EHRM, 21-12-2010, nr. 45744/08

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.

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.

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.

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.

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.

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.

The applicant did not formulate a claim in respect of costs.

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.