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You are here: BAILII >> Databases >> European Court of Human Rights >> EDZGVERADZE v. GEORGIA - 59333/16 (Judgment : Remainder inadmissible : Fifth Section) [2022] ECHR 81 (20 January 2022) URL: http://www.bailii.org/eu/cases/ECHR/2022/81.html Cite as: ECLI:CE:ECHR:2022:0113JUD006874817, [2022] ECHR 81, CE:ECHR:2022:0113JUD006874817 |
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FIFTH SECTION
CASE OF EDZGVERADZE v. GEORGIA
(Application no. 59333/16)
JUDGMENT
Art 2 (procedural) • Failure to conduct effective investigation into suicide of applicant’s husband the day after his questioning by police as a witness
STRASBOURG
20 January 2022
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 Edzgveradze v. Georgia,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
Síofra O’Leary, President,
Ganna Yudkivska,
Stéphanie Mourou-Vikström,
Lətif Hüseynov,
Lado Chanturia,
Ivana Jelić,
Arnfinn Bårdsen, judges,
and Victor Soloveytchik, Section Registrar,
Having regard to:
the application (no. 59333/16) against Georgia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Georgian national, Ms Zizi Edzgveradze (“the applicant”), on 23 September 2016;
the decision to give notice to the Georgian Government (“the Government”) of the application;
the parties’ observations;
Having deliberated in private on 7 December 2021,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The case primarily concerns the applicant’s complaint under Article 2 of the Convention that no effective investigation was carried out into her husband’s suicide which had taken place the day following his questioning by the police as a witness in a case involving a friend of his.
THE FACTS
2. The applicant was born in 1982 and lives in Tbilisi. She was represented by Ms N. Jomarjidze and Ms T. Dekanosidze, lawyers practising in Tbilisi.
3. The Government were represented by their Agent, Mr B. Dzamashvili, of the Ministry of Justice.
4. The facts of the case, as submitted by the parties, may be summarised as follows.
5. On 5 July 2013 a friend of the applicant’s husband - G.M. - was arrested on suspicion of possessing cannabis when a package was found near the latter’s car at the garage repair workshop where the applicant’s husband – M.M. - worked. M.M. was with G.M. at the time of the arrest and went to the police station to give a statement, apparently at the request of the police officers.
6. According to the report made by officer Z.M., M.M.’s questioning as a witness lasted one hour and twenty-one minutes. He confirmed that the package which the police had found near G.M.’s car had contained cannabis and that G.M. had shown it to him before throwing it away upon catching sight of the police officers. He stated that G.M. must have intended to give the substance to him, as he had consumed cannabis from time to time, most recently ten days earlier.
7. Following the questioning, M.M. underwent a drug test, which did not confirm consumption of narcotics; he was then released.
8. On 6 July 2013 M.M. left home early. At different times during the morning he was in touch with the applicant and three other individuals. Because he had revealed to a friend his intention to commit suicide at the “Tbilisi Sea” (an artificial lake in Tbilisi), the applicant and M.M.’s friends went there to search for him.
9. At around noon the applicant and her neighbour, M.P., called emergency services, stating that the applicant’s husband had gone missing at the Tbilisi Sea, and asking for the help of the police in locating him. They did not mention that he had had suicidal intentions, nor that he had been questioned by the police the previous day. The applicant could not specify her location; therefore it was agreed that she would meet the patrol officers at a yacht club nearby. Once the patrol officers arrived they were told of M.M.’s intention to commit suicide, so they drove the applicant to the police station in order to record her statement. The officers appear to have alerted colleagues and asked them to search for the applicant’s husband while they were away at the police station return (see paragraph 23 below).
10. At 1.55 p.m. a passer-by found M.M.’s dead body hanging from a tree near the seashore and contacted the police. An inspection of the scene carried out by the police did not reveal the presence of any suspicious items, and M.M.’s body was transferred to the National Forensic Bureau for examination.
11. On the same day, 6 July 2013, Gldani-Nadzaladevi police station, within whose territorial jurisdiction the applicant’s husband’s body had been found, opened a criminal investigation into suspected incitement to commit suicide (see paragraph 29 below).
12. On 7 July 2013 a prosecutor from the Chief Prosecutor’s Office questioned G.M. He noted that no physical violence had been exerted on him or M.M., and that “for most of the time” at the police station the latter had been within his area of visibility in the open-space office where the police officers had brought them. However, G.M. had been taken out of the room for about twenty minutes to some individual’s private office, where he had been told that there was no use in him denying the crime and that he had to confess to committing it. He had consistently refused to confess, so he had been returned to the open-space office. Afterwards M.M. had been taken out of the room for approximately forty minutes. Upon his return he had not displayed any signs of having been physically ill-treated. M.M. had seemed nervous before leaving the police station. Later, when M.M.’s statement (see paragraph 5 above) had been read out to him, G.M. had recalled thinking that M.M. would not have written that statement voluntarily.
13. On 8 July 2013 the applicant gave a statement to a police investigator, noting that her husband had told her that he had been subjected to verbal and physical abuse at the police station in order to force him into giving a statement incriminating his friend. In a subsequent statement of 25 October 2013 given to the prosecutor in the presence of a lawyer, the applicant stated that when her husband had told her about the events of 5 July 2013, he had stated that “no serious violence [had been] inflicted [on him] with a view to obtaining a statement.” As regards her earlier statement of 8 July 2013, she explained that she had heard about the physical ill-treatment from her husband’s colleagues rather than from M.M. himself. She also noted that her husband had not had any psychological problems, material problems or any worries that could have caused him to commit suicide.
14. On 9 July 2013 a private forensic expert produced a report which noted that M.M.’s body had various injuries around his neck that were (according to the expert) directly linked to the cause of his death. The report also noted a small haemorrhage on his left nostril. In a subsequent statement given to the prosecutor on 9 December 2013 the expert stated that the small injury on the left nostril must have been inflicted on M.M. either several hours before the suicide or in the process of M.M. committing it, and that his body had not displayed any signs of having been beaten. In response to a question from the prosecutor the expert excluded the possibility that the bruise could have been caused by physical ill-treatment. If such treatment had taken place, there would have been, in the expert’s explanation, other bruises on the body.
15. On 9 July 2013 the Deputy Chief Prosecutor noted that despite the fact that Gldani-Nadzaladevi police station had territorial jurisdiction to investigate the matter, “the circumstances revealed during the investigation and the specific nature of the case” warranted its investigation by the General Inspectorate of the Ministry of the Interior (the unit in charge of overseeing the lawfulness of the activities of those working for the Ministry, including the police) and assigned the case to the latter. The decision did not refer to the fact that M.M. had been questioned by the police the day before the suicide.
16. On 12 July 2013 a report ordered by the National Forensic Bureau found that M.M.’s body did not display signs of injuries other than those directly linked to the cause of death. In May 2014 the expert who produced the report confirmed his findings in a statement given to a prosecutor.
17. On 13 July 2013 G.M. was questioned again in the presence of his lawyer by an investigator from the General Inspectorate of the Ministry of the Interior. He acknowledged that he had been carrying cannabis in the circumstances described in M.M.’s statement of 5 July 2013 (see paragraph 5 above). G.M. repeated his earlier observations to the effect that he had observed M.M. while at the police station as the latter was being questioned in the same open-space office where G.M. had also been held. He noted again that M.M. had left the room for a while, without mentioning the duration of his absence. According to G.M., M.M. had not been subjected to any ill‑treatment while in the open-space office, and had not shown signs of distress or physical injuries when he had been leaving the police station.
18. Between 11 and 13 July 2013 an investigator from the General Inspectorate of the Ministry of the Interior questioned the six police officers who had been involved in G.M.’s arrest and M.M.’s questioning. According to those officers, G.M. had been approached on the basis of anonymous information that he was carrying cannabis, and M.M. had been a witness to the events in question - namely G.M.’s throwing away the package containing the illicit substance. They stated that M.M. had been calm throughout the events, had voluntarily gone to the police station to give a statement, and that M.M. had been subjected to no pressure of any kind (physical or psychological) in order to persuade him to incriminate his friend. The officers stated that G.M. and M.M. had been placed in the same open-space office (which had contained several desks), and that M.M. had been questioned in one corner of the room while G.M. had sat in another. Z.M. (the officer who had questioned M.M.) noted that another officer (G.Ma., who also mentioned this fact) had “talked to” (გაესაუბრა) M.M. while Z.M. had been drafting different documents concerning the case. The officers, some of whom mentioned that they had left the room on several occasions, excluded the possibility that another officer could have intervened in the questioning process; they also insisted that M.M. had stayed in the open-space office throughout the period of his presence in the building, that no pressure of any type had been exerted on him, and that he had remained calm throughout the process. After the questioning the applicant’s husband had been driven to a drug testing facility, which he left after undergoing a biological examination which had shown no trace of drug consumption.
19. In July 2013 an investigator from the General Inspectorate of the Ministry of the Interior also questioned the police station guards, who confirmed that M.M. had left the police building calmly and freely, without showing any signs of injuries or distress. He also obtained video footage taken by the cameras at the entrance to the building. An examination of the recordings revealed that M.M. had entered and exited the building without showing any signs of distress. Experts who had taken M.M.’s urine sample for the drug test (see paragraph 7 above) also noted that he had not exhibited any signs of injury or anxiety.
20. On 18 September 2013, noting the submissions made by M.M.’s family “about the possible link between his questioning by the police on 5 July 2013 and the suicide the following day”, the Deputy Chief Prosecutor assigned the criminal investigation to the Investigations Department of the Chief Prosecutor’s Office.
21. On 11 November 2013 M.P., the applicant’s neighbour, gave a statement to the prosecutor noting that she had visited the applicant and M.M. in the evening of 5 July 2013. She stated, among other things, that in response to her question about whether the police had beaten him M.M. had “replied that he had given the statement voluntarily as the police had put before him incontrovertible facts, such as covert recordings of his and G.M.’s conversations.”
22. In December 2013 the prosecutor questioned M.M.’s colleagues (G.Ba., G.Bi., T.Kh., M.K. and E.B.). They noted that on the evening after his questioning M.M. had returned to the garage repair workshop in a rather anxious state and had told them that he had been beaten by the policemen, who had forced him to give a statement incriminating G.M. They all indicated that there had been no signs of injuries on his visible body parts. G.Ba. stated that on 6 July 2013, when the applicant had asked for his help in searching for her husband she had told him that M.M. had barely slept the night following his questioning as he “had been made to sign a statement against” G.M.; he had told her that “he could not live with the name [of someone who had testified against his own friend].” After that, M.M. had called him and told him that he could not live with a “disgraced” name and that he had made an unsuccessful attempt to drown himself in the Tbilisi Sea and was now planning on hanging himself instead. The police had been called, but it had taken some time for the officers to locate them as they had been unable to give the exact address of their location.
23. On 3 June 2014 the prosecutor questioned the police patrol officers who had responded to the applicant’s call on 6 July 2013 (see paragraph 9 above). They noted that as they had arrived at the Tbilisi Sea, they had been told about M.M.’s suicidal thoughts, prompting them to call colleagues and ask them to search for the applicant’s husband’s car in the area, informing them that he had had suicidal intentions. They had then taken the applicant to the police station in order to take her statement, given that her account had contained “indications of a potential crime”. Immediately after bringing the applicant to the police station they had returned to the Tbilisi Sea area and had continued searching for the applicant’s husband together with their colleagues. M.M.’s body had been found approximately an hour later by a passer-by who had notified the police. No injuries had been visible on the body, and nor had there been any suspicious objects lying around it.
24. On 11 November 2014 the applicant and her lawyer were given an apparently informal opportunity to acquaint themselves with the criminal case material.
25. No investigative activities appear to have taken place between November 2014 and March 2016.
26. On 25 March 2016 a prosecutor supervising the investigation found that no crime had been committed and closed the investigation. She referred to the expert evidence and the witness statements, including those given to the General Inspectorate of the Ministry of the Interior by the police officers who had questioned the applicant’s husband, and by the police guards who had observed M.M. leaving the police station (see paragraphs 18-19 above). The decision emphasised that G.M. (see paragraphs 12 and 17 above) had indicated that M.M. “had been within his area of visibility during most of the time [that M.M.] had spent at the police station” and had not been subjected to any type of pressure during that period. The prosecutor also noted that despite the fact that M.M. had told his colleagues (G.B., G.B., T.Kh., M.K. and E.B.) that he had been subjected to physical pressure in order to force him to give incriminating evidence against G.M., those individuals had not noticed any signs of ill-treatment on M.M.’s body. Lastly, the prosecutor noted that the applicant had given contradictory statements regarding the alleged violence used against her husband: first she had stated that her husband had told her that he had been subjected to physical violence and verbal insults; later she had stated that her husband had denied having been subjected to “any serious violence”, stating that she had instead heard about it from her husband’s colleagues (see paragraph 13 above). The prosecutor therefore concluded that there had been no evidence to confirm that M.M. had been subjected to any ill-treatment, threats thereof or any kind of degrading treatment that could have led to his suicide. The criminal investigation was therefore closed.
27. On 16 June 2016 the applicant appealed against the prosecutor’s decision (see the previous paragraph). Among other issues, she complained of the inefficient response on the part of the police in view of the imminent risk to her late husband’s life. She furthermore complained of the ineffectiveness of the investigation in that it had allegedly concentrated exclusively on the absence of signs of physical abuse, while playing down the relevance of the allegation that psychological pressure had been applied. She also alleged that the prosecution had relied exclusively on the investigative actions carried out by the General Inspectorate of the Ministry of Internal Affairs.
28. The applicant’s appeal was rejected on 22 June 2016 on the basis of Article 106 § 1 (1) of the Code of Criminal Procedure, which stipulated that an order terminating an investigation could only be appealed against by an individual holding the procedural status of a victim (see paragraph 30 below), whereas the applicant had the status of a witness.
RELEVANT LEGAL FRAMEWORK AND OTHER MATERIAL
29. Article 115 of the Criminal Code of 1999, as it was worded at the material time, provided that the “bringing someone to the point of suicide or attempted suicide by intimidation or violent treatment, or by systematically abusing the honour or dignity of the victim” was punishable by up to three years’ restriction of freedom or by imprisonment for up to five years.
30. Article 56 § 5 of the Code of Criminal Procedure of 2009, as it stood between 5 July 2013 and 24 July 2014, provided for the prosecutor’s discretion to grant the procedural status of a victim. In accordance with amendments of that provision adopted on 24 July 2014, victim status could be granted by a prosecutor of his or her own motion or upon the request of the relevant individual. Article 106 § 11 of the Code of Criminal Procedure provided that an appeal against an order terminating an investigation could be lodged with the hierarchical superior of the relevant prosecutor by a person having the procedural status of a victim.
31. Article 33 of the Code of Criminal Procedure stipulated that the Chief Prosecutor (or an individual designated by the latter) had authority to deprive one investigative authority of responsibility for conducting a criminal investigation and to reassign it to another such authority, as necessary, regardless of jurisdictional competence. Ministerial order no. 34, issued by the Minister of Justice on 7 July 2013 (which was in force at the material time), clarified matters relating to investigative jurisdiction in criminal cases. It provided that an investigation into an offence that had possibly been committed by, inter alia, a police officer, was to be entrusted to a prosecutor.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
33. Relying on Article 2 of the Convention the applicant submitted, in her observations in response to the questions raised by the Court, that the authorities had failed to prevent her husband’s suicide and that no effective investigation had been carried out into the suicide which had taken place the day following her husband’s questioning by the police as a witness in a case involving a friend. The relevant part of Article 2 reads as follows:
“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally ...”
A. The alleged ineffective investigation
1. Admissibility
34. The Court notes that the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.
2. Merits
(a) The parties’ submissions
35. The applicant submitted that the criminal investigation into her husband’s suicide had been ineffective, within the meaning of the procedural aspect of Article 2 of the Convention. In particular, the applicant asserted, among other things, that the implementation of the criminal investigation by the General Inspectorate of the Ministry of the Interior (the same Ministry to which the police had belonged), even if for a limited period, had compromised its independence, and that the investigation had not addressed the issue of whether any psychological pressure had been exerted on her husband during his questioning.
36. The Government submitted that the criminal investigation into M.M.’s suicide had been effective. In particular, (a) it had been opened without delay; (b) the General Inspectorate of the Ministry of the Interior had been hierarchically and practically independent of the police as it had been under the sole authority of the Minister of the Interior (according to the Government, in 2013 several officials of the Ministry, including a Deputy Minister, were prosecuted on the basis of investigations carried out by the Inspectorate); and (c) the investigation had assessed all relevant evidence regarding the allegation that there may have been a link between M.M.’s questioning and his subsequent suicide, finding no indication of such a connection and, as a result, concluding that no crime had been committed.
(b) The Court’s assessment
37. The relevant general principles are summarised in the cases of Nicolae Virgiliu Tănase v. Romania ([GC], no. 41720/13, §§ 157-71, 25 June 2019) and Mustafa Tunç and Fecire Tunç v. Turkey ([GC], no. 24014/05, §§ 169‑82, 14 April 2015).
38. In the present case, the applicant’s husband committed suicide in circumstances when he was outside the relevant authorities’ supervision and/or control (contrast Salman v. Turkey [GC], no. 21986/93, § 99, ECHR 2000‑VII, and Keenan v. the United Kingdom, no. 27229/95, § 91, ECHR 2001‑III). However, considering the alleged causal connection between the two events - his questioning as a witness at the police station and the suicide the following day - as well as the applicant’s related complaints (see paragraph 13 above), the authorities were under an obligation to treat the suicide as having taken place in suspicious circumstances (see Mustafa Tunç and Fecire Tunç, cited above, § 171, and Vasîlca v. the Republic of Moldova, no. 69527/10, § 28, 11 February 2014). Accordingly, a procedural obligation arose at that point under Article 2 of the Convention to carry out an effective investigation into the circumstances.
39. The Court observes that the authorities opened an investigation promptly and of their own motion (see paragraph 11 above). It is also true that a number of relevant and timely investigative measures were undertaken (see paragraphs 12-19 above).
40. However, despite the fact that the alleged link between the applicant’s husband’s suicide and his questioning by the police a day earlier was apparent at least from the moment that the applicant gave her official statement to the investigator (see paragraph 13 above) - and even though the relevant ministerial order provided that crimes allegedly committed by police officers were to be investigated by a prosecutor’s office (see paragraph 31 above) - the prosecutor assigned the investigation to the General Inspectorate of the Ministry of the Interior (the Ministry which was, at the material time, in charge of the police - see paragraph 15 above). It was only two months later that the investigation was taken over by the prosecutor’s office - precisely, it would seem, on the basis of the applicant’s earlier submission linking M.M.’s questioning and his subsequent suicide (see paragraph 20 above). The Court reiterates that Article 2 does not require that the persons and bodies responsible for the investigation enjoy absolute independence, but rather that they are sufficiently independent of the persons and structures whose responsibility is likely to be engaged. (see Mustafa Tunç and Fecire Tunç, cited above, § 223). At the same time, it also notes that a number of important investigative measures, including the questioning of the policemen involved in the events complained of, were implemented by investigators of a body institutionally - even if not hierarchically - linked to the police.
41. The adequacy of the degree of independence of an investigation is assessed in the light of all the relevant circumstances, which are necessarily specific to each case (see Mustafa Tunç and Fecire Tunç, cited above, §§ 222‑23). In that regard, the Court takes note of the Government’s submission that the independence of the General Inspectorate of the Ministry of the Interior was demonstrated by the fact that in 2013 investigations that it carried out led to prosecutions of Interior Ministry officials (see paragraph 36 above). Furthermore, and in any event, the investigation was subsequently assigned to a prosecutor’s office and various investigative measures were carried out anew, with the possibility of remedying alleged deficiencies in the criminal investigation carried out by the General Inspectorate (see paragraphs 13-14, 16, and 20-23 above; contrast Mikiashvili v. Georgia, no. 18996/06, §§ 87-88, 9 October 2012). Given those circumstances, the Court will rather assess whether the investigation, once taken over by the prosecutor, was sufficiently thorough.
42. In this regard, the Court observes that the investigation was closed on account of the conclusion that no crime had been committed. The prosecutor noted that the evidence available in the case file had not demonstrated that any pressure had been exerted on the applicant’s husband during his questioning by the police. This conclusion relied, among other elements, on G.M.’s statements noting that he had not personally witnessed the applicant’s husband being ill-treated (see paragraph 26 above). Yet the very same statements also mentioned that the applicant’s husband had been taken out of the room for approximately forty minutes and that G.M. had been unaware of what had happened during that time (and was still unaware - see paragraphs 12 and 17 above). The police officers’ statements taken by the investigators from the General Inspectorate of the Ministry of the Interior (see paragraph 18 above), which the prosecutor accepted without questioning the relevant individuals anew, did not explicitly refer to this element of G.M.’s account, and nor was this issue pursued any further by the General Inspectorate. Furthermore, the statement given to the prosecutor by the applicant’s neighbour that M.M. had told her that he (M.M.) had been made aware of some covert recordings (which had induced him to testify against G.M. - see paragraph 21 above) was not followed up. In this connection, the Court reiterates the authorities’ obligation to make a serious attempt to find out what happened, including by taking all reasonable steps to secure the evidence concerning the incident (see, among other authorities, cited above, § 174, and Kulyk v. Ukraine, no. 30760/06, § 100, 23 June 2016).
43. In such circumstances, the criminal investigation left unanswered potentially decisive questions, namely whether M.M. was indeed taken to a separate room and, if so, what happened there. Furthermore, the most notable gap of the investigation was the fact that it did not offer any hypothesis as to why an individual with no prior suicidal intentions, psychological issues, or any other apparent problems (see paragraph 13 above) would commit suicide following an encounter with the police (see, mutatis mutandis, Sergey Shevchenko v. Ukraine, no. 32478/02, § 69, 4 April 2006).
44. In the light of the foregoing considerations, the Court concludes that the authorities’ examination of the circumstances surrounding the applicant’s husband’s suicide lacked thoroughness, which undermined the overall effectiveness of the criminal investigation.
45. The Court furthermore observes that the investigation was opened on 6 July 2013 and was closed on 25 March 2016 - a period of slightly more than two years and eight months. However, no investigative measures were taken between November 2014 and March 2016. The Government has not provided any explanation as to that period of apparent standstill.
46. Lastly, while the applicant was given the opportunity to consult the investigative material on one occasion (see paragraph 24 above), and she did not explicitly complain to the Court about any inability to effectively participate in the proceedings, the Court cannot overlook the fact that she was unable, on account of not having been granted the procedural status of a victim, to appeal against the decision of the prosecutor’s office (see paragraphs 27-28 and 30 above). Accordingly, the investigation did not sufficiently ensure the safeguarding of the legitimate interests of M.M.’s next-of-kin (see Mikayil Mammadov v. Azerbaijan, no. 4762/05, 17 December 2009, § 132; contrast the above-cited cases of Mustafa Tunç and Fecire Tunç, §§ 214-15, and Nicolae Virgiliu Tănase, § 181).
47. In the light of the foregoing, the Court considers that the domestic authorities failed to carry out an effective investigation into the applicant’s husband’s suicide.
There has therefore been a violation of the procedural aspect of Article 2 of the Convention.
48. As concerns the issue of the alleged failure of the patrol officers to prevent M.M.’s suicide, it was raised by the Court of its own motion. In the light of all the material in its possession, and in so far as the matter is within its competence, the Court finds that it does not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
49. It follows that this part of the application must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
50. 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
51. The applicant claimed 25,000 euros (EUR) in respect of non‑pecuniary damage.
52. The Government submitted that the claim was excessive.
53. The Court, ruling on an equitable basis, awards the applicant EUR 3,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.
B. Costs and expenses
54. The applicant did not submit a claim in respect of costs and expenses.
55. Accordingly, the Court makes no award under this head.
C. Default interest
56. 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
2. Holds, by five votes to two, that there has been a violation of the procedural aspect of Article 2 of the Convention;
3. Holds, by five votes to two,
(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 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non‑pecuniary damage, to be converted into the currency of the respondent State 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;
4. Dismisses, unanimously, the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 20 January 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Victor Soloveytchik Síofra O’Leary
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judges O’Leary and Bårdsen is annexed to this judgment.
S.O.L.
V.S.
DISSENTING OPINION OF JUDGES O’LEARY AND BÅRDSEN
1. We respectfully disagree with our colleagues that there has been a violation of the procedural aspect of Article 2 of the Convention. There is no real disagreement regarding the relevant general principles. We also agree that the authorities were under an obligation to carry out an effective investigation of the circumstances surrounding the death of the applicant’s husband M.M (see paragraphs 38-38 of the current judgment). However, we have a different view on the concrete assessment of the effectiveness of the investigation and what in practice those principles require of domestic authorities in a case such as this.
2. The investigation of the applicant’s husband’s suicide was closed on account of the prosecutor’s conclusion that no crime had been committed. When assessing whether this conclusion and the investigation that led to it were in compliance with the procedural requirements under Article 2 of the Convention, we recall that these requirements are obligations of means, not of results. Accordingly, the closing of the investigation without any charges having been brought, with certain potentially decisive questions being unanswered and without any conclusion as to the actual cause of the suicide of M.M., is not determinative (compare paragraph 43 in the current judgment). The question is whether the authorities took reasonable measures enabling them to secure evidence, whether they based their conclusions on a thorough, objective and impartial analysis of all relevant elements and, moreover, whether all obvious lines of inquiry were followed (Mustafa Tunç and Fecire Tunç, cited above, §§ 173-81). We also recall that the effectiveness of any investigation must be assessed with due regard to the practical realities and limitations of investigation work and in accordance with the principle of subsidiarity.
3. We firstly note - virtually in concert with the majority - that the institutional link between the police under investigation and the General Inspectorate of the Ministry of the Interior who was responsible during the first two months of the investigation, didn’t imply per se that the initial face of the investigation was not sufficiently independent (see paragraphs 40-41 of the current judgment). This aspect of the case is important, as it means that, although the handing over of the investigation to the prosecutor’s office in line with a recently adopted ministerial order was unfortunately somewhat delayed, the investigative measures taken prior to that handover were not all automatically vitiated on the grounds of lack of independence. Moreover, an investigation was indeed opened ex officio already on the day of the suicide, and a number of investigative measures were carried out before 11 November 2014, when the applicant and her lawyer were also given access to the case file (see paragraphs 11-25 of the current judgment).
4. Secondly, we find that the evaluation of the effectiveness of the subsequent inquiry by the prosecutor, and the basis for her decision to close the investigation, will have to take into account the fact that, crucially, the applicant herself changed her statement - which had constituted the very basis for her initial allegations against the police - in the course of the criminal proceedings. Her statements related to key questions the subject of the investigation, notably whether there was evidence confirming that M.M. had told others about the alleged ill-treatment at the police station. In her first statement on 8 July 2013 the applicant had explained to the police investigator that her husband had himself told her that he had been subjected to verbal and physical abuse by police officers in order to force him into giving a statement incriminating his friend G.M. In her subsequent statement of 25 October 2013 given to the prosecutor in the presence of a lawyer, she explained, however, that her husband had not alleged such ill-treatment and that she had only heard about physical ill-treatment from her husband’s colleagues (see paragraph 13 of the current judgment).
5. Thirdly, in her decision of 25 March 2016 to close the investigation, the prosecutor noted that the evidence available had not demonstrated that any irregular or excessive pressure had been used against M.M during his questioning as a witness by the police on 5 July 2013, the day before he killed himself. This conclusion relied, among many other elements, on G.M.’s statements indicating that he had not witnessed the applicant’s husband being ill-treated (see paragraph 26 of the current judgment). It is true that G.M. also stated that M.M., while at the police station the evening before his suicide, for approximately 40 minutes had been taken out of the open-space office where the interview of him had started. G.M. was, however, unaware of what had happened during that time, and he had seen no signs that M.M. had been ill-treated (see paragraphs 12 and 17 of the judgment), a fact endorsed by the results of private and State forensic examinations. In contrast, the police officers in charge explained to the investigators from the General Inspectorate of the Ministry that M.M. stayed in the open-space office throughout the whole period of his presence at the police station (see paragraph 18 of the judgment). We are mindful that these police officers were not interviewed anew after the public prosecutor took over the investigation. However, nothing in the file suggests that there were realistic indications that re‑interviewing the policemen would bring forward anything new and of importance to the investigation, or that the investigation otherwise failed to follow an obvious line of inquiry which would have undermined to a decisive extent its ability to establish the circumstances of the case.
6. Fourthly, we note that the investigation was opened on 6 July 2013 and was closed on 25 March 2016 - a period of slightly more than two years and eight months. This period is not, even if an apparent stillstand for more than a year is regrettable, in and of itself and in the context of this particular case, a problem under Article 2.
7. Finally, while the applicant was unable, on account of not having been granted the procedural status of a victim, to appeal against the decision of the prosecutor’s office (see paragraphs 27-28 of the current judgment), it does not appear that she had ever applied for such a status as she was able to do under domestic law. She was given, however, the opportunity to consult the investigative material on one occasion (see paragraph 24 of the current judgment), and she did not explicitly complain to the Court about any inability to effectively participate in the proceedings. Accordingly, the investigation did not fail to sufficiently ensure the safeguarding of the legitimate interests of M.M.’s next-of-kin (see the above-cited cases of Mustafa Tunç and Fecire Tunç, §§ 214-15 and Nicolae Virgiliu Tănase v. Romania, § 181).
8. Given the general CPT material referred to by the majority (see paragraph 32 of the current judgment), we consider, like our colleagues, that considerable care is required when investigating allegations under the procedural limb of Article 2 of the Convention against such a background. The fact remains, however, that the Court is required to engage in a concrete assessment of the case before it and that the Convention requirement is one of means and not results. Our role is not to micromanage criminal investigations or substitute our assessment for that of the domestic authorities unless there are sufficient elements at our disposal to point in that direction. General concerns about impunity or conjecture about what pressure a deceased may have felt when providing evidence against a friend do not suffice to found a violation of Article 2 when the elements in the file point to a prompt police response and sufficiently thorough examination of relevant lines of inquiry. There is a significant disconnect between the investigative measures outlined in paragraphs 11 to 26 of the judgment and the majority’s engagement with them.
9. It is in the light of the above that we cannot agree with our colleagues that the authority’s examination of the circumstances surrounding the applicant’s husband’s suicide failed to meet the requirements of the procedural aspect of Article 2 of the Convention. Accordingly, we voted against finding a violation in this case.
