Unjustified delay of the researches in an attempted homicide. Violation of the procedural part of the right to life

JUDGMENT

Danciu and others v. Romania 12.05.2020  (αρ.προσφ.  48395/16)            

see here 

SUMMARY

Right to life and ineffective judicial investigation. Violation of a procedural part of Article 2 of the ECHR.

The applicants, relatives of the deceased spouse and their father, complained of a violation of Article 2 due to an ineffective investigation into the circumstances of his death and the attribution of liability. In particular, they complained of a delay in the investigation and examination of witnesses, which resulted in the non-finding of evidence and the acquittal of the perpetrators.

The Court pointed out that the state is responsible for any delays in the administration of justice, such as the conduct of expertise, and must conduct an effective assessment of human resource needs in the judiciary to ensure that it operates effectively.

In the present case, the ECtHR found a lack of timely and adequate response by the authorities in the preliminary stages of the investigation, ie it examined the witnesses one year after the complaint as well as did not conduct a second expert examination if deemed necessary due to contradictions.

The ECtHR ruled that the aforementioned weaknesses affected the investigation. There has therefore been a violation of Article 2 of the ECHR with regard to the procedural part. It awarded the applicants EUR 15,000 in respect of non-pecuniary damage and EUR 8,000 in respect of costs and expenses.

PROVISION

Article 2

PRINCIPAL FACTS

The applicants are a Romanian family, a mother, Sava Danciu, her two sons, Dumitru Danciu and
Ionuc Danciu, and daughter, Lupa Timiș. They were born in 1954, 1975, 1986 and 1974 respectively
and live in Borșa (Romania), San Giuliano Milanese and Como (Italy).

The case concerned the alleged attempt to murder their relative.
In September 2008 the local Borșa police were called to an altercation outside a restaurant involving
the applicants’ relative (husband and father, respectively), but by the time they arrived he had
already been taken to hospital with an open head injury and concussion. When questioned there he
stated that he had been sprayed with tear gas and attacked with a wooden bat.

The applicants’ relative filed a criminal complaint in November 2008, naming five people as his
attackers. The prosecutor heard the victim in February 2009 and, after he complained about the
protracted length of the proceedings, questioned the five suspects in May 2009 and, a few months
later, the witnesses indicated by the parties.

One of the suspects was eventually indicted in 2010 for hitting the applicants’ relative and other
forms of violence, as well as with causing a serious disturbance of public order. That legal
classification was subsequently changed during the criminal case before the courts to attempted
first-degree murder.

The criminal proceedings ended, however, in 2016 with an acquittal because of lack of incriminating
evidence.

The applicants’ relative had died in 2011 while the proceedings were still ongoing. A medical report
concluded that there was no causal link between his death and the cranial injury he had sustained
during the attack.

Relying on Article 2 (right to life) of the European Convention, the applicants mainly complained that
the authorities had failed to carry out an effective and speedy investigation into the alleged attempt
to murder their relative.

THE DECISION OF THE COURT…

The Court reiterates that it has, under certain circumstances, found the procedural obligation under Article 2 of the Convention to be engaged in cases of incidents where the person whose right to life was allegedly breached did not die. In such cases the Court considered it relevant that the victim had sustained life-threatening injuries.

The Court further considers that although the applicants’ complaint principally concerned the allegedly excessive length of the investigation, which, they claimed, had precluded the investigative authorities from elucidating the relevant circumstances of the crime, the central question to be answered in the instant case is whether the investigation conducted into incident of 17 September 2008 was as a whole effective, in accordance with the requirements of Article 2 listed above.

The Court reiterates that in a situation when life has intentionally been put at risk, the authorities must act of their own motion once a matter has come to their attention. They cannot leave it to the initiative of the next of kin either to lodge a formal complaint or to take responsibility for the conduct of any investigative procedures. Furthermore, the investigation must be effective in the sense that it is capable of leading to the identification and punishment of those responsible. This is not an obligation of results, but of means.

In this connection, the Court takes note of the applicants’ submissions according to which, in view of the gravity of the injuries inflicted on the victim, the authorities should have promptly initiated a criminal investigation on their own motion, without requiring the victim to formally lodge a criminal complaint. In any event, even after such a formal criminal complaint had been lodged in November 2008 no steps were taken in the investigation until February the following year.

The Court also notes that despite the fact that the victim had named the alleged perpetrators at the latest on 12 November 2008, the case prosecutor questioned them for the first time on 13 May 2009, some nine months after the incident, without giving the victim any prior or ulterior notification. Moreover, that investigative measure was carried out only after the Maramureş County Court had allowed the injured party’s complaint about the unjustified protraction of the proceedings and fixed a time-limit for the completion of the investigation.  It took the case-prosecutor another several months  to question for the first time the witnesses indicated by the parties. Again, those steps were taken subsequent to a second complaint about the protraction of the proceedings lodged by the injured party and allowed by the prosecutor, who fixed a time-limit for the investigation to be finalised at 1 October 2009. That time-limit was in any event exceeded by more than one year, as the indictment was not issued until 20 December 2010 (see paragraph 32 above).

In this connection, the Court reiterates that it has repeatedly underlined the importance of contacting and questioning witnesses in the immediate aftermath of such incidents, when memories are  The Court accepts that forensic medical reports were essential for elucidating the circumstances of the injuries as well as their degree of seriousness, including with reference to a potential causal link with the victim’s subsequent death. However, it cannot ignore the fact that the necessity to have more than one such report became imperative once the medical experts started to have divergent opinions on the matter.

In that vein, the Court has already held that the State is also responsible for delays in the presentation of reports and opinions of court-appointed experts and that it may be found liable also for structural deficiencies in its judicial system that cause delay.  Similar considerations apply in relation to the Government’s submissions concerning the heavy workload of the relevant domestic authorities at the material time. The Court reiterates that it is the State’s responsibility to take appropriate measures such as, inter alia, efficiently estimating the human resources needs within the judicial system, so as to ensure that it functions appropriately and, in particular, that the Convention requirements concerning the reasonableness of the duration of proceedings are complied with .

The Court therefore concludes that in spite of some intermittent efforts made by the investigative authorities to elucidate the circumstances of the injuries sustained by D.D. sr. the overall adequacy of the investigative measures carried out must be called into question. The Court refers in particular to the lack of a timely and adequate reaction on the part of those authorities at the preliminary stages of the investigation, as complained of in the present case, including in relation to the way in which the injured party was involved in the investigation. Those shortcomings were confirmed by the authorities themselves, when they twice allowed the injured party’s complaints about the protraction of the proceedings .

The Court cannot but conclude that the aforementioned shortcomings inevitably had a negative impact on both the effectiveness and the duration of the subsequent investigative measures, by jeopardising the ability to establish the facts and amplifying the possibility of the crime to remain unpunished .

There has accordingly been a violation of Article 2 of the Convention under its procedural limb.


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