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THIRD
SECTION
CASE OF
LEPARSKIENĖ v. LITHUANIA
(Application
no. 4860/02)
JUDGMENT
STRASBOURG
7 July
2009
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Leparskienė v. Lithuania,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep
Casadevall,
President,
Elisabet
Fura-Sandström,
Corneliu
Bîrsan,
Boštjan
M. Zupančič,
Alvina
Gyulumyan,
Egbert
Myjer,
judges,
Ineta
Ziemele, appointed
to sit in respect of Lithuania,
and
Santiago Quesada, Section
Registrar,
Having
deliberated in private on 16 June 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 4860/02) against the Republic
of Lithuania lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Lithuanian national, Mrs Julija Leparskienė
(“the applicant”), on 5 November 2001.
- The
applicant was represented by Mr R. Andrikis, a lawyer practising
in Vilnius. The Lithuanian Government (“the Government”)
were represented by their Agents, Mrs D. Jočienė and
Ms E. Baltutytė.
- Relying
on Article 2 of the Convention, the applicant complained that a
police officer had unlawfully deprived her son of his life and that
the State had failed to punish him for it adequately. She further
maintained that she had been afforded no adequate legal remedy to
obtain redress in respect of her son's death.
- The
application was allocated to the Third Section of the Court (Rule 52
§ 1 of the Rules of Court). The Government designated John
Hedigan, the judge elected in respect of Ireland, to sit as a
national judge in this case. As John Hedigan left the Court, the
Government appointed Ineta Ziemele, the judge elected in respect of
Latvia, to sit as an ad hoc judge (Article 27 § 2 of the
Convention and Rule 29 § 1)
- By a decision of 15 November 2007 the Court declared
the application admissible.
- The
applicant and the Government each submitted further written
observations (Rule 59 § 1). The Chamber having decided, after
consulting the parties, that no hearing on the merits was required
(Rule 59 § 3 in fine), the parties replied in writing to
each other's observations.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- On
10 May 2001 police officer T.B. and another policeman were attempting
to stop a vehicle being driven by the applicant's fifteen-year old
son, Justinas Leparskis. Three other persons were in the car with the
applicant's son. As the applicant's son did not stop, T.B. fired two
warning shots. He then fired a shot towards the wheels of the car
from a distance of approximately forty metres. The applicant's son
was severely injured as that shot was misfired.
- The
applicant's son was hospitalised in a coma.
- On
10 May 2001 a prosecutor instituted a criminal investigation into the
incident. T.B. was suspected of exceeding official duties (Article
287 of the Criminal Code as then in force).
- According
to the Government, on the same day an initial on-site inspection was
carried out and witnesses were questioned.
On
14 May 2001 a forensic medical expert report was ordered to
establish how severely J. Leparskis was injured. The report was
received on 20 July 2001. On 15 May 2001 police officer T.B. was
questioned and his service gun and four bullets were seized; on 16
May the bullet extracted from the head of J. Leparskis was
seized from the hospital. On 21 May the authorities ordered the
forensic ballistic analysis; it was concluded on 19 September
2001 and established that the bullet extracted from the head of
J. Leparskis could have been fired from T.B.'s service gun.
- On
27 July 2001 the applicant's son died without coming out of the coma.
- According
to the Government, on 27 July 2001 a supplementary forensic
expert report was ordered. The report was received the next day. It
concluded that J. Leparskis had died from complications caused
by the gunshot wound to his head.
- On
an unspecified date criminal proceedings for exceeding official
duties and manslaughter were brought against T.B.
- On
27 September 2001 the prosecutor recognised the applicant as a
victim in the criminal case.
- On
14 March 2003 the Pakruojis District Court found T.B. guilty of
manslaughter (Article 109 of the Criminal Code as then in force) and
exceeding official duties (Article 287). In particular, it was found
that T.B. had fired the three shots without any absolute necessity,
in breach of the relevant provisions of the Police Activities Act and
various ministerial instructions. The court observed that T.B. had
used the gun in the absence of a real threat to the life of a police
officer or third persons, and without having made any attempts to
verify the identity and the age of the driver of the vehicle. In
addition, it was observed that T.B. had not given the applicant's son
any time to react after the two warning shots and had immediately
fired the third shot from a rather long distance. T.B. was thus found
to be responsible for recklessly depriving the applicant's son of his
life. He was sentenced to one year and nine months' imprisonment,
fined 1,250 Lithuanian litai (LTL, approximately 361.48 euros (EUR))
and barred from employment with law enforcement authorities for a
period of five years. The court also awarded the applicant pecuniary
damages against the Ministry of Interior in the amount of LTL
5,216.30 (approximately EUR 1,508.47) for funeral expenses. The court
did not examine the applicant's claim for non-pecuniary damage,
having ruled that she was entitled to satisfaction of that claim in
separate civil proceedings.
- On
4 June 2003 the Šiauliai Regional Court reclassified the
charge of exceeding official duties (Article 287 of the Criminal Code
in force
until 1 May 2003) to that of abuse of office (Article
228 § 1 of the new Criminal Code, in force since 1 May 2003),
finding T.B. guilty on the latter count. The conviction for
manslaughter remained unchanged. The court imposed a suspended
sentence of two years' imprisonment on T.B. The fine and the ban from
employment with law enforcement authorities were also lifted. The
court upheld the lower court's conclusion that the applicant had a
right to satisfaction of her claim in respect of non-pecuniary
damage, but the amount of the award was to be decided in separate
civil proceedings.
- On
20 June 2003, upon entry into force of the above judgment, T.B. was
dismissed from his job in the police.
- The
applicant appealed, claiming, inter alia, that T.B. should
have been punished for murder. In this respect the applicant stated
that T.B.'s acts should have been characterised by indirect intent
rather than recklessness, as he had executed the criminal acts in a
dangerous manner, without any effort on his part to protect the lives
of other persons. She also claimed non-pecuniary damages in the
amount of LTL 1,000,000.
- On
28 October 2003 the Supreme Court quashed the above judgment,
returning the case for a fresh examination at appeal instance. The
Supreme Court ruled in particular that the lower courts had failed to
answer the applicant's arguments under Article 6 of the Convention
about the effectiveness of the investigation into the death in view
of the allegedly mild sentence imposed on T.B. The Supreme Court
noted that these complaints might also give rise to issues under
Article 2 of the Convention. It was observed however that the
applicant's claim for
non-pecuniary damage should be examined by
civil, not criminal, courts. The Supreme Court also emphasised that
the applicant's allegations of murder had not been substantiated,
T.B. having committed an offence by negligence rather than
intentionally.
- On
12 January 2004 the Šiauliai Regional Court again found T.B.
guilty of manslaughter (under Article 109 § 2 of the old
Criminal Code) and abuse of office (Article 228 § 1 of the new
Criminal Code). He was given a sentence of two years and six months'
imprisonment. The execution of the sentence was suspended for three
years. The applicant's claim of LTL 5,216.30 in reimbursement of
pecuniary damage in relation to the funeral of her son was upheld.
The court also confirmed that she had a right to an award in respect
of non-pecuniary damage, but left the sum to be determined by way of
a separate set of civil proceedings. The court further noted:
“The circumstances of the incident have been fully
clarified and the evidence rightly assessed. The evidence shows that
[T.B.] used his firearm ... with the aim of stopping the vehicle the
driver of which had not complied with the lawful requirement to stop;
at the moment when [T.B.] used his gun there was no danger to life or
limb for him or anyone else, as the car had already driven some forty
metres from the point where it had been stopped; furthermore the
policemen were not precluded from chasing the offender in the police
car, in order to stop him without recourse to firearms. (...) [T.B.]
endangered the life of the car passengers, exceeded his official
duties and consciously acted in defiance of his duty of care, set out
in Article 25 of the Police Activities Act ... which defines the
conditions for using firearms as an exceptional measure of coercion.
(...)
By contrast, there is no indication that [T.B.] breached
Article 25 § 4 of the Police Activities Act, as he had fired his
shots at the tyres of the car which had already moved away from the
people. Nor is there any evidence that [T.B.] knew about the presence
of the minors in the car, that he aimed at causing the death of the
car driver or was indifferent to the fact that he might cause it.
[T.B.] had been familiar with all the normative acts
regarding his duties, inter alia those determining the use of
[firearms]; he had undergone shooting training. However, [T.B.]
irresponsibly overestimated his skills and acted unlawfully, aiming
at the tyres of the car which was swiftly moving away. Such actions
were correctly classified as manslaughter.”
- The
court found no procedural irregularities in the investigation or
trial. As to the alleged bias on the part of the judges, it noted
that the applicant had not requested the withdrawal of a particular
judge. To the extent that the applicant complained of the excessive
length of the proceedings, the Šiauliai Regional Court
considered that she had not indicated any substantial periods of
inaction by the courts, and that her complaint about the alleged
delay in the pre-trial investigation could not be a ground for
quashing the lower court decisions, as this could only further
prolong the proceedings. It was concluded that these, as well as
other complaints of the applicant under Articles 2 and 6 of the
Convention, were better suited for examination by way of civil
proceedings for non-pecuniary damages.
- On
13 February 2004 the applicant submitted a cassation appeal against
this judgment. By reference to Articles 2 and 6 of the Convention,
the applicant reiterated that the proceedings had lasted too long,
that the courts had not been impartial, that they had wrongly
established the evidence, that T.B. should have been found guilty of
murder, that his punishment had been totally inadequate, and that her
claim for non-pecuniary damage should have been allowed by the
criminal courts.
- On
1 June 2004 the Supreme Court dismissed the applicant's cassation
appeal. The court ruled that the proceedings had been fair and
impartial in compliance with the requirements of Article 6 of the
Convention in that the applicant had been provided with all
procedural guarantees. Her claims for non-pecuniary damages were duly
left to be decided by way of civil proceedings as the criminal
procedure rules applicable at the material time provided only for
assessment of the pecuniary damage (Article 65 of the old Code of
Criminal Procedure). The Supreme Court opined that the length of the
proceedings at the appellate instance was justified by the legal and
factual complexity of the case. Finally, regarding the severity of
the punishment imposed on T.B. the court stated:
“The general grounds for imposition of punishment
provided for in Article 54 of the Criminal Code require a court to
impose a punishment within the limits provided for in the sanction of
an article of the criminal law which enshrines liability for the
criminal act; it also requires it to take into consideration the
extent to which the activity was dangerous, as well as its motivation
and objectives, the form of guilt, the personality of the accused,
and the circumstances relieving or aggravating the liability. The
[lower] court was following the provisions enshrined in the said norm
and did not make a mistake; the court, upon taking into consideration
the circumstances positively characterising the personality of the
convicted person, reasonably imposed a punishment near the medium of
the punishment provided for in the sanction for negligent deprivation
of life (...). By suspending the sentence of imprisonment for the
negligent crime committed by the convicted person the court was
following the rules provided for in Article 75 of the Criminal Code.
The punishment imposed is relevant to its purpose (...) and does not
contradict the principle of justice. Therefore, there is no ground to
conclude that in the present criminal case while imposing punishment
on the convicted person criminal law was not applied properly.”
II. RELEVANT DOMESTIC LAW AND PRACTICE
- Article
109 § 2 of the Criminal Code, as in force at the material time,
provided that the act of manslaughter, caused by conscious failure to
observe the safety rules (nuZudymas dėl
neatsargumo,
padarytas
dėl sąmoningo atsargumo taisyklių nesilaikymo),
should be punished by imprisonment of up to five years. Article 287
of the Code provided for the criminal offence of exceeding official
duties (tarnybos pareigų viršijimas).
- Article
75 of the new Criminal Code, which entered into force on 1 May
2003, allows a court to suspend the execution of the sentence for up
to three years if a person who has committed a negligent crime has
been sentenced to up to six years of imprisonment. Article 228 §
1 of the Code provides for criminal liability for acts of abuse of
office (piktnaudZiavimas), which is punishable by, as
alternatives, a ban on working in a certain sphere, a fine, arrest or
deprivation of liberty of up to four years.
- Article
30 of the Constitution stipulates that “a person whose
constitutional rights or freedoms are violated shall have the right
to apply to court.”
- Article
65 of the old Code of Criminal Procedure (in force until
30 April
2003) provided that the victim of a crime was entitled to lodge a
civil claim for pecuniary damage in the criminal proceedings. The
claim was to be examined together with the criminal case. A claim for
non-pecuniary damage was to be lodged and examined in separate
civil proceedings.
- The
Law of 29 October 2002 on the Procedure for Coming into Force
and Implementation of the Criminal Code stipulated that the
examination of cases in which the trial had already been commenced at
the time of entry into force of the new Code of Criminal Procedure
was to be completed in accordance with the rules of the old Code of
Criminal Procedure, unless the court decided a contrario.
- Article
109 of the new Code of Criminal Procedure (in force after 1 May
2003) provides that a person who has sustained pecuniary and/or
non-pecuniary damage because of a crime is entitled to lodge a civil
claim in the criminal proceedings. The court is to adjudicate such a
civil claim together with the criminal case. According to Article 115
§ 2 of the Code, in exceptional cases, when it is impossible to
assess the amount of the civil claim without adjournment of the
criminal case or without obtaining additional material, the court,
when rendering the judgment, may grant the plaintiff the right to
satisfaction of the claim and leave the question of the amount of
that claim to be resolved in separate civil proceedings.
- According
to Article 23 § 1 of the Police Activities Act of 17 October
2000, a police officer is entitled to use force, including firearms,
only where preliminary measures such as attempts to persuade or the
use of “psychological force” such as warning shots have
not been effective. He or she must select the means of coercion
having regard to the particular circumstances, the type of offence at
hand and the individual features of the offender. A police officer
must try to avoid serious consequences in using such force.
- Article
23 § 5 of the above Act stipulates that before using a firearm a
police officer must warn the person about his/her intention, to
enable him or her to fulfil lawful requirements, except in cases when
delaying the use of a firearm poses a threat to the life or limb of
the police officer or another person, or when such a warning is
impossible.
- In
accordance with Article 23 § 8, the prosecutor is immediately
informed about use of force by a police officer that caused death or
injury. Pursuant to Article 23 § 9, police officers must
undergo special training and be periodically assessed as to whether
they are able to act in situations involving the use of firearms.
- Article
25 of the Police Activities Act stipulates:
“1. When other coercive measures are ineffective,
the police officer shall have the right to use a firearm as an
extraordinary measure.
2. The police officer shall have the right to use a
firearm against persons in the following cases:
1) when defending himself or another person from an
actual or intended criminal attempt which poses a direct threat to
life or limb;
2) when attempting to arrest a person who has committed
a criminal act and who actively evades arrest, if it is impossible to
arrest him/her in any other way, as well as in cases when the person
refuses to comply with lawful instructions to put down a weapon or
another thing with which it is possible to injure an individual, if a
threat is posed to the life or limb of the police officer or another
individual and it is impossible to disarm him/her in any other way.
...
3. The police officer shall have the right to use a
firearm against a vehicle ... .
4. It shall be prohibited to use a firearm in public
gathering places, if it endangers other people; against pregnant
women, as well as against persons who are visibly disabled, and
against minors, if the police officer knows their age or their
appearance corresponds to their age, except in cases when the said
persons resist in a manner dangerous to human life or limb ... ”.
THE LAW
I. THE GOVERNMENT'S PRELIMINARY OBJECTION
- The
Government noted at the outset that at the admissibility stage the
Court had made no decision about exhaustion of domestic remedies and
argued that the applicant had civil remedies at her disposal which
she had failed to exercise. In particular, in the criminal
proceedings the domestic courts had awarded the applicant
compensation in respect of pecuniary damage. However, Article 65 of
the Code on Criminal Procedure, in force until 1 May 2003,
precluded the courts from deciding in the criminal proceedings on an
award in respect of the non-pecuniary damage suffered by the victim
of the crime. Consequently, in their judgments and decisions the
domestic courts had repeatedly indicated that as regards
non-pecuniary damage caused by the death of her son the applicant
should institute separate civil proceedings and, furthermore,
expressis verbis acknowledged her right to have that claim
satisfied. Nonetheless, the applicant had never lodged any such civil
claim.
- The
Government further contended that a civil claim for non-pecuniary
damages was an effective remedy. To prove that they referred to
domestic case-law, namely to a decision adopted by the Court of
Appeal on 24 November 2006 in a civil case, by which a civil
claimant was awarded non-pecuniary damages amounting to LTL 75,000
(approximately EUR 21,739) from the Chief Police Commissariat, in
respect of damage suffered due to a crime – violation of the
traffic safety rules causing serious injury to the applicant –
committed by a police officer, and of which that officer had
previously been convicted in a criminal case. As another example of
the relevant domestic case-law the Government submitted a decision of
the Court of Appeal of 10 April 2006 granting a civil claim for
LTL 100,000 (approximately EUR 28,985) as compensation for
non-pecuniary damage suffered by a pupil at a secondary school
because of a crime committed by the teacher, who also had previously
been convicted in a criminal case of injuring that pupil. Lastly, the
Government drew the Court's attention to the decision of the Supreme
Court of 12 June 2006, adopted in a civil case, instituted for
compensation in respect of non-pecuniary damage suffered due to a
crime. The persons responsible for that damage had previously been
convicted in a criminal case of causing serious physical injury; the
Supreme Court amended the decisions of the lower-instance courts and
increased the award of non-pecuniary damage suffered to LTL 47,000
(approximately EUR 13,623). From the above the Government concluded
that a separate civil action for non-pecuniary damage which the
applicant had suffered due to the death of her son offered reasonable
prospects of success and therefore was a domestic remedy which the
applicant should have exhausted under Article 35 § 1 of the
Convention.
- The
applicant contended that police officer T.B. unjustly deprived her
son of his life and that the domestic courts' refusal to resolve her
civil claim for redress for non-pecuniary damage sustained by that
loss was ambiguous. She insisted that her claim should have been
examined in the criminal proceedings, especially taking into account
that, in her view, under the rules of the new Code of Criminal
Procedure the civil claim in respect of the non-pecuniary damage was
to be examined in the criminal case, other than in exceptional
circumstances. Moreover, she based her civil claims not only on
provisions of the Code of Criminal Procedure, but also on Articles 2
and 13 of the Convention as well as on Article 30 of the Lithuanian
Constitution. The applicant argued that she had raised the issue of
examination of the civil action in the criminal case at all court
instances and therefore had exhausted the available domestic
remedies.
- Lastly,
the applicant submitted that the examples of instances when the
question of non-pecuniary damage suffered because a crime has been
committed has been resolved in separate civil proceedings on which
the Government relied were not related to the violations of Article 2
of the Convention.
- The
Court points out that under Rule 55 of the Rules of Court, “[a]ny
plea of inadmissibility must, in so far as its character and the
circumstances permit, be raised by the respondent Contracting Party
in its written or oral observations on the admissibility of the
application”. Turning to the present case it notes that in
their observations of 3 February 2004 as to the admissibility
the Government drew the Court's attention to the fact that the
domestic courts were still examining a possible violation of Article
2 of the Convention in connection with the death of the applicant's
son. Subsequently in the proceedings the Government raised a
preliminary objection as concerns non-exhaustion of the domestic
civil remedy in the case. In the special circumstances of this case
the Court considers that the Government is not estopped from raising
the plea of inadmissibility as concerns the non-exhaustion of
domestic remedies.
- The
Court recalls that it has already had occasion to declare that
there should be available to the victim's family a mechanism for
establishing any liability of State officials or bodies for acts or
omissions involving the breach of their rights under the Convention.
Furthermore, in the case of a breach of Articles 2 and 3 of the
Convention, which rank as the most fundamental provisions of the
Convention, compensation for non-pecuniary damage flowing from the
breach should, in principle, be available as part of the range of
redress (see Z and Others v. the United Kingdom [GC], no.
29392/95, § 109, ECHR 2001-V; Keenan v. the United Kingdom,
no. 27229/95, § 130, ECHR 2001-III; and Paul and Audrey
Edwards v. the United Kingdom, no. 46477/99, §§ 97-98,
ECHR 2002-II).
-
In so far as the applicant complains that police officer T.B.
unjustly deprived her son of his life, the Court notes that the
domestic courts have acknowledged that there was no absolute
necessity to use lethal force in the manner in which it was applied
by police officer T.B., and the Court sees no cause to depart from
their conclusions, which were based on their direct knowledge of the
facts and domestic law. The Court observes that T.B. was convicted of
abuse of office and manslaughter and was subsequently dismissed from
the police force.
- The
Court further notes that, in addition to the criminal
proceedings which were instituted against T.B. for the manslaughter
of her son, the applicant had the opportunity to bring a claim for
non-pecuniary damages against the authorities on account of T.B.'s
actions (see paragraph 34 above). However, the evidence indicates
that the applicant deliberately turned with that request to the
criminal courts, notwithstanding that they repeatedly urged her to
raise such a claim in separate civil proceedings and, furthermore,
acknowledged her the right to satisfaction of that claim
(see
paragraphs 15, 20 and 23 above). Moreover, as is apparent from the
domestic case-law examples the Government provided, a claim for
compensation in the civil courts would have had a fair prospect of
success (see paragraph 35 above). Yet, the applicant did not avail
herself of that opportunity. Accordingly, the Court considers that
the applicant has not fully exhausted the remedies which were
available to her and it therefore accepts the Government's objection
as to her failure to exhaust the domestic remedies in connection with
alleged violation of Article 2 under its substantive limb.
- The
Court observes, however, that the Government's preliminary objection
concerns only the matter of compensation for the death of the
applicant's son and is not related to other aspects of Article 2,
namely, the State's positive obligation to conduct an effective
investigation which arises once a loss of life is brought to its
attention (see Kelly and Others v. the United Kingdom, no.
30054/96, § 94, 4 May 2001) and is independent of any claim for
compensation. It follows, that in this part the Government's
objection must be dismissed.
II. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
A. The parties' submissions
1. The applicant
- The
applicant alleged a violation of Article 2 of the Convention,
which provides 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.
2. Deprivation of life shall not be regarded
as inflicted in contravention of this article when it results from
the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful
violence;
(b) in order to effect a lawful arrest or to
prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose
of quelling a riot or insurrection.”
- The
applicant complained that the investigation of the circumstances
surrounding the shooting was not speedy, that she was not properly
informed about its progress, that the authorities refused to treat
the death of her son as murder as opposed to manslaughter and that
T.B.'s punishment was inadequate.
2. The Government
- The
Government submitted that the domestic courts had not allowed the
death of the applicant's son to go unpunished. They recognised that
according to the legislation regulating the use of firearms the use
of lethal force by police officer T.B. had not been justified in the
present case and consequently convicted him of abuse of office and
manslaughter. The police officer was sentenced to two years and six
months' imprisonment, suspended for three years. Furthermore, he was
dismissed from service and never re-employed by the Police Department
or in any other post in public service.
- Regarding
the State's obligation to investigate the death as required by
Article 2 of the Convention the Government contended that the
preliminary investigation of the criminal case had been timely and
efficient. The criminal case concerning the incident was instituted
by the prosecutor on the day of the shooting. The very same day and
the following days various procedural steps were undertaken in this
respect, such as an initial on-site inspection, official inquiry,
examination of the scene of the crime, questioning of witnesses, and
ballistic and medical examinations. The
pre-trial investigation
was thorough and objective and the case was never returned to the
prosecutors for further investigative measures; the courts were
therefore able to duly establish all the relevant facts of the
incident and secure the police officer's full accountability for his
role in the tragedy. Lastly, the Government argued that there was no
manifest disproportion between the gravity of the crime and the
punishment imposed on T.B. Relying on the above they concluded that
the State had respected the requirements enshrined in Article 2 of
the Convention.
B. The Court's assessment
1. General principles
- The
Court recalls that the obligation to protect the right to life under
Article 2 of the Convention, read 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 some form of effective official investigation when individuals
have been killed as a result of the use of force. The essential
purpose of such investigation is to secure the effective
implementation of the domestic laws which protect the right to life
and, in those cases involving State agents or bodies, to ensure their
accountability for deaths occurring under their responsibility.
Nevertheless, the Court would emphasise that the obligation to
investigate is one of means, not of result (see Hugh
Jordan v. the United Kingdom, no. 24746/94, § 107,
4 May 2001).
- This
investigation should be independent, accessible to the victim's
family, carried out with reasonable promptness and expedition, and
effective in the sense that it is capable of leading to a
determination of whether the force used in such cases was or was not
justified in the circumstances, or was otherwise unlawful (see,
mutatis mutandis, McCann and Others v. the United Kingdom,
27 September 1995, § 161, Series A no. 324; Kaya v.
Turkey, judgment of 19 February 1998, Reports 1998-I,
p. 324, § 86; the aforementioned Hugh Jordan v. the
United Kingdom, §§ 105-109; Makaratzis v.
Greece [GC], no. 50385/99, §§ 73 and 74, ECHR 2004 XI;
and Huohvanainen v. Finland, no. 57389/00, § 95,
13 March 2007).
- The
investigation's conclusions must be based on a thorough, objective
and impartial analysis of all relevant elements. Any deficiency in
the investigation which undermines its capability of establishing the
circumstances of the case, or the person responsible, is liable to
fall foul of the required measure of effectiveness (see Nachova
and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, §
113, ECHR 2005 VII, and, a contrario, Huohvanainen,
cited above, §§ 110-115). Whatever mode is employed,
the authorities must act of their own motion once the matter has come
to their attention (see, for example, mutatis mutandis, Ilhan
v. Turkey [GC], no. 22277/93, ECHR 2000-VII, § 63). That
said, the requirements of Article 2 go beyond the stage of the
official investigation, where this has led to the institution of
proceedings in the national courts: the proceedings as a whole,
including the trial stage, must satisfy the requirements of the
positive obligation to protect lives through the law (Öneryıldız
v. Turkey [GC],
no. 48939/99, § 95, ECHR 2004 XII).
- It
should in no way be inferred from the foregoing that Article 2 may
entail the right for an applicant to have third parties prosecuted or
sentenced for a criminal offence or an absolute obligation for all
prosecutions to result in conviction, or indeed in a particular
sentence (see Öneryıldız, cited above, §
96).
On
the other hand, the national courts should not under any
circumstances be prepared to allow life-endangering offences to go
unpunished. This is essential for maintaining public confidence and
ensuring adherence to the rule of law and for preventing any
appearance of tolerance of or collusion in unlawful acts. The Court's
task therefore consists in reviewing whether and to what extent the
courts, in reaching their conclusion, may be deemed to have submitted
the case to the careful scrutiny required by Article 2 of the
Convention, so that the deterrent effect of the judicial system in
place and the significance of the role it is required to play in
preventing violations of the right to life are not undermined
(see
Öneryıldız, cited above, § 96).
2. Application of these principles to the present case
- As
noted above, the positive obligation inherent in Article 2 of the
Convention requires an investigation capable of leading to the
determination of whether the force used was or was not justified in
the circumstances
(see, for example, Hugh Jordan, cited
above, § 107). In this connection the Court observes that
in the present case the prosecutor on his own initiative started an
inquiry into the circumstances of the incident on the very day of the
shooting. What is more, on the same and the following days many other
investigative actions were carried out (see paragraphs 9 and 10
above). Accordingly, it can be considered that the investigation
proceeded at a good pace. The Court also notes that on 27 September
2001 the prosecutor recognised the applicant as the victim of the
crime, thus conferring upon her the status of a participant in the
criminal proceedings and granting her access to the investigation and
the trial. Moreover, it can be deemed that the official investigation
was proper and effective, since it allowed the establishment both of
the cause of death of the applicant's son and the identity of the
person responsible for it. As regards the trial aspect, the
first-instance court convicted T.B. on 14 March 2003 and the trial
came to an end with the Supreme Court's decision of 1 June 2004,
which, in the circumstances of the case, the Court considers to be
reasonably expeditious.
52. The applicant's submission concerning the fact that police
officer T.B. should have been convicted of murder and not
manslaughter and that his punishment was inadequate cannot succeed in
the Court's view. In this connection, it reiterates that
Article 2 does not give an applicant the right to have a third party
prosecuted or sentenced for a criminal offence or an obligation for
the prosecution to result in conviction, or indeed in a particular
sentence (see paragraph 50 above). On the other hand, the Court
would also state that while it is true that it is not its task to
address issues of domestic law concerning individual criminal
responsibility, or to deliver guilty or not guilty verdicts, in order
to determine whether the respondent Government have fulfilled their
international law responsibility under the Convention the Court must
have regard to the Lithuanian courts' considerations while convicting
the police officer and to the punishment imposed on him as a result.
While doing that, the Court should grant substantial deference to the
national courts in the choice of appropriate sanctions for the death
caused by the State agent. However, it must still exercise a certain
power of review and intervene in cases of manifest disproportion
between the gravity of the act and the punishment imposed (see Ali
and Ayşe Duran v. Turkey, no. 42942/02, § 66, 8
April 2008).
- Against
this background the Court observes that the domestic courts had
sufficient regard to the extremely serious consequences of the
incident and gave substantial reasoning as to why they had
characterised the act committed by the officer as manslaughter as
well as specified grounds for imposing the medium term of
imprisonment allowed by law and for opting to suspend it (see
paragraphs 20 and 23 above). In particular, the criminal proceedings
did concern the protection of the right to life, given that the State
agent was prosecuted and subsequently convicted not only of abuse of
office but also of manslaughter (see, a contrario, Öneryıldız,
cited above, § 116, ECHR 2004 XII), and sentenced to
two years and six months' imprisonment. The Court cannot
overlook the fact that the execution of that sentence was suspended;
however it was suspended for three years, which is the maximum time
for suspension allowed by Article 75 of the new Criminal Code. What
is more, in the past the Court has found a suspended sentence in
cases which concerned the authorities' attempt to arrest a suspect
not to be in contradiction per se with the State's obligation
to punish those who unlawfully take the life of another (see Dölek
v. Turkey,
no. 39541/98, §§ 79-83, 2 October 2007,
and, a contrario, Ali and Ayşe Duran, cited
above, §§ 66-72). The Court also notes that it has
previously found a violation of Article 2 in cases where police
officers whose actions resulted in death continued serving in the
police (see Nikolova and Velichkova v. Bulgaria, no. 7888/03,
§ 63, 20 December 2007). However, in the instant case the
authorities dismissed T.B. from the police and no indication was
given to the Court that he has ever been
re-employed by the
police or other law enforcement authorities. In the light of the
foregoing, the Court cannot hold that the punishment which the State
imposed on T.B. was disproportionate in view of the gravity of the
act he had committed.
- Taking
into account all of the above the Court concludes that there has been
no violation of Article 2 of the Convention in its procedural limb.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Holds that, by reason of the failure to exhaust
domestic remedies, it is unable to take cognisance of the merits of
the case as regards the substantive aspect of Article 2 of the
Convention;
2. Dismisses the Government's preliminary objection
concerning the exhaustion of civil domestic remedies as regards the
procedural aspect of Article 2 of the Convention;
- Holds that there has been no procedural
violation of Article 2 of the Convention.
Done in English, and notified in writing on 7 July 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep Casadevall
Registrar President
