SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 19742/03 by Krestina SADAUSKIENÄ– against Lithuania

The European Court of Human Rights ( Second Section), sitting on 27 November 2007 as a Chamber composed of:

Mrs F. Tulkens , President , Mr A.B. Baka , Mr R. Türmen , Mr M. Ugrekhelidze , Mr V. Zagrebelsky , Mrs D. Jočienė , Mr D. Popović, judges , and Mr s S. Dollé , Section Registrar,

Having regard to the above application lodged on 10 June 2003,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together.

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mrs Krestina Sadauskien ė , is a Lithuanian national who was born in 1948 and lives in Vilnius . The Lithuanian Government (“the Government”) were represented by their Agent, Ms E. Baltutytė.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

1. The inquiry into the death of the applicant ’ s son

On 12 June 1998 the applicant ’ s 17-year-old son took part in a schoolchildren ’ s outdoor camp near the Girija lake in the Vilnius region, uniting over 100 pupils and their supervisors. The applicant ’ s son came with a group of 22 pupils, supervised by three teachers.

On 13 June 1998 the police w ere alerted that the boy had gone missing.

On 14 June 1998 the corpse of the applicant ’ s son was found in the lake.

On the same date the police carried out an examination of the place of the incident and questioned several witnesses. An autopsy of the body began the same day and was completed on 18 June 1998. 1.43% of alcohol was found in his blood, but the body carried no signs of violence. The experts referred to the likeli hood that the boy had drowned while swimming in the lake.

The applicant applied to the prosecutors, claiming that her son may have been murdered, and that the schoolteachers had not performed their duty of supervision.

On 1 July 1998 a Vilnius area district prosecutor refused to institute criminal proceedings in respect of the death of the applicant ’ s son.

On 7 July 1998 a higher prosecutor quashed this decision, ordering further investigation in order to confirm or rule out the hypothesis of a violent death. He instructed the prosecution to question all the schoolchildren who had gone to the camp with the applicant ’ s son and to examine the scene of the incident, the pictures of the deceased taken by the applicant just before the funeral, as well as , her son ’ s belongings in order to establish the origin of the blood stains noticeable on some of them.

From 9 July 1998 to 17 August 1998 , the prosecution questioned 14 witnesses, including the applicant, accep t ed the opinion of a medical expert, repeatedly examined the place of the incident and conducted an inquiry into a possible fight among the campmates. Furthermore, from 16 to 30 July 1998, a biological DNA examination of the belongings of the applicant ’ s son was performed. The expert found some blood stains on the T-shirt of the victim but , because of the small amount of blood involved , it was not possible to establish its origin.

On 17 August 1998 a Vilnius area district prosecutor again took a decision to refuse to institute criminal proceedings in view of the absence of any indication of a violent death. The prosecutor referred to the results of the autopsy and the DNA examination, as well as the submissions of various witnesses.

The applicant complained, requesting further details to be assessed.

On 25 August 1998 a higher district prosecutor quashed the decision, ordering, inter alia , the questioning of all the participants of the camp , the divers who had found the corpse, and certain other people.

In accordance with that order, the prosecution carried out additional investigative measures; in particular, the submissions of 52 witnesses were recorded, experts were questioned, the police and other relevant officials were called upon to conduct an inquiry into certain details of the incident, and further inspection s of the scene of the incident was carried out.

On 29 January 1999 a Vilnius area district prosecutor refus ed to institute criminal proceedings in relation to the death of the applicant ’ s son (Article 104 of the Criminal Code as then in force). Nor did the prosecutor consider that there were any grounds for the criminal prosecution of the schoolteachers or organisers of the camp for the allegedly improper execution of their official duties (Article 288). The applicant was advised that she could claim damages by way of civil proceedings.

The applicant and her husband addressed the General Prosecutor ’ s Office, submitting further details and requesting an additional inquiry.

On 25 June 1999 a prosecutor in the Office of the Prosecutor General quashed the decision, ordering additional investigative measures, including the questioning of new witnesses, the examination of the towel of the d ecea sed, an inquiry into the hypothesis that there may have been a fight at the camp, and a request for information about the meteorological conditions on the day of the incident.

On 29 July 1999 the applicant reported that she had received an anonymous letter referring to the alleged “murderers” of her son.

An inquiry into these newly discovered details was carried out, including the questioning of 10 witnesses.

On 7 September 1999 a Vilnius area district prosecutor again refused to institute criminal proceedings on the same grounds as before . The applicant appealed, alleging that the prosecution had not made a n adequate investigation into the anonymous letter.

On 2 November 1999 a Vilnius regional prosecutor quashed the decision, instituting criminal proceedings into the death of the applicant ’ s son. Thereafter, the investigation was prolonged a number of times. During a further examination, 46 witnesses were questioned, some of them repeatedly, several confrontations of the witnesses were undertaken, additional information about the camp participants was gathered, the version of a possible fight in the camp was again assessed, writing samples were taken and an expert examination of the anonymous letter carried out, and several experts were heard.

On 1 May 2000 the district prosecutor decided to discontinue the criminal proceedings. It was noted, inter alia , that no evidence of a violent crime could be found, despite the questioning of numerous witnesses and experts.

The applicant filed a hierarchical complaint, requesting t he quash ing of the decision of 1 May 2000.

On 16 June 2000 the Office of the Prosecutor General refused her request, stating that the decision to discontinue the investigation was lawful and substantiated. The applicant was advised that she could request judicial review of the decision of 1 May 2000.

On 27 November 2001 the applicant applied to the Vilnius District Court, asking it to reinstate the time-limit to complain a bou t the decision of 1 May 2000.

On 1 March 2002 a judge the Vilnius District Court granted her request, quashed the decision of 1 May 2000 and ordered the Vilnius area district prosecutors to carry out further investigative measures, including the questioning of the applicant and her husband, as well as establishing the identity of certain persons with whom the applicant ’ s son could have had contact in the camp. The judge also referred to the pictures of the corpse that the applicant had made after the autopsy which allegedly showed signs of violence on the boy ’ s face, and ordered them to be submitted to an expert. The judge noted that it was not clear from the case file whether these particular pictures had been the subject of an expert examination before.

The criminal investigation was renewed. Between 18 and 22 April 2002 a repeat medical expert examination of the pictures was carried out, in order to establish the credibility of the version of a violent death. The experts confirmed that no signs of violence could be identified from the pictures taken before the funeral . It was noted that the pictures taken by the applicant just before the burial exhibited some marks on the face of the boy. Whereas the applicant considered them to be signs of violence, the experts explained that the marks were the result of the fact that the body had stayed in the water.

On 22 April 2002 the prosecutor discontinued the investigation because of the lack of evidence of a crime.

On 7 May 2002 a Vilnius regional prosecutor quashed the decision, referring, inter alia , to the need to question witnesses and obtain supplementary data about the participants at the camp. The case was sent to the Vilnius city district prosecutors, who again reinstated the investigation on 13 May 2002. The f urther questioning of witnesses and experts as well as a confrontation w ere held .

On 13 June 2002 the Vilnius city district prosecutor discontinue d the investigation in view of the absence of evidence of the crime of murder or the improper execution of official duties.

On 19 July 2002 the Vilnius regional prosecutor quashed the decision, ordering, inter alia , the questioning of further witnesses and the characterisation of certain participants at the camp.

On 23 July 2002 the investigation was again renewed by the Vilnius city district prosecutors and further investigative actions were carried out, including the questioning of eight witnesses.

On 23 October 2002 a Vilnius city district prosecutor adopted a 23-page long decision , discontinu ing the criminal investigation in view of the absence of evidence of a crime under the then Articles 104 and 288 of the Criminal Code. It was concluded that the applicant ’ s son had drowned in the lake from swimming whilst under the influence of alcohol, and that he had been responsible for his own death. The decision was based on the submissions of 46 witnesses, some of wh om had been confronted, in order to eliminate contradictions in the evidence, the results of four expert examinations, the expert submissions, as well as other evidence.

On 3 December 2002 the Vilnius Region Prosecutors ’ Office rejected the applicant ’ s hierarchical appeal. It was noted that the investigation had been thorough: 73 witnesses had been questioned, some of them many times ; the examination of the place of the incident had been carried out three times ; two medical examinations and a DNA examination of the blood sample had been completed , but with no result because of the small amount of blood involved ; experts were questioned and a hand writing analysis of the anonymous letter had been performed. There was no evidence to indicate that the boy had been the victim of violence, despite the attempts to examine the numerous versions put forward by his parents. All hypotheses had been dutifully verified, inter alia , by questioning the relevant experts and the witnesses, some of whom had been heard several times but had not been able to provide any new information.

The applicant applied to a court.

On 23 January 2003 the Vilnius City First District Court examined the applicant ’ s appeal in a written procedure and rejected it. It noted that the main source of objective evidence – the expert examination of the corpse and the pictures. This hypothesis was corroborated by the submissions of various witnesses and other evidence. The court opined that all possible means to obtain evidence had been exhausted. That decision was final.

2. Other proceedings

On 25 August 1998 the three schoolteachers who had accompanied the applicant ’ s son to the camp received a disciplinary reprimand for their failure to ensure the safety of the camp participants.

On an unspecified date the applicant brought civil proceedings for damages against the employer of those teachers – a State-run school. She claimed 9,379 Lithuanian litas (“LTL”; approximately 2,718 euros) to cover the funeral expenses. Whereas the applicant ’ s claims were rejected at first and second instance by, respectively, the Vilnius City Third District on 20 December 2000 and the Vilnius Regional Court on 14 February 2001, the Supreme Court reversed those decisions on 11 June 2001, holding that the school was liable to cover the expenses of the funeral of the applicant ’ s son. The Supreme Court reduced the amount claimed to LTL 7,500 (approximately EUR 2,174), referring to the fact that the applicant ’ s son had been largerly responsible for his own death. The applicant did not claim non-pecuniary damages.

B. Relevant domestic law

The Criminal Code applicable at the material time punished murder (Article 104) and the improper execution of official duties (Article 288).

The Code of Criminal Procedure (in force from 12 June 1998 to 23 January 2003) provided:

Article 5

“ C riminal proceedings shall not be instituted or ... shall be discontinued in the following cases:

1) where no crime has occurred ... ”

Article 128

“The prosecutor ... shall receive the applications and reports of a crime ... and shall take a relevant decision within three or, in exceptional circumstances, ten days from the receipt of the application or report.

The necessary material shall be obtained and submissions taken, but no investigative actions foreseen in this Code shall be carried out.

One of the following decisions shall be taken regarding the application or report:

- to institute criminal proceedings;

- to refuse to institute criminal proceedings ... .

The applicant shall be informed about the decision taken.”

Article 131

“Where no grounds for the institution of criminal proceedings are established ... the prosecutor ... or the court shall refuse to open criminal proceedings. ... The person concerned who submitted an application [about the alleged criminal acts], shall be informed about that decision as well as about his/her right to appeal against it.

The decision of the prosecutor ... to refuse to institute criminal proceedings can be challenged before the higher prosecutor or a court ... .”

Article 244 of the Code stipulated that the actions and decisions of the prosecutor could be challenged before a higher prosecutor or, since 17 April 2002, before a court.

Article 244-2 provided for the judicial review of the actions and decisions of the prosecutor, stipulating as follows :

“T he prosecutor and the complainant may attend the hearing ... . The complainant shall be informed about the court ’ s decision ... . That decision shall be final.”

COMPLAINTS

Under Article 6 of the Convention the applicant complained that the investigation into the death of her son was too long and ineffective, and that neither she nor the father of her son were invited to or enabled to participate at the final court hearing of 23 January 2003.

THE LAW

1 . The applicant complained that the authorities had failed to conduct an adequate and expeditious inquiry into the death of her son.

The Court considers that the complaint falls to be examined under the procedural limb of Article 2 of the Convention, which provides, in its first sentence as follows :

“Everyone ’ s right to life shall be protected by law. ... ”

1. The parties ’ submissions

The Government submitted that the investigation had been instituted promptly and had been comprehensive. In particular, the prosecution had conducted an inquiry into several hypotheses regarding the death of the applicant ’ s son. 73 witnesses had been questioned, some of them several times, information had been collected by means of an operational inquiry, several expert examinations had been carried and the experts who had conducted the examinations had been questioned. In accordance with the procedural law valid at the material time, these procedural steps could be undertaken without instituting a criminal investigation (Article 128 § 2 of the Code of Criminal Procedure as then in force).

The Government emphasised that the applicant and her husband had been actively involved in the investigation. The applicant had had access to all the material of the case file and could make her comments and complaints based on her own assessment of the evidence gathered. Both the applicant and her husband submitted numerous requests which had been promptly examined and reasoned responses given. Some of their requests had been granted, e.g., confrontations of witnesses had been arranged upon the applicant ’ s request.

The applicant ’ s appeal against the decision of the prosecution of 23 October 2002 was examined by way of written procedure, in accordance with the procedural law; hence neither the applicant nor the prosecutor had been summoned before the court. Nevertheless, that had not affected the applicant ’ s rights, as she had been able to make her submissions in writ ing . The Government argued that the presence of the applicant before the court had been unnecessary and could have had no influence on its decision. In particular, all the issues raised by the applicant in her written complaint had already been the subject of investigation.

Finally, the Government asserted that the investigation had been somewhat prolonged only because of the goodwill of the authorities to take into account the numerous requests of the deceased ’ s parents who, moreover, had changed their submissions a number of times. There have also been objective obstacles to the gathering of the evidence, as many participants of the camp had gone to live abroad. The length of the inquiry had not precluded the applicant from asserting her civil rights. Indeed, she had been successful in securing an award of damages from the school which had admitted her son into its camp team.

It appears from the documents submitted by the Government, that the applicant had been heard as a witness at least nine times, and on several occasions had t a k en part in a confrontation with other witnesses. The applicant ’ s husband had been questioned at least three times.

The applicant contested the Government ’ s submissions. She argued that the first steps to investigate the death of her son had been taken belatedly . The applicant alleged in particular that , until the opening of the criminal investigation on 2 November 1999, no serious inquiry had taken place. Even thereafter, the prosecution had omitted certain significant steps in their investigation, such as the exhumation of the body and the questioning of some important witnesses (unspecified). Finally, the applicant alleged that the Government had incorrectly interpreted Article 244-2 of the Code of Criminal Procedure, which she claim ed should be read as obliging the court to hold a hearing, and to inform the complainant about the place and time thereof.

2. The Court ’ s assessment

(a) Applicable principles

The Court recalls 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”, also requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force (see, e.g., Ramsahai and Others v. the Netherlands [GC], no. 52391/99, § 321, 15 May 2007; also see, Paul and Audrey Edwards v. the United Kingdom , no. 46477/99, § 69, ECHR 2002-II; Mastromatteo v. Italy , GC, no. 37703/97, § 89, ECHR 2002-VIII).

The essential purpose of such investigation s is to secure the effective implementation of the domestic laws which protect the right to life. What form of investigation will achieve this purpose may vary in different circumstances (see Mastromatteo v. Italy , cited above, § 90).

Whatever mode is employed, the authorities must act on their own motion and ensure that the investigation is “adequate”, i.e. capable of leading to the identification and punishment of those responsible. This is not an obligation of results, but of means (see, Ramsahai and Others v. the Netherlands , cited above, § 324). The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including, inter alia , eyewitness testimony, forensic evidence and, where appropriate, an autopsy providing a complete and accurate record of injury and an objective analysis of clinical findings, including the cause of death (see, for example, Paul and Audrey Edwards v. the United Kingdom , § 71).

A requirement of promptness and reasonable expedition is implicit in this context (see ibid , § 72).

Finally, 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 Paul and Audrey Edwards , § 73; also see the Ramsahai and Others judgment, §§113, 347-355).

(b) Application in the present case

In the instant case, the Court finds that a procedural obligation arose to determine the circumstances of the death of the applicant ’ s son. The Court will therefore examine whether the investigation complied with the requirements inherent in Article 2, i.e. whether it was adequate, guaranteed the sufficient involvement of the applicant, and whether the inquiry was instituted promptly and conducted with reasonable expedition.

(i) Alleged inadequacy of the investigation

The Court notes that the inquiry into the death of the applicant ’ s son included, inter alia , the examination of the scene of the incident, an autopsy and DNA examination of the belongings of the applicant ’ s son, the medical examination of the pre-funeral pictures of the corpse and the examination of the anonymous letter received by the applicant. The experts concerned have been questioned on several occasions, and 73 witnesses have been heard, some of them several times. Confrontations of witnesses have been conducted. The applicant herself has been heard at least nine times and her husband three times.

The Court is satisfied, that the prosecution has verified all the possible hypotheses relating to the death of the applicant ’ s son, even though an objective expert analysis had found that the sole reasonable explanation was a non-violent death. Moreover , it appears that all the available means of evidence-gathering have been used (the decision of the Vilnius City First District Court of 23 January 2003, the ‘ Facts ’ part above). The Court is not persuaded by the applicant ’ s allegation that further investigative measures should have been undertaken. The exhumation of the body does not appear to have been necessary, given that several medical experts who carried out the autopsy and the examination of the pictures of the corpse had unequivocally concluded that it bore no signs of violence. Nor has the applicant specified what further witnesses should have been heard in order to complete the inquiry. In any event, the Court recalls that Article 2 does not impose a duty on the investigating authorities to satisfy every request for particular investigative measures made by a relative in the course of the investigation ( Ramsahai and Others v. the Netherlands [GC], no. 52391/99, § 348, 15 May 2007). The Court finds, therefore, that the investigation was sufficiently thorough to be considered “adequate” for the purposes of Article 2 of the Convention.

(ii) Alleged lack of involvement of the applicant

It was not contested that the applicant has been given access to the evidence gathered by the prosecution in the process of the investigation. It appears, furthermore, that she was able to make frequent submissions and took part in several confrontations with other witnesses. The applicant was thus able to participate effectively in the proceedings and challenge the actions or inaction of the prosecution. Indeed, the applicant and her husband submitted numerous requests regarding the conduct of the investigation and put forward various hypotheses . Their request s for additional investigative measures were taken into account many times by the higher prosecutors and the court, when ordering further inquir ies .

It is true that the applicant was not summoned before the Vilnius City First District Court which reviewed the decision of the prosecution of 23 October 2002 to discontinue the investigation. Nevertheless, she was able to make her submissions in writing and she did so in her appeal. The Court considers that the written material available to the Vilnius City First District Court was sufficient in order to make an informed and reasoned decision. The applicant has not specified as to what new issues she would have raised had she been present before the court. Nor has she been placed in a procedural disadvantage vis-à-vis the prosecution, who were also not summoned before the court. Finally, following the judicial review, the applicant was provided with a reasoned decision.

Overall, even if the lack of a public hearing before the Vilnius City First District Court could be regarded as a procedural flaw, the Court is not ready to find that this aspect alone had the effect of reducing the accountability of the authorities or undermining the legitimate interests of the applicant to a significant extent (see, mutatis mutandis , Ramsahai and Others v. the Netherlands, cited above, §§ 347-355).

(iii) Alleged lack of promptness and reasonable expedition

The Court does not accept the applicant ’ s allegation that no inquiry was undertaken before 2 November 1999, i.e. the institution of ‘ criminal proceedings ’ within the meaning of the domestic law (Article 128 § 2 of the Code of Criminal Procedure; see the ‘ Relevant domestic law ’ part above). On the contrary, it observes that important investigatory measures, such as the autopsy, the examination of the scene of the incident, and the questioning of the main witnesses, were carried out promptly after the incident was reported. Nor does it appear that the applicant had found herself in a less favourable procedural position during the investigation undertaken before 2 November 1999. The Court therefore considers that the investigation was opened promptly after the incident was reported.

The Court further notes that slightly more than 4 years and 7 months elapsed from the day the police received the report and the final decision to close the investigation. This period, which is not short in itself, was to a large extent the result of the closing and re-opening of the inquiry several times. This apparent hesita tion on the part of the authorities to conduct a scrupulous investigation at the very initial stages could indeed attract some criticism. However, the Court is satisfied that the attempts by the prosecution to close the inquiry were justified first and foremost by their belief – based on objective expert examinations – that the boy ’ s death was the result of a tragic accident rather than any violent crime.

Furthermore, the Court acknowledges the challenge which the investigating authorities faced. More than 100 people had been present at the camp and, despite the operational activities and questioning of numerous witnesses, no direct eyewitness could be identified. It appears that in view of the lack of objective evidence, the authorities have shown significant goodwill and preparedness to investigate the hypotheses put forward by the parents of the deceased and to undertake additional investigative measures as and when any new details of the incident were brought to their attention. The Court thus finds no substanti al periods of inactivity on the part of the investigating authorities.

Finally, as noted by the Government, the length of the inquiry had not precluded the applicant from claiming compensation by way of a separate set of civil proceedings.

In these circumstances, the overall period during which the inquiry took place cannot, as such, lead to a finding of a violation of the State ’ s procedural obligation s (see, mutatis mutandis , the Paul and Audrey Edwards judgment, § 86)

(iv) Conclusion

In the light of these considerations, the Court concludes that t he procedural requirement to conduct an investigation under Article 2 of the Convention has been satisfied. It follows that th is part of the applic a t ion is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention , and must be rejected pursuant to Article 35 § 4.

2 . Insofar as the applicant invoked Article 6 of the Convention, the Court recalls that the Convention does not guarantee the right, as such, to have criminal proceedings instituted against other persons (see, e.g., Chizhov v. Ukraine (dec.), no. 6962/02, 6 May 2003). Nor was Article 6 applicable under its civil head, given that the applicant has pursued her civil claims by way of separate proceedings. It follows that this aspect of the case is to be rejected as being incompatible ratione materiae with the aforementioned provision, pursuant to Article 35 §§ 3 and 4 of the Convention.

3 . Having regard to the above conclusions, the application of Article 29 § 3 of the Convention to the case should be discontinued.

For these reasons, the Court unanimously

Declares the application inadmissible.

S. Dollé F. TULKENS Registrar President