CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 18 septembre 2008

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They were represented before the Court by Mrs A. Vuksan, a lawyer practising in Zagreb. The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. Stažnik. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. 1. Police investigation On 21 November 2000 Ž.R., the first applicant’s husband and the second applicant’s father, was found dead in his exchange office in Zagreb. Shortly after the event, police arrived at the scene and secured it. Immediately an in situ inspection was carried out at the crime scene in the presence of a Zagreb County Court investigation judge, a deputy to the State Attorney and officers of the Zagreb Police Department (“the ZPD”). The crime scene was photographed and video-recorded. Officers examined the scene, recovering a number of spent cartridge cases and bullet heads, which were sent for examination. Forensic examination established that all shots had been fired from the same weapon. The results of the ballistic expert report were compared to those of other similar crimes in the broader Zagreb area, but no results ensued. Tests on the bloodstains and other biological particles found at the crime scene showed that these samples belonged to the victim and the applicants. Of the eleven fingerprints found at the scene one of those susceptible for comparative testing belonged to the victim. Fingerprints and DNA samples were taken from both applicants. An autopsy carried out on 22 November 2000 by a competent physician of the Institute for Forensic Medicine ( Zavod za sudsku medicinu ) established that Ž.R. had been murdered by being shot in the head and body. The police interviewed the second applicant on 22 November 2000 and the first applicant on 25 November 2000 and 19 February 2001. It turned out that two unidentified young men had been frequenting the victim’s exchange office prior to his death. In this connection the first applicant was invited to consult a record of photographs kept with the police where she identified one person as a potential suspect. However, further investigation excluded that person as a potential attacker. On the basis of the first applicant’s description a photofit of one of the suspects was compiled and circulated to all police units within the competence of the ZPD as well as to the police units at border crossings. Two persons were arrested, but after being interviewed and submitted to a polygraph test they were also excluded as possible attackers. The police also interviewed other members of the victim’s family and his friends in order to establish their relationships within the family as well as to find out the state of the victim’s affairs, in particular if he had any debts or claims in respect of third persons. To that end all documents and correspondence concerning the victim’s affairs was collected and all persons to whom the victim had lent money at interest or with whom he had had other business relations were interviewed. The police also interviewed some of the second applicant’s friends as well as the military policemen who were guarding the Ministry of Defence headquarters situated in the vicinity. Nothing of evidential value was obtained. House to house inquiries were carried out in the area and a number of persons living or working in the neighbourhood were interviewed. Persons who had passed by the victim’s office at the critical time were also identified and interviewed but with no result. Two individuals who had been in the exchange office at 5 p.m. on the critical day, D.S. and N.H., were also interviewed. They stated that they had seen another man in the exchange office. However, two other persons, a police officer and one of the neighbours, had seen the victim alive around 6 p.m. on the critical day, which excluded the above-mentioned man as a possible perpetrator. The police also interviewed several persons who had previously attempted robbery in the victim’s exchange office but could not connect them with the murder. A list of known perpetrators of crimes linked in terms of the modus operandi was put up and further enquiries into possible involvement of these persons gave no results. On 12 March 2001 the police sent a report to the Zagreb County State Attorney’s Office on the outcome of their investigation. No further steps were taken and no formal decision has been adopted. 2. Involvement of the applicants The first applicant was invited on 1, 13 and 20 December 2000 and on 17   January 2001, and the second applicant on 5 September 2002, to the ZPD to collect their late husband and father’s personal items which had previously been found at the crime scene and taken by the police for examination. A note of 2 May 2001 signed by a police officer of the ZPD shows that on 26 April 2001 the first applicant had called and enquired about the investigation of her husband’s death, asking also that the police make a public call for information about the death of her husband. According to the first applicant, about a year after the tragic incident she contacted the competent investigating authorities by telephone, seeking information about the progress of the investigation of her husband’s death and also made several visits to the police. However, no information was given to her and she was allegedly not allowed access to the reports on the investigation of her husband’s killing. She suggested that persons she suspected had some information about the event be interviewed by the police, but her suggestions were allegedly ignored. She was allowed access to the Zagreb County Court’s report on the on-site investigation only after she had contacted some persons of influence personally known to her. The ballistic report was shown to her on the intervention of the Head of Criminal Police Department. She obtained the autopsy report from the hospital where it had been performed at her own expense. On 2 September 2006 the first applicant wrote a letter to the Ministry of the Interior, Zagreb Police Department and the State Attorney’s Office stating that she understood that police officers had conducted several interviews, and that also a ballistic expert report and an autopsy had been carried out and some other evidence collected, but that she had not been officially informed of these measures or their results nor invited to participate in the investigation in any capacity. She asked for an interview with the investigation authorities. She further stated that she had learnt that two witnesses had been interviewed who had told the police that they had seen a third person in the exchange office shortly before the tragic event. The first applicant asked why no photofit of that person had been compiled. On 12 September 2006 the chief of police answered the first applicant’s letter stating that the witnesses had said that they would not be able to give a detailed description of the person they had seen in the exchange office at the material time nor would they be able to recognise that person. It was also stated that further investigation had been conducted by the Zagreb Police Department police officers without any details of the steps taken. The State Attorney’s Office answered the first applicant’s request by a letter of 2 November 2006 instructing her to seek information from the Zagreb County State Attorney’s Office where the case-file was registered under no.DO-KN-229/00 or Zagreb Police, Prevention of Crime Department, case-file no. 511-19-14/1-44-K-1036/00. However, it appears that the applicants did not seek further information. B.     Relevant domestic law The relevant part of the Rules of the State Attorney’s Offices ( Pravilnik o unutarnjem poslovanju u državnim odvjetništvima , Official Gazette no.   106/02) reads as follows: Section 49 “A victim, a party represented by a State Attorney’s Office ... or an interested person, other than a suspect, an accused or an opposing party in the proceedings, may consult a criminal, civil or other case file of the State Attorney. Such a person may also be allowed to copy the case file or its parts. Permission to consult or copy the case file is given by the State Attorney or an official in charge of a particular case file.” COMPLAINTS   1.     The applicants complained under Article 2 of the Convention that the investigation of the death of Ž.R. had been ineffective and that they had not been given adequate access to the case-file concerning this investigation. 2.     They further complained under Article 13 of the Convention that they had no effective remedy for their complaints under Article 2 of the Convention. THE LAW 1.     The applicants complained that the investigation of the death of Ž.R. had been insufficient and that they, the victim’s wife and daughter respectively, had not been allowed to participate in the investigation in any capacity, contrary to the guarantees of Article 2 of the Convention. In that connection they argued that the investigation of the death of their respective husband and father had been ineffective and that the investigating authorities had failed to take all adequate and necessary steps. Thus, the perpetrator had not been identified and the death of Ž.R. remained unresolved. The Government maintained that the investigating authorities had taken all relevant steps, promptly secured evidence from the crime scene, a ballistic expert report and an autopsy had been carried out, about two hundred persons had been interviewed and all leads had been followed. In carrying out their duties the police had acted promptly and expeditiously. The Court observes that the applicants have not laid any blame on the authorities of the respondent State for the actual death of Ž.R. The applicants’ case is therefore to be distinguished from cases involving the alleged use of lethal force either by agents of the State or by private parties with their collusion (see, for example, McCann and Others v. the United Kingdom, judgment of 27   September 1995, Series A no. 324), or in which the factual circumstances imposed an obligation on the authorities to protect an individual’s life, for example where they have assumed responsibility for his welfare (see, for example, Paul and Audrey Edwards v. the United Kingdom , no. 46477/99, judgment of 14   March 2002, ECHR   2002-II), or where they knew or ought to have known that his life was at risk (see, for example, Osman v. the United Kingdom, judgment of 28   October 1998, Reports of Judgments and Decisions 1998-VIII). However, the absence of any direct State responsibility for the death of Ž.R. does not exclude the applicability of Article 2. The Court recalls that by requiring a State to take appropriate steps to safeguard the lives of those within its jurisdiction (see L.C.B. v. the United Kingdom , judgment of 9   June 1998, Reports 1998-III, p. 1403, § 36), Article 2 § 1 imposes a duty on that State to secure the right to life by putting in place effective criminal law provisions to deter the commission of offences against the person, backed up by law enforcement machinery for the prevention, suppression and punishment of breaches of such provisions (see Osman , cited above, §   115). With reference to the facts of the instant case, the Court considers that this obligation requires by implication that there should be some form of effective official investigation when there is reason to believe that an individual has died in suspicious circumstances. The investigation must be capable of establishing the cause of death and the identification of those responsible with a view to their punishment. The essential purpose of such an investigation is to secure the effective implementation of the domestic laws which protect the right to life (see mutatis mutandis , the Paul and Audrey Edwards judgment, above-cited, §   69). The Court recalls that in its judgments in cases involving allegations that State agents were responsible for the death of an individual, it has qualified the scope of the above-mentioned obligation as one of means, not of result (see, for example, the Shanaghan judgment, cited above, §   90 and the judgments referred to therein). Thus, the authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including inter alia eye witness testimony, forensic evidence and, where appropriate, an autopsy which provides a complete and accurate record of injury and an objective analysis of clinical findings, including the cause of death. Any deficiency in the investigation which undermines its ability to establish the cause of death, or the person or persons responsible will risk falling foul of this standard. What form of investigation will achieve those purposes may vary in different circumstances. However, whatever mode is employed, the authorities must act of their own motion, once the matter has come to their attention. They cannot leave it to the initiative of the next of kin either to lodge a formal complaint or to take responsibility for the conduct of any investigative procedures (see, for example, mutatis mutandis , Ilhan v.   Turkey [GC], no. 22277/93, ECHR 2000-VII, § 63). While there may be obstacles or difficulties which prevent progress in an investigation in a particular situation, a prompt response by the authorities in investigating a use of lethal force may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts (see, for example, the Hugh Jordan judgment , cited above, §§ 108, 136-140). As to the present case, the Court notes firstly that as soon as they learned about the killing of Ž.R., the competent domestic authorities embarked of their own motion on the investigation of the circumstances of his death. The police entrusted with carrying out an investigation into the death of Ž.R. inspected the crime scene the very same day that the deceased was murdered and amassed all evidence thereof. A ballistic expert report and an autopsy were carried out. The police interviewed the applicants, relatives and friends of the deceased as well as persons with whom he had entertained business relations. House to house inquiries were carried out in the area, and neighbours and other potential witnesses were interviewed. All potential leads were followed and a photofit of a person, described by the first applicant, who had frequently visited the deceased in the period before his death, was compiled and distributed to various police units. As regards the adequacy of the steps taken, the Court is not persuaded by the applicants that there have been any significant oversights or omissions. The above shows that the key traceable witnesses were interviewed and the available evidence collected and reviewed. The Court is satisfied that the police acted promptly and pursued every line of information. The fact that the investigation did not succeed in identifying the perpetrator does not in itself render the investigation ineffective. In the circumstances, the Court cannot impugn the authorities for any culpable disregard, discernible bad faith or lack of will. Having regard to the above the Court considers that the facts do not disclose any appearance of a violation of Article 2 of the Convention on account of the effectiveness of the investigation. Insofar as the applicants maintained that they had not been sufficiently involved in the investigation and had had no access to the case-file concerning the investigation the Government argued that the applicants had not exhausted available domestic remedies. In that connection they asserted that the applicants had never submitted a request to consult the case file of the Zagreb County State Attorney’s office which had been in charge of the investigation. When the first applicant had written to the State Attorney’s Office in September 2006 she had been instructed to seek information from the police or the Zagreb County State Attorney’s Office. The applicants argued that they had no access to the information concerning the investigation of the death of their respective husband and father. Although the first applicant made a number of telephone calls and personal visits to the police enquiring about the steps taken, she had not been given any information. She had obtained the report on the on-site inspection only after she had contacted some persons of influence personally known to her, and the ballistic report had been shown to her on the intervention of the Head of the Criminal Police Department. The Court points out that the purpose of Article 35 is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Convention institutions. Consequently, States are dispensed from answering for their acts before an international body before they have had an opportunity to put matters right through their own legal system The rule of exhaustion of domestic remedies referred to in Article 35 of the Convention requires that normal recourse should be had by an applicant only to remedies that relate to the breaches alleged and at the same time are available and sufficient. (see Selmouni v. France [GC], no.   25803/94, §§   74 and 75, ECHR 1999 ‑ V). As to the present case the Court reiterates that where an investigation into a suspicious death takes place, the next of kin of the victim must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests (see Hugh Jordan , cited above, §§   108 and 109, and Paul and Audrey Edwards v. the United Kingdom , no.   46477/99, §   73, ECHR 2002 ‑ II). In this connection the Court notes that under the relevant domestic law, namely section 49 of the Rules of the State Attorney’s Offices, the applicants had a clear and open possibility of lodging a request for consulting the case-file with the State Attorney’s Office entrusted with conducting the investigation in the present case. The Rules were accessible to everybody, including the applicants, since they were published in the Official Gazette. However, the applicants addressed a written request seeking information about the investigation of the death of Ž.R. to the police and the State Attorney’s Office for the first time in September 2006, about five years and then months after the tragic event. Furthermore, when in its letter of 2 November the State Attorney’s Office expressly instructed the first applicant to address herself to the Zagreb County State Attorney’s Office, it being in charge of the investigation at issue, and noted the case-file number, the applicants took no further steps to consult the case-file. In these circumstances the Court is satisfied that the relevant domestic law clearly provides for a possibility of the next of kin of a deceased person to seek a permission for consulting the case-file concerning the investigation of a death occurring in suspicious circumstances. However, the applicants have never made use of such a possibility. Having regard to the above aspect of the State’s obligation under Article 2 of the Convention, the Court considers that the applicants did not avail themselves of the remedies provided for under domestic law. Thus, having regard to the entirety of the applicants’ complaints under Article 2 of the Convention, the Court finds that this part of the application must be rejected under Article   35 §§   1, 3 and   4 of the Convention.   2.     The applicants complained that they had no effective remedy in respect of their Article 2 complaints. They relied on Article 13 of the Convention. The Government contested that argument. The Court notes that it has found that the investigation of Ž.R.’s death was effective and sufficient for the purposes of Article 2 of the Convention. It further notes that, as regards the question of the applicants’ involvement into the investigation related to the death of their next of kin, they have not exhausted available domestic remedies. In these circumstances the Court considers the applicants’ complaint as being manifestly ill-founded. It follows that this complaint must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. In view of the above, it is appropriate to discontinue the application of Article 29 § 3 of the Convention. For these reasons, the Court unanimously Decides to discontinue the application of Article 29 § 3 of the Convention; Declares the application inadmissible. André Wampach   Christos Rozakis Deputy Registrar   President