THIRD SECTION
CASE OF
TIMUS AND TARUS v. THE REPUBLIC OF MOLDOVA
(Application no.
70077/11)
JUDGMENT
STRASBOURG
October 2013
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 Timus and Tarus v. the Republic of Moldova,
The European
Court of Human Rights (Third Section), sitting as a Chamber composed of:
Josep Casadevall,
President,
Alvina Gyulumyan,
Ján Šikuta,
Luis López Guerra,
Kristina Pardalos,
Johannes Silvis,
Valeriu Griţco, judges,
and Santiago Quesada, Section Registrar,
Having
deliberated in private on 24 September 2013,
Delivers the
following judgment, which was adopted on that date:
PROCEDURE
The case originated in an application (no.
70077/11) 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 two Moldovan nationals, Mr Serghei Timus and Ms Victoria
Tarus (“the applicants”), on 25 October 2011.
The applicants were represented by Mr I. Oancea,
a lawyer practising in Chişinău. The Moldovan Government (“the
Government”) were represented by their Agent, Mr L. Apostol.
The applicants alleged, in particular, a breach
of Articles 2 and 3 of the Convention as a result of the ill-treatment and
killing of their brother.
On 10 April 2012 the application was communicated
to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. Background information
The applicants were born in 1990 and 1989
respectively and live in Chişinău.
The present case concerns the circumstances
surrounding the killing of the applicants’ 29-year-old brother Alexei Vlasi during
a police operation on 14 March 2009.
On that date at approximately 10.20 p.m. three plain-clothed
police officers (N., B. and C.) entered a five-storey apartment block to arrest
a person suspected of armed robbery. According to their information, the
suspect in question was supposed to be visiting his ex-girlfriend M. that
evening, who lived on the fourth floor of the building.
At the same time, M. was coming down the stairs
from the fourth floor with a group of four friends. None of them was the
suspect wanted by the police. Two young women (S. and Z.) and a young man (G.)
were at the front of the group and they passed the police officers between the
third and second floor.
Upon passing the first part of the group one of
the police officers immediately apprehended G. Alexei Vlasi and M. were several
storeys up and saw the police officers as they approached the rest of the
group. Two police officers rushed after Alexei Vlasi, who started to run back
up the stairs. They apprehended him on the fifth floor. Shortly afterwards, one
of the police officers shot him in the back of the head at very close range. He
died instantly.
An investigation followed, during which all the
witnesses and police officers were questioned. There were two versions of
events: that of the group of friends coming down the stairs with the victim
(the witnesses), and that of the police officers.
B. The witnesses’ version of events
The witnesses’ version was that two police
officers, N. and C., were armed with pistols which they were holding upwards.
Upon passing the first part of the group, the officers saw that there was
someone else upstairs and ran in that direction, leaving the first part of the
group with police officer N. They then told police officer N. to come upstairs
with the rest of the group. After apprehending Alexei Vlasi somewhere on the
fifth floor, police officers B. and C. started to beat him up. All the members
of the group recounted an almost identical description of what they had heard
and the conversation that had taken place between the two police officers and
Alexei Vlasi. According to them, one of the police officers (B.) called Alexei
Vlasi by his first name and told him to follow them. In response, he addressed
B. by his first name and told him to stop beating him up. Sounds of someone
being beaten up were heard and Alexei Vlasi threatened to report his injuries to
a forensic doctor. The manner in which he said this last sentence was very
specific, as he used a mixture of both Romanian and Russian words and the
witnesses recounted it in the same manner. It later transpired that police
officer B. and Alexei Vlasi already knew each other, as in 1999 the latter had been
arrested by the former for bicycle theft.
The encounter between police officers B. and C.
and Alexei Vlasi took place on the fifth and top floor. Two of the witnesses M.
and G. were the closest to the scene at the time, being held by police officer
N. on the fourth floor. The fourth floor was separated from the fifth floor by
two flights of stairs going in opposite directions joined by an intermediate
landing. M. (who also already knew police officer B.) started to shout at him,
telling him to leave Alexei Vlasi alone. She called him by his first name and tried
to get past police officer N. in order to help Alexei Vlasi. In her struggle
with police officer N. she could partly see what was happening on the fifth
floor. G. was also there. According to them, police officer B. grabbed Alexei Vlasi
by his right hand while officer C. grabbed him by his left hand and started to make
his way down the stairs from the fifth floor to the landing between the fifth
and fourth floors. At about the third from last step, Alexei Vlasi was facing the
handrail and grabbed it. The police officers who were behind him bent him over
and, according to one of the witnesses, held both his hands behind his back.
According to another witness, one of his hands was on the handrail while the other
was held by a police officer behind his back. Police officer C. was holding his
pistol at the back of Alexei Vlasi’s head while he was bent over. Police
officer B. punched him in the ribs and he repeated again that he would be reporting
his injuries to a forensic doctor. Immediately afterwards, he was shot in the
back of the head by police officer C. at very close range. He collapsed on the
landing between the two flights of stairs, with his feet on the stairs and his
body on the landing. Blood started to spurt out of his head wound. M. shouted:
“He shot him straight in the head!” and her first reaction was to try to stop him
losing any more blood with her hands. In what appeared to be an attack of
hysteria she started to scream and to attack police officer B. and shouted “Why
did you do that?” Another female friend in the group approached her from
behind, hugged her and tried to pull her away from the body.
According to the witnesses, Alexei Vlasi did not
have anything in his hands after collapsing to the ground. Police officer B.
asked officer C.: “What the hell did you do?!” C. did not respond with anything
intelligible but remained still, holding his head in his hands. One of the
witnesses said they heard him respond in a low voice: “I didn’t want to do
that”. He was very pale. According to the witnesses he did not have any visible
injuries and could walk perfectly well. Immediately afterwards, officer B.
ordered all the witnesses to go into M.’s apartment on the fourth floor. He and
police officer N. pushed everybody into her apartment and closed the door.
Police officer N. was holding the doorknob so that nobody could leave. Many of
the neighbours started to look out of their apartments but the police officers
ordered them all to close their doors and stay inside.
C. The police officers’ version of events
According to the police officers, when Alexei Vlasi ran up the stairs, they
thought he was the suspect they had been after. They claimed to have been
convinced that the victim was the suspect they were looking for and that they only
realised their mistake after he had been shot. However, during a confrontation which
took place later, police officer B. admitted he had known Alexei Vlasi for a long
time. The following description of the police officers’ version of events was made
after a video reconstruction of the scene, which was filmed during the
investigation with the participation of police officer C. on 7 August 2009.
Police officer B. recounted an identical version of events.
Police officer B. chased Alexei Vlasi and
approached him from behind on the landing of the top, fifth floor. He put his
hand on his shoulder, called him by the name of the wanted suspect, announced
that he was a police officer and asked him to come with him. At that moment
Alexei turned around and punched police officer B. in the face with his right
fist and attempted to run down the stairs. When he punched police officer B. he
did not have anything in his hand. Police officer B. was pushed into a wall on
his right and lost his balance. However, police officer C., who had already
approached them from behind, managed to apprehend Alexei Vlasi by pulling his
left arm near his shoulder (in his initial statement police officer C. stated
that he had apprehended him by the collar of his jacket). The apprehension took
place on the top three steps of the flight of stairs leading to the fifth
floor. Police officer C. was behind Alexei Vlasi on a higher step, holding his
hand with his left hand and holding his pistol pointed upwards in his right
hand. At that moment, without changing his position, Alexei Vlasi stabbed
police officer C. in the right thigh with a knife, which he had been holding in
his right hand in reverse grip. Then, without changing the position of the
knife, Alexei Vlasi attempted to turn to his left and to stab police officer C.
in the face. According to police officer C., Alexei Vlasi had been standing
upright. Fearing for his life, police officer C. pulled the trigger of the
pistol he was still holding upwards and shot him in the upper neck. The police
officers did not say how the victim’s body ended up on the landing between the
fifth and fourth floor some six or seven steps lower, but it is reasonable to
infer that it rolled down by itself before slumping at the bottom of the stairs.
D. The criminal investigation
A criminal investigation was formally initiated
on 15 March 2009. According to a report describing the scene, Alexei Vlasi’s
body was lying in a pool of blood on the intermediate landing between the
fourth and fifth floors. There was an open small pocket knife with a lock
mechanism with a blade 6.5 cm long in the palm of his right hand. His feet were
on the first two steps of the flight of stairs leading to the fifth floor. There
were traces of blood on those steps. The report contains pictures of areas stained
with blood, such as the landing where the body was lying, the walls around it,
and the landing between the third and the fourth floor, where blood had run
down from above. No traces of blood appear to have been found above the steps
on which the victim’s feet were located. On the wall above the sixth step of
the flight of stairs going down to the fourth floor from the landing where the
body was lying, there was a bullet hole 2.3 metres above the step, exactly
opposite where the witnesses alleged the victim had been shot when facing the
handrail.
During the investigation, the Chişinău
prosecutor’s office obtained several forensic reports which found, inter
alia, that the entry wound was on Alexei Vlasi’s upper left neck and the
exit wound was on the right side of his forehead above his eyebrow. According
to the forensic report, the shot was fired at such close range that gunshot
residue was present on the victim’s skin around the entry wound. Another
forensic report found that the police officer who had shot him had had an
injury to his right thigh made by a knife wound and the other police officer
who had allegedly been punched in the face by Alexei had had a bruise on his
face. Another expert report did not find any fingerprints on the knife found in
Alexei Vlasi’s palm after his death.
On 21 September 2009 the Chişinău prosecutor’s
office decided to discontinue the criminal investigation on the grounds that
the police officer who shot Alexei Vlasi had acted in self-defence. The prosecutor’s
office was based on the police officers’ version of events. The applicants
challenged the above decision before the Prosecutor General’s Office.
On 9 October 2009 a deputy Prosecutor General
quashed the above decision on the grounds that it was based exclusively on the
police officers’ version of events and that no consideration was given to the
witnesses’ statements. The investigator had failed to determine the exact place
of the shooting and the victim’s position in relation to the shooter. Moreover,
no ballistics test had been conducted in order to determine the trajectory of
the bullet.
In the reopened investigation some of the
witnesses were re-questioned. One of them, G., changed his statements and
submitted that he had not seen or heard anything, but later claimed that he had
only done so because he had been pressured and threatened to do so by the
accused police officers.
A ballistics test was carried out with the help
of an assistant standing where the police officers alleged the victim had been standing
at the time of shooting. The assistant had a cabbage placed on his shoulder,
near his head. Through a hole pierced in the cabbage, a thread was led to the
bullet hole in the wall, which was considerably lower than the cabbage. Taking
into consideration the positions of the entry and exit wounds on the victim’s
head, it was concluded that, at the moment of the shooting, the victim had been
bent over and not standing upright as suggested by the police officers in their
version of events.
On 30 June 2010 the Chişinău prosecutor’s
office again discontinued the criminal proceedings on similar grounds as the
first time, namely on the basis of the police officers’ version of events. It
does not appear that the prosecutor attempted to reconcile the findings of the
ballistics test with the police officers’ version of events concerning the
circumstances of Alexei Vlasi’s shooting. The applicants appealed.
On 22 July 2010 a hierarchically superior
prosecutor dismissed the applicants’ appeal. They appealed to an investigating
judge.
On 20 October 2010 an investigating judge from
the Rascani District Court upheld the applicants’ appeal, quashed the decisions
of 30 June and 22 July 2010 and ordered a re-investigation of the case. He
concluded that the investigation had been incomplete and that the conclusions
reached by the investigators were inconsistent with the evidence in the case file.
The investigating judge also noted that no confrontations had been carried out
between all the witnesses and the accused officers, no importance had been attached
to the fact that no fingerprints had been found on the knife the victim had
allegedly stabbed police officer C. with, and that the investigation had not
been conducted within a reasonable time.
Following the investigating judge’s decision,
the applicants applied to the Prosecutor General’s Office with a request to
have the case removed from the Chişinău prosecutor’s office on
account of its bias and to have it transferred to another prosecutor’s office.
On 8 November 2010 a deputy Prosecutor General rejected the applicants’ request
as ill-founded.
On 27 April 2011 the Chişinău prosecutor’s
office questioned witness M. again. On 17 May 2011 witness G. was questioned again.
He submitted having seen police officer B. stabbing police officer C. in his
thigh with a knife before being forced into M.’s apartment after the shooting.
According to him, this took place between the third and the fourth floor and he
had mentioned it during his initial questioning, but no record had been made.
Confrontations were organised between M. and police officer B. and between G.
and police officer B. on 20 and 24 May 2011, during which each party maintained
their statements.
On 21 July 2011 witness G. took a lie-detector test
to determine whether his statement about police officer B. stabbing police
office C. with a knife was truthful. The test result was negative, i.e. G.’s
statement was not truthful.
On 15 September 2011 the Chişinău prosecutor’s
office again discontinued the criminal investigation on similar grounds as the
previous occasions. The results of the lie-detector test were added to the
decision. The applicants appealed against it and argued that the results of the
lie-detector test were inadmissible because the test had been carried out
by colleagues of the accused police officers rather than by independent
experts.
On 20 October 2011 the hierarchically superior
prosecutor dismissed the applicants’ appeal. They appealed to an investigating
judge.
On 12 December 2011 an investigating judge from
the Rascani District Court upheld the applicants’ appeal, again finding that
the investigation had been incomplete. The judge also declared the results of
the lie-detector test inadmissible.
On 13 April 2012, without conducting any further
investigative measures, a prosecutor from the Chişinău prosecutor’s
office again discontinued the criminal investigation. The content of the
decision was identical to that of the decision of 15 September 2011, including
reference to the lie-detector test.
On 9 July 2012 the hierarchically superior
prosecutor dismissed the applicants’ appeal. They appealed to an investigating
judge.
On 16 October 2012 an investigating judge from
the Rascani District Court again upheld the applicants’ appeal, quashed the
decisions of 13 April and 9 July 2012 and ordered a reopening of the
investigation.
On 11 March 2013 a prosecutor from the Chişinău
prosecutor’s office again discontinued the criminal investigation.
On 22 April 2013 the hierarchically superior
prosecutor dismissed the applicants’ appeal. They appealed to an investigating
judge.
On 19 July 2013 an investigating judge from the
Rascani District Court again upheld the applicants’ appeal, quashed the
decisions of 11 March and 22 April 2012 and ordered a reopening of the
investigation. The investigation appears to be pending to date.
II. RELEVANT DOMESTIC LAW
Under section 17 of the Police Act of 18
December 1990, in force at the material time, police officers had the right to
use firearms as a last resort in the process of self-defence. Firearms could be
used by police officers without being preceded by a warning about the intention
to use them where there was a sudden attack or an attack necessitating the use
of special fighting techniques.
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 2 AND 3 OF THE CONVENTION
The applicants complained that Alexei Vlasi had
been ill-treated and killed by State agents, and that the domestic authorities
had failed to carry out an effective investigation into the circumstances of
his death. They relied on Articles 2 and 3 of the Convention, which read
as follows:
Article 2
“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.”
Article 3
“No one shall be subjected to torture or to inhuman or
degrading treatment or punishment.”
A. Admissibility
The Government submitted that the investigation
into the circumstances of the present case was still ongoing and that no final
decision had yet been given at domestic level. For that reason, they maintained
that the applicants’ application was premature and that he had failed to
exhaust the domestic remedies available to him.
The Court reiterates that the purpose of Article
35 § 1 of the Convention is to afford Contracting States the opportunity to prevent
or put right the violations alleged against them before those allegations are
submitted to the Court. Consequently, States are dispensed from answering for
their acts before an international body before they have had the opportunity to
put matters right through their own legal systems (see, for example, Remli
v. France, 23 April 1996, § 33, Reports of Judgments and Decisions
1996-II, and Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V).
At the same time, “an applicant does not need to exercise remedies which,
although theoretically of a nature to constitute remedies, do not in reality
offer any chance of redressing the alleged breach” (see Yoyler v. Turkey,
no. 26973/95, 13 January 1997, and Akdivar and Others v. Turkey, §
68, 30 August 1996, Reports 1996-IV).
In the instant case, it is true that the
proceedings are still pending before the domestic courts. Nevertheless, the
Court finds that the question of exhaustion of domestic remedies inextricably
linked to the merits of the complaints, that is, the question of the
effectiveness of the investigation into the applicants’ allegations of
ill-treatment and killing of Alexei Vlasi. Therefore, it considers that both
questions should be joined and examined together (see Mikheyev v. Russia,
no. 77617/01, § 88, 26 January 2006).
The Court further notes that the complaints are
not manifestly ill-founded within the meaning of Article 35 § 3 of the
Convention. No other grounds for declaring the application inadmissible have
been established. It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
The applicants submitted that the State was
responsible for the death of Alexei Vlasi since his shooting had not been warranted
by the circumstances. He had not been armed and presented no threat to the life
or health of the police officers. After fatally shooting him, the police
officers had attempted to falsify evidence to make it appear like self-defence.
For that purpose one of them had hurt the other with a knife and had planted the
knife in the dead victim’s hand. The applicants relied on the statements of the
witnesses which supported that version of events. Lastly, the applicants
submitted that the investigation into the circumstances of the victim’s death
had not been effective as required by Article 2 of the Convention.
The Government did not make any submissions on
the merits of the case but only endorsed the position of the prosecuting
authorities in their decisions to discontinue the investigation, according to
which police officer C. had acted in self-defence when he shot the victim in
the head.
2. The Court’s assessment
(a) General principles
Article 2, which safeguards the right to life
and sets out the circumstances in which deprivation of life may be justified,
ranks as one of the most fundamental provisions in the Convention, from which
no derogation is permitted. Together with Article 3, it also enshrines one of
the basic values of the democratic societies making up the Council of Europe.
The circumstances in which deprivation of life may be justified must therefore
be strictly construed. The object and purpose of the Convention as an
instrument for the protection of individual human beings also requires that
Article 2 be interpreted and applied so as to make its safeguards practical and
effective (see Andronicou and Constantinou v. Cyprus,
9 October 1997, § 171, Reports of Judgments and Decisions 1997-VI,
and Huohvanainen v. Finland, no. 57389/00, § 92, 13 March 2007).
The text of Article 2, read as a whole,
demonstrates that it covers not only intentional killing but also the
situations where it is permitted to “use force” which may result, as an
unintended outcome, in the deprivation of life. Any use of force must be no
more than “absolutely necessary” for the achievement of one or more of the
purposes set out in sub-paragraphs (a) to (c). This term indicates that a
stricter and more compelling test of necessity must be employed than that
normally applicable when determining whether State action is “necessary in a
democratic society” under paragraphs 2 of Articles 8 to 11 of the Convention.
Consequently, the force used must be strictly proportionate to the achievement
of the permitted aims (see Kelly and Others v. the United Kingdom, no.
30054/96, § 93, 4 May 2001).
In keeping with the
importance of Article 2 in a democratic society, the Court must, in making its
assessment, subject deprivations of life to the most careful scrutiny,
particularly where deliberate lethal force is used, taking into consideration
not only the actions of the State agents who actually administer the force but
also all the surrounding circumstances, including such matters as the planning
and control of the actions under examination. In determining whether the force
used is compatible with Article 2, it may therefore be relevant whether a
law-enforcement operation has been planned and controlled so as to minimise to
the greatest extent possible recourse to lethal force or incidental loss of
life (see Bubbins v the United Kingdom, no. 50196/99, §§ 135-36, ECHR
2005-II, and McCann and Others v. the United Kingdom, 27 September
1995, §§ 150 and 194, Series A no. 324).
Furthermore, 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 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 an investigation is to secure the effective
implementation of the domestic laws safeguarding the right to life and, in
those cases involving State agents or bodies, to ensure their accountability
for deaths occurring under their responsibility (see Makaratzis v. Greece [GC],
no. 50385/99, § 73, ECHR 2004-XI). What form of investigation will
achieve those purposes may vary in different circumstances. However, whatever
mode is employed, the authorities must act of their own motion, once the matter
has come to their attention. They cannot leave it to the initiative of the next
of kin either to lodge a formal complaint or to take responsibility for the
conduct of any investigative procedures (see Kelly and Others, cited
above, § 94, and, mutatis mutandis, İlhan v. Turkey
[GC] no. 22277/93, ECHR 2000-VII, § 63).
A requirement of promptness and reasonable
expedition is implicit in this context (see Yaşa v. Turkey, 2
September 1998, §§ 102-04, Reports 1998-VI). 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
standard of effectiveness (see Kelly and Others, cited above, §§
96-97, and Anguelova v. Bulgaria, no. 38361/97, § 139, ECHR
2002-IV).
(b) Application of these
principles to the present case
Turning to the facts of the present case, the
Court notes that it is undisputed that Alexei Vlasi was shot in the head by a
police officer while being apprehended. The only matter in dispute is whether
the use of deadly force against him was justified in the circumstances of the
case. In justifying the use of force by the police, the Government relied on
the version of events submitted by the police officer who had shot him.
The Court notes from the outset some blatant
discrepancies between the version of events relied on by the Government and the
evidence in the case file. According to the video reconstruction of the scene
of the shooting (see paragraphs 14 and 15 above) the shooting took place on the
upper part of the stairs leading to the fifth floor. However, a report
describing the scene immediately after the incident and enclosing relevant
pictures does not contain any information about traces of blood which would
indicate that the victim’s body had rolled down the stairs to the landing
between the fourth and fifth floors. The Court finds it highly implausible that
the victim’s body, which had been subjected to a serious gunshot wound to the
head, could roll down the stairs without leaving any traces of blood. Indeed,
according to that report the victim had lost so much blood that traces of it
were found on the storey below, on the landing between the fourth and third
floors.
In the same video reconstruction, police officer
C. alleged that at the moment of the shooting, Alexei Vlasi had been standing upright
with his head right in front of him on the step below, and that he had been
holding his gun at the back of the victim’s head pointed upwards. However, the
bullet with which the victim was shot hit the wall at a a significantly lower point
than where the victim’s head had allegedly been positioned. Indeed, the ballistics
test indicated that in order for the bullet to have hit the wall at the place
suggested, the victim must have been bent over (see paragraph 21 above).
Had the victim been where police officer C. described, the bullet could not
have hit the wall at the place suggested.
In view of the above fundamental discrepancies, corroborated
by the fact that no fingerprints of the victim were found on the knife with
which police officer C. was allegedly stabbed and with the statements of
witnesses which, unlike those of the police officers, are not inconsistent with
the factual evidence in the case file, the Court has serious reservations
concerning the credibility of the version of events relied upon by the
Government. It follows that they have not proved that the use of deadly force
against Alexei Vlasi was necessary in the circumstances of the case and
therefore their responsibility is engaged.
The Court must also have regard to the manner in
which the domestic authorities investigated the case. It notes firstly that the
proceedings in respect of the applicants’ complaint have been pending before
the domestic authorities for more than four years, during which time the case
has not even reached the courts. Judging by the materials in its possession,
the Court is not persuaded that the present case is of such complexity as to
have required such a long time to be resolved. There were several long periods during
which nothing happened in the proceedings. For instance, after the reopening of
the investigation on 20 October 2010 when an investigating judge found, inter
alia, that the investigation had not been conducted within a reasonable
time (see paragraph 24 above), no procedural events took place until 27 April
2011 (see paragraph 26 above). After the reopening of the investigation on 12 December
2011 (see paragraph 30 above) no investigative measures were conducted until
13 April 2012, when the investigation was again discontinued (see paragraph 31
above). Lastly, it appears that the investigation is open to date (see
paragraph 36 above).
Having carefully examined the case materials,
the Court considers that the manner in which the prosecuting authorities
assessed the circumstances of the case could give an independent observer the
impression that they did not genuinely attempt to elucidate the circumstances
of the case and discover the truth. As shown above, the prosecutors appear to
have favoured the police officers’ version of events to such an extent that
they were prepared to disregard some blatant discrepancies between that version
and the factual evidence in the case file. Furthermore, the witnesses’
statements were treated as so irrelevant that the prosecutors did not even
bother to explain why they were not taken seriously. For example, the ballistics
test was only carried out in order to verify the trajectory of the bullet from where
the police officers alleged the victim had been positioned. For reasons unknown,
the authorities did not consider it necessary to verify whether the location of
the bullet hole in the wall fit with where the witnesses alleged the victim had
been positioned.
In the light of the shortcomings described above
and the overall length of the criminal investigation, the Court concludes that
the investigation into the circumstances surrounding Alexei Vlasi’s death was neither
adequate nor sufficiently effective.
The Court reiterates that if the domestic remedy
chosen by an applicant is adequate in theory, but, with the course of time,
proves to be ineffective, the applicant is no longer obliged to exhaust it (see
Tepe v. Turkey, 27244/95, Commission decision of 25 November
1996). Having concluded above that the investigation into the applicants’
allegations was ineffective, the Court considers that they are no longer
required to wait for the termination of the investigation in order to exhaust
domestic remedies. The Court thus dismisses the Government’s objection of
non-exhaustion of domestic remedies and holds that there has been violation of
Article 2 of the Convention in both its substantive and procedural limbs.
In view of these findings, the Court does not
consider it necessary to also examine the case under Article 3 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
The applicants contended that they had not had
any effective remedies in respect of the breach of their rights guaranteed by
Article 2 of the Convention and that there had therefore been a breach of
Article 13, which reads as follows:
Article 13
“Everyone whose rights and freedoms as set forth in
[the] Convention are violated shall have an effective remedy before a national
authority notwithstanding that the violation has been committed by persons
acting in an official capacity.”
A. Admissibility
The Court notes that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that it is not inadmissible on any other grounds.
It must therefore be declared admissible.
B. Merits
The applicants submitted that they had not had any
criminal-law remedies because the criminal investigation had been ineffective,
and as a result of that ineffectiveness, they had not had any effective civil
remedies by which to claim compensation for their brother’s death.
The Government did not make any submissions in
respect of this complaint.
In so far as the first part of the applicants’
complaint is concerned, namely that they did not have effective criminal-law
remedies in respect of their brother’s alleged killing, the Court notes that it
does not raise any separate issue from that examined under the procedural limb
of Article 2.
As to the other part of the complaint, the Court
considers that, given the inadequacy of the investigation into the
circumstances of Alexei Vlasi’s death, a civil claim relying on the same facts
and allegations would not have had any prospect of success. Accordingly, the
Court considers that it has not been shown that effective remedies existed
enabling the applicants to claim compensation for the killing of their brother by
the police (see, mutatis mutandis Corsacov v. Moldova, no.
18944/02, § 82, 4 April 2006, and Gurgurov v. Moldova, no. 7045/08, § 73, 16 June 2009). There has therefore
been a violation of Article 13 taken in conjunction with Article 2 of the
Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
65. 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
The applicants claimed 180,000 euros (EUR) in
respect of non-pecuniary damage suffered as a result of the violations found
above. They submitted that at the time of their brother’s killing, they were 19
and 18 years old respectively and had no other family except him. Their mother
had died in 2002 and their father had left them several years earlier. Their
only support had been their elder brother, the victim Alexei Vlasi, who had been
29 years old at the time. The applicants submitted that losing their brother
and later having to endure the unfair investigation of the case had caused them
a lot of psychological suffering.
The Government disagreed with the applicants and
asked the Court to dismiss their just satisfaction claims along with the
application.
The Court observes that it has found that the
authorities were accountable for Alexei Vlasi’s death. In addition to this serious
violation, it has further found that the authorities failed to undertake an
effective investigation and to provide an effective remedy in respect of it, in
violation of their procedural obligation under Article 2 of the Convention. In
view of the above, the Court, judging on an equitable basis, awards each
applicant EUR 25,000.
B. Costs and expenses
The applicants also claimed EUR 6,377 for the
costs and expenses incurred before the Court. They submitted some documents in
support of their claims.
The Government disagreed with the amount claimed
and asked the Court to award whatever it considered reasonable.
Regard being had to the information contained in
the case, the Court considers it reasonable to award EUR 3,000 for costs and
expenses.
C. Default interest
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. Joins to the merits the Government’s
preliminary objection concerning the exhaustion of domestic remedies by the
applicants and rejects it;
2. Declares the application admissible;
3. Holds that there has been a violation of
Article 2 of the Convention in both its substantive and procedural limbs;
4. Holds that no separate issue arises under
Article 3 of the Convention;
5. Holds that no separate issue arises under
Article 13 of the Convention in so far as the applicants’ complaint about the
ineffectiveness of the criminal investigation is concerned;
6. Holds that there has been a violation of
Article 13 of the Convention taken in conjunction with Article 2 of the
Convention in so far as the applicants’ complaint of lack of civil remedies in
respect of their brother’s killing is concerned;
7. Holds
(a) that
the respondent State is to pay the applicants, within three months of the date
on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following amounts, to be
converted into the national currency of the respondent State at the rate
applicable at the date of settlement:
(i) EUR 25,000 (twenty-five thousand euros), plus any tax
that may be chargeable, in respect of non-pecuniary damage to the first
applicant;
(ii) EUR 25,000 (twenty-five
thousand euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage to the second applicant; and
(iii) EUR
3,000 (three thousand euros), plus any tax that may be chargeable to the applicants
jointly, 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;
8. Dismisses the remainder of the applicants’
claim for just satisfaction.
Done in English, and notified in writing on 15 October
2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago
Quesada Josep
Casadevall
Registrar President
