Communicated on 3 July 2014

SECOND SECTION

Application no. 57588/13 Valerija Å ATROVIENÄ– against Lithuania lodged on 4 September 2013

STATEMENT OF FACTS

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 is represented before the Court by Mr K. Stungys , a lawyer practising in Vilnius .

A. The circumstances of the case

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

On 8 October 2012, around midnight, the applicant ’ s son died in a car accident in Utena district. Another passenger in that car, G.K., suffered serious injuries. Yet another passenger, D.M., sustained light injuries. Two other passengers did not sustain physical injuries.

The next day a criminal investigation on the basis of Article 281 § 5 of the Criminal Code (v iolation of the r egulations g overning o peration of v ehicles , when this has caused death) was opened. According to the applicant, the investigator ordered the forensic experts to examine what injuries, if any, the car ’ s passengers had suffered, but did not ask the experts to answer the question in what manner those injuries were sustained.

On 7 November the applicant asked the prosecutors to grant her the status of a victim and a civil plaintiff. She noted that it was her son who had died in the car accident. The applicant asked the prosecutor to allow her and her lawyer to see the criminal case-file and that all further investigative actions be performed in her lawyer ’ s presence. By another request of 12 November 2012 the applicant ’ s lawyer asked the Utena district prosecutor to take samples of blood traces on the rear left seat, the driver ’ s seat and other locations in the car, in order to establish where the applicant ’ s son was sitting at the time of the accident. The lawyer also asked that G.K., who had already been released from hospital, be questioned. The lawyer further asked the prosecutor to question taxi driver G.N., who could know the circumstances of the accident.

By decisions of 13 and 23 November 2012, the Utena district prosecutor dismissed those requests. He stated that a lawyer could take part in criminal proceedings if he defended a suspect, but the applicant was not a suspect. Nor was the applicant a victim or a civil plaintiff or respondent. She was merely a witness, and a witness did not have a right to have a lawyer. Even assuming that the applicant had asked the lawyer to provide her with legal assistance, such assistance had not been authorised by a prosecutor. The evidence collected until that day – witnesses ’ testimony, State Forensic Medicine Service ( Valstybin ė teismo medicinos tarnyba ) experts ’ reports – showed that it was the applicant ’ s son who was the actual driver. Accordingly, there was no reason to make a supplementary examination of the blood stains belonging to those persons who had been present in the car. Moreover, given that the applicant had not been granted the status of a victim or a civil plaintiff, she could not avail herself of the right to ask the prosecutor to perform any investigative actions. Lastly, under Lithuanian law, the criminal investigation file was not to be made public. Until the case file was transferred to the court for examination, the documents in the file could be disclosed only with the prosecutor ’ s permission and only insofar it was necessary. In the instant case, the applicant had been questioned as a witness and the investigation was ongoing. Therefore, she had no right to see the case-file.

The applicant appealed against the prosecutor ’ s decision not to grant her the status of a victim, not to examine the blood samples from the car, not to question witnesses and to forbid her from seeing the criminal case-file. By a decision of 18 December 2012, deputy chief prosecutor of Utena district dismissed her request. The prosecutor ’ s decision was later upheld by the Utena District Court and by the Panevėžys Regional Court on 13 March 2013 and 5 April 2013, respectively (see below).

Arguing that the investigation into the circumstances of her son ’ s death had not been effective, on 27 December 2012 the applicant lodged an appeal with the Utena District Court.

By a decision of 28 December 2012 the prosecutor established that it was the applicant ’ s son who had been driving the car. On the basis of witnesses ’ testimony (including the recollection of events by the co-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 car passengers and the alcohol level in their blood, the prosecutor concluded that the applicant ’ s son had been driving under the influence of alcohol, had not been wearing a seatbelt, had driven at night without taking into account the weather conditions, and had been speeding. As a result, the car had gone off the road, hit a lamp post and turned over. The applicant ’ s son had died on the spot, one passenger, G.K., had been severely injured: he had sustained head trauma, his skull had been fractured broken in many places, and he had suffered brain coma and trauma shock. At the beginning of the pre-trial investigation G.K. claimed that because of his head injuries he had no recollection as to how the accident had happened. He had no driver ’ s licence and did not know how to drive a car. Another passenger, D.M., had sustained light injury: his ribs had been broken. There had been two other passengers, L.R. and P.B., in the car; they had sustained no injuries.

The prosecutor thus concluded that because one of the car passengers 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.

The applicant appealed against the prosecutor ’ s decision. She claimed that the criminal investigation had not been effective. According to the applicant ’ s version of events, at the time of the accident her son had been sitting in the back seat of the car and only after the accident, when he was already dead, had his co-passengers moved him to the driver ’ s seat to avoid criminal liability. Only examination of blood traces from the car could elucidate the truth. She asked to see the criminal investigation file and that the criminal investigation be reopened.

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

In the meantime, the Lithuanian Police Criminal Investigation Centre ( Lietuvos policijos kriminalistinių tyrimų centras ) had been analysing some pieces of evidence provided by the applicant.

In her appeal against the decision of 28 January 2013, which she lodged with the Utena District Court, the applicant mentioned that forensic examination was being conducted. She insisted that her request for blood samples examination was sound.

By a ruling of 13 March 2013, in written proceedings, the Utena District Court rejected the applicant ’ s appeals against the prosecutor ’ s decisions of 18 December 2012 and 28 January 2013. The court observed that the taxi driver G.N. had been questioned on 15 November and G.K. had been questioned on 16 November 2012.

In the report no. 140-(6886)-IS1-1510 of 21 March 2013 the forensic experts from the Lithuanian Police Criminal Investigation Centr e concluded that blood samples on two pieces of cloth, which the applicant had marked as being “from the front near the steering wheel” and “from the rear next to the left passenger ’ s seat ’ s handle” in the car, belonged to a man, but that man was not the applicant ’ s son. This report was given to the applicant.

On 5 April 2013 the Panevėžys Regional Court in a public hearing, the applicant and her lawyer being present, adopted a final decision to close the criminal investigation. The court dismissed the applicant ’ s submission that it was not her son who had been driving the car. The court noted that the firemen who had arrived at the place of the accident had had to cut the driver ’ s doors and the roof of the car, so that they could take out the applicant ’ s son from the driver ’ s seat and G.K. from the back seat. It also transpires from the court ’ s decision that the court took into account part of the results of the examination by the Lithuanian Police Criminal Investigation Centr e experts, because the Panevėžys Regional Court noted that blood samples near the rear left passenger ’ s seat ’ s handle did not belong to the applicant ’ s son. In the court ’ s view, this meant that the applicant ’ s son had been the driver of the car. The court concluded that the pre-trial investigation had been comprehensive and thorough. Lastly, given that it was the applicant ’ s son who had been driving the car, it was not possible to grant the applicant the status of a victim or a civil plaintiff.

By a letter of 6 May 2013 addressed to the Lithuanian Police Criminal Investigation Centre, the applicant ’ s lawyer asked that the centre disclose to him to which of the five passengers in the car the blood samples, referred to in the report no 140-(6886)-IS1-1510 , belonged. On 21 May 2013 the centre replied that it could not provide such information to a private person.

As it transpires from a copy of G.K. ’ s letter of 3 June 2013 to the senior prosecutor of Utena district, G.K. wrote that his memory was coming back and that now he ‘ remembered very well ’ that it was not the applicant ’ s son who had been the driver. The driver was 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 10 June 2013 the applicant also asked the prosecutors to reopen the criminal proceedings on account of new circumstances that were not known previously. She relied on G.K. ’ s letter to the prosecutor. The applicant also wrote that G.K. had informed her that the Utena prosecutors had pressured him to withdraw his confession and promised to pay him some money to cover damage caused by health impairment. The applicant also claimed that, on her request, the criminal police experts had established that the blood samples taken from the car near the driver ’ s seat did not belong to her son, but to another passenger of the car ( report no. 140-(6886)-IS1-1510 ). However, the evidence as to whom those samples belonged to was not accessible to her, because only prosecutors or courts could obtain it. The applicant asked that the investigation into these new circumstances should not be entrusted to Utena prosecutors.

By a decision of 19 July 2013 , the prosecutor of the Panev ė žys r egion rejected the applicant ’ s request. The prosecutor noted that on 11 June 2013 G.K. had submitted to the Utena prosecutors a new document, asking the prosecutors to disregard his written statement of 3 June 2014 about the true driver of the car. For the Panev ė žys region prosecutor, this fact and the Panevėžys Regional Court ’ s ruling of 5 April 2013, where the court had examined the evidence about the blood traces in the car submitted by the applicant were sufficient to conclude that no new circumstances had been present.

On 10 September 2013 the applicant lodged a civil claim against D.M. with the Utena District Court for pecuniary damage (salvage vehicle, 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 lost his life.

COMPLAINTS

The applicant complains under Article s 6 § 1 and 13 of the Convention that the investigation into the circumstances of the car accident where her son lost his life was not sufficiently thorough. She emphasises that by her application she does not seek that the Court re-examine the evidence. However, the way the evidence was handled showed that the prosecutors and courts were unfair in that they did not grant 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 .

QUESTION S TO THE PARTIES

1. Having regard to the procedural protection of the right to life, was the criminal investigation in the present case by the domestic authorities in compliance with Article 2 of the Convention (see Rajkowska v. Poland (dec.), no. 37393/02 , 27 November 2007 ; also see Česnulevičius v. Lithuania , no. 13462/06 , § § 92 and 9 3 , 10 January 2012 and the case-law cited therein )? Was the applicant able to actively participate in the criminal proceedings? In this connection, the Court observes that within those proceedings the applicant was not granted the status of a victim or a civil plaintiff.

2. Has there been a violation of the applicant ’ s right to an effective domestic remedy, as provided for in Article 13 of the Convention, taken in conjunction with Article 2 thereof (see Zavoloka v. Latvia , no. 58447/00 , § § 34-40, 7 July 2009, and the case-law cited therein; also see, mutatis mutandis , Kontrová v. Slovakia , no. 7510/04, § § 59-65, 31 May 2007 )?

The parties are requested to inform the Court about the developments as regards the applicant ’ s claim for damages in separate civil proceedings against D.M., which she lodged on 10 September 2013.