European Court of Human Rights

 

 

SECOND SECTION

CASE OF VELESCO v. THE REPUBLIC OF MOLDOVA

(Application no. 53918/11)

 

 

 

 

 

 

JUDGMENT

STRASBOURG

19 January 2021

 

This judgment is final but it may be subject to editorial revision.

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

The European Court of Human Rights (Second Section), sitting as a Committee composed of:

          Branko Lubarda, President,
          Valeriu Griţco,
          Pauliine Koskelo, judges,
and Hasan Bakırcı, Deputy Section Registrar,

Having regard to:

the application 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 Tatiana Velesco (“the applicant”), on 15 August 2011;

the decision to give notice to the Moldovan Government (“the Government”) of the complaint concerning the investigation into her son’s death;

the parties’ observations;

Having deliberated in private on 15 December 2020,

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

INTRODUCTION

1.  The present case concerns the alleged lack of an effective investigation into the death of the applicant’s son.

THE FACTS

2.  The applicant was born in 1956 and lives in Chișinău. She was represented by Mr V. Kovali, a lawyer practising in Chișinău.

3.  The Government were represented by their Agent at the time, Mr M. Gurin.

4.  The facts of the case, as submitted by the parties, may be summarised as follows.

5.  On 20 January 2009 the applicant’s son (V.) was found hanging in the garden of his parents’ summer house.

6.  An initial examination by a forensic expert took place on 21 January 2009. The resulting expert report mentioned, inter alia, that it had been carried out pursuant to a request by the Buiucani Police investigating authority and that the request did not have a registration number. There was no mention in the request or in the report itself that the expert had been warned of criminal liability in case of false statements.

7.  On 10 February 2009 the General Police Department informed the Buiucani police chief that the investigating authority had not taken all the steps required to establish fully the circumstances of the case. In particular, it was unclear where exactly two cigarette ends had been found, and the memory of the mobile phone found in V.’s pocket had not been examined. The investigator was ordered to re-register the case in the correct register, examine the contents of the mobile phone, interview the people who had had contact with V. before his death, find out who lived permanently nearby, interview those people, find out whether there was any connection between an ongoing criminal case against V. and his death and interview the applicant about her submission that V. had possibly been poisoned before his death.

8.  On 12 February 2009 the applicant complained to the Buiucani police that by that date she had not been informed of the circumstances of her son’s death, or of any steps taken in order to investigate the case. In particular, she asked whether a criminal investigation into the possibility of coercion or incitement to commit suicide had been initiated, and whether a toxicological analysis had been carried out in order to ascertain whether there was poison in V.’s blood (her son having felt unwell a few days before he was found dead).

9.  On 2 March 2009 a criminal investigation was started into V.’s death. The investigator noted that V. had been the subject of a criminal investigation for large-scale fraud at a private company, that according to his relatives he had been persecuted by individuals acting on that company’s behalf in order to compel him to pay double the amount of the losses caused, and that this might have provoked V.’s suicide. On the same date the investigator ordered a new expert examination of the corpse in order to ascertain the precise cause of death and whether it had occurred prior to the hanging.

10.  On 9 March 2009 the applicant was heard as a witness.

11.  On 25 May 2009 the prosecutor ordered an autopsy of V.’s body by the Centre for Legal Medicine (“the Centre”), which was started on the same day. It was noted that the request for the autopsy had been made by the Buiucani police investigating authority, and gave the number of the request, as well as noting that the expert had been warned that there could be criminal liability for false statements.

12.  On 29 May 2009 the Prosecutor General’s Office replied to the applicant’s complaint about the slow pace of the investigation, to the effect that it had given instructions for the actions required for a full investigation to be taken.

13.  On 16 June 2009 the applicant was formally recognised as the successor of the injured party, and her procedural rights were explained to her. On the same day she was informed of the expert report which had been ordered in the case and of her right to question the expert, to give explanations, and to challenge the expert.

14.  The time-limit for finishing the investigation was extended on 2 June, 3 August and 2 October 2009, because of a need to ascertain whether V.’s former company had pressured him to repay large amounts of money he had allegedly stolen, and because the expert report was not yet finished.

15.  In reply to the applicant’s complaint of 25 September 2009 the Centre informed her on 15 October 2009 that the autopsy had not been carried out because the responsible expert had fallen ill. The autopsy was finished on 20 October 2009.

16.  On 23 October 2009 the applicant was informed of the results of the expert report. Having studied it, she complained to the Buiucani police, stating that the report was superficial and had failed to answer a number of specific questions aimed at ascertaining whether her son had died by hanging himself or whether he had been hanged after his death. She asked for a new expert report to be drawn up.

17.  On 27 November 2009 the prosecutor ordered the Centre to carry out another autopsy, and formulated additional questions to be answered. That autopsy started on 14 December 2009 and was completed on 23 April 2010.

18.  The two autopsies revealed the absence of any injuries on V.’s body except for the marks left by the rope. The experts found that the medical evidence pointed to suffocation through strangulation, without any signs of fighting or of death prior to being suspended from the rope, and that there were no traces of alcohol or drugs in V.’s blood.

19.  On 11 December 2009 the applicant paid for an additional medical (histopathology) investigation, which was started on 14 December 2009, but it is unclear when or whether it was finished.

20.  On the basis of the medical evidence and interviews with various people who had known V., on 30 July 2010, the prosecutor decided to discontinue the investigation, on the grounds that it was clear that V. had committed suicide. The prosecutor found no evidence that V. had been persecuted by anybody, but established that he had had financial difficulties, which might have caused him to commit suicide.

21.  The applicant disagreed with the prosecutor’s decision and challenged it in court. On 17 December 2010 the investigating judge of the Buiucani District Court allowed her complaint and ordered a re-examination of the case by the prosecutor. He found that the applicant had asked for another medical investigation (a histopathology report) and had paid for it, but that it had not been carried out. Moreover, she had been interviewed as a witness, but not given full rights as the victim’s representative, and thus could not fully exercise her procedural rights such as having the opportunity to study the materials in the case. Finally, the judge found that the prosecution had failed to identify those who had last seen the victim alive, and to ascertain whether the suicide theory had been given priority over others, since the autopsy expert had started his analysis with the statement that V. had been found hanged.

22.  According to the Government, on 9 August 2011 the prosecutor’s office discontinued the investigation, on the ground that no crime had been committed. They did not submit a copy of this decision, but noted that the applicant had not appealed against it.

23.  According to the applicant, following the decision of 17 December 2010 she was interviewed once more; the investigation was then discontinued again, without any further action being taken.

RELEVANT LEGAL FRAMEWORK

24.  Under Article 59 of the Code of Criminal Procedure, an injured party (partea vătămată) is considered to be anyone who has incurred non‑pecuniary or pecuniary damage as a consequence of a crime, and who has been recognised as such according to the law.

Under Article 60 of the same Code, an injured party has the following rights:

Article 60.  Rights and obligations of injured parties

“(1)  An 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 relevant procedural action;

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

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

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

9)  to make submissions in court regarding 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 discontinuance of proceedings, dropping of charges in the case or refusal to initiate a criminal investigation, sentences, and other final court decisions or judgments;

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

12)  to withdraw complaints submitted by himself 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 has been informed by the criminal prosecution body or of which he or she has become 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 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 himself or herself as evidence, all goods belonging to him or her that have been recovered from the person who has 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, of excessive length of the proceedings ...”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

25.  The applicant complained that the investigation into the circumstances of her son’s death had not been effective. She relied on 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.    Submissions by the parties

26.  The Government pointed out first that the State’s obligation to investigate was one of means and not of result. They argued that the authorities had carried out a thorough and effective investigation in a timely manner. A number of expert reports had been submitted, all of which concluded that the applicant’s son had died by hanging.

27.  While the applicant had initially been heard as a witness, she was sufficiently involved in the proceedings and informed of their course. Moreover, she did not appeal against the decision of 9 August 2011. The Government underlined differences between the present case and others, such as Iorga v. Moldova (no. 12219/05, 23 March 2010), in that the victim in that case had been in the military, his mother had not had the opportunity to use fully her procedural rights, and the final decision had been adopted in her absence. None of these factors were present in this case.

28.  The applicant submitted that the authorities had not taken all reasonable steps to carry out an effective investigation into her son’s death. She relied in particular on the findings of the investigating judge (see paragraph 21 above), and submitted that she could not sufficiently exercise her procedural rights during the investigation, since she had not been recognised from the very beginning as the injured party’s representative.

B.     Admissibility

29.  Although not formally calling it a preliminary objection, the Government indicated the applicant’s failure to appeal against the decision of 9 August 2011 to discontinue the investigation.

30.  The applicant submitted that she had only found out about that decision from the Government’s observations. The Government did not comment on this particular submission.

31.  The Court considers that this complaint is closely related to the merits of the applicant’s complaint under Article 2 of the Convention. It therefore joins the Government’s objection to the merits of this complaint.  The Court notes that the application is neither manifestly ill‑founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

C.    Merits

32.  The applicant did not complain of a substantive violation of Article 2. The Court will therefore consider only the procedural aspect of that provision.

1.     The applicable principles

33.  The Court reiterates that by requiring a State to take appropriate steps to safeguard the lives of those within its jurisdiction (see Lambert and Others v. France [GC], no. 46043/14, § 117, ECHR 2015 (extracts)), 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 Mustafa Tunç and Fecire Tunç v. Turkey [GC], no. 24014/05, § 171, 14 April 2015).

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; 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).

35.  The scope of the above-mentioned obligation is one as to means, not as to results (see Jaloud v. the Netherlands [GC], no. 47708/08, § 186, ECHR 2014, and Mustafa Tunç and Fecire Tunç, cited above, § 173). Thus, the authorities are obliged to take all 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).

2.     Application to the present case

36.  In the present case, the investigation into the circumstances of V.’s death began promptly, as required by the Convention (see paragraph 6 above). However, no formal criminal investigation was initiated until 2 March 2009 (see paragraph 9 above). The Court reiterates that it has already found in cases concerning the Republic of Moldova that “... no investigative measures at all could be taken in respect of the offence allegedly committed ... unless criminal proceedings were formally instituted ...” (see, mutatis mutandis, Guţu v. Moldova, no. 20289/02, § 61, 7 June 2007; Railean v. Moldova, no. 23401/04, § 31, 5 January 2010; and Mătăsaru and Saviţchi v. Moldova, no. 38281/08, §§ 25 and 90, 2 November 2010, citing a domestic court decision confirming this interpretation of the law). For unexplained reasons, the criminal investigation into V.’s death began after a delay of almost one and a half months, seriously limiting the powers of the investigators during the crucial initial period.

37.  Moreover, in the absence of a criminal investigation experts could not be warned of their responsibility for making incomplete or false reports. Indeed, the initial medical expert report made before the start of the investigation did not include such a warning to the expert, as opposed to the one carried out later (see paragraphs 6 and 11 above).

38.  The Court stresses the requirement of reasonable expedition in cases concerning loss of life (see, for instance, Anusca v. Moldova, no. 24034/07, § 43, 18 May 2010). The investigation did indeed commence promptly, but the time taken for it to be finally concluded - approximately two and a half years - cannot be justified by its complexity or any objective difficulties. In particular, while on 25 May 2009 the investigator asked for a pathologist’s examination of the corpse, he had to ask a prosecutor for three extensions of the time-limit for finishing the investigation while waiting for that report, which was delayed for five months by an expert’s illness (see paragraphs 14 and 15 above). It is unclear why, given the urgency in ascertaining the circumstances of V.’s death, another expert was not asked to do the autopsy. The applicant therefore had grounds to question the diligence of the authorities.

39.  It is also to be noted that an investigating judge found deficiencies in the investigation and ordered its reopening (see paragraph 21 above). The judge found that a number of investigative measures had not been taken, and that the applicant had not been allowed to exercise properly her procedural rights. 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, and Vasîlca v. the Republic of Moldova, no. 69527/10, § 34, 11 February 2014), to the extent necessary to safeguard the person’s legitimate interests. In the present case, the applicant was heard for the first time as a witness a month and a half after her son’s death (see paragraph 10 above), and was not even recognised officially as an injured party until six months after her tragic loss (see paragraph 13 above). Moreover, not only did the applicant have to take the initiative to complain and to ask questions of the medical experts (see paragraphs 12, 15, 16 and 19 above), but she was apparently not even informed of the repeated adjournment of the proceedings after the investigating judge had ordered their reopening until she read about it in the Government’s observations (see paragraph 30 above).

40.  Given the unchallenged submission by the applicant that she was not informed of the decision of 9 August 2011 until she read about it in the Government’s observations (see paragraph 30 above), the Court dismisses the objection concerning the failure to exhaust domestic remedies (see paragraph 29 above).

41.  The Court considers that the unexplained delays, both in the formal initiation of a criminal investigation and in its conduct, as well as the failure to allow the applicant to exercise her procedural rights in a sufficient and timely manner, are incompatible with the procedural requirements of Article 2 of the Convention.

There has accordingly been a violation of that provision in the present case.

II. ALLEGED VIOLATION OF ARTICLE 9 OF THE CONVENTION

42.  The applicant complained of a violation of her rights protected under Article 9 of the Convention because of the impossibility of providing religious ceremonies, which are prohibited for those who commit suicide.

43.  The Court notes that the applicant essentially complains about the fact that the investigation into her son’s death did not prove that he had not committed suicide, which in turn had repercussions on her ability to give him a proper religious burying. In this respect, even assuming the existence of positive obligations under Article 9 in this context, it is to be recalled that the obligation to investigate under Article 2 is one of means, not of result (see, for instance, Anusca v. Moldova, no. 24034/07, § 38, 18 May 2010). In other words, the Court cannot speculate as to what the outcome of the investigation into the death of the applicant’s son would have been, in the absence of the shortcomings found above. Accordingly, having regard to all the material in its possession, the Court finds that this complaint does not disclose any appearance of a violation of the rights and freedoms set out in the Convention. It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

44.  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

45.  The applicant claimed 24,908 Moldovan lei (MDL, approximately 1,470 euros (EUR)) in respect of pecuniary damage, and left it to the Court to determine the amount of compensation to be awarded for the non‑pecuniary damage caused.

46.  The Government submitted that there was no causal link between the violation alleged and the sum sought in compensation for pecuniary damage.

47.  The Court notes that the applicant made no complaint under the substantive limb of Article 2 of the Convention (see paragraph 32 above) and that it found a breach of the procedural limb of the same provision. Accordingly, it does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. However, ruling on an equitable basis, it awards the applicant EUR 6,000 in respect of non-pecuniary damage.

B.     Costs and expenses

48.  The applicant also claimed MDL 1,229 (EUR 72) for costs and expenses incurred before the Court.

49.  The Government left this issue to the Court’s discretion.

50.  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 were 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 awards the amount claimed in full.

C.    Default interest

51.  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 complaint under Article 2 admissible, and the remainder of the application inadmissible;

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

3.      Holds

(a)   that the respondent State is to pay the applicant, within three months the following amounts, to be converted into Moldovan lei at the rate applicable at the date of settlement:

(i) EUR 6,000 (six thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 72 (seventy-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 19 January 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

   Hasan Bakırcı                                                                    Branko Lubarda
Deputy Registrar                                                                       President