Information Note on the Court’s case-law 198

July 2016

Mučibabić v. Serbia - 34661/07

Judgment 12.7.2016 [Section III]

Article 34

Victim

Lack of effective and sufficient redress for death of applicant’s son: victim status upheld

Article 2

Positive obligations

Ineffective and lengthy investigation into applicant’s son’s death: violation

Article 2-1

Effective investigation

Facts – In 1995 the applicant’s son died in an accident caused by the covert production of rocket fuel on the premises of a socially-owned company. A preliminary judicial investigation was opened and then discontinued in 2000. At the applicant’s request a further inquiry was opened in 2002 to explore the possibility that breaches of safety regulations had caused the explosion. That inquiry was closed in 2003. Following an indictment filed by the applicant, criminal proceedings were opened against four senior executives of the two companies commissioned to produce the rocket fuel and an executive of the intelligence services. The defendants were eventually acquitted by the first-instance court owing to a lack of evidence. The criminal proceedings were still pending at second instance. In the meantime, in 2011 the Constitutional Court found that there had been delays and shortcomings in the investigation into the accident and held that the applicant was entitled to damages. The proceedings to determine the amount of compensation were still pending.

Law – Article 2 ( procedural aspect )

(a) The applicant’s victim status – In its 2011 decision, the Constitutional Court found that the applicant had suffered a breach of his right to a trial within a reasonable time on account of the ineffective, inadequate and lengthy criminal proceedings before the first-instance court. It thus ordered the competent courts to bring the impugned criminal proceedings to a conclusion as soon as possible and declared that the applicant was entitled to compensation in respect of non-pecuniary damage. The applicant was initially offered the equivalent of EUR 840, which he refused to accept, deeming it insufficient. The civil courts then increased the compensation to approximately EUR 2,580, stating that a higher award would be contrary to the purpose of compensation and that the State could not be responsible for the omission of third parties.

In the Court’s view, however, the redress provided domestically was not effective or sufficient. Firstly, while the requirement of diligence and promptness was inherent in both Article 6 and the procedural aspect of Article 2, the scope and motives of the examination given by the Constitutional Court appeared to be narrower that those before the European Court. Secondly, the just satisfaction awarded was not in reasonable proportion to the award the European Court would have made in respect of comparable violations of Article 2. Thirdly, even assuming that the acknowledgment that the proceedings had lasted too long could have been fulfilled, the proceedings to determine the ultimate amount of compensation, as well as the underlying criminal proceedings, were still pending. Therefore, the domestic authorities had not afforded effective or sufficient redress for the alleged breach. Accordingly, the applicant could still claim to be a “victim” of a violation under the Convention.

(b) Merits – The applicant’s son had died in an accident caused by the covert production of rocket fuel, which was, per se , a dangerous activity that put people’s safety at risk. Whenever a State undertook or organised dangerous activities, or authorised them, it had to ensure that the risk was reduced to a reasonable minimum. The Court lacked temporal jurisdiction to examine the events surrounding the incident, whether the existing regulatory framework called for criticism or whether the competent authorities had failed to take statutory measures that were necessary and sufficient to avert the risks inherent in that dangerous activity. It had not yet been established at the domestic level whether or not there had been any negligence attributable to State officials or bodies going beyond an error of judgment or carelessness. Moreover, it was not the Court’s task to determine whether there was a causal connection between any failure on the part of the individuals or the State authorities and the accident, or to reach any findings as to guilt or innocence in that sense.

As to the criminal investigation carried out by the domestic authorities, the Court noted that, thirteen years after the indictment had been confirmed (and more than twenty years after the accident), the criminal proceedings were still pending at second instance. The Constitutional Court itself had found delays and shortcomings in the investigation. The sensitive nature of the case and the obstacles encountered by the investigation could not be considered an excuse for the delay. On the contrary, they should have constituted a further reason for the State to organise its judicial system to overcome the earlier defects and omissions by the prompt and diligent establishment of the facts at the criminal trial and to bring anyone responsible to justice. The passage of time inevitably eroded the amount and quality of evidence available and the appearance of a lack of diligence cast doubt on the good faith of the investigative efforts. Moreover, the passage of time was also liable to compromise the chances of the investigation being completed. It also prolonged the ordeal for the members of the family. In sum, the respondent State had failed to provide a prompt, diligent and effective response consonant with its obligations flowing from Article 2 of the Convention.

Conclusion : violation (unanimously).

Article 41: EUR 12,000 in respect of non-pecuniary damage.

(See also the Factsheet on the Right to life )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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