Resolution CM/ResDH(2009)132 [1]

Execution of the judgment of the European Court of Human Rights

Pereira Henriques against Luxembourg

(Application No. 60255/00, judgment of 9 May 2006, final on 9 August 2006)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment, transmitted by the Court to the Committee once it had become final;

Recalling that the violations of the Convention found by the Court in this case concern the absence of an effective investigation following the accidental death of the applicants ' husband and father (violation of Article 2) and the lack of an effective remedy by which to seek compensation following the ineffective investigation (violation of Article 13) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the mea s ures taken to comply with its obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee ' s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the a p plicants the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:

- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures, preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2009)132

Information about the measures to comply with the judgment in the case of

Pereira Henriques against Luxembourg

Introductory case summary

The case concerns the absence of an effective investigation to establish the causes, and if appropriate, punish those responsible, for the collapse of a wall during demolition work in 1995, which caused the death of the applicants ' husband and father (violation of the procedural aspect of Article 2).

The European Court held that in the specific circumstances the prosecution did not conduct a thorough investigation, given that it must have known that, as no intentional offence had been found by the criminal courts, the family of the deceased would be unable under Luxembourg law to seek explanations from the contractors as to their acts or omissions. In particular, the prosecution should have asked for an expert opinion (§ 62).

Furthermore, the applicants had no effective remedy whereby they might seek compensation following the ineffective investigation (violation of Article 13) and obtaining damages in this respect.

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

60 000 EUR (20 000 EUR for each of the applicants)

12 000 EUR

72 000 EUR

Paid on 29/06/2006 [2]

b) Individual measures

At this stage it is no longer possible to obtain the expert opinion which should have been sought according to the European Court , as the building at issue no longer exists; so it is materially impossible to enhance the investigation of the events at issue in any useful way.

Furthermore, the government indicates that any public prosecution would be time-barred, thus making a criminal investigation pointless.

The European Court granted the applicants just satisfaction in respect of the non-pecuniary damage suffered .

II. General measures

1) Violation of Article 2 :

Several measures have been taken to ensure that such failure to investigate will not occur in the future.

The Public Prosecutor ' s Office has been informed of the findings of the European Court in this case: on 8/06/2006 the Ministry of Justice transmitted the judgment to the State Prosecutor General, who sent it out to all the presidents of courts by a letter dated 9/06/ 2006.

Earlier, in 2000, memoranda on industrial accidents had been sent out to public prosecutors and to the Director General of the Luxembourg Police, who sent a similar memorandum to police officers responsible for investigations, by letter dated 24/05/2006.

Finally, the general public has also been informed of the requirements of the Convention as they emerge from this judgment, as it was published in Codex , issue No. 04 of 2006 (p. 173) and on the Internet site of the Ministry of Justice ( ).

2) Violation of Article 13 :

The Law of 01/09/1988 on the civil liability of the state and public authorities - in particular Articles 1 and 2 - makes it possible to seek compensation in cases of ineffective criminal investigation. It is possible under this law to engage the state ' s liability on grounds of defective functioning of its authorities (both administrative and judicial). Under this law it is also possible, inter alia , to grant compensation even in the absence of such a dysfunction, if there is specific and exceptional damage, that it would be unfair to let the affected person bear. There are examples in national jurisprudence applying this law, or at least declaring it applicable, to engage the state ' s liability relying on the way in which pre-trial investigations were pursued, e.g. in view of the disproportionate character of certain investigation measures (see Tribunal d ' arrondissement de Luxembourg , XIth Ch., No. 81446 of 16/12/2005 ; Cour d ' appel , 1 st Ch., No. 24442, judgment of 11/07/2001, confirmed by the Cour de Cassation , No. 1928, judgment of 19/12/2002).

In the present case, the applicants did not try to engage the state ' s liability relying on this law; this possibility has not been discussed before the Court either.

Given the wording of the law, the fact that courts have already applied this law in case of defective functioning of justice in criminal investigations, and the fact that the Luxemourg courts - who have been duly informed of this judgment - directly apply the Convention as interpreted by the Court, it seems possible to conclude that in the future, an effective remedy will make it possible to seek compensation following an ineffective investigation .

III. Conclusions of the respondent state

The government considers that the measures adopted have fully remedied the consequences for the applicant of the violations of the Convention found by the European Court in this case, that these measures will prevent new, similar violations and that Luxembourg has thus complied with its obligations under Article 46, paragraph 1 of the Convention.

[1] Adopted by the Committee of Ministers on 3 December 2009 at the 1072nd meeting of the Ministers’ Deputies

[2] Paid to the applicants’ common lawyer, with a view to sharing the just satisfaction in line with the requirements of the Court in its judgment.