Communicated on 22 June 2018

FOURTH SECTION

Application no. 10544/17 Diana TUMÄ–NIENÄ– against Lithuania lodged on 30 January 2017

STATEMENT OF FACTS

The applicant, Ms Diana TumÄ—nienÄ— , is a Lithuanian national, who was born in 1970 and lives in KÄ—dainiai .

A. The circumstances of the case

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

1. The applicant ’ s brother ’ s death

On 7 July 2005 the applicant ’ s 22-year-old brother, M.K., was hospitalised in Klaipėda with serious inju ries. On the evening of 10 July 2005 he died at the hospital. His body was examined by a court medical expert who found that the cause of M.K. ’ s death had been an injury to the head which had fractured the skull and lead to brain swelling. The expert found multiple contusions and bruises all over M.K. ’ s body which had likely been caused by blows with hard blunt objects.

2. Pre-trial investigation

On 7 July 2005 the authorities in Tauragė opened a pre-trial investigation concerning M.K. ’ s injuries. After his death, the legal grounds for the investigation were changed to murder. The applicant, her parents and siblings were granted victim status and were questioned as witnesses.

The applicant ’ s mother told the authoritie s that on the evening of 6 July 2005 M.K. had left her house without telling her where he was going. At around 2 a.m. that night, she was woken by the doorbell and saw M.K. sitting outside the house, bleeding. She called an ambulance which took M.K. to hospital.

When questioned again on a later date, the applicant ’ s mother stated that, in her opinion, M.K. had been assaulted by several individuals because when she had found him outside her house, he had said to her that “they [wanted] to steal the car”. She also stated that a few days after M.K. ’ s funeral, his acquaintance, V.S., had come to her house, kneeled in front of her and apologised, saying that “they had not meant it”.

Several other witnesses stated that M.K. had been previously assaulted by V.S.

V.S. was questioned as a witness and stated that he had known M.K. but had not been in touch with him lately. In August 2005 V.S. committed suicide.

On 10 January 2007 T.D. was served with an official notice that he was suspected of killing M.K. In the presence of his lawyer, T.D. confessed to the murder. In a written confession he stated tha t on the night from 6 to 7 July 2005 he had arrived at M.K. ’ s house with the intention to ask M.K. to give back car wheels which the latter had borrowed. T.D. stated that M.K. had pointed a gun at him and started threatening him, so T.D. had hit M.K. with a baseball bat, as a result of which M.K. had dropped the gun. M.K. had then grabbed a metal stick from his car and the two men had begun fighting. When the fight had subsided, T.D. had taken M.K. ’ s metal stick with him and brought it to his mother ’ s house. T.D. stated that he had hit M.K. because he had been aware of M.K. ’ s impulsive character and had been afraid for his own life.

On the same day T.D. was taken to M.K. ’ s house and showed where the fight had occurred and how he had hit M.K. He stated that after the fight, on his way home, he had thrown the baseball bat out of the car window but could not remember the exact location. T.D. was then taken to his mother ’ s house where he showed the metal stick which he had taken from M.K. and had kept in the storage.

T.D. was questioned again on 18 January, 19 January and 12 July 2007 and on each occasion he stood by his previous statements. During the questioning of 12 July 2007, T.D. stated that on the night in question he had taken a baseball bat with him because he had been familiar with M.K. ’ s aggressive character. After M.K. pointed a gun at him, he hit M.K. ’ s hand with the baseball bat once or twice, after which M.K. dropped the gun. M.K. then pushed T.D. , they both fell to the ground and started fighting. T.D. could not remember exactly how many times and to which body parts he had hit M.K. At a certain point T.D. saw that M.K. had a metal stick and then they continued fighting with the baseball bat and the stick. Afterwards M.K. fell down and T.D., realising that M.K. had lost consciousness, decided to flee. He took the baseball bat, the metal stick and the gun with him. He threw the baseball bat away, kept the metal stick in storage at his mother ’ s house, and gave the gun to V.S. He thought that the fight had lasted about twenty minutes.

T.D. was kept in pre-trial detention from 12 to 27 January 2007. On 26 January 2007 the prosecutor decided to release him from detention. T.D. ’ s passport was taken from him, he was prohibited from leaving the country and ordered to periodically register at the local police station.

On 31 July 2007 the Tauragė prosecutor (hereinafter “the prosecutor”) informed the applicant ’ s lawyer that he had the right to consult the case file.

On 8 April 2008 the applicant ’ s lawyer asked the prosecutor to inform him of the developments of the investigation. On 16 April 2008 the prosecutor informed the lawyer that a legal assistance request had been sent to the Irish authorities in order to question a witness living in Ireland.

On 25 August 2008 the applicant ’ s lawyer asked the prosecutor for permission to consult the case file. It is unclear if he received a response.

On 20 March 2009 the applicant ’ s lawyer was informed that the pre ‑ trial investigation had been completed and that he could consult the case file.

On an unspecified later date T.D. was questioned again. He withdrew his previous statements and denied having assaulted M.K. He stated that he had falsely incriminated himself under pressure from police officers.

On 28 December 2009 the prosecutor discontinued the pre-trial investigation on the grounds that there was insufficient evidence that the suspect, T.D., had committed the crime.

The applicant appealed against that decision to a senior prosecutor, and on 17 February 2010 the latter reopened the investigation. The senior prosecutor stated that insufficient evidence against T.D. constituted grounds only to discontinue the investigation in respect of T.D. However, the investigation as such had to continue because not all the circumstances of M.K. ’ s death had been uncovered. In particular, there had been suspicions that M.K. had participated in smuggling or human trafficking but they had not been investigated, the motive for the murder had not been identified, at least two witnesses had not been questioned, and certain contradictions in witness testimonies concerning M.K. ’ s final hours had not been clarified.

The applicant appealed against the senior prosecutor ’ s decision, arguing that there was sufficient evidence against T.D. and that charges against him should be transferred to a court for examination. On 19 April 2010 the Taurag ė District Court partly allowed the appeal and reopened the investigation in respect of T.D. It held that the senior prosecutor had correctly decided to reopen the investigation; however, the decision to discontinue the investigation in respect of T.D. had been unfounded. The court noted that T.D. had initially given consistent statements about his guilt for M.K. ’ s murder but had later withdrawn them claiming that he had been pressured to incriminate himself by police officers. However, his allegation of undue police pressure had not been sufficiently investigated and one of the officers who had questioned T.D. had not been questioned. Furthermore, it had not been established whether T.D. had an alibi for the night of the murder. The court therefore held that although there was not enough evidence to draw up an indictment against T.D. and transfer the case to a court for examination, T.D. had to remain a suspect and had to be further investigated.

It appears that while the above proceedings were ongoing T.D. left the country and on 22 June 2010 the prosecutor announced an official search for him.

On 4 November 2010 the applicant ’ s lawyer sent a letter to the Prosecutor General ’ s Office, complaining that the search for T.D. ’ s was not being pursued and that the applicant was not being informed of the developments in the investigation. The lawyer asked the Prosecutor General to verify whether the Tauragė prosecutor was acting in line with his legal obligations.

On 21 December 2010 the Prosecutor General ’ s Office informed the applicant ’ s lawyer that an internal inquiry had been carried out and it had been found that the pre-trial investigation into M.K. ’ s murder was being conducted sluggishly ( v angiai ) and in breach of procedural requirements, that the prosecutors in charge of the investigation had likely failed to ensure that it was being conducted in a thorough and intensive manner and had failed to properly control the investigation, which had resulted in its excessive length. Disciplinary proceedings were opened in respect of the relevant prosecutors. The Court has not been informed of the result of those proceedings.

On an unspecified date T.D. was apprehended.

On 11 May 2011 the Tauragė prosecutor informed the applicant ’ s lawyer that the pre-trial investigation had been completed and that he had the right to consult the case file. It is unclear what happened afterwards but on 8 December 2011 the prosecutor again informed the applicant ’ s lawyer that the pre-trial investigation had been completed and that he had the right to consult the case file.

3. Court proceedings

On an unspecified date an indictment was drawn up against T.D. and the case was transferred to the Klaipėda Regional Court for examination. The applicant and other victims (M.K. ’ s parents and siblings) lodged civil claims.

(a) KlaipÄ—da Regional Court

On 20 February 2014 the Klaipėda Regional Court acquitted T.D. of the murder on the grounds of insufficient evidence. It observed that the charges against T.D. had been based essentially on his own confession given during the pre-trial investigation. However, that confession had been unpersuasive and illogical – the court found it particularly unlikely that T.D. might have hit M.K. with a baseball bat while the latter had been holding a gun. The court also considered, on the basis of the report of the court medical expert and that expert ’ s testimony at the hearing, that M.K. had likely been injured with several different objects, but from T.D. ’ s confession it was not clear how the metal stick had found its way into M.K. ’ s hands and how T.D. could have hit M.K. both with the baseball bat and the metal stick.

The court further observed that several witnesses, including M.K. ’ s family members, had testified that M.K. had referred to his attackers as “them”, which indicated multiple perpetrators, but that hypothesis had never been investigated. One of the investigators had testified before the court that she had had the impression that M.K. had been assaulted by several individuals, but since T.D. had confessed and no other suspects had been identified, that line of investigation was not pursued. One of the police officers testified that T.D. had been identified as a suspect after the police received operational information, but the officer had been unable to explain to the court why the source of that information had not been questioned as a witness – the officer stated that, after T.D. had confessed, “it had not been considered necessary”.

The court held that there was no objective evidence linking T.D. to the crime. The baseball bat with which he had allegedly beaten M.K. had not been found, and the metal stick in T.D. ’ s storage house had not contained any traces linking it to the crime. The court also considered it illogical that T.D. would have thrown away his baseball bat but would have kept M.K. ’ s metal stick – the instrument of the murder – in storage at his mother ’ s house.

The court lastly held that when T.D. had confessed almost two years after the murder, investigative measures had been carried out hastily ( skubotai ) and no objective evidence had been gathered either before the discontinuation of the investigation or after its reopening. In particular, M.K. ’ s personal affairs allegedly stolen from him on the night of the murder (his phone and jewellery) and his gun had not been found.

After acquitting T.D., the court dismissed the civil claims lodged by the applicant and other victims.

(b) Court of Appeal

The applicant lodged an appeal against the Klaipėda Regional Court ’ s decision. She argued that the court had not assessed the evidence in its entirety and had unfoundedly refused to rely on T.D. ’ s confession which had been detailed, consistent and corroborated by witness testimonies.

The prosecutor lodged an appeal as well, arguing that there was sufficient evidence to convict T.D. and that there were no objective grounds to believe that there might have been multiple perpetrators.

On 10 May 2016 the Court of Appeal dismissed the appeals. It upheld the lower court ’ s findings that T.D. ’ s confession had been unreliable and that there had been no objective evidence of his guilt.

The Court of Appeal considered that, when questioned on each occasion, T.D. had given a different account of the night of M.K. ’ s murder, which gave grounds to doubt his confession. In particular, T.D. had provided contradictory details as to where exactly he and M.K. had met that night, at what moment M.K. had pointed a gun at him, when and from where the metal stick had appeared, where the gun, the baseball bat and the metal stick had been dropped during the fight, whether after the fight T.D. had gone to his mother ’ s house or to his own rented flat, and whether he had hidden the metal stick in storage at his mother ’ s house immediately that night or sometime later. The contradictions had not been clarified at the location of the crime, nor had any additional investigative measures been carried out to credibly establish the circumstances of the crime. The court pointed out that from T.D. ’ s questioning on 12 July 2007 until 16 March 2009, when the parties to the proceedings had been informed about the end of the investigation, no investigative measures had been taken in order to promptly and thoroughly examine the circumstances of the case.

The court further stated that from the start of the pre-trial investigation in July 2005 until T.D. ’ s arrest in January 2007 no other suspects had been identified. Police officers testified before the court that during the investigation they had obtained operational information that T.D. had murdered M.K.; however, no evidence collected in line with the domestic law on operational activities had been presented in the proceedings. None of the officers had identified the source of such information. It remained unclear whether an operational investigation had been conducted, and, if so, when and on what grounds, what information had been obtained and how it had been used. The court underlined that T.D. had been arrested in January 2007, but the officers had mentioned the operational information allegedly received about him only in 2009. The court considered that in the absence of the source of the operational information, the officers ’ testimony in that respect could not be considered credible.

The court also stated that the investigation had not established what car T.D. had been driving on the night of the murder, whether there had been phone calls between T.D. and other individuals which could have confirmed or denied his guilt, whether M.K. had actually had a gun on the night of the murder, since no gun had been found, and whether M.K. had had any other personal items which had been taken from him that night.

The court remitted the case to the prosecutor for further investigation and identification of the perpetrator.

(c) Supreme Court

The applicant lodged an appeal on points of law but on 29 August 2016 the Supreme Court refused to accept it for examination as raising no important legal issues.

B. Relevant domestic law

From 1 May 2003 until 1 October 2010, Article 176 § 1 of the Code of Criminal Procedure (hereafter “the CCP”) provided that a pre ‑ trial investigation had to be completed within the shor test possible time. Article 176 § 2 of the CCP provided that the prosecutor was under an obligation to control the compliance with that requirement.

Since 1 October 2010 until the present time, Article 176 § 1 (3) of the CCP provides that a pre-trial investigation concerning serious and very serious crimes has to be completed within nine months. Article 176 § 2 of the CCP provides that that time-limit can be extended by a superior prosecutor when the case is complex or of large scope, or when other important circumstances are present.

COMPLAINT

The applicant, without invoking any specific provision of the Convention, complains that prosecutors and courts have failed to uncover the circumstances of her brother ’ s murder, the investigation was not thorough, the examination of the case has not been completed to date and her interests, as a victim, have been disregarded.

QUESTIONS TO THE PARTIES

Was the domestic authorities ’ investigation into the applicant ’ s brother ’ s death in line with the State ’ s procedural obligations under Article 2 of the Convention (see Sarbyanova-Pashaliyska and Pashaliyska v. Bulgaria , no. 3524/14, §§ 35-38, 12 January 2017, and Tsalikidis and Others v. Greece , no. 73974/14 , §§ 83-90, 16 November 2017)?

The parties are requested to inform the Court of any further developments in the investigation and provide copies of any decisions adopted by the authorities. The Government are also requested to clarify whether the statute of limitations with respect to the investigation into the applicant ’ s brother ’ s death has expired.