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FOURTH
SECTION
DECISION
Application no.
28102/02
by Grażyna and Jerzy WALASZEK
against Poland
The
European Court of Human Rights (Fourth Section), sitting on
10 January 2012 as a Chamber composed of:
David
Thór Björgvinsson,
President,
Lech
Garlicki,
Päivi
Hirvelä,
George
Nicolaou,
Ledi
Bianku,
Nebojša
Vučinić,
Vincent
A. De
Gaetano, judges,
and Fatoş Aracı,
Deputy Section
Registrar,
Having
regard to the above application lodged on 13 January 2001,
Having
regard to the observations submitted by the respondent Government and
the observations in reply submitted by the applicants,
Having
deliberated, decides as follows:
THE FACTS
- The
applicants, Ms Grażyna and Mr Jerzy Walaszek, are Polish
nationals who live in Wroclaw. They were represented before the Court
by Mr S. Waliduda, a lawyer practising in Wrocław. The Polish
Government (“the Government”) were represented by their
Agent, Mr J. Wołąsiewicz of the Ministry of Foreign
Affairs.
A. The circumstances of the case
- The
facts of the case, as submitted by the parties, may be summarised as
follows.
- On
27 April 1995 the body of the applicants’ son was found drowned
in a canal in Wrocław. As he was doing his military service at
that time, having been granted one day’s leave on 1 April 1995,
an investigation into the circumstances of his death was instituted
on the same day by the Wrocław Military Garrison Prosecutor.
- In
the morning of 28 April 1995 an autopsy was carried out in the
forensic department of the local medical university. It was
established that the body had the typical symptoms of drowning. The
victim must have been under the influence of alcohol (the alcohol
level in his blood was 2.7‰) and this might have contributed
to his drowning. The forensic medicine specialist found no traces of
injuries.
- As
the applicants contested the autopsy results, on 13 July 1995
the prosecutor referred the case to the local medical university for
an additional forensic opinion. It was requested to explain, inter
alia, how putrefaction could have influenced the results of the
blood alcohol test.
- On
25 July 1995 the opinion was prepared, and stated that the
putrefaction process could have increased the alcohol level in the
victim’s blood by, at most, 1‰. Therefore the remaining
alcohol, 1.7‰, must have originated from the victim’s
consumption before his death.
- In
letters to the prosecutor dated 6, 9, 11 and 29 July 1995 the
applicants expressed objections, alleging shortcomings in the
investigation, and complained that certain people who might have
known the victim’s whereabouts during the last hours of his
life had not been questioned.
- On
11 September 1995 the prosecutor questioned the doctor who had
conducted the autopsy on 28 April 1995. The expert upheld the
conclusions of the report, in particular as to drowning as the cause
of death, and stated that if there had been superficial excoriations
on the body caused by any physical assault on the victim, by the end
of April 1995 they would have been invisible due to the putrefaction.
The advanced state of the putrefaction indicated that the body must
have remained in the water for two to three weeks.
- On
the same date a marine expert was requested to answer a number of
questions; in particular as to whether, given the water conditions
which must have existed in early spring, the body could have been
taken into the canal by the current from the river.
- In
the course of the investigation the prosecutor questioned a number of
witnesses.
- On
20 September 1995 the marine expert submitted his opinion. He
answered in the negative the question as to whether the body could
have been taken to the canal by the current from the river and stated
that the victim must have drowned in the canal.
- On
20 December 1995 the applicants, having been granted access to the
file, submitted their observations and objections; in particular that
the autopsy had been carried out before they had given consent to it;
that the autopsy had been very superficial and that the victim’s
clothes had been destroyed without being examined. They also referred
to certain statements made by R.G., their neighbour, who had said to
their daughter that their son had been “floating in the [river]
with a knife in his back”.
- On
27 December 1995 the prosecutor halted the investigation, finding
that no criminal offence had been committed. He outlined the events
connected with the discovery and identification of the body. He
further referred to the state of the body as described in the autopsy
reports, both the initial and the complementary reports, and
summarised their findings. The conclusions of the reports were that
the victim’s death had been caused by drowning, which had
occurred between 1 and 7 April 1997.
- As
the victim’s clothes had been destroyed, the prosecution had
questioned police officers and the doctor present at the scene when
the body had been found. They had stated that the clothes were not
damaged, nor did they have any stains (which could suggest bleeding)
on them.
- The
prosecutor observed that, as the marine expert had concluded that the
victim had drowned in the canal, those responsible for the canals’
maintenance had been questioned. They had stated that normally the
canal area was fenced in, but that they did not remember whether in
April 1995 the gate was always closed or not.
- The
prosecutor referred to testimony given by employees of the security
company situated in the vicinity of the canal, who had stated that
during the evening in question they had not seen anything suspicious.
- The
prosecutor further referred to the testimony given by eight other
witnesses: one colleague from the victim’s military unit, the
victim’s mother, his neighbours and friends, and a disc jockey
who had seen him on 1 April 1995. It emerged from that testimony
that during the evening in question the victim had come home, stayed
there for some time, changed his clothes and gone to a nightclub. He
had last been seen at around midnight in the nightclub.
- The
prosecutor further referred to information obtained by the police,
who had been told in an anonymous phone call that the victim had
taken part in an affray in a nightclub in Traugutta Street. However,
the disc jockey at that club had denied that there had been an affray
that evening.
- The
prosecutor concluded that the death had been caused by drowning as
shown by the autopsy and that there had been no other evidence
pointing to other possible causes of his death.
- The
applicants appealed, complaining that the autopsy had been very
superficial and carried out hastily; that they had been ordered to
authorise it post factum; and that their son’s clothes
had been destroyed after the forensic autopsy for unknown reasons,
thus making it impossible to establish certain key facts. They also
criticised the fact that no visit had been made to the place where
the body was found. They averred that it therefore remained unclear
how, when and where the victim could have entered the fenced area by
the canal. They were of the view that their son’s death could
have been caused by a criminal act and requested that his body be
exhumed.
- On
29 January 1996 the contested decision was upheld by the Śląsk
Regional Military Prosecutor.
- The
prosecutor noted that it had been established that the victim had
last been seen at the K. nightclub during the night of 1 April 1995.
His body had been found on 27 April 1995 and an autopsy had been
performed. The findings of the autopsy did not provide any material
for a finding that the victim had been assaulted. While it was true
that it had proved impossible to establish the exact place where the
victim had fallen into the water, it was not open to doubt that he
had met his death by drowning. The prosecution had questioned a
number of witnesses in order to establish the course of events since
the last time he had been seen in the nightclub. The prosecutor
concluded that there was no evidence to support the view that the
death had been caused by a criminal act.
- Subsequently,
in their letters sent to various authorities, the applicants
repeatedly criticised various shortcomings in the investigation and
requested that it be resumed, arguing that the prosecution had failed
to make reasonable attempts to find all possible witnesses; that no
evidence had been taken from the victim’s clothes and that they
had been destroyed; that the victim had had injuries on his face,
which could have indicated that he had been assaulted; that there had
been an anonymous telephone call to the police; on the night in
question the victim had been seen in a fight in front of a nightclub.
- On
20 September 1996 the Wrocław Military Garrison Prosecutor,
responding to the applicants’ complaints, ordered the
investigation to be resumed. He noted that following their complaints
a number of witnesses had been heard, in particular employees of the
security agency Z. Their testimony could indicate that the death
could have been caused by the criminal actions of some of those
employees.
- On
24 September 1996 the Wrocław Military Garrison Prosecutor
transferred the case to the Wrocław District Prosecutor, on the
ground that there was a need to take evidence from employees of a
civilian company, namely the security staff referred to above. He
noted that two contradictory versions of the events in question had
emerged from the testimony given by the employees. The first version
indicated that on the night in question the victim had been seen in
the fenced area around the canal and that he had been pushed into the
water by one of the security men, H.K., and the second version was
that he had fallen into the water while fleeing the security men, who
had been chasing him. Hence, it was necessary to establish the facts
of the matter.
- On
an unspecified later date an inspection of the fenced area close to
the canal was carried out.
- On
22 March 1997 the applicants submitted their comments.
- On
20 June 1997 the Wrocław Krzyki District Prosecutor stayed
the proceedings. She indicated that an analysis needed to be made of
tape recordings of the applicants’ conversations with many
people who had called them with various information about their son’s
last days. The forensic police laboratory was at that time organising
a phonoscopy unit. The taking of further evidence had therefore to be
stayed until that unit was operational.
- On
7 December 1997 the applicants submitted lists of questions to be put
to witnesses H.K. and R.G. On 19 February 1998 they submitted three
further lists of questions to be put to Z.N. and A.S. and to all the
employees of the Z. company.
- On
15 June 1998 the Wrocław District Prosecutor discontinued the
investigation in respect of inadvertently causing death and of
failing to give assistance to a person in danger of life and limb.
The prosecutor established that on 1 April 1995 the victim had left
home at 10 p.m., telling his parents that he was going to a
nightclub. He was later seen at K. nightclub, for the last time
around midnight. He was, at that time, inebriated. He had not come
back home and had not reported to his military unit. His body had
been found in the canal on 27 April 1995. The results of the autopsy
had shown that he had drowned. No injuries had been found on his
body.
- A
number of witnesses had been questioned in order to establish his
whereabouts during his last hours. In particular, employees of the
Z. security company had been questioned. They had first stated
that on the night in question nothing in particular had happened.
However, when questioned for the second time they had said that one
of them, H.K, had seen a man whose unauthorised presence near the
company building had alarmed him. There had been discrepancies in
their submissions as to whether H.K. had been chasing that man or
not. In any event, there was no indication that that man could be the
victim, as there was no evidence to indicate any resemblance to the
applicants’ son, or that H.K.’s acts could have
contributed, even indirectly, to the victim’s death.
- The
prosecutor noted that there had been various anonymous calls to the
applicants, providing various information. Some callers had told them
that their son had been murdered and that his body had been taken by
car to the canal and thrown into the water. However, the individuals
indicated by the anonymous informers as potential culprits had been
questioned by the prosecution and no links could be established
between them and the death of the applicants’ son.
- On
7 July 1998 the applicants, who had apparently not been served with
that decision, complained to the Wrocław Regional Prosecutor of
lack of diligence on the part of the District Prosecutor in the
conduct of the case and about the length of the investigation. On
15 July 1998 they also complained that the investigation had
been discontinued.
- On
28 August 1998 the Wrocław Regional Prosecutor allowed the
applicants’ complaint and ordered further investigative
measures to be taken.
- On
2 October 1998 the applicants submitted a letter to the prosecutor’s
office containing their comments on the testimony given by the
witnesses so far.
- On
11 December 1998 the investigation was again halted by the
Wrocław Krzyki District Prosecutor. The decision reiterated
the findings concerning the discovery of the victim’s body, the
autopsy, the autopsy report, the cause of death established by that
report, and the victim’s consumption of alcohol.
- The
testimony given by the security staff of the company was examined in
detail. When questioned for the first time, they had said that on the
night in question no third party had entered the fenced area they
were guarding. However, they were questioned again and their
statements diverged. It showed that late on the night in question one
of them, H.K., had been pursuing a young man, most probably wearing
military clothing, who had entered the fenced area of the company’s
premises which were being guarded by the security men. They had said
that H.K. had been seen by some other employees struggling with a
young man at the edge of the canal and hitting him. The man had
fallen into the canal and had not come out. According to statements
by some other employees, a soldier had fallen into the water while
fleeing H.K., who had been chasing him.
- The
prosecutor also examined the information submitted by the applicants,
who had allegedly received an anonymous phone call stating that their
son had been beaten up by the security company’s employees and
then taken to the canal. According to the prosecutor, the evidence
gathered during the investigation did not confirm this.
- The
applicants appealed, alleging serious shortcomings in the
investigation, including failure to examine certain witnesses, namely
the victim’s friends who had seen him arguing with the security
staff, and the fact that he had been beaten. The applicants also
criticised the brevity of the autopsy report and complained of the
failure to secure physical or biological evidence or traces of a
possible assault on the victim, which could have been found on his
clothes. A metal military badge had been found at the scene, which
indicated that the victim’s clothes might have been damaged
during the fight. However, the prosecuting authorities had failed to
examine that possibility.
- The
applicants alleged that the authorities had disregarded important
facts and submissions, had not conducted the investigation thoroughly
and had failed to establish the circumstances and to identify the
perpetrators of their son’s death.
- The
Regional Prosecutor refused to allow the applicants’ appeal,
and transmitted it to the Wrocław District Court for
examination.
- On
10 March 1999 the Wrocław District Prosecutor decided that
documents concerning a possible criminal offence of giving false
evidence, committed by employees of Z. company in connection with the
investigation of the applicants’ son’s death, should be
taken out of the file so that that suspicion could be investigated
separately. On 24 March 1999 the Wrocław District
Prosecutor informed the applicants accordingly.
- On
24 April 1999 these proceedings were discontinued in respect of H.K.,
P.S., W.J., S.K. and Z.N. The prosecutor found that while there were
certain discrepancies between their statements made at the beginning
of the investigation and later on, these did not amount to the
criminal offence of giving false evidence. They could be explained by
the fact that when questioned for the first time the suspects could
not have seen the link between the death of the applicants’ son
and the events in the area they had been guarding; it was only after
they had learned about the body being found in the vicinity and were
questioned about the material events that they realised that they
should have told the investigators about a man they had seen that
night.
- The
prosecution found that Z.N. had not told the truth when he told the
investigators that he had not telephoned the applicants after their
son’s death. In fact, he had done so and his recorded voice was
recognised. However, the prosecutor considered that this offence was
of minor importance and did not ultimately affect the conduct of the
investigation, and stayed the proceedings against him on a
provisional basis.
- On
20 January and 7 May 1999 the applicants reiterated their
complaints about the decisions to terminate the investigation, given
on 11 December 1998 and 24 April 1999.
- On
23 June 1999 the Wrocław District Court dismissed the
applicants’ appeal against the decision to terminate the
investigation into their son’s death.
- The
court observed that during the investigation the prosecuting
authorities had taken all possible measures to establish the facts of
the case. As a result, a great deal of evidence had been taken, the
prosecuting authorities cooperating very closely with the applicants.
The prosecuting authorities had examined multiple hypotheses as to
the circumstances of the applicants’ son’s death.
However, the material gathered in the case did not provide any basis
on which to formulate criminal charges against any person.
- On
6 July 1999 the Wrocław Regional Prosecutor allowed the
applicants’ appeal against the decision of 24 April 1999 and
decided that the investigation in respect of charges of giving false
evidence should be resumed.
- On
31 December 1999 a bill of indictment against H.K., P.S. and Z.N. on
charges of giving false evidence was submitted to the Wrocław
Krzyki District Court. H.K. and P.S. were charged with hiding from
the police the fact that during the night of 1 April 1995 they
had seen an unknown man near the Z. company building and had chased
him. Z.N. was charged with giving false evidence in that he had
denied that he had telephoned the applicants and told them about that
incident.
- On
19 October 2000 the Wrocław Regional Court gave a judgment
in these criminal proceedings. It stayed the proceedings against H.K.
and P.S. on a provisional basis, and placed them on probation for two
years. The decision to stay the proceedings was based on Article 66 §
1 of the Criminal Code (see Relevant domestic law). It also
terminated the proceedings against Z.N., finding that the offence was
of minor significance. H.K. appealed.
- On
28 September 2001 the first applicant complained to the Wrocław
District Court that the circumstances of his son’s death
remained unexplained. There was no reply to the applicant’s
letter.
- On
7 January 2002 the Wrocław Regional Court dismissed H.K.’s
appeal and upheld the judgment of 19 October 2000.
B. Relevant domestic law
- Article 66 et seq. of the 1997 Criminal Code
concern the staying of criminal proceedings on a provisional basis.
Article 66 reads, in so far as relevant:
Ҥ 1. The court may provisionally stay
criminal proceedings if the guilt and social danger of the act are
not significant and the circumstances of its commission do not raise
doubts, and that the attitude of the perpetrator, who has not been
previously punished for an intentional offence, his personal
characteristics and his way of life to date provide reasonable
grounds for the assumption that, even in the event of the
discontinuance of the proceedings, he will observe the legal order
and in particular will not commit an offence.”
- Article
67 provides, in so far as relevant:
Ҥ 1. Provisional discontinuance shall
apply for a probationary term of between one and two years, which
shall run from the date the judgment becomes valid and final.”
COMPLAINT
- The
applicants alleged that there had been no effective investigation
into the death of their son, in breach of the Article 2 of the
Convention.
THE LAW
- The
applicants alleged that there had been no effective investigation
into the death of their son. They referred to Article 2 of the
Convention which, in so far as relevant, reads:
“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.”
- The
Government first submitted that the application had been lodged
outside the six-month time-limit. The final decision to discontinue
the investigation had been given by the Wrocław District Court
on 23 June 1999 and, consequently, it was from that date that
the six-month period had started to run. As the case before the Court
concerned the question whether the investigation of the circumstances
of the applicants’ son’s death by the domestic
authorities was in compliance with the procedural requirements of
Article 2 of the Convention, it was that decision which had been
relevant for the purposes of the six-month period.
- They
further averred that the proceedings against the security
employees, concerning the charges of giving false testimony in the
investigation, which had come to an end on 7 January 2002,
should be regarded as a separate set of proceedings and irrelevant to
the applicants’ case before the Court. Since their application
had been introduced on 13 January 2001, the applicants had not
complied with the requirement laid down by the Convention.
- The
applicants submitted that on 19 October 2000 the Wrocław
District Court found the three employees guilty of giving false
testimony in the investigation into their son’s death. This
judgment should be seen as confirmation of their guilt; however the
courts only decided to place them on probation. One defendant
appealed. His appeal was later dismissed by a decision of 7 January
2002. The defendants had been key witnesses in the investigation and
had had important information about the last minutes of the victim’s
life. The applicants’ attempts to resume the investigation
after the judgments had been given in the case were unsuccessful.
Therefore, the six-month period should be regarded as having started
to run on 19 October 2000, when they were found guilty.
- The
Court notes that in the domestic proceedings the applicants tried to
obtain clarification of the circumstances of their son’s death,
while before the Court they sought to establish whether the State had
complied with its procedural obligation to conduct a thorough and
effective investigation. The Court is aware that the applicants
argued that there had been a close link between the issues examined
in the criminal proceedings against the three members of the security
staff and the substance of their Convention complaint.
- However,
the Court considers that it is appropriate to leave open the issue of
whether that link could affect the manner in which the running of the
six-month time-limit should be determined in the present case,
because the application is in any event inadmissible for the
following reasons.
- The
applicants submitted that the investigations had not been conducted
thoroughly or efficiently. In their opinion, the authorities had
failed to take appropriate measures to establish the circumstances of
their son’s death. The investigations had been halted several
times and only the applicants’ determination and persistent
efforts had resulted in their being resumed. In the applicants’
last appeal against the decision to discontinue the investigation,
given on 11 December 1998, they had indicated serious
shortcomings in the investigation, including the failure to examine
certain witnesses, in particular their son’s friend who had
seen the victim arguing with the security men and had seen them
beating him up.
63. The
Government submitted that the case concerned the death of the
applicants’ son as a result of drowning while under the
influence of alcohol, and not as a result of the use of force by
agents of the State. The criminal investigation had been conducted by
independent public prosecutors. They obtained evidence from a number
of witnesses and from independent experts in marine matters,
phonoscopy and forensic medicine. The decisions given by the
prosecutors were subsequently examined and confirmed by the Wrocław
District Court.
64. The
public prosecutors were independent. The prosecutors were bound
by the principles of objectivity and legality, being obliged by the
latter principle to take action if there was an indication that a
criminal offence could have been committed. They were under the
obligation to take into consideration not only incriminating, but
also exonerating circumstances. Hence, there could have been no doubt
that the institutional and procedural framework in which the
investigation was conducted complied with the requirements laid down
by the Court’s case law.
- The
Government further submitted that in the present case the authorities
had taken all reasonable steps to secure the evidence concerning the
incident. In particular, an autopsy had been carried out immediately
after the applicant’s son’s body had been found, and a
forensic opinion as to the cause of death had subsequently been
prepared. As the applicants had contested the results, an additional
opinion had been prepared by the local medical university. The
prosecutor had questioned the doctor who had conducted the autopsy.
During the investigation 191 sessions had been held, during which
witnesses were questioned and evidence taken. The victim’s
mother had been questioned by the prosecutors on nine occasions and
his father four times. Opinions by two experts had been prepared.
Both the forensic expert and the marine expert had visited the area
where the victim’s body had been found. The prosecutor had
questioned most of the witnesses requested by the applicants, even
those who had no connection with the incident.
- Furthermore,
the Government stressed that in their applications to the Wrocław
District Prosecutor dated 7 and 15 July 1998, the applicants had
acknowledged that the investigation conducted by the prosecutor E.T.
had been thorough.
- The
Government considered that the investigation had been reasonably
prompt. An autopsy had been carried out immediately after the body
had been found. All material witnesses had been heard within a short
period of time. The only interval in the investigation had resulted
from the necessity to obtain the opinion of an expert in phonoscopy,
but even when the investigation had been stayed the prosecutor had
been taking further necessary measures. The additional opinions and
the questioning of witnesses which had prolonged the investigation
had resulted, on the one hand, from the new facts disclosed during
the investigation and, on the other, from the fact that the
applicants had made use of their procedural rights, contested the
experts’ findings and suggested new witnesses to be questioned.
- The
Government further averred that the applicants and their daughter, as
the next of kin of the victim, had been actively involved in the
procedure. This had enabled them to safeguard their rights. Their
requests for evidence to be taken were often granted. In particular,
the investigation had been resumed twice as a result of their
requests. Certain witnesses proposed by the applicants had also been
questioned by the prosecuting authorities. When questioning the
witnesses, the prosecutors referred to the lists of questions
prepared and submitted by the applicants. The applicants had also
actively participated in the visit to the scene of crime, questioning
the experts and the witnesses.
- The
Government concluded that the authorities had complied with their
procedural obligation under Article 2 of the Convention.
- The
Court recalls that, according to its case law, the obligation to
protect the right to life under Article 2, read in conjunction with
the State’s duty under Article
1 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 died as a
result of the use of force. The nature and degree of
scrutiny which satisfies the minimum threshold of an investigation’s
effectiveness depends on the circumstances of each particular case.
It must be assessed on the basis of all relevant facts and with
regard to the practical realities of investigation work (see Buldan
v. Turkey, no. 28298/95, § 83, 20 April 2004;
Velikova v. Bulgaria, no. 41488/98, § 80).
The investigation must be, inter alia, effective and
impartial.
71. The investigation must be effective
in the sense that it is capable of leading to the identification and
punishment of those responsible. This is not an obligation of result,
but of means. The authorities must have taken the reasonable steps
available to them to secure the evidence concerning the incident,
including, inter alia,
eyewitness testimony, forensic evidence and, where appropriate, an
autopsy which provides a complete and accurate record of injury and
an objective analysis of clinical findings, including the cause of
death. Any deficiency in the investigation which undermines its
ability to establish the cause of death or the person responsible
will risk falling foul of this standard (see Anguelova
v. Bulgaria, no. 38361/97,
§§ 136 39, ECHR 2002 IV with further
references).
- The applicants’ case is to be distinguished from
cases involving the alleged use of lethal force either by agents of
the State or by private parties with their collusion (see, for
example, McCann and Others v. the United Kingdom,
judgment of 27 September 1995, Series A no. 324;
Hugh Jordan v. the United Kingdom, no. 24746/94,
judgment of 4 May 2001, ECHR 2001-III (extracts);
Shanaghan v. the United Kingdom, no. 37715/97, judgment
of 4 May 2001, ECHR 2001-III (extracts), or in which the
factual circumstances imposed an obligation on the authorities to
protect an individual’s life, for example where they have
assumed responsibility for his welfare (see, for example, Paul and
Audrey Edwards v. the United Kingdom, no. 46477/99,
judgment of 14 March 2002, ECHR 2002-II), or where they
knew or ought to have known that his life was at risk (see, for
example, Osman v. the United Kingdom, judgment of
28 October 1998, Reports of Judgments and Decisions
1998 VIII). The applicants have not laid any blame on the
authorities of the respondent State for the death of their son. The
Court reiterates, however, that the absence of any direct State
responsibility for the death of an individual does not exclude the
applicability of Article 2. The procedural obligations flowing from
that Article require that there should
be some form of effective official investigation , as described above
(see paragraph 70) when there is reason to believe that an individual
has sustained life-threatening injuries in suspicious circumstances
(see, among other authorities, Rajkowska v. Poland
(dec.), no. 37393/02, 27 November 2007; Weber and Others
v. Poland, no. 23039/02, § 68, 27 April
2010).
- The Court first observes that the victim’s body
was found on 27 April 1995. The authorities opened an
investigation on the same day. An autopsy was carried out on the next
day. As the applicants contested the autopsy results, on 13 July 1995
the prosecutor requested that an additional opinion be prepared by
another forensic expert. Subsequently, the prosecutor questioned the
doctor who had performed the autopsy. Another expert was questioned
in order to address the question whether the body could have been
thrown into the water at a different place from where it was actually
found. The applicants, in their numerous letters to the prosecuting
authorities, expressed views and made suggestions and were granted
access to the case file.
- The
Court is therefore satisfied that the first investigative measures in
the case were taken very promptly and that the authorities took
appropriate steps in order to provide a response to the applicants’
concerns expressed at an early stage of the proceedings.
- Similarly,
after the investigation was halted for the first time by the decision
given on 27 September 1995, the military prosecuting
authorities, reacting to the applicants’ letters of complaint
sent to various authorities, took steps to address their objections
and questioned a number of witnesses. The investigation was
eventually resumed on 20 September 1996 in the light of the
evidence given by these witnesses, the prosecution having had regard
to the contradictions between the statements made by them. The
investigation was shortly afterwards transferred to the Wrocław
District Prosecutor in order to ensure that civilian witnesses could
be questioned, and they were later questioned by that prosecutor.
- During
this stage of the proceedings the applicants were also given an
opportunity to participate in the investigation and to submit their
comments and requests to the prosecution. They availed themselves of
that opportunity by submitting, inter alia, a list of
questions to be put to the civilian witnesses, employees of Z.
company, addressing new factual aspects of the investigation. The
Court further notes that the prosecution also questioned individuals
indicated by anonymous informers who had told the applicants that
those individuals might have been involved in their son’s
death. However, no links were ultimately established between those
individuals and the death of the applicants’ son. Moreover the
authorities carried out an inspection of the area where the victim’s
body had been found, also in response to the applicants’
request.
- The
investigation was subsequently discontinued for the second time on
the same ground as previously, namely for lack of evidence that the
death had been the result of a criminal offence. In reaction to the
applicants’ complaint, it was resumed again and further
investigative measures were taken.
- To
sum up, the Court observes that the authorities took all reasonable
steps to investigate applicants’ son’s death. In this
respect, the Court refers to the Government’s submission that
during the investigation 191 sessions were held, during which
evidence was taken and witnesses questioned. In particular, the
authorities tried at all stages to identify and interview additional
witnesses who could have shed light on the events in question.
- The
Court observes that the applicants were of the view, early on, that
their son’s death had been caused by a criminal act. The Court
notes that their view was taken into consideration by the prosecuting
authorities and appropriately addressed by the questioning of new
witnesses, indicated by the applicants. Furthermore, the applicants
participated actively in the investigation and availed themselves of
their procedural rights to influence its course. Their requests for
specific evidence to be taken were considered by the prosecution and
often granted. They had also been questioned as witnesses.
- It
is true that the investigation lasted four years, from 27 April
1995 to 23 June 1999. However, the Court considers that this delay
did not affect the effectiveness of the investigation, as it did not
lead to a loss of opportunities for the collection of evidence. In
this respect the Court refers, in particular, to its finding that the
investigation was begun immediately and that the autopsy and
preparation of the two forensic expert opinions concerning the
findings made on the victim’s body were carried out promptly.
- The
Court further observes that the conduct of the investigation was
reviewed by a higher-ranking prosecutor. Ultimately, the applicants’
appeal against the decision of 11 December 1998 to discontinue the
investigation was examined by an independent court. The Wrocław
District Court found, in its decision of 23 June 1999, no grounds on
which to accept that either the proceedings or their substantive
outcome were in breach of the applicable laws or otherwise open to
criticism. On each occasion when the investigation was halted, the
applicants were given a reasoned decision in writing which set out
the evidence as well as the findings made during the proceedings.
- The
Court further notes that the applicants insisted that the employees
of the security company should be questioned again, after the
investigation was halted for the first time on 27 December 1995. It
was their insistence which ultimately resulted in the investigation
of their suspicion that the employees had given false evidence. This
investigation was halted but, as a result of the applicants’
complaints, was subsequently resumed. This led to a bill of
indictment being brought before the court in respect of three
individuals suspected of attempting to mislead the prosecuting
authorities during the investigation. Two of them were found guilty,
even though the proceedings against them were halted on a provisional
basis. One of them was convicted of giving false evidence and
sentenced.
- To
sum up, the mere fact that it was not established that the victim’s
death had been caused by a criminal act does not of itself suffice
for a finding that in the present case the State failed in its
procedural obligations.
- In the light of the above considerations, the Court
finds that the investigation into the circumstances of the death of
the applicants’ son was sufficiently thorough to be considered
compatible with the procedural requirements of Article 2 of the
Convention.
- It
follows that the application must be rejected pursuant to Article 35
§§ 3 and 4 of the Convention.
For these reasons, the Court by a majority
Declares the application inadmissible.
Fatoş Aracı David Thor Bjorgvinsson Deputy
Registrar President
