii) his claim for damages filed in the context of the criminal proceedings had not been granted, (iii) undue delays had occurred in the context of the criminal proceedings and (iv) no criminal proceedings had been brought against officials who had not complied with the law when dealing with the case of his son.
3. The applicant alleged that the facts of the case also amounted to a violation of Article 17 of the Convention.
4. Finally, the applicant complained that he had no effective remedy at his disposal as regards the above alleged violations of his Convention rights. He relied on Article 13 of the Convention.
THE LAW
1. The applicant complained that the circumstances of his son’s death had not been examined in an appropriate manner, that his right to be informed of the investigation and to intervene in the criminal proceedings had been unduly restricted, and that the Slovakian authorities had failed to prosecute and punish all persons responsible for the accident. He relied on Article 2 of the Convention, both taken alone and in conjunction with Article 13. The relevant parts of those provisions read as follows:
Article 2
“1. Everyone’s right to life shall be protected by law...”
Article 13
“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.”
1. The arguments of the parties
(a) The Government
The Government maintained that it had been open to the applicant to claim, in civil proceedings, compensation for pecuniary damage sustained in connection with the death of his son and the subsequent deterioration of his own health. It had also been open to the applicant to claim compensation for non-pecuniary damage by means of an action under Articles 11 et seq. of the Civil Code. Those remedies were effective and the applicant’s failure to use them in accordance with the formal requirements could not be imputed to the Slovak authorities. In particular, nothing had prevented the applicant from lodging a civil claim against the model builders club before the expiry of the statutory limitation period.
To the extent that the applicant disagreed with the way in which the criminal courts had proceeded and decided, the Government argued that the appellate court’s judgment had been served on the applicant on 7 December 2001. He could have sought redress in that respect by means of a complaint under Article 127 of the Constitution which has been in force since 1 January 2002.
The Government further argued that an effective official investigation had been carried out into the circumstances under which the applicant’s son had suffered a fatal injury. It had resulted in the identification and punishment of the person liable.
The investigation had been impartial and thorough. The applicant had been duly informed of its progress and he had had ample opportunity to exercise his rights as an injured party, such as claiming damages, proposing the taking or completing of evidence, inspecting the file, attending the main hearing, giving his opinion on the evidence taken and delivering a final statement at the trial. The fact that the Ukrainian competitor had not been tested for alcohol and that his first statement had been interpreted by the competition’s director had not affected the course and outcome of the investigation.
The Government concluded that the procedural guarantees under Article 2 of the Convention had been complied. In their view, the applicant had no arguable claim attracting the guarantees of Article 13 of the Convention and, in any event, had had an opportunity to seek redress before several authorities in Slovakia.
(b) The applicant
The applicant contested the Government’s argument that it had been open to him to claim compensation for both pecuniary and non-pecuniary damage under the Civil Code.
In particular, it was only after the director of the competition had been convicted with final effect on 26 September 2006 that the applicant had learned that it was that person who had caused the damage and that the model builders club of which that person was a member was liable for it under Article 420 § 2 of the Civil Code. However, by that time his right to claim damages had lapsed. The applicant further pointed out that he suffered from a mental disorder and that the first-instance court had partly granted his claim. At the relevant time, there existed no practice permitting the conclusion to be drawn that an action under Articles 11 et seq. of the Civil Code offered reasonable prospects of success.
As to the criminal investigation, the applicant maintained that the Slovakian authorities had failed to accuse and punish all persons liable for the accident. Despite statements in the Regional Court’s judgment and the General Prosecutor’s letter of 22 July 2002, no further action had been taken in identifying and punishing all persons involved.
There had been shortcomings in the investigation, such as the failure to carry out an alcohol test on the Ukrainian participant and the interpretation by the race director of that competitor’s first statement, as a result of which all relevant facts had not been established.
The applicant further argued that he had been denied adequate access to the investigation and that the prosecuting authorities had not reacted in an appropriate manner to his petitions concerning the conduct of the investigation.
The authorities had not displayed due diligence in promptly determining the responsibility for the death of his son. For example, the relevant witness statement of the Ukrainian participant could have been obtained, in accordance with Article 158 §§ 4-6 of the Code of Criminal Procedure, a short time after the accident while the boat owner had still been in Slovakia. As a result of the delays, the applicant had been prevented from successfully claiming compensation since the limitation period had expired prior to the appellate court’s decision in the criminal proceedings.
The applicant concluded that the domestic authorities had failed to comply with their procedural obligations under Article 2 of the Convention and that he had no effective remedy at his disposal as required by Article 13.
2. The Court’s assessment
As to the Government’s argument that the applicant could have obtained redress by means of a complaint to the Constitutional Court, the Court notes that the remedy invoked by the Government, namely a complaint under Article 127 of the Constitution, was enacted with effect from 1 January 2002 (for further details see Andrášik and Others v. Slovakia (dec.), nos. 57984/00, 60237/00, 60242/00, 60679/00, 60680/00, 68563/01, 60226/00, 22 October 2002).
The final decision in the criminal proceedings in issue, including the claim for damages which the applicant had filed as the injured party, was given on 26 September 2001. The application was lodged on 7 November 2001. At that time the above constitutional remedy was not yet operative.
There was therefore no formal obstacle preventing the applicant from lodging an application with the Court after the criminal proceedings had ended. The fact that the relevant constitutional amendment took effect a short time after the introduction of the application cannot affect this position. The assessment of whether domestic remedies have been exhausted is normally carried out with reference to the date on which the application was lodged with the Court (see Baumann v. France, no. 33592/96, § 47, 22 May 2001). The Government’s objection concerning the applicant’s failure to use the constitutional remedy can therefore not be upheld.
As regards the alleged breach of Article 2, the Court reiterates that the first sentence of the first paragraph of that Article enjoins the State not only to refrain from the intentional and unlawful taking of life, but also 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). The State’s obligation Article 2 includes in this connection an independent and impartial official investigation procedure that satisfies certain minimum standards as to effectiveness and promptness and is capable of establishing the circumstances surrounding a loss of life and, where appropriate, apportioning liability, whether civil, criminal or disciplinary (see, mutatis mutandis, Öneryıldız v. Turkey [GC], no. 48939/99, § 94, ECHR 2004‑XII). The context will be decisive in determining the precise scope of Article 2 obligations.
The Court notes that the applicant’s son’s accident occurred in the context of a model boat race organised by an association. There was no involvement of State agents in the organisation of the event or the accident. The regulatory framework governing organisation of such events is set out in Law no. 315/1992. It provides for a number of guarantees including the security and protection of the health of those present. It has not been argued that that regulatory framework as such was not adequate. The Court finds no reason for considering it inconsistent with the requirements of Article 2 of the Convention.
In these circumstances, the facts of the case disclose no appearance of a breach of Article 2 of the Convention under its substantive aspect.
It must further be examined whether the way in which the Slovak legal system responded to the accident was compatible with the guarantees of Article 2.
The police started an investigation immediately after the accident had occurred. After the criminal proceedings had been brought in January 1999, the bulk of the relevant evidence was taken within a short space of time, namely before the end of March 1999.
Subsequently the authorities concluded that it was necessary to hear the Ukrainian competitor as a witness. It took more than one year to obtain this statement, with the assistance of the Ukrainian authorities. In this respect the Court notes that it is doubtful whether that evidence could have been obtained immediately after the accident and before the criminal proceedings were started as suggested by the applicant (see in this connection Article 158 §§ 4-6 of the Code of Criminal Procedure, as set out in the relevant domestic law section).
The accused was indicted and ultimately found guilty of injury to health and a conditional prison term was imposed on him. The courts established that he had acted negligently in that he had not taken appropriate safety measures as required by the relevant provisions of Law no. 315/1992.
Thus, in the context of the criminal proceedings the relevant facts surrounding the fatal accident were established and a criminal law sanction was imposed on the person liable for that accident. No substantial delays imputable to the Slovakian authorities have been established.
The documents available indicate that the applicant had the possibility of participating in the investigation at all stages. He examined the police file and copies of several documents were given to him on 10 June 1998 and 14 June 2000. On the latter date he stated that he had no proposals for further measures to be taken within the framework of the preliminary proceedings. The applicant made a number of written submissions to the police, the Ministry of the Interior and public prosecutors at several levels. The replies which he received indicate that due consideration had been given to his arguments. The fact that the authorities were preponderantly of a different view than the applicant does not negate his involvement in the proceedings.
Similarly, there is no indication that the applicant was not effectively involved in the proceedings at the trial stage. In particular, he was heard at the main hearing and he had the possibility of submitting his arguments to the trial court.
The Court has taken note of the shortcomings to which the applicant has adverted, some of which were also conceded by the domestic authorities, such as the failure to test the model boat owner for alcohol and to pursue the possible co-liability of the referees. It nevertheless considers that, in the particular circumstances of the case, the criminal investigation as a whole can be considered as compliant with the requirements of Article 2 of the Convention. There is therefore no appearance of a breach of that provision under its procedural aspect.
The parties further disagreed as to whether it had been open to the applicant to claim and effectively obtain compensation for damage of both a pecuniary and non-pecuniary nature.
As indicated above, the applicant had the possibility of participating in all stages of the investigation, and was thus informed of all the circumstances of the accident. On 24 February 1999 the applicant filed a claim for damages within the framework of the criminal proceedings against the director of the model boats competition. It is true that after that date he could not lodge the same claim against the same person in the context of civil proceedings (see Krumpel and Krumpelová v. Slovakia, no. 56195/00, §§ 30-31 and 39, 5 July 2005). However, nothing prevented the applicant from claiming compensation for pecuniary damage under Articles 420 et seq. of the Civil Code, either before or after the above date, from any other person whom he considered liable under the civil law for the accident.
The Court takes the view that in cases such the present one, where no issue arises under the substantive aspect of Article 2, where there is no involvement of State agents and where the domestic procedure was found adequate from the point of view of the State’s procedural obligation under Article 2, any issue relating to compensation falls to be examined under Article 13 of the Convention, taken together with Article 2 (see also Zavoloka v. Latvia, no. 58447/00, § 36, 7 July 2009 and, mutatis mutandis, Keenan v. the United Kingdom, no. 27229/95, §§ 123, 129 and 130, ECHR 2001‑III, with further references).
However, in the light of its above conclusions in respect of his grievances under Article 2 of the Convention, the Court finds that the applicant cannot be regarded as having an arguable claim for the purpose of Article 13 of the Convention (see also Powell and Rayner v. the United Kingdom, 21 February 1990, § 31, Series A no. 172; Younger v. the United Kingdom (dec.), no. 57420/00, ECHR 2003-I; Sünük v. Turkey (dec.), no. 9610/03, 27 November 2007; or Tonka v. Turkey (dec.), no. 11380/02, 5 June 2007).
Accordingly, the Court rejects this part of the application under Article 35 §§ 3 and 4 of the Convention as being manifestly ill‑founded.
2. The applicant complained that (i) the prosecution did not extend to all persons liable for the death of his son, (ii) his claim for damages filed in the context of the criminal proceedings had not been granted, (iii) undue delays had occurred in the context of the criminal proceedings and (iv) no criminal proceedings had been brought against officials who had not complied with the law when dealing with the case of his son. He relied on Article 6 § 1 of the Convention, which, in its relevant part, provides:
“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair ... hearing within a reasonable time by [a] ... tribunal ...”
The Government argued that this part of the application was inadmissible as being both incompatible ratione materiae with the provisions of the Convention and manifestly ill-founded.
The applicant disagreed.
The Court notes that the applicant formally joined the criminal proceedings as the injured party by lodging his claim for damages on 24 February 1999. In its decision of 26 September 2001 the appellate court referred the applicant to a civil court. During that period the proceedings concerned the determination of the applicant’s “civil rights” within the meaning of Article 6 § 1 (see, for example, Krumpel and Krumpelová v. Slovakia, cited above, §§ 40-41).
The relevant period lasted less than three years for two levels of jurisdiction including preliminary proceedings. In the Court’s view, this was not contrary to the applicant’s right to a hearing within a reasonable time in the circumstances of the case.
The Court further finds no indication that the Regional Court’s decision to refer the applicant to a civil court was arbitrary or otherwise incompatible with his right under Article 6 § 1 to a fair hearing.
Finally, there is no right under Article 6 of the Convention to have criminal proceedings instituted against a third person (see, for example, Seregina v. Russia, no. 12793/02, § 99, 30 November 2006). The applicant’s complaint about the refusal to prosecute other persons involved in the accident and the subsequent investigation, and in so far as these matters are not covered by the decision under Article 2, is therefore incompatible ratione materiae with the provisions of the Convention.
It follows that this part of the application must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention, partly as being manifestly ill-founded and partly as being incompatible ratione materiae with the provisions of the Convention.
3. Finally, the applicant alleged that the above facts also amounted to a violation of Article 17. He also alleged a breach of Article 13 of the Convention taken together with Articles 6 and 17.
However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
This part of the application is therefore manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court by a majority
Declares the application inadmissible.
Lawrence EarlyNicolas Bratza
RegistrarPresident
Full & Egal Universal Law Academy