THIRD SECTION

DECISION

Application no . 18589/11 Dumitru SPINU and Sergiu SPINU against the Republic of Moldova

The European Court of Human Rights ( Third Section ), sitting on 30 June 2015 as a Chamber composed of:

Josep Casadevall , President ,

Luis López Guerra,

Ján Šikuta ,

Johannes Silvis,

Valeriu Griţco ,

Iulia Antoanella Motoc,

Branko Lubarda, judges , and Marialena Tsirli , Deputy Section Registrar ,

Having regard to the above application lodged on 24 December 2009 ,

Having regard to the observations submitted by the parties ,

Having deliberated, decides as follows:

THE FACTS

The applicants, Mr Dumitru Spinu and Mr Sergiu Spinu , are Moldovan nationals, who were born in 1943 and 1974 respectively and live in Peticeni . They were represented before the Court by Mr V. Tarnovschi , a lawyer practising in Chisinau .

The Moldovan Government (“the Government”) were represented by their Agent, Mr L. Apostol .

The applicants are the husband and the son of the late Varvara Spinu . On the evening of 21 May 2008, at approximately 10 p.m., the first applicant and Varvara Spinu were returning home when Varvara Spinu fell into a trench located on the public road. The next morning Varvara Spinu was taken to a hospital and diagnosed, inter alia , with a fracture of her spine. On 11 June 2008 she succumbed to the injuries and died.

On 13 June 2008 the local police office initiated an investigation into Varvara Spinu ’ s death and found that the trench located on the public road in front of the applicant ’ s house had been dug by a contractor of a mobile telephony company for the purpose of instalment of optical cables. The trench was not marked and/or secured in any way.

On 13 February 2009 the Călăraşi Prosecutor ’ s Office decided not to initiate criminal proceedings in respect of the death of Varvara Spinu on the ground that the circumstances of the case did not fall under the provisions of the Criminal Code and that the matter was to be resolved by the civil courts. The applicant challenged the decision; however, on 21 April 2009 the Călăraşi District Court dismissed the applicant ’ s appeal while finding that the investigation carried out by the Prosecutor ’ s Office had been effective and complete. The decision of the Călăraşi District Court was handed to the applicant on 15 June 2009.

The parties did not inform the Court about any other proceedings in the case.

COMPLAINTS

1. The applicant s complain ed under Article 2 of the Convention about the death of their wife and mother, Varvara Spinu , as a result of the failure of the State authorities to protect her life. They also complained about the authorities ’ failure to comply with their proce dural obligations under Article 2 of the Convention, namely to effectively investigate the death of Varvara Spinu and to prosecute those responsible for it.

2. The applicants also complained under Article 13 of the Convention that they had not had effective remedies against the alleged breach of Article 2 of the Convention.

THE LAW

In their observations of 17 January 2012, the Government invoked the objection of non-exhaustion of domestic remedies by the applicants. In particular, they referred to the Court ’ s case-law in the field of medical negligence and submitted that the applicants should have attempted to exhaust the civil remedies available to them , i.e. to seek compensation for the death of Varvara Spinu .

The applicants asked the Court to dismiss the Government ’ s objection arguing that the case-law concerning medical negligence was not applicable.

In the process of the examination of the present case, notably when examining the case-law of the Supreme Court of Justice of Moldova in the field of death by negligence, the Court became aware that the present matter had been examined by the civil courts o f Moldova. In particular, on 23 May 2011 the applicants initiated a civil action against the mobile telephone company and against the contractor who had dug the trench on the public road. The proceedings ended by a final judgment of the Supreme Court of Justice of 20 March 2013, by which the applicants were awarded compensation of some EUR 25,000.

By letter of 3 April 2015, the Court asked the applicants to explain the reason for which they did not inform the Court about the civil proceedings and their outcome. By a letter dated 7 April 2015, the applicants responded that they did not consider relevant the civil proceedings initiated at home for the proceedings before the Court and that it was not their intention to mislead the Court.

The Court recalls that according to Rule 47 § 6 of the Rules of Court applicants shall keep the Court informed of all circumstances relevant to the application. It also notes that the applicants ’ attention was expressly drawn to this obligation in the Court ’ s letter by which the receipt and registration of their application was confirmed. The Court further recalls that an application may be rejected as abusive under Article 35 § 3 of the Convention, among other reasons, if it was knowingly based on untrue facts (see Varbanov v. Bulgaria , no. 31365/96 , § 36, ECHR 2000-X; Popov v. Moldova (no. 1) , no. 74153/01 , § 48, 18 January 2005; Řehák v. Czech Republic ( dec. ), no. 67208/01 , 18 May 2004; Kérétchachvili v. Georgia ( dec. ), no. 5667/02 , 2 May 2006 ; Gross v. Switzerland [GC] , no. 67810/10 , § 28, ECHR 2014; S.A.S. v. France [GC] , no. 43835/11 , § 67, ECHR 2014 (extracts) ) . Incomplete and therefore misleading information may also amount to abuse of the right of application, especially if the information concerns the very core of the case and no sufficient explanation is given for the failure to disclose that information ( Poznanski and Others v. Germany ( dec. ), no. 25101/05 , 3 July 2007).

In the circumstances of the present case, the applicants , who were represented by legal counsel, have not furnished any plausible explanation for the failure to inform the Court about the fact that they had initiated civil proceedings and had obtained compensation from domestic courts . The Court does not agree with the applicants ’ submission that the domestic civil proceedings were not relevant for the proceedings before it. On the contrary, the Court considers those proceedings and their outcome of great importance in the determination of the question whether the State has discharged its positive obligations under Article 2 of the Convention. Having regard to the importance of the information at issue for the proper determination of the present case, the Court finds that the applicants ’ conduct was contrary to the purpose of the right of individual petition, as provided for in Article 34 of the Convention.

In view of the above, the application must accordingly be rejected as abusive, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 23 July 2015 .

Marialena Tsirli Josep Casadevall Deputy Registrar President