LARI v. THE REPUBLIC OF MOLDOVA - 37847/13 (Judgment (Merits and Just Satisfaction) : Court (Third Section)) [2015] ECHR 792 (15 September 2015)

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

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

          Josep Casadevall, President,
          Luis López Guerra,
          Ján Šikuta,
          Kristina Pardalos,
          Johannes Silvis,
          Valeriu Griţco,
          Branko Lubarda, judges,
and Marialena Tsirli, Deputy Section Registrar,

Having deliberated in private on 25 August 2015,

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

PROCEDURE

1. The case originated in an application (no. 37847/13) 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 Ana Lari (“the applicant”), on 26 April 2013.

2. The applicant was represented by Mr A. Briceac and B. Malachi, lawyers practising in Chişinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr L. Apostol.

3. The applicant alleged that the investigation into her daughter’s death had not been effective.

4. On 11 September 2013 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1961 and lives in Chişinău.

6. On 13 June 1999 the applicant’s seventeen-year-old daughter (C.) was found dead in P.’s office in a gas company.

7. On 14 June 1999 a forensic medical report concluded that C.’s death had resulted from medicinal intoxication. The following lesions were also found on the victim’s body: an ecchymosis on her left leg and a haemorrhage on the anal mucous membrane and on the vestibule of vagina, caused by a blunt and hard object at least several but not more than 30-40 minutes before death.

8. On 26 October 1999 criminal proceedings were instituted to investigate the crime of incitement to commit suicide under Article 94 (1) of the Criminal Code, which was in force at the time of the events.

9. Six persons were heard as witnesses. Three of them confirmed that C. had spent the night from 12 to 13 June 1999 at a party and that she feared punishment from her parents because she had not informed them she was going there. They confirmed that at 8 a.m. on 13 June 1999 C. had come to the company’s office together with P. and M. and had decided to wait there for a friend before going home. P. and M. had left the premises soon afterwards. A security employee of the company, I., stated that C. had looked tired and that she had gone to sleep in an office after P. and M. had left. He also stated that he had gone into the office twice to see how C. was. The first time he had been able to hear her breathing, but when he had come back after another thirty minutes, C. had already stopped breathing and had had no pulse. He then called upon V., an unqualified fellow worker, to assist him and to call an ambulance. All the witnesses denied having had sexual intercourse with C. and stated that there was no outsider on the company’s premises who could have had intercourse with her.

10. On 24 December 1999 the Centru District prosecutor closed the criminal investigation, finding as follows:

“Having investigated the suicide, and also the theory that C. had committed suicide after having been raped, it was found that:

- according to witness statements, from 8.30 a.m. to 11.00 a.m. on 13 June 1999 no outsider other than C. was on the company’s premises;

- according to the medical forensic examination report no. 881 of 14 June 1999, no traces of semen were found in C.’s cavities;

- according to the same forensic report there were no injuries on C.’s body or face.

... It was impossible to establish when C. had obtained and used the medication. The investigation did not reveal any reasons or causes which would determine C.’s death as violent; it concludes that this was a fatal accident: that C., being very worried about her unexplained absence from home on the night from 12 to 13 June 1999, tried to avoid punishment from her parents by getting hospitalised with "poisoning", but due to the negligent use of medication, had died of an overdose.

Therefore ... there are no elements of a crime under article 94 (1) of the Criminal Code. ”

11. In 2005 the applicant complained to the Prosecutor General’s Office that she had never been informed about the prosecutor’s decision of 24 December 1999 and had found out about it only in December 2004. She argued that the investigation had been superficial and inefficient, and requested that the investigation be reopened. She alleged in particular that the investigation had essentially pursued the suicide theory and had failed to establish the circumstances which had resulted in the lesions on her daughter’s body or the time when the medication could have been ingested.

12. On 17 March 2005 the First Deputy Prosecutor General annulled the decision of 24 December 1999 and ordered the reopening of the criminal investigation, finding, inter alia:

“...the proceedings were closed after a superficial and incomplete investigation... No forensic medical expert examination of the body was ordered, the active substance with which [C.] was poisoned or overdosed herself was not established, the investigation did not answer how [C.] had obtained the medication and in what circumstances 30-40 minutes before her death the injuries on her left leg, anal mucous membrane and vestibule of the vagina were caused; the investigation did not investigate the possible complicity of P., M., I, and V. in committing a crime.”

13. On 4 May 2005 the applicant was acknowledged as her deceased daughter’s successor and as an injured party in the criminal proceedings.

14. On 22 September 2005 the First Deputy Prosecutor General transferred the criminal file from the Centru police to the Chisinau prosecutor’s office, citing the undue delay and the unprofessional conduct of the investigation.

15. On 17 October 2005 a forensic medical expert report was issued, according to which death from a 40-pill overdose would have occurred at the latest within two hours of ingestion.

16. On 20 February 2006 the applicant obtained an answer to her complaint about the ineffective investigation into C.’s death, which stated:

“...the investigation has been delayed because certain persons who need to be questioned are out of the country.”

17. On 20 May 2008 the Prosecutor General’s Office suspended the criminal investigation for failure to establish whether a crime had been committed and if so, the identity of the alleged perpetrators. The decision referred to a forensic medical expert report of 21 June 2005 which concluded that death had resulted from medicinal intoxication with the sedative Dimedrol. The same decision stated that a request to carry out other investigative and operative search measures had been addressed to the police. According to the Government, a copy of this decision was sent to the applicant’s home address. The applicant denied having received this decision before it was presented by the Government in the proceedings before the Court.

18. On 3 June 2012 the investigation was resumed on the ground that “the reasons for suspending the investigation had disappeared and it became possible to conduct certain investigative actions”.

19. On 12 June 2012 the applicant complained to the Prosecutor General about the inefficient investigation and about not having been informed of its progress. On 10 July 2012 the applicant obtained the following answer:

“...the investigation is still pending... you will be further informed once a decision is taken on the case; you will be summoned if a need for your participation in the investigation arises.”

20. On 2 August 2012 the Prosecutor General’s Office suspended the investigation on the same grounds as before. According to the Government, a copy of this decision was sent to the applicant. The applicant denied having received this decision before it was presented by the Government in the proceedings before the Court.

21 On 22 October 2012 and 1 March 2013, the applicant submitted renewed complaints about the inefficient investigation, about not being informed of the progress of the investigation and thus being unable to exercise her procedural rights under the Code of Criminal Procedure. Those complaints remained unanswered.

22. On 18 March 2014 the applicant appealed to the Prosecutor General against the decision of 2 August 2012 to suspend the investigation. The proceedings are still pending.

II. RELEVANT DOMESTIC LAW

23. The relevant domestic law concerning the procedural rights of the injured party is described in Anusca v. Moldova (no. 24034/07, § 25, 18 May 2010).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

24. The applicant complained that the criminal investigation into the circumstances of her daughter’s death had not been effective and prompt, as required by Article 2 of the Convention, the relevant part of 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

25. The Government argued that the applicant had failed to exhaust domestic remedies, since she had not sought to challenge the last decision in this case, that is to say the decision of 2 August 2012 to suspend the investigation, even though such a possibility had been provided for by the relevant provisions of the Code of Criminal Procedure and she had been duly informed about this decision. The Government further submitted that the applicant had not displayed diligence and interest as regards the investigation as she had not sought to challenge the decision of 20 May 2008 to suspend the investigation, even though she had been duly informed about it, and had not undertaken any action in the four years following that suspension. The complaints submitted by the applicant on 22 October 2012 and 1 March 2013 had been formal inquiries. The Government contended that the application should be declared inadmissible, by analogy to Gusar v. the Republic of Moldova and Romania ((dec.), no. 37204/02, 30 April 2013).

26. The applicant argued that she had made numerous inquiries about the progress of the investigation but she had never received the decisions of 20 May 2008 and of 2 August 2012 and noted that the Government had not offered any evidence to the contrary. She had appealed against the decision of 2 August 2012 immediately after she had learned about it from the Government’s submissions. Moreover, the applicant submitted that a decision to suspend was not the same as a decision to close the investigation, because the authorities continued to bear the obligation to resume the investigation and make efforts to identify the perpetrator.

27. The Court notes that the applicant did endeavour to assert her procedural rights under domestic law. The validity of her complaint was recognised by the First Deputy Prosecutor General when he ordered the reopening of the investigation on 17 March 2005. All her inquiries up to October 2012 had resulted in assurances from the authorities that the investigation was pending and that she would be informed in due course about its outcome. Unlike in Gusar v. the Republic of Moldova and Romania, in which the application was declared inadmissible, having been lodged more than six months after the alleged breach took place, the applicant in the present case submitted an application to the Court several months after failing to receive any reply to the complaints she had lodged on 22 October 2012 and 1 March 2013. It cannot therefore be said that she remained passive during the period of the investigation or that she failed to submit her application in time.

28. Moreover, the Court is not convinced that a challenge to the last decision of the Prosecutor General’s Office to suspend the investigation could have effectively dealt with the Convention issues at stake, which concern the adequacy of the investigation, its duration and the applicant’s involvement in it. Resuming the investigation for a third time, nearly fourteen years after the event, cannot be seen as an effective remedy in these circumstances (see Railean v. Moldova, no. 23401/04, § 34, 5 January 2010). The Court accordingly dismisses this preliminary objection.

29. 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

30. The applicant submitted that the investigation had not started until four months after her daughter’s death, once started it had failed to be effective, and it was still pending fourteen years later. She criticised the investigation for the shortcomings that led to it being reopened on 17 March 2005. It was clear from this decision and also from the critical remarks contained in the decision of 22 September 2005 of the First Deputy Prosecutor General in respect of the Centru police that the investigation had been dilatory and deficient.

31. The investigation had been superficial as there had been no real attempt to establish the true circumstances of her daughter’s death. The authorities had failed to keep the applicant informed of the progress of the investigation, which had precluded her from exercising her procedural rights as an injured party. The Government had not provided any more details about the investigation. She inferred from this that no investigative measures had been taken after the reopening of the investigation in 2005.

32. The Government did not comment on this.

33. 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).

34. 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 (extracts); 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 identity 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).

35. 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).

36. The Court notes that the applicant’s daughter was found dead around 11 a.m. on 13 June 1999. The following day a forensic report was issued which found injuries possibly related to sexual intercourse and that death had followed 30-40 minutes later from medicinal intoxication. In spite of these findings, no criminal investigation was formally instituted until 26 October 1999, that is to say over four months later. Two months later, on 24 December 1999 the investigation was closed, only to be reopened in 2005, suspended in 2008, resumed for one month in 2012 and then suspended again.

37. The Court observes that in 2005 the First Deputy Prosecutor General found that the investigation was “superficial and incomplete” (see paragraph 12 above). A number of serious deficiencies in the investigation arising in 1999 were identified and the decision closing the investigation was annulled. However, it is not apparent from the documents submitted to the Court that, after the reopening of the investigation, any attempt was made to discover in what circumstances C. had obtained the sedative medication and how the lesions on her body had occurred 30-40 minutes before her death - at which point she had already ingested the sedative - or to investigate possible complicity between the four witnesses, as noted by the First Deputy Prosecutor General (see paragraph 12 above). It is not apparent that the witnesses were ever reheard. From the 2008 decision to suspend the investigation it is apparent that the forensic expert report of 21 June 2006 was the only new piece of evidence obtained after the reopening of the investigation, although it appears that the expert doctor simply relied on the conclusions of the 1999 forensic examination conducted during the preliminary inquiry.

38. The Court notes that the investigation lasted for over fourteen years (October 1999 - August 2012, see paragraph 36 above), with long interruptions, which the authorities themselves subsequently considered protracted (see paragraphs 12 and 16 above). The Court considers that such a long period of investigation, in the absence of complicating factors and with the shortcomings mentioned above, does not satisfy the requirements of promptness implicit in the procedural obligation under Article 2 of the Convention.

39. Moreover, as is clear from the decision of 4 May 2005 (see paragraph 13 above), the authorities had not involved the applicant in the investigation before that date. After that date, she did not receive any information about the investigation unless she complained about its inefficiency. The Court has stressed on many occasions that the involvement of the next of kin serves to ensure public accountability on the part 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. The Court emphasises 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 implemented in the applicant’s case. 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 Vasîlca v. the Republic of Moldova, no. 69527/10, § 34, 11 February 2014).

40. In conclusion, having regard to the manner in which the applicant’s daughter’s death was investigated, the time the investigation took, 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 procedural violation of Article 2 of the Convention.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

41. 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

42. The applicant claimed 25,000 euros (EUR) in respect of the non-pecuniary damage she sustained as a result of the failure to carry out an effective investigation into her daughter’s death.

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

44. 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

45. The applicant also claimed EUR 2,100 for the costs and expenses incurred before the Court. She submitted an itemised list of the hours her lawyer had worked on the case, amounting to 30 hours at a rate of EUR 70 per hour.

46. The Government submitted that this amount claimed was excessive and questioned the necessity and reality of such costs.

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

C. Default interest

48. 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 procedural violation of Article 2 of the Convention;

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 2,100 (two thousand one hundred 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 15 September 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Marialena Tsirli Josep Casadevall
Deputy Registrar President

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