THIRD SECTION
CASE OF
JASINSKIS v. LATVIA
(Application no.
45744/08)
JUDGMENT
STRASBOURG
21 December 2010
FINAL
21/03/2011
This judgment has become final under
Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Jasinskis v. Latvia,
The European Court of Human Rights (Third Section), sitting as
a Chamber composed of:
Josep Casadevall, President,
Elisabet Fura,
Corneliu Bîrsan,
Alvina Gyulumyan,
Egbert Myjer,
Ineta Ziemele,
Ann Power, judges,
and Santiago Quesada, Section Registrar,
Having deliberated in private on 30 November 2010,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
45744/08) against the Republic of Latvia lodged with the Court under Article 34
of the Convention for the Protection of Human Rights and Fundamental Freedoms
(“the Convention”) by a Latvian national, Mr Aleksandrs Jasinskis (“the
applicant”), on 25 June 2008.
The applicant was represented by Ms A. Dāce,
a lawyer practising in Rīga. The Latvian
Government (“the Government”) were represented by their Agent, Mrs I. Reine.
The applicant alleged, in particular, that his
son had died after being taken into police custody and that the police were
responsible for his death. He alleged in addition that the subsequent
investigation had not been effective.
On 27 January 2009 the President of the Third
Section decided to give notice of the application to the Government. It also
decided to examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. Events leading to the death of the applicant's son
The applicant was born in 1933 and lives in
Balvi. He is the father of Mr Valdis Jasinskis (“the applicant's son”), a
Latvian national who was born in 1962 and who died on 28 February 2005.
On 26 February 2005 the applicant's son (who had
been deaf and mute since birth) and several of his friends were drinking beer
in a bar in Balvi. Witness statements differ somewhat as to how much alcohol
the applicant's son consumed that night. After the applicant's son's death, a
forensic expert took into the account witness testimonies and used Widmark's
equation to arrive at the estimate that, after finishing his last drink, the
alcohol concentration in the applicant's son's blood would have been
4.52 ‰, which meant that all traces of alcohol would have left his body
approximately thirty hours later. The expert, however, noted that this figure was
approximate. The applicant disagreed with the estimate, noting that such a
concentration of alcohol would be deadly.
After leaving the bar, the applicant's son and
his friends walked to a nearby school where a party was taking place. In front
of the school entrance M.I. - a minor - pushed the applicant's son, who fell backwards
down the stairs in front of the school, hit his head against the ground and
lost consciousness for several minutes. The persons present then tried to
attract the attention of the security guards, who were inside the school, by
knocking on the locked doors. In the process a glass pane of the entrance doors
was cracked. It appears from the subsequent investigation that the glass was broken
by one of the students of the school.
The security guards came outside and saw the
applicant's son lying unconscious on the ground. They called an ambulance and
the police. After the applicant's son had regained consciousness, the security
guards sat him down on the stairs of the school.
The police arrived on the scene at 1.40 a.m.
They later reported that the applicant's son had been unable to stand up on his
own and had been flailing his arms. Upon their arrival the officers were
informed that the applicant's son was deaf and mute and that he had fallen down
the stairs. They were also told that he was probably responsible for breaking
the glass of the entrance doors.
The policemen decided not to wait for the
ambulance that had been called and took the applicant's son to the Balvi District
Police station in order to initiate administrative proceedings for petty
hooliganism and public drunkenness. The policemen alleged that in the car on
the way to the police station the applicant's son had behaved aggressively and
had been flailing his arms and kicking.
The record of the administrative detention of the
applicant's son indicates that the reason for the detention was to “sober up”
the detainee. The only injury that was noted was a graze on his face. The same record
also notes that at 5.50 p.m. on the following day the applicant's son was
released from detention because he had “sobered up” (but see paragraph 16
below).
The policemen alleged that on the premises of
the police station the applicant's son had continued to behave aggressively by
flailing his arms. The applicant submits that it is probable that his son was
trying to communicate with the policemen by using gestures, because they had
taken away the notebook he normally used to communicate with persons who did
not understand sign language.
Shortly afterwards the ambulance crew contacted
the police station. The officer on duty informed them that no medical aid was
necessary, since the applicant's son was merely intoxicated. He was then placed
in the sobering-up room. For a while he kept knocking on the doors and walls
but stopped doing so after a while and went to sleep.
At 8.40 a.m. in the morning the duty
officers tried to wake the applicant's son but he only opened his eyes and, according
to the conclusions of the internal investigation of the police, “did not want
to wake up”.
Approximately fourteen hours after the applicant'
son had been brought to the police station (at approximately 3.30 p.m.) one
of the policemen considered that he had been “sleeping for too long” and called
an ambulance. The doctors apparently refused to take Valdis Jasinskis to a
hospital (during the internal investigation the officers reported that the ambulance
crew had indicated that he was “faking” and was healthy). The Government
dispute that fact, observing that it had not been mentioned in the report on
the quality of medical care provided to the applicant's son (see below,
paragraph 18). Nevertheless, the fact of the ambulance crew's initial refusal
is confirmed by the statements of the police officers who were present at the
police station at the time, which have been recounted in several documents,
such as the conclusions of the internal inquiry of 4 April 2005 (see below,
paragraph 19), the report of the additional internal inquiry of 5 August 2005
(see below, paragraph 22), the 2 November 2005 decision to terminate the criminal
proceedings (see below, paragraph 23) and others.
The applicant's son was taken to hospital only
after repeated requests from his father, who had at that time been informed of
his son's arrest and had arrived at the police station. From the reports of the
internal investigation it appears that the transfer took place at 5.30 p.m.
on 27 February 2005. Upon arrival at the hospital it was noted that the
applicant's son was conscious but “non-communicative”. His condition was
characterised as “serious” and he was diagnosed with severe intoxication with
unknown alcohol surrogates. At 9.10 p.m. the applicant's son lost
consciousness and his condition was described as “very serious”. At 11.30 p.m.
the medical report was updated to note that the presence of an intracranial
haematoma could not be excluded but that because of his condition the patient
could not be transported for a CT scan (which was only available at a hospital
in Rēzekne, some eighty kilometres from Balvi). The applicant's son died at
2.00 a.m. on 28 February 2005.
A post-mortem examination of the applicant's son's
body was carried out on 28 February 2005. It disclosed fractures of the
frontal, parietal and occipital bones of the applicant's son's cranium, oedema
in the brain as well as multiple other injuries to the head and brain. The
expert concluded that those injuries had been the cause of death. It was
further established that neither the blood nor the urine of the applicant's son
contained any traces of alcohol.
B. Investigation
1. Concerning medical care
On 9 May 2005 an
expert of the Inspectorate of Quality Control for Medical Care and Working
Capability (“MADEKKI”) issued a report on the quality of medical aid provided
to the applicant's son before his death. The report noted several shortcomings
in the treatment of the applicant's son at the police station. In particular,
it was noted that no information was available concerning the health condition
of the applicant's son during the time spent in the police station or when he
was placed in the sobering-up room. It was further concluded that the ambulance
had been called to the police station belatedly. The final conclusion of the
report was that the death of the applicant's son was not attributable to any
lack of professionalism on behalf of the doctor who had treated him in the
hospital but rather to the severity of his injuries.
2. Concerning criminal responsibility
After the death of the applicant's son the Balvi
District Police Department launched an internal inquiry. On 4 April 2005 the
final report of the inquiry was approved by the head of that department. The
report concluded that the policemen present at the police station during the
night in question had acted in accordance with the internal guidelines and the
legislation governing police work. The report further referred to an article in
the local newspaper in which a surgeon had expressed the opinion that injuries
such as the ones sustained by the applicant's son were difficult to detect, in
particular if the injured person was intoxicated. The final conclusion was that
the staff of the department had committed no infractions.
On 26 May 2005 an investigator of the Balvi
District Police Department adopted a decision to terminate the criminal
proceedings against M.I., which had been initiated on 2 March 2005. In this
decision several witness testimonies were recounted and some of them seemed to
indicate that the security guards who had been on duty during the party at the
school had hit the applicant's son in the head with a rubber truncheon. It was
also found that upon the applicant's son's arrival at the police station the
policemen had noted that he did not have any visible injuries and that he was
heavily intoxicated. The decision further remarked that at 5.30 p.m. at
the police station a doctor had observed that the applicant's son was conscious
and had no traces of having been hit on his body or head. There was some dried
blood in one of his nostrils. However, considering that the applicant's son was
deaf and mute and thus unable to communicate orally any complaints about his
health, he had been diagnosed as being intoxicated with alcohol surrogates and
taken to the Balvi hospital. It was further noted that the internal inquiry of
the Balvi District Police Department had established that the policemen in
charge had not committed any offence. Lastly it was established that M.I.'s
actions did not constitute corpus delicti. Therefore, the criminal
proceedings concerning the death of the applicant's son were terminated.
On 17 June 2005 the Balvi District Public Prosecutor's
Office decided to quash the decision of 26 May and remitted the case for
additional investigation. Among other things, the public prosecutor indicated
that it was necessary to determine whether it would have been possible to
correctly diagnose the applicant's son's injuries had he been taken to hospital
earlier than he was, whether the police had adequately taken into account the
fact that he was deaf and mute, and whether there were any visible external
signs of the injuries that eventually caused his death.
On 5 August 2005 the head of the Balvi District
Police Department approved a report drawn up in the context of an additional
internal inquiry that had been prompted by the decision of 17 June. Once again
no wrongdoings on the part of the police officers were established. In
particular, it was noted that even though an internal police instruction
concerning sobering-up rooms prohibited the placement therein of persons with visible
physical injuries, the applicant's son did not fall within that category. The
report confirmed that his injuries had not been obvious, in that regard
referring to the visit of the ambulance crew to the police station at 3.50 p.m.
on 27 February 2005, during which no injuries had been noted.
On 2 November 2005 the Balvi District Police
Department terminated the criminal proceedings for the second time. The
decision pointed out, inter alia, that even if the applicant's son had
been taken to hospital sooner, it was not certain that he would have received the
correct diagnosis due to the absence of a CT scanner and a specialist
neurologist at Balvi hospital. It was also established that since the applicant's
son's injuries were not visible, the police officers in question had not breached
the law.
On 8 November 2005 the Balvi District Public Prosecutor's
Office decided to quash the decision of 2 November 2005 on the ground that the evidence
had not been examined.
On 10 November 2005 the Balvi District Police
Department decided to terminate the criminal proceedings. The text of the
decision was practically identical to that of 2 November 2005.
As of 19 September 2006 the applicant was
represented by a lawyer. Pursuant to a request by the applicant's
representative, on 1 November 2006 a prosecutor of the Office of the Prosecutor
General quashed the decision of 10 November 2005 and sent the case to the
Bureau of Internal Security of the State Police (Valsts policijas
Iekšējās drošības birojs) for continued investigation. The
decision of 19 September focused, inter alia, on the actions of the policemen
before and after the applicant's son's arrest as well as on the legality and
permissibility of his detention as such. It was suggested that the question of
the potential liability of the policemen of the Balvi District Police
Department for criminal inaction (section 319(2) of the Criminal Law, see below,
paragraph 34) needed to be resolved.
On 18 January 2007 that Bureau decided to split
the criminal proceedings into two parts, one regarding the actions of M.I. and
the other concerning the inaction of the Balvi District policemen. The first
part was transferred back to the Balvi District Police Department and the
second remained with the Bureau of Internal Security.
On 7 March 2007 the Balvi District Police
Department decided to terminate the criminal proceedings against M.I. due to
lack of corpus delicti. The applicant did not appeal against that
decision.
On 23 August 2007 the Bureau of Internal
Security of the State Police decided to terminate the criminal proceedings
against the officers of the Balvi District Police Department for want of corpus
delicti. During the course of the investigation statements were taken from
all five officers who had been present at the police station during the night
of the applicant's son's arrest and the following day. The officers who had arrested
the applicant's son confirmed that the security guards at the school had
informed them that he had fallen backwards down the stairs but they had not
waited for the ambulance that had been called because he had behaved in a way
that was typical of an intoxicated person and had had no visible injuries. The
officers who had been on duty on 27 February 2005 pointed out that they had tried
to wake up the applicant's son on several occasions without success, but that after
they had eventually succeeded, the applicant's son had gotten up without any
help and walked to the reception area of the police station where he had been
seen by a doctor who had arrived in an ambulance. The doctor had then allegedly
proclaimed that the applicant's son was “faking” and was still drunk. He had only
been taken to hospital after the applicant had persuaded the doctor to do so. The
decision also pointed out that it was “obvious” that a mistake had been made by
the doctors, who had failed to correctly diagnose the applicant's son's
injuries before his death.
On 26 September 2007 a public prosecutor of the
Balvi District Public Prosecutor's Office dismissed the applicant's
representative's appeal against the decision of 23 August 2007.
On 24 October 2007 a senior prosecutor of the same
office rejected the applicant's representative's appeal against the decision of
26 September 2007. In addition to upholding the conclusions of the decision of
23 August 2007, it was pointed out that no causal link existed between the
decision of the officers present at the scene to transport the applicant's son
to the police station without waiting for the ambulance and the applicant's son's
death, since the death had occurred despite the fact that the applicant's son
had eventually been placed under medical supervision.
In a final decision of 31 January 2008 a senior
prosecutor of the Public
Prosecutor's Office attached to the Latgale Regional Court dismissed the
applicant's complaint about the decision of 24 October 2007.
II. RELEVANT DOMESTIC AND
INTERNATIONAL LAW PROVISIONS
The fifth paragraph of section 5 of the Law on
Police provides one of the basic principles for organising the work of the
police is safeguarding the health of persons in police custody, which includes
carrying out emergency measures to provide medical assistance. The duty of
police officers to provide medical and other assistance to injured persons is
repeated in section 10(3) of the Law on Police. That section specifically
provides for a duty to provide assistance to anyone, even persons who, because
of their state of inebriation, have lost the ability to move or who pose a
danger to themselves or others.
Section 319(2) of the Criminal Law provides that
state officials' can be held criminally liable for intentional or negligent
failure to perform acts which are compulsory by law or are part of the duties
assigned to the official in question. In order to engage criminal
responsibility such dereliction of duties has to have caused substantial harm
to the state or to the rights and interests of individuals.
On 1 February 2004 the Law of Administrative
Procedure entered into force. That law, among many other things, provides for a
mechanism for complaining about the legality of de facto actions of
state institutions to administrative courts.
The Law on Compensation for Damage Caused by
State Institutions came into force on 1 July 2005. It provides for practical
implementation of the rights guaranteed by the Constitution and the Law of
Administrative Procedure to receive compensation for damage caused by unlawful
administrative acts issued by state institutions or for unlawful de facto
actions of those institutions. Pursuant to section 14(3) of that law, the
maximum compensation for non-pecuniary damage that can be awarded is 20,000
Latvian lati (LVL) approximately 28,200 euros (EUR).
As to the consequences of awarding compensation,
section 32 of the Law on Compensation for Damage Caused by State Institutions
provides as follows:
“1) In order to establish
the circumstances that have caused or fostered the infliction of the damage to
be compensated, an authority hierarchically superior to the one which has
caused the damage shall evaluate each individual case when damage has to be
compensated pursuant to a decision of the authority or a court.
2) After evaluating all the
circumstances pertinent to the compensation for damage, a hierarchically
superior authority shall adopt a decision concerning forwarding the materials
in the case file to a competent authority, which shall decide whether the
official responsible for causing the damage ought to be held disciplinarily,
administratively or criminally responsible.”
Section 22 of the Law of Criminal Procedure
contains a general principle according to which that Law provides for
procedural opportunities for persons who have suffered harm as a result of
criminal acts to request compensation for pecuniary and non-pecuniary damage.
The specifics of the implementation of that principle are contained in various
sections throughout the Law.
The general standards
contained in the Second General Report [CPT/Inf (92) 3] by the Council of
Europe's Committee for the Prevention of Torture (CPT) provide that persons detained by the police should have the right of
access to a doctor, including the right to be examined, if the person detained
so wishes, by a doctor of his own choice (in addition to any medical
examination carried out by a doctor called by the police authorities) (§ 36).
Persons taken into police custody should be expressly informed without delay of
the above rights (§ 37). The results of the medical examination and
relevant statements by the detainee and the doctor's conclusions should be
formally recorded by the doctor and made available to the detainee and his
lawyer (§ 38).
. Article
14(2) of the United Nations Convention on the Rights of Persons with
Disabilities (“the CRPD”), which entered into force on 3 May 2008, was signed
by Latvia on 18 July 2008 and ratified on 1 March 2010, provides as follows:
“States Parties shall ensure that if
persons with disabilities are deprived of their liberty through any process,
they are, on an equal basis with others, entitled to guarantees in accordance with
international human rights law and shall be treated in compliance with the
objectives and principles of the present Convention, including by provision of
reasonable accommodation.”
The Interim Report of the Special Rapporteur on the
question of torture and other cruel, inhuman or degrading treatment or
punishment, submitted on 28 July 2008 by the Office of the United Nations High
Commissioner for Human Rights to the 63rd session of the General
Assembly of the UN (A/63/175) in its paragraphs 50 and 54 provides as follows:
“Persons with disabilities often find
themselves in ... situations [of powerlessness], for instance when they are
deprived of their liberty in prisons or other places ... In a given context,
the particular disability of an individual may render him or her more likely to
be in a dependant situation and make him or her an easier target of abuse ...”
and
“The Special Rapporteur notes that
under article 14, paragraph 2, of the [Convention on the Rights of Persons with
Disabilities], States have the obligation to ensure that persons deprived of
their liberty are entitled to 'provision of reasonable accommodation'. This
implies an obligation to make appropriate modifications in the procedures and
physical facilities of detention centres ... to ensure that persons with
disabilities enjoy the same rights and fundamental freedoms as others, when
such adjustments do not impose disproportionate or undue burden. The denial or
lack of reasonable accommodation for persons with disabilities may create
detention ... conditions that amount to ill-treatment and torture.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 2 OF THE
CONVENTION
The applicant complained that his son's death
and the subsequent failure to conduct an effective investigation in that regard
were in violation of the guarantees of Article 2 § 1 of the Convention, which
reads as follows:
“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 contested that argument.
A. Admissibility
1. The Government
The Government argued that the applicant could
have challenged the actions and omissions of the officials of the Balvi
District Police Department in conformity with the procedure prescribed in the
Law of Administrative Procedure and subsequently requested compensation in
conformity with the Law on Compensation for Damage Caused by State Institutions
(see above, paragraphs 35 and 36). More specifically the Government suggested
that what should have been subjected to administrative review were the de
facto actions of the applicant's son's arrest and his placement in
administrative detention. According to the Government, such a procedure was
effective, accessible and offered reasonable prospects of successfully
obtaining redress for the applicant's complaints about his son's death and the
alleged defects of the subsequent investigation.
The Government referred to the Court's decision
in Caraher v. the United Kingdom ((dec.), no. 24520/94, ECHR 2000-I)
and the judgment Branko Tomašić and Others v. Croatia (no. 46598/06, § 38, ECHR 2009-... (extracts)) in
support of their argument that in cases of use of lethal force by a State agent,
as well as with regard to complaints about the failure of the State to take
adequate positive measures to protect a person's life, the possibility of
obtaining compensation was to be considered an adequate and sufficient remedy in
respect of a substantive complaint under Article 2.
As for the applicant's complaint under the
procedural aspect of Article 2, the Government submitted that while in
principle a mechanism had to be available to the victim or the victim's family
for establishing the liability of State officials or bodies for acts or
omissions involving a breach of Convention rights (a reference was made to E.
and Others v. the United Kingdom, no. 33218/96, § 110, 26 November 2002),
cases of a non-intentional infringement of the right to life did not
necessarily require the provision of a criminal-law remedy in every case (Branko
Tomašić and Others, cited above, § 64). More specifically, the
Government pointed out that in the sphere of negligence a civil or disciplinary
remedy may suffice (referring in this regard to Mastromatteo v. Italy [GC], no. 37703/97, § 90, ECHR 2002-VIII), especially considering that the
Convention does not grant to an individual a right to request conviction of
third persons. The Government further alleged that pursuant to section 32(2) of
the Law on Compensation for Damage Caused by State Institutions a court
judgment awarding compensation for damage “trigger[ed] an obligation for a
[hierarchically] superior institution to re-examine the case at hand”. Taking
those considerations into account, the Government submitted that the remedies
provided by the Law of Administrative Procedure and the Law on Compensation for
Damage Caused by State Institutions satisfied the criteria for an effective
domestic remedy within the meaning of Article 35 § 1 of the Convention
in that they were capable of providing redress in respect of the applicant's
complaints.
The Government further submitted that the
proposed remedy was available in theory as well as in practice. With regard to
the practical availability the Government referred to a decision of the
Administrative Chamber of the Senate of the Supreme Court in case SKA-259/2008.
That case concerned a person who was arrested and transported to a hospital for
a narcotic intoxication test without adequate documentation. The administrative
courts then proceeded ex officio to question the police officers
involved in the incident and, upon finding that a procedural violation had been
committed, ordered the police to issue a written apology. The Government
considered that the approach adopted by the administrative courts attested to
their capacity to conduct an independent and impartial ex officio
investigation into the wrongdoings of police officers, which in turn attested
to the fact that administrative courts were to be considered an effective and
available remedy which offered reasonable prospects of success in cases where
it was not compulsory to provide a criminal-law remedy.
Lastly, the Government submitted that the only
purpose of the criminal inquiry into the fact of the applicant's son's death
had been “to examine and investigate the circumstances of the death” and “under
no circumstances” was the purpose of the investigation “to compensate for the
losses incurred”, since even if an individual responsibility on the part of the
state officials had been established, the applicant would have had to initiate
a claim for compensation and to substantiate his claim.
2. The applicant
The applicant pointed out that the Latvian law
at the relevant time provided for two separate review procedures concerning
complaints such as his, namely, criminal proceedings or an administrative
procedure. Both of those procedures provided the possibility to find that
actions of State agents had been unlawful and to request compensation in that
regard. As to which of the procedures should have been used, the applicant
referred to the Court's earlier finding that “it is for the individual to
select which legal remedy to pursue” (Airey v. Ireland, 9 October 1979,
§ 23, Series A no. 32) and accordingly argued that he did not have an
obligation to exhaust all available avenues of domestic remedies. In any event,
according to the applicant, he had never been informed, either by the
Prosecutor's Office or by the Ombudsman's Office, of the availability of
administrative proceedings in his case. The applicant further focused on the
requirement arising from the Court's case-law that in cases concerning a death
in circumstances that might give rise to the State's responsibility the
authorities must act of their own motion once the matter has come to their
attention and that the next-of-kin could not be obliged to lodge a formal
complaint or to take responsibility for the conduct of any investigative
procedures (Branko Tomašić and Others, cited above, § 43). Lastly,
the applicant argued that the administrative courts lacked the competence to
evaluate the effectiveness of the investigation into the applicant's son's death,
since that investigation fell within the realm of criminal law.
3. The Court's assessment
The Court notes that it is common ground that
the applicant made full use of the remedy provided by the criminal-law
procedures. The Court reiterates that, in the event of there being a number of
domestic remedies which an individual can pursue, that person is entitled to
choose a remedy which addresses his or her essential grievance. In other words,
when a remedy has been pursued, use of another remedy which has essentially the
same objective is not required (see T.W. v. Malta [GC], no. 25644/94, §
34, 29 April 1999; Moreira Barbosa v. Portugal (dec.), no. 65681/01,
ECHR 2004-V; and Jeličić v. Bosnia and Herzegovina (dec.), no.
41183/02, 15 November 2005). Accordingly, the Court has to determine only whether
the Government have submitted any arguments that would indicate that the remedy
provided for in the Law of Administrative Procedure and the criminal-law remedy
do not have “essentially the same objective”, that is to say, whether the
administrative-law remedy would add any essential elements that were
unavailable through the use of the criminal-law remedy.
The Court observes that, for a domestic remedy
to be considered an effective one in cases where a violation of Article 2 or 3
of the Convention has been alleged, it would have to provide for a legal
mechanism of investigating the complaint. That conclusion is mandated by the
procedural aspect of Articles 2 and 3 (see, mutatis mutandis, Oğur
v. Turkey [GC], no. 21594/93, § 66, ECHR 1999-III). A remedy
whose only consequence is a possibility to obtain compensation for the alleged
violation would not suffice (ibid., see also Şenses v. Turkey (dec.), no. 24991/94, 14 November 2000; Baysayeva v. Russia, no.
74237/01, §§ 108 and 109, 5 April 2007; and Dzieciak v. Poland, no.
77766/01, § 80, 9 December 2008). The Government have submitted that
administrative courts possess the power to conduct an ex officio investigation
and have submitted an example of one domestic case where such an investigation
had apparently been carried out. In the context of the present case the Court has
no reason to doubt that administrative courts are capable of carrying out an
investigation either of their own volition or pursuant to a request by the
parties. Nevertheless, the Government have failed to explain, and the example
of the domestic case submitted does not clarify how an investigation carried
out by administrative courts would be more pertinent than the one carried out
by police and prosecutorial authorities within the context of criminal law
procedures, which provide for all the legal and practical means necessary for
that purpose.
It appears to be common ground that both avenues
- the criminal-law one and the administrative-law one - could in principle, if
pursued successfully, lead to an award of monetary compensation for the alleged
violation. It has furthermore not been disputed that an adequately carried out
criminal investigation could lead to a decision determining the individual
responsibility of any State officials who might be held accountable for the
applicant's son's death. None of the arguments advanced by the Government
suggest that the administrative-law procedures would add anything to the
possibilities offered by the criminal law. Even if the possibility of
re-examination of the case is triggered by a an administrative act or a
judgment awarding damages for a wrongdoing committed by a State institution,
any individual responsibility of State officials could only be established following
such re-examination, which can require additional investigation by several levels
of domestic authorities. Accordingly, recourse to administrative-law procedures
would not necessarily result in a more effective examination of the case.
Taking the above into account, the Court
considers that the Government have failed to
demonstrate that the remedy offered by the Law of Administrative
Procedure and the Law on Compensation for Damage Caused by State Institutions
would pursue objectives that are any different from the ones pursued by the
criminal-law remedy.
The Court therefore considers that in the light
of the facts pertinent to the present case there was no reason for the
applicant to pursue the administrative-law remedy in addition to the
criminal-law remedy, the effectiveness of which has not been disputed by the
parties.
Accordingly the applicant has exhausted the
domestic remedies. Furthermore, the complaint under Article 2 is not manifestly
ill-founded within the meaning of Article 35 § 3 of the Convention. The Court
further notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. Substantive aspect
The applicant argued that the police officers of
the Balvi District Police Department had been negligent and ignorant in the
performance of their duties. In this regard he emphasised that before his son
was transported from the school to the police station the officers had been
alerted to the fact that he had fallen down the stairs, hit his head and had
been unconscious for some time. Nevertheless, the police had chosen not to wait
for the ambulance which had been on its way. According to the applicant, by
making that decision the police had taken full responsibility for its
consequences. Accordingly, it had been the lack of due diligence on the part of
the police officers that had led to the death of the applicant's son.
The Government did not submit any comments on
the merits of the applicant's complaints.
The Court reiterates that the first sentence of Article 2, which ranks as one of the
most fundamental provisions in the Convention and also enshrines one of the
basic values of the democratic societies making up the Council of Europe (see,
among other authorities, McCann and Others v. the United Kingdom, 27
September 1995, § 147, Series A no. 324), enjoins the State not only to refrain
from the “intentional” taking of life, but also to take appropriate steps to
safeguard the lives of those within its jurisdiction (see L.C.B. v. the
United Kingdom, 9 June 1998, § 36 Reports of Judgments and
Decisions 1998-III).
In the light of the importance of the protection
afforded by Article 2, the Court must subject deprivations of life to the most
careful scrutiny, taking into consideration not only the actions of State
agents but also all the surrounding circumstances. Persons in custody are in a
vulnerable position and the authorities are under a duty to protect them. Where
the authorities decide to place and maintain in detention a person with
disabilities, they should demonstrate special care in guaranteeing such conditions
as correspond to his special needs resulting from his disability (see Price
v. the United Kingdom, no. 33394/96, § 30, ECHR 2001-VII, Farbtuhs
v. Latvia, no. 4672/02, § 56, 2 December 2004, and
international law sources mentioned in paragraphs 39 to 41 above). More
broadly, the Court has held that States have an obligation to take particular
measures to provide effective protection of vulnerable persons from
ill-treatment of which the authorities had or ought
to have had knowledge (Z and Others v. the United Kingdom [GC],
no. 29392/95, § 73, ECHR 2001-V).
The obligation on the authorities to account for
the treatment of an individual in custody is particularly stringent where that
individual dies (Salman v. Turkey [GC], no. 21986/93, § 99, ECHR 2000
VII). Furthermore, the national authorities have an obligation to protect the
health of persons who have been deprived of their liberty (see, inter alia,
Naumenko v. Ukraine, no. 42023/98, § 112, 10 February 2004,
and Dzieciak v. Poland, no. 77766/01, § 91, 9
December 2008). In the context of Article 2, the obligation to protect the
life of individuals in custody also implies an obligation for the authorities
to provide them with the medical care necessary to safeguard their life (see Taďs
v. France, no. 39922/03, § 98, 1 June 2006, and Huylu v. Turkey, no. 52955/99, § 58, 16 November 2006). A failure to provide adequate medical
care may constitute treatment in breach of the Convention (Huylu, cited
above, § 58).
The Court considers that the question to be resolved
first is whether the officers of the Balvi District Police Department knew or
ought to have known about the danger to the applicant's son's health (see, mutatis
mutandis, Keenan v. the United Kingdom, no. 27229/95, § 93, ECHR
2001-III). Subsequently the Court has to evaluate whether the officers in
question displayed adequate diligence in light of the medical condition of the
applicant's son and his disability in so far as they knew or ought to have
known about them.
Turning its attention first to the moment of the
applicant's son's first encounter with the police, the Court observes that it
is common ground that upon their arrival at the scene the officers were
informed about the applicant's son's fall from the stairs and of his losing
consciousness after hitting his head against the ground. The policemen were
also told about the sensory disability of the applicant's son (see above,
paragraph 9). They were further informed that an ambulance had been called and
was on its way. Nevertheless, the policemen chose not to wait for the ambulance
and to take the applicant's son to the police station, believing him to be merely
intoxicated.
When the applicant's son was brought to the
police station, he was observed by the officer on duty, who noted that there
was a graze on his face (see above, paragraph 11). It appears that no medical
examination took place. On the contrary, the police officers informed the
ambulance crew that no medical assistance was necessary (see above, paragraph
13). It appears that the officers arrived at that decision without consulting
the applicant, since it seems that none of the officers understood sign
language and since the notepad that the applicant's son used for communication
had been taken away from him.
From the information and the documents submitted
by the parties it is not possible to establish with any certainty how many
times and with what frequency the officers present at the station checked on the
applicant's son's condition. What does not seem to be disputed is that for some
time after being placed in the sobering-up room the applicant's son continued
to knock on the doors and the walls of the cell, which did not prompt any
reaction from officers present at the station.
The first time the police officers tried to wake
up the applicant's son was some seven hours after taking him into custody (see
above, paragraph 14). Almost another seven hours passed before an
ambulance was called to the police station (paragraph 15).
The Court considers that the Government have
failed to explain why the police, knowing about the applicant's son fall and
having been informed about his disability, did not consider it necessary to
wait for the ambulance or to have medical professionals examine the applicant's
son after he was brought to the police station as specifically required by the
applicable standards of the Committee for Prevention of Torture (see above,
paragraph 39). What is more, it appears that the police never gave the
applicant's son any opportunity to provide information about his state of
health, even after he kept knocking on the doors and the walls of the
sobering-up cell. Taking into account that the applicant's son was deaf and
mute, the police had a clear obligation (arising at the least from sections 5
and 10(3) of the Law on Police and the above-mentioned international standards
cited in paragraphs 39-41 above) to at least provide him with a pen and a piece
of paper to enable him to communicate his concerns. The Court is even more concerned
by the almost seven hours that passed between the time when the applicant's son
“refused to wake up” in the morning and the time when an ambulance was called.
Not getting up for some fourteen hours can hardly be explained by simple
drunkenness (compare with Taďs, cited above, § 101).
The foregoing considerations enable the Court to
conclude that, taking into account the police's knowledge about the applicant's
son's fall and his sensory disability, their failure to seek a medical opinion
about his state of health coupled with their failure to react to his knocking
on the doors and walls of the sobering-up cell and to call an ambulance for
almost seven hours after he could not be woken up in the morning, the police
failed to fulfil their duty to safeguard the life of the applicant's son by
providing him with adequate medical treatment.
There has accordingly been a violation of the
substantive aspect of Article 2 § 1 of the Convention.
2. Procedural aspect
The applicant pointed out that the initial
investigation into the circumstances of his son's death was conducted by the
Balvi District Police Department - the same institution which, in his
submission, was responsible for the death. Accordingly the investigators had lacked
the necessary independence. Furthermore the investigation had failed to establish
whether the police officers in question had had a duty to wait for the
ambulance that could have offered medical assistance to the applicant's son and
whether it had been lawful to detain the applicant's son without first
obtaining a medical opinion as to his state of health.
The Government did not submit any comments on
the merits of the applicant's complaints.
The Court reiterates 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 (see, mutatis
mutandis, McCann and Others v. the United Kingdom, 27
September 1995, § 161, Series A no. 324, and Kaya
v. Turkey, judgment of 19 February 1998, § 105, Reports 1998-I).
. The
Court has recently found that the obligation under Article 2 to carry out an
effective investigation has evolved into a “separate and autonomous duty” (see Šilih
v. Slovenia [GC], no. 71463/01, § 159, 9 April 2009). However, it would
emphasise that this obligation may differ, both in content and in terms of its
underlying rationale, depending on the particular situation that has triggered
it (see Calvelli and Ciglio v. Italy [GC], no. 32967/96,
§ 51, ECHR 2002-I, and Banks and Others
v. the United Kingdom (dec.), no.
21387/05, 6 February 2007). The essential
purpose of such an 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 (Anguelova v. Bulgaria, no. 38361/97,
§ 137, ECHR 2002-IV).
In as much as different considerations apply in
cases such as the present one in which the death has not been caused by use of
force or similar direct official action, the standard against which the
investigation's effectiveness is to be assessed may be less exacting. However,
even in such situations those concerned are entitled to an independent and
impartial official investigation procedure that satisfies certain minimum
standards as to its effectiveness (see Mikayil Mammadov v. Azerbaijan, no. 4762/05, § 102, 17 December 2009, and the jurisprudence cited there).
In this regard the Court would point out that this is not an obligation of
result, but of means (see, among other authorities, Paul and Audrey Edwards
v. the United Kingdom, no. 46477/99, § 71, ECHR 2002-II) and that
Article 2 does not entail the right to have others prosecuted or sentenced for
an offence, or an absolute obligation for all prosecutions to result in
conviction, or indeed in a particular sentence (see Öneryıldız v.
Turkey [GC], no. 48939/99, §§ 94 and 96, ECHR 2004-XII).
Nevertheless, the Court has also held that if the
negligence attributable to State officials or bodies goes beyond an error of
judgment or carelessness, in that the authorities in question, fully realising
the likely consequences and disregarding the powers vested in them, have failed
to take measures that have been necessary and sufficient to avert the risks to
the victim's life, the fact that those responsible for endangering life have
not been charged with a criminal offence or prosecuted may amount to a
violation of Article 2 of the Convention (Öneryıldız,
§ 93).
. One
of the minimum standards of effective investigation is a hierarchical,
institutional and practical independence of persons carrying out the
investigation from the persons implicated in the events under investigation
(see Paul and Audrey Edwards, cited above, § 70; Mastromatteo
v. Italy [GC], no. 37703/97, § 91, ECHR 2002-VIII; and Mikayil Mammadov, cited above, §
101).
. With
regard to the independence of the investigative authorities in the present case
the Court notes that the applicant is correct in pointing out that the initial
as well as additional inquiry was carried out by the Balvi District Police
Department, that is, the same authority that was implicated in the death of his
son (see above, paragraphs 19 and 20). In this respect the Court has previously
held that an internal inquiry cannot be regarded as adequate in cases
concerning allegations of ill-treatment in contravention of Article 3 of the
Convention (see Ramsahai and Others v. the Netherlands [GC], no.
52391/99, §§ 333-341, ECHR 2007-... with further references, Jašar v.
“the former Yugoslav Republic of Macedonia” (dec.), no. 69908/01, 11
April 2006, and Kopylov v.
Russia, no. 3933/04, § 138, 29 July 2010). The Court considers that the same conclusion is
applicable to complaints under Article 2 of the Convention. Furthermore, the
Balvi District Police Department was the same institution which on four
occasions decided to terminate the criminal proceedings regarding the events
surrounding the death of Valdis Jasinskis (see above, paragraphs 20, 23, 25 and
28). The first time the investigation went outside the recursive route between
the Balvi District Police Department and the Balvi District Public Prosecutor's
Office was after the applicant's representative sought help from the Office of
the Prosecutor General. As a result, the first time anyone outside the Balvi
District had access to the case file was more than a year and a half after the
applicant's son's death.
The Court therefore considers that the
investigation that was carried out by the Balvi District Police Department
cannot be said to have been effective since it did not comply with the minimum standard
of independence of the investigators. What remains to be seen then is whether
that defect was cured when the investigative role was later taken over by the Bureau
of Internal Security of the State Police, whose findings were then confirmed on
three occasions by public prosecutors' offices.
In this regard the Court notes that the
investigation conducted by the Bureau of Internal Investigation was not limited
to merely reviewing the documentary evidence accumulated in the course of prior
investigation. Instead, the investigators questioned the five police officers
who had been present at the police station during the days prior to the death
of the applicant's son and drew their own conclusions which coincided with the
ones reached by the Balvi District Police Department's internal inquiry.
The Court does not find it necessary in the
particular context of the present case to draw general conclusions about the
independence or lack thereof of the Bureau of Internal Investigation, since it
considers that the investigation carried out by that Bureau was defective for
several reasons. At the outset the Court reiterates that a prompt response by the authorities in investigating suspicious deaths
may generally be regarded as essential in maintaining public confidence in their
adherence to the rule of law and in preventing any appearance of collusion in
or tolerance of unlawful acts (see, for example, Mikayil
Mammadov, cited above, § 105). In the present case the investigation left the confines
of the institution implicated in the events under investigation only more than
eighteen months after the events. The Bureau of Internal Investigation adopted
its decision almost one more year later.
The requirement of promptness of investigation,
apart from the considerations mentioned previously, also follows from the
necessity to promptly gather evidence and perform other investigative actions
which could become impossible or excessively burdensome with the passage of
time. For instance, in the present case it would have been opportune to
question the witnesses of the circumstances the applicant's son's death soon
after the respective events, while their memories were still fresh. In
addition, a prompt investigation would have given the investigator an
opportunity to ask supplementary questions to the expert who performed the autopsy
and to observe the scene of the applicant's fall as well as the sobering-up
cell where he had been detained.
The Court furthermore observes that the
investigation that was carried out by the Bureau of Internal Investigation
failed to provide answers to several questions that would have been crucial in
determining the individual responsibility of the police officers of the Balvi
District Police Department. For example, the fact that MADEKKI had identified
several significant shortcomings with regard to the treatment of the applicant's
son that may have contributed to his demise (see above, paragraph 18) was left
without any assessment. What is more, it does not appear that any effort was
made to evaluate whether the police officers' actions when not waiting for the
ambulance, when informing the ambulance crew that the applicant did not need
any medical assistance and when delaying seeking medical help for some fourteen
hours had been compatible with their duties, which derive from sections 5 and
10 of the Law on Police (see above, paragraph 33), and the special needs of
persons with disabilities like the applicant's son. Since no such assessment
was made, the Bureau reached the conclusion that no crime had been committed
and the police officers' responsibility was never weighed by a court (see, by
contrast, Douglas-Williams v. the United Kingdom (dec.), no. 56413/00, 8
January 2002).
Lastly, the Court cannot but decry the lack of
effectiveness and expediency of the investigation, epitomised by the fact that responsibility
for the investigation was passed back and forth between the police and various
prosecutors' offices three times (see, mutatis mutandis, Denis
Vasilyev v. Russia, no. 32704/04, § 103, 17 December 2009, and Mikheyev v. Russia, no. 77617/01, § 120, 26 January 2006). The blame for this defect is to be
shared by the police, whose investigation was consistently inadequate, and the
prosecutors' offices, who failed to provide adequate instructions to the police
with a view to remedying the defects identified in the investigation.
The foregoing considerations are sufficient to
enable the Court to conclude that the investigation into the circumstances of
the applicant's son's death was not effective.
There has accordingly been a violation of the
procedural aspect of Article 2 § 1 of the Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
Lastly, the applicant also complained that there
was no effective investigation, referring to the procedural aspect of Article
3. Taking into account the conclusions reached above with regard to the
applicant's complaints under Article 2 § 1, the Court finds that there is no
need to examine the same complaints under Article 3 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
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 applicant claimed EUR 50,000 in respect of
non-pecuniary damage.
The Government considered that the amount
requested was unjustified, excessive and exorbitant. They submitted that the
award, if such were to be made, ought to be commensurate to compensation
awarded in comparable recent cases (the Government mentioned Juozaitienė
and Bikulčius v. Lithuania, nos.
70659/01 and 74371/01, 24 April 2008, Nikolova and Velichkova v.
Bulgaria, no. 7888/03, 20 December 2007 and other judgments).
Taking into account the seriousness of the
violations it has found in this case, the Court awards the applicant EUR 50,000
in respect of non-pecuniary damage.
B. Costs and expenses
The applicant did not formulate a claim in
respect of costs.
C. Default interest
The Court considers it appropriate that the
default interest should be based on the marginal lending rate of the European
Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the complaints concerning Article
2 § 1 of the Convention admissible;
2. Holds that there has been a violation of
the substantive aspect of Article 2 § 1 of the Convention;
3. Holds that there has been a violation of
the procedural aspect of Article 2 § 1 of the Convention;
4. Holds that there is no need to examine the
complaint under Article 3 of the Convention;
5. Holds
(a) that the respondent State is to pay the applicant,
within three months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention, EUR 50,000 (fifty
thousand euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage, to be converted into Latvian lati at the rate applicable
at the date of settlement;
(b) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the above
amount at a rate equal to the marginal lending rate of the European Central
Bank during the default period plus three percentage points.
Done in English, and notified in writing on 21 December
2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep
Casadevall Registrar President
