SECOND SECTION

DECISION

Application no. 57588/13 Valerija Å ATROVIENÄ– against Lithuania

The European Court of Human Rights (Second Section), sitting on 22 October 2019 as a Committee composed of:

Valeriu Griţco, President, Egidijus Kūris, Darian Pavli, judges, and Hasan Bakırcı, Deputy Section Registrar ,

Having regard to the above application lodged on 4 September 2013,

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

1 . The applicant, Ms Valerija Å atrovienÄ—, is a Lithuanian national who was born in 1953 and lives in Nark Å« nai village, district of Utena. She was represented before the Court by Mr R. Jurka, a lawyer practising in Vilnius.

2 . The Lithuanian Government (“the Government”) were represented by their Agent, Ms K. Bubnyt ė-Širmenė .

3 . On the night of 8 to 9 October 2012, at around midnight, the applicant ’ s son E. Å . died in a car crash in the district of Utena. A car with five passengers left the road, hit an electricity pole and flipped onto its left side.

4 . The police, fire-rescue and medical services arrived at the scene within minutes of receiving a call about the accident. The police took photographs of the scene – the car had already been turned back on its wheels, and the body of the person in the driver ’ s seat – the applicant ’ s son – was partially outside the car, hanging out of the driver ’ s door window.

5 . The paramedics declared the applicant ’ s son dead at the scene. As to the other individuals in the car, G.K. suffered serious head injuries, was in a coma and afterwards sustained memory loss; D.M. sustained minor injuries; and the other three passengers, T. Å ., L.R. and P.B., did not sustain any physical injuries.

6 . The same night a criminal investigation was opened under Article 281 § 5 of the Criminal Code (violation of the regulations governing operation of vehicles, when this has caused death). Within a couple of hours of the accident, the authorities informed the applicant about her son ’ s death.

7 . The same night the investigator identified all the individuals who had been in the car and ordered that they be tested for the alcohol level in their blood. Blood samples were taken the same night; E. Å ., D.M., P.B. and G.K. all tested between 2.1% and 2.8% in blood-alcohol content, and T. Å . tested 1.6%.

8 . The same night the investigator also ordered an autopsy of E. Å . in order to ascertain the cause of death and the reasons for his injuries. The autopsy was carried out the following morning. From his injuries, the experts concluded that it was possible that E. Å . had died as described by the investigator in the autopsy request, that is, as the driver of the car. Subsequently forensic specialists also provided conclusions with regard to the injuries sustained by D.M. and G.K.

9 . In the course of the pre-trial investigation eighteen witnesses were questioned, including police officers, firemen and the applicant. At the applicant ’ s request, the investigators also questioned G.K. and a potential witness – taxi driver, G.N., but the latter had no knowledge of the circumstances of the accident.

10 . The police officers who had arrived at the scene testified that they had no doubts that E. Å . had been the driver, since his body had been in a typical driver ’ s position, with his feet next to the pedals. The officers also testified that it had been impossible for them to remove E. Å . and another person from the car, since the vehicle had been deformed. The firemen testified that when they had arrived at the scene the car had been standing upright and there had been two people inside the car – G.K. in the rear and E. Å . in the driver ’ s seat. The passenger had been removed first, given that he had needed medical assistance, whereas the driver had already been dead. As to E. Å ., the firemen submitted that he had been sitting in the driver ’ s seat, his body facing the car door; there had been no glass in the door window and his hands had been hanging over the driver ’ s door. When the firemen had pried that door open with the help of special tools, it had not been easy to remove E. Å . from the vehicle because his feet had been stuck next to the pedals.

11 . On 16 November 2012 G.K. was granted victim status by decision of the investigator. D.M. was granted victim status on 15 October 2012.

12 . In October and November 2012 the applicant asked the prosecutor to allow her lawyer to see the criminal case file. She also requested that she be recognised as a victim and civil plaintiff. However, on 13 November and 18 December 2012 the prosecutors refused her requests on the grounds that under Lithuanian law, until the case file was transferred to the court for examination, the criminal investigation file could not be made public. In the instant case, the applicant had been questioned as a witness and the investigation was still ongoing. The prosecutors also pointed out that the evidence collected thus far – physical evidence, witnesses ’ testimony, forensic expert reports – showed that it was the applicant ’ s son who had been the actual driver. Accordingly, in the absence of another suspect, there were no legal grounds to grant her the status of a victim or civil plaintiff. The prosecutors ’ decisions were subsequently upheld by court (see paragraphs 17 in fine and 20 in fine below).

13 . By a decision of 28 December 2012 the prosecutor concluded that the applicant ’ s son had been driving under the influence of alcohol, had not been wearing a seatbelt, had been driving at night without taking into account the weather conditions, and had been speeding. As a result, the car had gone off the road, hit an electricity pole and turned over. His decision was based on witnesses ’ testimony, including the recollection of events by the passengers of the applicant ’ s son, the statements by the firemen who had been at the scene of the accident, and forensic reports by the State Forensic Medicine Service experts about the injuries sustained by each of the passengers and the alcohol level in their blood, as well as physical evidence.

14 . The prosecutor further concluded that because one of the passengers, G.K., had suffered severe injury, the person responsible for the accident – the applicant ’ s son – could be charged under Article 281 § 4 of the Criminal Code (criminal liability for causing a car accident when this had resulted in serious health impairment of another person). However, given that the applicant ’ s son had died during the accident, the prosecutor discontinued the criminal investigation. He noted that the applicant, if she disagreed with the decision, could lodge an appeal with a higher prosecutor.

15 . The applicant, with the assistance of her lawyer, appealed, claiming that the criminal investigation had not been effective. According to her version of events, at the time of the accident her son had been sitting in the back seat of the car behind the driver and only after the accident, when he was already dead, had his co-passengers had moved him to the driver ’ s seat to escape criminal liability. Only a DNA examination of blood traces from the car could elucidate the truth.

16 . On 28 January 2013 the deputy chief prosecutor of the Utena district upheld as sound the lower prosecutor ’ s conclusions as to how the applicant ’ s son had died. The applicant appealed.

17 . By a ruling of 13 March 2013, in written proceedings, the Utena District Court rejected the applicant ’ s appeals against the prosecutors ’ decisions of 18 December 2012 and 28 January 2013. The court observed that witnesses whom the applicant wished to question – G.K. and taxi driver G.N. – had already been questioned in November 2012. The court also noted that the injuries which E. Å . had sustained to the head and upper part of his body, as established by court-appointed medical experts, supported the prosecutors ’ findings that he had been the driver. The district court lastly noted that the applicant sought to be recognised as a victim and civil plaintiff on the basis of her version that another person had been driving the car. However, since that version had been refuted and the criminal investigation had established that E. Å . had been the driver, the prosecutor ’ s decision not to recognise the applicant as a civil plaintiff and a victim had been valid.

18 . The applicant ’ s lawyer, who had been able to see the criminal case file, lodged an appeal, pleading that another expert report was necessary to establish the circumstances of the car accident, who had been the driver and where each passenger had been sitting in the car.

19 . On 5 April 2013 the Panevėžys Regional Court, at a public hearing attended by the applicant and her lawyer, adopted a final decision to close the criminal investigation. The court pointed out that the firemen who had arrived at the scene of the accident had had to pry the driver ’ s door open and to cut the roof off the car so that they could get the applicant ’ s son out of the driver ’ s seat and G.K. out of the back seat. The court also took into account the results of a DNA forensic examination of the blood stains carried out at the request of the applicant, which ruled out the version advanced by the applicant that her son had been sitting in the rear seat behind the driver. It also ruled out her version that the passengers of the car had switched places with her son and placed him in the driver ’ s seat.

20 . The court held that the pre-trial investigation had been comprehensive and thorough, and that not only persons who had been directly involved in the car accident but other persons who could have potentially known about the circumstances in which it had occurred had been questioned. There was no information, except for the applicant ’ s assertion, to suggest that another person had been driving the car. The regional court also emphasised that one could not require the endless collection of evidence. The prosecutors ’ decisions and the first-instance court ’ s ruling had answered all the arguments raised by the applicant in her appeals, and those conclusions had been based on a reasonable assessment of the entire body of evidence. The mere fact that the applicant disagreed with those conclusions was not a basis on which to reopen the criminal investigation, all the more so since she had not indicated any new or important circumstances that had not yet been answered. Lastly, given that it was the applicant ’ s son who had been the driver, it was not possible to grant the applicant the status of a victim or a civil plaintiff.

21 . On 3 June 2013 G.K. wrote a letter to the prosecutor to the effect that his memory was coming back and that he now “remembered very well” that it was not the applicant ’ s son who had been the driver. The driver had been either D.M. or L.R. He asked the prosecutor to establish the person responsible for the car accident so that G.K. could claim damages for health impairment.

On 11 June 2013 G.K. asked the prosecutor to disregard his application of 3 June 2013.

22 . By a decision of 12 June 2013 the prosecutor dismissed G.K. ’ s request on the grounds that the circumstances of the car accident had already been properly established by a final court ruling of 5 April 2013 (see paragraphs 19 and 20 above). Moreover, G.K. ’ s medical examination of 4 December 2012 showed that he had sustained a serious head trauma, including a fractured skull; he had been in a coma and had suffered traumatic shock. During the criminal investigation G.K. had stated that he could not remember the circumstances of the accident. One also had to bear in mind that G.K. had withdrawn his application. Accordingly, if he wished to obtain any damages, he could pursue separate civil proceedings.

23 . Referring to G.K. ’ s initial letter, the applicant also asked the prosecutor to reopen the criminal proceedings. On 19 July 2013 the prosecutor refused, holding that the circumstances of the car accident had already been established by a final criminal court decision, and that G.K. had retracted his initial letter.

The prosecutor pointed out, however, that the applicant could appeal against his decision to a higher prosecutor and then to a court.

24 . In July 2013 the applicant asked the prosecutors to institute criminal proceedings on charges of abuse of office against the State officials who had investigated the circumstances of the car accident. The applicant was dissatisfied that within those criminal proceedings she had not been granted victim status. She also asserted that the criminal investigation had not been objective and that the investigators had sought to wrongfully accuse her son of having been the driver.

25 . On 5 August 2013 the Panev ėž ys regional prosecutor ’ s office dismissed the applicant ’ s complaint as unfounded. The prosecutor had examined the criminal investigation file and concluded that the decision of 28 December 2012 to discontinue the criminal investigation (see paragraph 13 above) had been based on a reasoned assessment of the entire body of evidence. The applicant ’ s right to appeal against the decision to discontinue the criminal investigation had been explained to her and she had made use of that right with the assistance of a lawyer. However, the applicant ’ s complaints to the prosecutors and then to the courts had not revealed any new circumstances meriting the reopening of the criminal proceedings. Conversely, all the applicant ’ s requests and arguments had been answered. The mere fact that the applicant was dissatisfied with the outcome of the criminal investigation did not mean that there was a reason to hold that the investigators had committed a crime. Lastly, the prosecutor pointed out that this decision was amenable to appeal to a court.

26 . In September 2013 the applicant lodged a civil claim against D.M. with the Utena District Court in respect of pecuniary damage (vehicle salvage, burial expenses, loss of financial support, legal costs) and non-pecuniary damage. She claimed that it was D.M. who had been driving the car when her son had lost his life.

27 . In 2014 the court granted the applicant ’ s request and ordered a complex forensic medical examination ( kompleksin ė teismo medicinin ė ekspertiz ė ) to establish the position of the applicant ’ s son and D.M. in the car during the accident, with which parts of the vehicle they had been in contact and how they had sustained the established injuries, and, lastly, who had been driving the car.

The expert report was delivered in September 2014, and concluded that it that been likely that E. Å . had been the driver and that D.M. had been sitting in the back of the car.

28 . On 23 June 2015 the Utena County District Court, in oral proceedings with the participation of the applicant and her lawyer, dismissed the applicant ’ s claim. On the basis of witnesses ’ statements and material evidence, as well as the results of an examination of DNA taken from blood stains carried out at the applicant ’ s request, it established that it had been the applicant ’ s son who had driven the car. A clear and reasoned report by a court-appointed forensic expert of September 2014 likewise showed that the applicant ’ s son had been the driver. One of the experts, when questioned before the civil court, testified that the car had not spun around on its axis several times, and that therefore there was very little likelihood that the passengers in the case could have changed places. Conversely, evidence provided by the applicant, such as a conclusion by another – her own privately hired – expert, had not been reliable since it had been based only on part of the evidence and that expert did not have a medical education, without which she could not make any trustworthy conclusions about the passengers ’ injuries. Moreover, the applicant ’ s position had not been particularly consistent, since initially, during the pre-trial investigation, she had contended that G.K. had been the driver, and had later changed her position. The court lastly underlined that the applicant ’ s arguments were based on her own views but not on the entire body of evidence.

29 . The applicant, with the assistance of a lawyer, appealed, but on 17 November 2015 the Panev ėž ys Regional Court, in written proceedings, dismissed the appeal as unfounded. It noted that the case only concerned the evaluation of evidence and the parties had had an opportunity to explain their arguments before the first-instance court. The applicant, whose numerous appeals had already been dismissed during the criminal investigation, was now attempting to challenge the circumstances already examined and established during the criminal proceedings. Furthermore, on the basis of the same evidence, she was trying to accuse a person of being guilty of causing the car accident who had not even been declared a suspect in those proceedings.

30 . The appellate court then noted that since the prosecutor ’ s decision to discontinue the criminal proceedings had not been overruled, it had higher probative value, and its conclusions could not be reversed on the basis of witnesses ’ testimony. Even so, within the civil proceedings the first-instance court had relied not only on the evidence gathered during the criminal proceedings, but also on other evidence, collected within the civil proceedings. It had then reached well-founded conclusions, having properly evaluated the entire body of evidence. The first-instance court had also carefully and thoroughly examined each piece of evidence submitted by the applicant, and had responded to her arguments.

31 . The appellate court also held that the fact that the findings of the complex forensic expert report of September 2014 were unfavourable to the applicant and contrary to her version of the events, was not grounds to hold that a new complex forensic examination was necessary.

32 . The applicant then lodged an appeal on points of law, pleading that the civil courts had erred in evaluating the evidence. On 28 January 2016 the Supreme Court declined to examine the appeal as it did not raise issues meriting examination in a court of cassation.

33 . For the relevant domestic law regarding protection of right to life and principles of criminal investigation, see Česnulevičius v. Lithuania (no. 13462/06, §§ 47 and 49, 10 January 2012).

COMPLAINT

34 . The applicant complained under Article 6 § 1 and Article 13 of the Convention that the investigation into the circumstances of the car accident in which her son had died had not been effective.

THE LAW

35 . The Court, being master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 114 and 126 , 20 March 2018), will examine the case under Article 2 of the Convention (see Nicolae Virgiliu Tănase v. Romania [GC] , no. 41720/13, § 153, 25 June 2019 ). That provision reads, in so far as relevant, as follows:

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

36 . The Government submitted that the applicant had failed to exhaust domestic remedies. Firstly, she had not appealed against the prosecutor ’ s decision refusing to reopen the pre-trial investigation and to bring the criminal proceedings against the State officials (see paragraphs 23 and 25 above) and, secondly, she had not instituted civil proceedings against the State seeking compensation for the damage allegedly suffered due to the allegedly improper investigation.

37 . The Government also argued that the national authorities had taken all the necessary steps to collect evidence and to establish all the relevant facts. In their submission, the investigation had been timely and thorough, and the applicant ’ s complaints had been scrutinised within both criminal and civil proceedings. That also demonstrated that the applicant had had sufficient involvement in the criminal proceedings in question, notwithstanding the fact that within those proceedings she had only had the procedural status of a witness.

38 . The applicant argued that she had chosen to defend her rights within the first set of criminal proceedings (see paragraphs 6-20 above), where a final decision had been reached.

39 . The applicant contended that the investigation into her son ’ s death had been ineffective. She emphasised that in applying to the Court she was not asking the Court to re-examine the evidence. However, the way in which the evidence had been handled showed that the prosecutors and courts had acted unfairly in that they had not granted her the status of a victim or a civil plaintiff, thereby restricting her right to actively participate in the criminal proceedings and to obtain damages for the loss of her son.

40 . The Court finds it unnecessary to examine the Government ’ s objection as to the non-exhaustion of the domestic remedies, since the complaint is in any case manifestly ill-founded for the reasons set out below.

41 . It is the Court ’ s established case-law that, in the event of death, the State ’ s duty to safeguard the right to life must be considered to also involve having in place an effective independent judicial system capable of promptly establishing the facts, holding accountable those at fault and providing appropriate redress to the victim (see the general principles recapitulated in Nicolae Virgiliu Tănase , cited above, § § 157-71 ).

42 . The Court has also held that in circumstances of life-threatening injuries inflicted unintentionally, the procedural obligation imposed by Article 2 only requires that the legal system afford s the applicant a remedy in the civil courts, not that a criminal investigation be opened into the circumstances of the accident. This, however, does not prevent domestic law from providing recourse to a criminal investigation in such circumstances (see Nicolae Virgiliu Tănase , cited above, § 172).

43 . In the present case the Court must therefore look at the procedures that were available to the applicant with a view to establishing the circumstances of E. Å . ’ s death and any possible personal liability of third persons, if there were such, for his loss of life.

44 . As to the question whether, in the concrete circumstances, the criminal proceedings satisfied the State ’ s obligation under Article 2 to provide an effective judicial system, the Court notes that, if deemed effective, such proceedings were by themselves capable of meeting that obligation (see Lopes de Sousa Fernandes v. Portugal [GC], no. 56080/13, § 232, 19 December 2017).

45 . In this regard, the Court observes that immediately after the car accident, the authorities notified the applicant and opened, of their own motion, a criminal investigation into the circumstances surrounding it. They then gathered evidence, including blood samples, and photographic and medical documents, and performed an autopsy on E. Å . Numerous witnesses to the accident were also questioned, including those suggested by the applicant, as well as the police officers and firemen who had been called to the scene. The latter testified that it had required strenuous efforts to remove E. Å . from the car after the accident (see paragraphs 6-10 above). The results of the DNA forensic examination requested by the applicant had also been taken into account (see paragraph 19 above).

46 . Given the available evidence, the Court does not find sufficient grounds to conclude that the investigation or collection of evidence was insufficiently thorough. The domestic authorities ’ decision to discontinue the criminal proceedings was not taken hastily or arbitrarily, and followed investigative work which resulted in the accumulation of a large body of evidence, including forensic and technical elements. That evidence addressed questions raised within the framework of the criminal proceedings, including the question of who had been driving the car and where the applicant ’ s son had been sitting in the car before the accident. In the light of the materials in its possession, the Court does not perceive any reason to consider that the authorities acted inappropriately when investigating the circumstances of the car accident.

47 . Furthermore, although the applicant had not been formally granted victim status because the prosecutor had established that her son had been the driver of the car (see paragraphs 12 above), she had been able actively to participate in the criminal proceedings. As it transpires from the documents provided by the parties, not only could she access the materials in the criminal case file, but she could also contest the prosecutors ’ and the first-instance court ’ s decisions by appealing against them (see paragraphs 15, 17 and 18 above). This fact was also highlighted by the prosecutor within a separate set of proceedings where the applicant attempted to challenge the objectivity of the criminal investigation (see paragraph 25 above).

48 . Although the applicant ’ s version of events was rejected, this was only after the investigators and the courts had given her arguments due consideration. Within the criminal proceedings the appellate court also emphasised that there remained no other unexamined evidence or requests that the applicant had submitted which would prove her theory (see paragraph 20 above). In the absence of any apparent lack of thoroughness in the authorities ’ examination of the circumstances surrounding the car accident, their decision to close the criminal investigation does not suffice to find the respondent State liable under its procedural obligation arising from Article 2 of the Convention. Indeed, Article 2 does not guarantee the right to obtain a criminal conviction against a third party (see Nicolae Virgiliu Tănase , cited above, § 160).

49 . Examining further, the Court finds that even if the applicant had not been able to introduce a civil claim in the criminal proceedings, she had the full benefit of separate civil proceedings for damages, thus facilitating the overall procedural protection of the rights at stake. The Court notes that within the latter proceedings the civil court did not merely rely on the evidence collected during the criminal investigation, but also obtained, at the applicant ’ s request, a supplementary forensic report to ascertain who had been driving the car, so as to examine the applicant ’ s version of events (see paragraph 27 above). The court also relied on a DNA examination carried out in accordance with the applicant ’ s wish (see paragraph 28 above). Within those civil proceedings the applicant was not only represented by a lawyer, but was also able to present her arguments in open court, where the relevant expert was questioned (see paragraph 28 above). The civil courts dismissed the applicant ’ s theory that the driver of the car had switched places with her son only after having thoroughly evaluated the evidence. It is true that the appellate court eventually rejected the applicant ’ s request for yet another expert examination (see paragraph 31 above). However, the Court cannot criticise this as having been unreasonable, particularly in the light of its own constant case-law that the domestic authorities must be allowed some discretion in deciding which evidence is relevant to the investigation (see, most recently, Nicolae Virgiliu Tănase, cited above, § 183).

50 . Having regard to the overall assessment of the criminal investigation, as well as the domestic authorities ’ repeated attempts to clarify the circumstances of the accident within the civil proceedings for damages, the Court concludes that the applicant had access to several domestic remedies in order to elucidate the circumstances in which her son had lost his life. The legal system as applied in the present case adequately dealt with the applicant ’ s case.

51 . It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 21 November 2019 .

Hasan Bakırcı Valeriu Griţco Deputy Registrar President