[New search]
[Contents list]
[Printable RTF version]
[Help]
FOURTH
SECTION
CASE OF
IORGA v. MOLDOVA
(Application
no. 12219/05)
JUDGMENT
STRASBOURG
23 March
2010
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 Iorga v. Moldova,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas
Bratza,
President,
Lech
Garlicki,
Giovanni
Bonello,
Ljiljana
Mijović,
David
Thór Björgvinsson,
Ledi
Bianku,
Mihai
Poalelungi,
judges,
and
Fatoş Aracı, Deputy
Section Registrar,
Having
deliberated in private on 2 March 2010,
Delivers
the following judgment, which was adopted on this date:
PROCEDURE
- The
case originated in an application (no. 12219/05) against the Republic
of Moldova lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Moldovan national, Ms Svetlana Iorga (“the
applicant”), on 23 March 2005.
-
The Moldovan Government (“the Government”) were
represented by their Agent, Mr V. Grosu.
- The
applicant alleged, in particular, that the authorities had failed to
carry out an effective investigation into the death of her son.
- The
application was allocated to the Fourth Section of the Court. On
9 December 2008 the President of that Section decided to give
notice of the application to the Government. It was 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
- The applicant was born in 1958 and lives in Paşcani.
- Mr
Victor Iorga (V. I.), the applicant's son, was in the seventh month
of his compulsory military service as a soldier when he disappeared
from his military unit on 9 June 2001. On 14 June 2001 his dead body
was found hanging from a tree near the military unit.
- A criminal investigation (no. 2001019048) was initiated
on the same day. According to documents submitted by the Government,
during the investigation numerous witnesses were heard and several
expert reports were made, including an autopsy, a post-mortem
psychiatric report and a report on the samples of various substances
gathered from the scene of the event. On 28 December 2001 a
military prosecutor decided to discontinue the investigation into the
case, finding that V. I. had committed suicide. The applicant
considered that her son had been murdered and that the authorities
were trying to cover up the case.
- At the applicant's request, on 6 February 2002 she was
for the first time given access to the materials in the file. On 15
August 2002 she challenged in court the decision of 28 December
2001.
- On
7 November 2002 the Buiucani District Court rejected the applicant's
challenge to the decision of 28 December 2001 as lodged out of time.
The applicant appealed, claiming that she had never received a
summons to the hearing of 7 November 2002.
- On
11 February 2003 the Chişinău Regional Court ordered a
re-examination of the complaint by the Buiucani District Court. In
her complaint, the applicant noted that the passage of time made
increasingly irrelevant an exhumation of the body in order to carry
out another autopsy to verify the cause of her son's death. She also
noted that she was still unsure whether she had seen her son's body
when she had been asked to verify the identity of the body found on
14 June 2001. She mentioned the absence of a number of marks which
her son had had on his body and that she had been pressured into
saying that it was her son's body. She also mentioned that her son
had complained of violence among the soldiers. It appears that the
applicant's complaint was forwarded to the Buiucani District Court.
According to the applicant, she was presented with a corpse in an
advanced state of decomposition which she was not sure to have
identified as her son. Moreover, the photos of the corpse suggested
that the victim had received a blow to the head and revealed two
strangulation marks, suggesting that he had been hanged from the tree
after being asphyxiated. She expressed her doubts to the authorities
and asked for an exhumation in order to verify that information, but
this was refused.
- On 24 April 2003 the Buiucani District Court found
that, even though many investigative measures had been carried out,
including several expert reports, there had been shortcomings in the
investigation. In particular, V. I.'s interests had not been
represented, the applicant having been treated only as a witness and
not as the victim's representative as required by law. That omission
had prevented the applicant from exercising her procedural rights
under Article 47 of the Code of Criminal Procedure (“the CCP”,
see paragraph 18 below), taking into account that she had a number of
objections to the manner in which the investigation had been carried
out. The applicant's rights had not been explained to her by the
investigators, in violation of Article 51 CCP (see paragraph 18
below). The court found that, contrary to legal requirements, the
investigation had not analysed fully and objectively the
circumstances of the case. The court also found a discrepancy between
the post-mortem psychiatric expert report, which apparently found
that V. I. had had suicidal tendencies, and the decision taken only
several months earlier by the medical commission finding him fit for
military service and not disclosing any concerns about his
psychological health. The court annulled the decision of 28 December
2001 and ordered a further investigation by the military prosecutor's
office.
- An appeal by the prosecutor against the decision of 24
April 2003 was dismissed by the Chişinău Regional Court on
21 May 2003. The court found, inter alia, that even if the
case were to be found to concern a suicide and not a murder, a proper
investigation was still necessary as it could reveal whether the
crime of intentional incitement to commit suicide had been committed.
There was, therefore, a need for the victim's interests to be
represented during the investigation.
- According to the Government, on 15 and 16 July 2003
the military prosecutor adopted two decisions, discontinuing
different parts of the investigation. The Government did not specify
the subject of the decision dated 15 July 2003. It is unclear whether
the applicant had access to that decision. The decision of 16 July
2003 concerning investigation no. 2001019048 shows that the
applicant's son's autopsy was carried out on 19 December 2001
and that a report on the samples taken from the scene was drawn up on
21 December 2001. The applicant made a complaint to the court,
without specifying which exact decision was concerned.
- On 12 May 2004 the Buiucani District Court annulled
the decision of 15 July 2003 concerning criminal investigation no.
2001019048. The court relied, inter alia, on reports published
in the press, according to which it appeared that general I. C. had
some information concerning V. I.'s murder. According to the court,
the investigators had failed to verify whether I. C. had in fact had
any information relevant to the case and what the source of that
information had been. The court also noted that the applicant had
challenged the validity of the autopsy and that the prosecutors were
concerned more with finding materials denigrating her late son than
looking for the perpetrators. According to the provisions of the
decision, it was subject to appeal to the Chişinău Court of
Appeal. It appears that no appeal was lodged.
- On 30 June 2004 the military prosecutor discontinued
the investigation. A challenge by the applicant to that decision was
scheduled for examination by the Buiucani District Court on 9
November 2004. According to the applicant, the summons for that
hearing was sent to her on 1 November 2004 but reached her only on 10
November 2004 and she thus missed the hearing. The summons stated
that “the presence of the parties is mandatory”. On
9 November 2004 the court found that the applicant had been properly
summoned but had failed to appear. It considered that the
investigation had been exhaustive and that its discontinuation was
based on the evidence in the file. According to its provisions, the
decision was final.
- A
further complaint to the Prosecutor General's Office was rejected on
23 December 2004, with reference to the decision of 9 November 2004.
- The
applicant submitted press articles accusing an officer in V. I.'s
military unit of possible involvement in his murder. The article
added that a video recording had been made of the moment when V. I.'s
body had been discovered, but that his relatives had been prevented
from seeing it in order to verify that it had been V. I.'s body. The
newspaper also described a fact apparently relied on early in the
investigation, namely, that a letter had been found in V. I.'s
clothes informing him that his girlfriend had decided to marry
another man. However, having contacted the former girlfriend, it was
revealed that she denied having ever written such a letter. As part
of a telephone interview with another newspaper, a prosecutor was
quoted as saying “I do not exclude that this is a suicide as a
result of possible inappropriate relations. There are a number of
similar cases in this battalion.”
II. RELEVANT DOMESTIC LAW
- The relevant provisions of the Code of Criminal
Procedure, in force at the relevant time, read as follows:
“Article 47. The victim [Partea vătămată].
The victim is the person who has suffered pecuniary or
non-pecuniary damage as a result of an offence.
The person declared to be a victim of a crime has the
right to make declarations concerning the case. The victim and his or
her representative have the right: ... to submit evidence; to make
requests; to access all the materials of the case from the time when
the preliminary investigation is finished; ... to challenge the
actions of the investigator, the prosecutor or the court, and to
appeal against court decisions; ...
...
In cases concerning offences as a result of which the
victim has died, the rights provided for in the present article shall
pass to the close relatives or legal representatives.
Recognition of victim status shall be made by a decision
of the ... investigator, the judge or the court.”
“Article 51. The obligation to inform the
participants in the proceedings of their rights and to ensure their
enjoyment of those rights.
The court, the investigator ... have the obligation to
inform the participants in the proceedings of their rights and to
ensure their enjoyment of those rights.”
THE LAW
- The
applicant complained under Article 6 of the Convention of a violation
of her right to challenge the discontinuation of the investigation,
since her complaint was examined in her absence on 9 November 2004,
of the lack of a right to appeal against the decision of that date,
and of the repeated discontinuation of the proceedings in her son's
case.
- The
Court considered that this complaint would be more appropriately
examined under Article 2 of the Convention. The parties were
therefore asked to make their comments in the light of that
provision, the relevant part of which reads:
“1. Everyone's right to life shall be
protected by law. No one shall be deprived of his life intentionally
save in the execution of a sentence of a court following his
conviction of a crime for which this penalty is provided by law. ...”
I. ADMISSIBILITY
- The
Government considered that the application was manifestly ill founded
since no crime had been committed against the applicant's son and,
accordingly, the applicant did not have any legal right of access to
the materials of the case or to be recognised as a victim's
representative, with all ensuing rights, within the framework of the
criminal investigation.
- The
Court considers that the issue raised by the Government is closely
linked with the substance of the applicant's complaint. It will
therefore examine this objection together with the arguments
concerning the complaint under Article 2.
-
The Court considers that the applicant's complaint under Article 2 of
the Convention raises questions of fact and law which are
sufficiently serious that their determination should depend on an
examination of the merits, and no other grounds for declaring them
inadmissible have been established. The Court therefore declares this
complaint admissible. In accordance with its decision to apply
Article 29 § 3 of the Convention (see paragraph 4
above), the Court will immediately consider the merits of the
complaint.
II. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
- The
applicant complained in essence of the lack of an effective
investigation into her son's death. She noted that she had been
presented with a corpse in an advanced state of decomposition which
she was not sure to have identified as her son. Moreover, the photos
of the corpse suggested that the victim had received a blow to the
head and revealed two strangulation marks, suggesting that he had
been hanged from the tree after being asphyxiated. She had expressed
her doubts to the authorities and asked for an exhumation in order to
verify that information, but this had been refused.
- The Government contended that a thorough and effective
investigation had been carried out in the present case, in accordance
with the procedural requirements of Article 2 of the Convention. More
than 200 witnesses had been heard, a number of expert reports
made (including an autopsy, a post-mortem psychiatric report and a
report on the samples of various substances gathered from the scene
of the event). Three hypotheses had been verified: that of a suicide,
that of a provoked suicide and that of murder, but only the first
version was consistent with the various types of evidence gathered.
As to the obligation to keep the applicant informed, this was not
required by law since, in the absence of a crime, she had not been
recognised as a victim's representative. Despite the absence of a
legal obligation, the prosecutors had kept the applicant informed
(see paragraph 8 above), thus complying with their obligations under
Article 2 of the Convention.
- 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 an effective official investigation when individuals have died in
suspicious circumstances. This obligation is not confined to cases
where it has been established that a person was killed by an agent of
the State. The mere fact that the authorities have been informed of
the death will give rise ipso facto to an obligation
under Article 2 of the Convention to carry out an effective
investigation into the circumstances in which it occurred (see
Sabuktekin v. Turkey, no. 27243/95, § 98,
ECHR 2002 II (extracts); Kavak v. Turkey, no. 53489/99,
§ 45, 6 July 2006; and Al Fayed v. France (dec.),
no. 38501/02, 27 September 2007).
- For
an investigation to be regarded as effective, it should be capable of
leading to the identification, and potentially the punishment, of
those responsible (see Oğur v. Turkey [GC], no. 21594/93,
§ 88, ECHR 1999 III). This is not an obligation of
result, but one of means. The authorities must have taken the
reasonable steps available to them to secure the evidence concerning
the incident (see, for example, Salman v. Turkey [GC],
no. 21986/93, § 106, ECHR 2000 VII; Tanrıkulu
v. Turkey [GC], no. 23763/94, § 109, ECHR 1999 IV;
Gül v. Turkey, no. 22676/93, § 89,
14 December 2000; and Güngör v. Turkey,
no. 28290/95, § 69, 22 March 2005). Any deficiency in
the investigation which undermines its ability to establish the cause
of the victim's death or to identify the perpetrator or perpetrators
may lead to the conclusion that it is ineffective (see Hugh Jordan
v. the United Kingdom, no. 24746/94, § 127,
ECHR 2001 III (extracts)), and a requirement of
promptness and reasonable expedition is implicit in this context
(see, for example, Mahmut Kaya v. Turkey, no. 22535/93,
§§ 106-107, ECHR 2000 III, and Güngör,
cited above, § 70).
- Moreover,
there must be a sufficient element of public scrutiny of the
investigation or its results to secure accountability in practice as
well as in theory. The degree of public scrutiny required may well
vary from case to case. In all cases, however, the next of kin of the
victim must be involved in the procedure to the extent necessary to
safeguard his or her legitimate interests (see Oğur,
cited above, § 92, where the family of the victim had no access
to the investigation and court documents; and Gül, cited
above, § 93).
- In
the present case, the Court notes that the prosecutors did
undoubtedly carry out a substantial amount of work in gathering
evidence (see paragraph 25 above).
- At
the same time, it is clear from the materials submitted to the Court
that the applicant expressed her doubts concerning the cause of her
son's death and referred to a blow to the head of the corpse she had
been asked to identify. She also doubted that the corpse was that of
her son. She expressly asked for an exhumation of the corpse in order
to make another autopsy to dispel her doubts, which was refused. The
Court considers that it is first of all for the domestic
investigating authorities to decide on the need to perform specific
investigative measures. Moreover, they have a certain discretion in
deciding whether to carry out such measures (see Al Fayed,
cited above, § 82), especially when the latter are not obviously
necessary for the type of crime concerned or when a repetition of
investigative measures already performed is requested, as was the
autopsy in the present case.
- However,
such discretion cannot be unlimited and it must be possible for the
victim or his/her representative to request such measures to be
carried out, to be informed of the decision taken and to be able to
challenge them in court in case of disagreement with the
investigators. The possibility to fully exercise these procedural
rights ensures that the victim's point of view is taken into account
by the judicial authorities in deciding on various aspects of an
investigation, even if the decisions eventually taken are not in line
with the expectations of the victim or his/her representative
(compare Al Fayed, cited above, § 82).
- In the present case the Government submitted that,
since no crime had been committed, there was no obligation to inform
the applicant of the course of the investigation. In this connection,
the Court observes that it is in the first place for the domestic
courts to interpret provisions of domestic law. As found by the
domestic courts in the present case, the applicant had the right to
be formally recognised as the victim's representative and to exercise
a number of procedural rights (see paragraphs 11 and 18 above). This
was true even if the investigation concerned suicide and not murder,
since it had to be verified whether the crime of incitement to
suicide had been committed (see paragraph 12 above). The domestic
courts expressly found that the applicant had been deprived of the
possibility of exercising her procedural rights and that she had not
been informed of those rights (see paragraph 11 above). The Court has
no reason to doubt the domestic courts' interpretation of the law,
which is moreover consistent with the State's obligations under
Article 2 of the Convention. Therefore, it cannot accept the
Government's argument that the applicant had no right to be informed
or to be involved in the proceedings.
- The
Government referred to the fact that the applicant was informed of
the course of the investigation of her son's death (see paragraph 25
above). The Court notes that the applicant was so informed only on
6 February 2002 – more than a month after the
investigation had ended (see paragraph 7 above) and almost eight
months after it had begun (see paragraph 8 above). This lack of
information included the important initial phase of the
investigation, during which the applicant could have raised her most
serious objections regarding the decisions taken. In this connection,
it is to be noted that the applicant expressly emphasised the need
for a quick decision on exhumation in order to dispel her doubts,
which she could not effectively request from the investigator in the
absence of any information concerning the case. No explanation for
this delay was given, except for the above-mentioned absence of a
legal obligation to inform. The Court also considers that the
authorities had an obligation to keep the applicant informed of the
course of the investigation independently of whether she had
expressly requested to obtain such information.
- The Court observes that some of the investigative
measures which appear crucial in the present case (the autopsy and
the report concerning the samples taken from the scene) were carried
out in December 2001, half a year after the applicant's son's body
had been discovered (see paragraph 13 above). Again, no explanation
for this delay was given.
- It is also to be noted that the applicant was absent
from what was apparently the first and only hearing held by the
Buiucani District Court when examining her challenge to the decision
of 30 June 2004 (see paragraph 15 above). Even assuming that the
applicant received the summons in due time, despite her unchallenged
statement to the contrary, the Court considers that the seriousness
of the complaints made required the court to at least verify whether
the applicant had in fact lost interest in the case or waived her
right to be heard. In this connection, the Court notes that the
summons mentioned that the parties' presence was mandatory, which is
hard to reconcile with the lack of any form of verification of the
reason for one party's absence. The applicant's presence was even
more important in view of the fact that whatever the decision of the
Buiucani District Court, it was final and not subject to any form of
appeal. Hence, the applicant had not had an opportunity to submit to
the court her position regarding the investigation of her son's
death.
- The
Court considers that the failure to inform the applicant of her
procedural rights and of the course of the investigation, the failure
to ensure her enjoyment of those rights (see paragraphs 11 and 32
above); the unexplained shortcomings and delays in carrying out some
of the important investigative measures (see paragraphs 14 and 34
above); and the final decision discontinuing the investigation, taken
in the applicant's absence (see paragraph 35 above), are inconsistent
with the respondent State's procedural obligations under Article 2 of
the Convention (see, for instance, Oğur, cited above, §
92; Salgın v. Turkey, no. 46748/99, § 87, 20
February 2007; and Hasan Çalışkan and Others
v. Turkey, no. 13094/02, § 51, 27 May 2008).
Therefore,
the Government's objection as to the manifestly ill-founded character
of the application is to be rejected.
- There
has, accordingly, been a violation of the procedural obligations
under Article 2 of the Convention in the present case.
III. 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.”
- In
her observations, the applicant stated that “I did not count my
expenses in [dealing with] the Military Prosecutor's Office, but for
the lies which I endured for so long I will ask compensation for
non-pecuniary damage.” However, she did not specify the amount
claimed.
- The
Government considered that the applicant had not made any claims for
just satisfaction.
- The
Court interprets the applicant's statement as an implied request for
the Court to determine the amount of sufficient just satisfaction.
Judging on an equitable basis, it awards the applicant EUR 12,000 for
non-pecuniary damage caused.
- The
applicant did not make any claims for costs and expenses.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a violation of
Article 2 of the Convention in its procedural aspect;
- 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 12,000
(twelve thousand euros) in respect of non-pecuniary damage, to be
converted into the national currency of the respondent State at the
rate applicable at the date of settlement, plus any tax that may be
chargeable;
(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 23 March 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President
