CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 10 janvier 2012

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margin-left:39.7pt; margin-bottom:0pt; text-align:justify } .s81CCF55C { margin-top:0pt; margin-left:17pt; margin-bottom:12pt; text-indent:-17pt; text-align:justify } .s48DB3670 { margin-top:12pt; margin-bottom:36pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .sC646A315 { width:14.54pt; display:inline-block } .sE3DE866E { width:127.4pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 }       SECOND SECTION             CASE OF ČESNULEVIČIUS v. LITHUANIA   (Application no. 13462/06)           JUDGMENT   This version was rectified on 20 August 2012 under Rule 81 of the Rules of the Court   STRASBOURG   10 January 2012   FINAL   10/04/2012   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision . In the case of Česnulevičius v. Lithuania , The European Court of Human Rights (Second Section), sitting as a Chamber composed of:   Françoise Tulkens, President,   Danutė Jočienė,   Isabelle Berro-Lefèvre,   András Sajó,   Işıl Karakaş,   Paulo Pinto de Albuquerque,   Helen Keller, judges, and Françoise Elens-Passos, Deputy Section Registrar, Having deliberated in private on 6 December 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no.   13462/06) against the Republic of Lithuania lodged with the Court under Article   34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Lithuanian national, Mr   Petras Česnulevičius (“the applicant”), on 3   April 2006. 2.     The applicant was represented by Mr   K.   Baranauskas, a lawyer practising in Vilnius. The Lithuanian Government (“the Government”) were represented by their Agent, Ms   E.   Baltutytė. 3.     The applicant alleged, in particular, that the Lithuanian authorities had failed to protect his son’s life whilst in prison. He also contended that the subsequent investigation into the circumstances of his son’s death had not been effective. 4.     On 16   June 2008 the President of the Second Section decided to give notice of the application to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article   29 §   1). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1942 and lives in Vilnius. 1.     The first incident at Pravieniškės Prison 6.     The applicant’s son, A.   Česnulevičius (“A.Č.”), was serving a prison sentence in Pravieniškės High-Security Prison No.   1 (Pravieniškių 1-oji sustiprintojo režimo pataisos darbų kolonija, hereinafter “Pravieniškės Prison”). On 4   August 2000 at about 10   p.m. A.Č. was found in the living quarters of Block   5 of the prison, showing signs of having been beaten. As noted in the transcript of a recorded conversation between A.Č. and the guard on duty, A.Č. refused to make a written statement explaining the circumstances of the incident, even though asked to do so by the guards. He also refused to be checked by a doctor, although the guards pointed out that A.Č. had injuries on his face and that he should see one. To prevent A.Č. from possibly being beaten up again, the prison guards locked him in solitary confinement (Baudos izoliatorius) until the morning. In the morning, the prison governor asked A.Č. to explain the circumstances of the incident. A.Č. claimed that he had no enemies, had not had any disputes with anyone and that some unknown prisoners could have beaten him up by accident. The prison governor ordered A.Č. to return to his living quarters in Block   3. 7.     On 4   August 2000, A.G., a guard at Pravieniškės Prison, submitted a written report to the prison governor. A.G. wrote that “on 4   August at 10:10   p.m. during a patrol of the zone, in the staircase of Block   5, on the second floor, two masks made out of knitted caps were found. Holes were cut in the middle of the caps. Next to the masks a metallic bar was found, about 40   centimetres long and 2.5   centimetres thick”. 8.     On the same date another prison guard, A.K., informed the prison governor in writing: “on 4   August at 10:10 p.m. during a patrol of the zone, noise was heard in Block   5. When we were going towards Block   5 by the staircase, two masks made of caps and a metallic bar were found. After going up [the stairs ...] prisoner A.Č. was found beaten”. 9.   The Government submitted a copy of a report by the prison governor to the director of the Prisons Department dated 8   August 2000. The prison governor wrote that when he had arrived at work on 5   August 2000, he had found A.Č. in an isolation cell. The warden who had been on duty had explained that on 4   August at 10   p.m. A.Č. had been detained in Block   5, where he had got into a dispute with other prisoners. The director had then questioned A.Č., asking who had attacked him or whom he suspected of doing so. A.Č. had stated that he had been beaten by two convicts whom he could not identify. He had not had any enemies and had got along with everyone; the attack had been accidental. A.Č. had asked the governor to be moved to Block   8, where he knew another inmate. The governor had explained to A.Č. that he would take a decision on that request on Monday 7   August 2000. The governor had offered A.Č. the possibility to stay in solitary confinement or in the facility’s medical unit. A.Č. had explained that he had no complaints and had categorically refused the governor’s offers. Then the governor had “explained to A.Č. what he should do should similar accidents happen again”. 10.     When questioned by prosecutors on 5   October 2000, Ž.K., a nurse at Pravieniškės Prison, stated that at about 9   a.m. on 5   August 2000, when she was on duty, A.Č. had come to see her. He had had two surface wounds on the calf of his left leg. He had been wearing a tracksuit. She had bandaged the two wounds. A.Č. had told the nurse that he had fallen down and injured himself. He had also said that he had no other injuries. The nurse also testified that A.Č. had not had any injuries on his hands, face or other exposed body parts. Responding to a question from the prosecutor as to whether she had noted down A.Č.’s injuries in his medical file, the nurse replied that the wounds were surface wounds and only serious injuries were to be noted in medical files. 2.     The second incident at Pravieniškės Prison 11.     On the night of 5   August 2000 A.Č., having again moved to different sleeping quarters of his own accord, was asleep in Block   13. Around midnight he was beaten by other inmates who wore cloth masks. 12.     When giving a statement to the prosecutors on 5   October 2000, T.L., a nurse on duty at Pravieniškės Prison on 6   August 2000, stated that on that date at around 8:30   a.m. A.Č. had come to the prison’s medical unit and had asked her to bandage his leg, on which had been several wounds of less than 1   centimetre in length. When the nurse had questioned A.Č. about the source of the wounds, A.Č. had said that he had injured himself when playing football. The nurse also testified that A.Č. had not had any injuries on his face, hands or back. She had not recorded the wounds in A.Č.’s medical file because “records are not kept for simple bandaging”. Responding to a question from the prosecutor about the probable cause of the injuries, the nurse replied that she thought A.Č. could have fallen on small stones. 3.     The third incident at Pravieniškės Prison and A.Č.’s death 13.     On 6   August 2000 at about 5   p.m. A.Č., while in Block   13, was once again attacked and beaten by other inmates. In a written statement he gave on the same date to the prison governor, A.Č. stated that the perpetrators had been unknown young men who had worn masks at the time of the attack. A.Č. refused to institute criminal proceedings. 14.     On the same day, A.S., another guard in Pravieniškės Prison, informed the prison governor in writing that “on 6 th August at 5:30   p.m. I saw that two prisoners were heading towards the medical unit [carrying] prisoner A.Č., [whose] leg [was] bleeding”. 15.     When questioned on 5   October 2000 by the prosecutors, nurse T.L. also testified that on 6   August 2000 at about 5:30   p.m. A.Č. had been brought to the medical service, this time by two other inmates. A.Č. had not wanted to say what had happened. Nonetheless, the nurse had found fresh wounds. A.Č. had been bleeding heavily from a deep stab wound on one of his knees. The nurse had attempted to stop the bleeding. Being unsuccessful, she had decided to take A.Č. to the Prisons Department’s Hospital. She had also noticed that A.Č. had an injury on one of his fingers, but had seen no other injuries. 16.     On 6 August 2000 A.Č. was taken to the Prisons Department’s Hospital in Vilnius and operated on there. As his state of health deteriorated, the following day he was taken to the emergency department of Vilnius University Hospital, where he died half an hour after arrival. He was twenty-two years of age. 4.     Expert determinations of the causes of A.Č.’s death 17.     The Government submitted a court-ordered medical expert report, no.   77 dated 16   October 2000, commissioned by the Kaišiadorys District Prosecutor. The three forensic experts who authored the report stated that the medical aid provided to A.Č. at Pravieniškės Prison had been timely and “in accordance with the abilities of the nurse on duty”, and that A.Č. had been referred to the Prisons Department’s Hospital on time. The experts noted that at the Prisons Department’s Hospital the applicant had received a timely diagnosis, but that the diagnosis had not been thorough ( nepilna ) because multiple instances of soft-tissue bleeding and bleeding under the skin had not been identified. Given that the doctors had failed to identify A.Č.’s serious condition and possible traumatic-haemorrhagic shock, A.Č. had not received the necessary intensive anti-shock treatment. The experts also noted that it was impossible to establish who had treated A.Č. at the Prisons Department’s Hospital, because the doctors’ signatures on the relevant records were illegible and many doctors’ stamps ( antspaudai ) were missing from A.Č.’s records. As to the cause of A.Č.’s death, the experts noted that failure to provide adequate medical treatment at the Prisons Department’s Hospital had allowed the above-mentioned complications that had caused death to develop faster. However, it was not possible to state that even if all proper medical actions had been taken, the life of the applicant’s son would have been saved. 18.     On 10 August 2000 the forensic experts issued a report on the causes of A.Č.’s death. They established that A.Č. had died on 7 August 2000, at around 9 p.m., from multiple injuries. In particular, he had received no less that five blows to his head, two blows to his neck, one blow to his back, one blow to his stomach, ten blows to his hands and sixteen blows to his legs. According to the experts, all those beatings happened within one to three days of A.Č.’s death. 19.     On 16   January 2001 the State Medical Audit Inspectorate issued a report on the speediness, accessibility and quality of the health care delivered to A.Č. at the Prisons Department’s Hospital. The expert panel concluded that A.Č. had died of traumatic shock and fat embolism that had developed because of multiple body lesions. The doctor on duty at Pravieniškės Prison on 6   August 2000, M.P., had not fully evaluated A.Č.’s condition, had not diagnosed traumatic shock and had not ordered anti-shock treatment. The same mistakes had been made by the doctor, P.J., who had been the doctor on duty at the Prisons Department’s Hospital. In addition, P.J. had not had a licence to perform surgery on individual patients and thus had not had the right to engage in medical practice. The panel also established that the medical records of the Prisons Department’s Hospital had been managed improperly. The medical experts concluded, nonetheless, that it was not possible to categorically state that timely and fully comprehensive medical help could have avoided the applicant’s death, as fat embolism may develop as a result of trauma that does not involve shock or regardless of an adequate and high standard of treatment. 5.     The pre-trial investigation into A.Č.’s death 20.     On 8   August 2000 the Kaišiadorys District Prosecutor’s Office started a pre-trial murder investigation. As appears from the materials submitted by the parties, the Kaišiadorys District Prosecutor subsequently suspended the pre-trial investigation at least five times because the suspects could not be identified. The applicant and his lawyer appealed against the decisions ordering the suspension of the investigation. 21.     On 19   October 2000 the police commissioner for Kaunas City provided the Kaišiadorys District Prosecutor with a list of ten names of inmates at Pravieniškės Prison. The police commissioner wrote that it had been established by an operational search that “the [ten individuals] took part in the beating of A.Č., causing his death”. 22.     On 8   November 2000 the Deputy Chief Prosecutor for the Kaišiadorys district updated the Regional Prosecutor’s Office in Kaunas as to the progress of the criminal investigation into the death of the applicant’s son. The deputy chief prosecutor wrote: “The inmates detained in Blocks 5 and 13 have been interrogated with a view to establishing the possible circumstances of the event. During the [interviews] with the inmates, panic [and] fear of explaining the circumstances of the events could be felt. For example, one of the inmates said during [his interview] that “I would rather kill myself than testify”. According to the inmates, they do not feel safe in the prison because they live in dormitories with unlocked doors and the freedom of movement of other inmates is not restricted. At night up to fifteen officers remain working at the prison. The interrogation situation being so, it was expedient to isolate the [established] suspects temporarily from the living area of the prison. The prison governor has asked me to inform him of the [names of the] suspects identified during the pre-trial investigation. I have submitted a list of suspects to him, indicating that it was expedient to isolate them. (...) The prison governor has put the suspects into closed premises. These actions by the prison administration have given positive results – three inmates have agreed to give evidence [on the condition that] their [identities are kept] secret. The investigation in this case [has been] complicated because the inmates are avoiding giving evidence about the circumstances of the event by all means [possible]. This is explained by the fact that the “unwritten rules” created by the inmates themselves are valid amongst them. The inmates obey these rules at any price. One of such rules is that open communication with law-enforcement officers is not allowed. At this time, there is not enough evidence to bring charges against the suspects identified.” 23.     On 8   February 2001 the Kaišiadorys District Prosecutor suspended the pre-trial investigation on the basis of Article   218 §   1 (3) of the Code of Criminal Procedure (see the Relevant domestic law part below). 24.     The applicant objected to the way the investigation of the case was being conducted and complained in writing to the Kaunas Regional Prosecutor’s Office. He noted that his son had been beaten “not somewhere in the forest or on the street at night, but in a State institution – Pravieniškės Prison”. He asserted that the guards on duty should have known which block his son had been in at the time of incident, whom he had communicated with, where he had slept and so forth. It should have been easy to establish which guards had been on duty at the time of the events. The applicant stated that he did not understand whether the district prosecutor’s office was incapable of finding or unwilling to find the individuals who had murdered his son. 25.     On 2   May 2001 the Kaunas Regional Prosecutor found that not all necessary investigative actions had been performed with a view to bringing the culprits to justice. The decision to suspend the investigation was quashed. The regional prosecutor noted that at that time eleven individuals had been identified as being of interest to the investigators and witnesses, whose identity had been made confidential, had named those eleven individuals as possible perpetrators of the crime. Even so, the investigators had not pursued that lead. 26.     The regional prosecutor also noted that another criminal case concerning A.Č.’s death had been opened on charges of negligently performing official duties [by doctors] (Article   288 of the Penal Code). Numerous forensic expert reports had been commissioned in that case. One report had been drafted with the participation of V.L., a doctor who had himself treated A.Č. before his death. The prosecutor had determined that a person having a personal interest in the outcome of the expert report concerning A.Č.’s death was not appropriate to act as an expert in relation to the preparation of that report, because it was hard to believe that he would remain objective when evaluating the cause of A.Č.’s death. A likelihood existed that such a person would deliberately exaggerate the importance of A.Č.’s injuries and underplay the influence of the doctors’ actions on the eventual outcome, A.Č.’s death ( sąmoningai sumenkins sužalojimus ir sumenkins gydžiusių gydytojų veiksmų įtaką mirčiai ). As a result, in order to objectively establish the effect that the injuries sustained in Pravieniškės Prison, on one hand, and the doctors’ actions, on the other hand, had had upon A.Č.’s death, a new forensic expert examination was necessary. 27.     The regional prosecutor noted that a number of expert examinations had been performed, as part of which human hair and blood had been tested. However, the conclusions reached by those examinations had been vague and based on probability ( nekonkrečios ir tikimybinės ). The methodology used had been inappropriate, therefore new expert reports were to be commissioned. 28.     The regional prosecutor observed that the suspects, who had also been injured at the relevant time, had been questioned in a superficial manner. The investigators had accepted “standard answers about [having been injured when playing] football” as sufficient. It was indispensible to interrogate each person who had been injured at the time of the events, to question them in detail about the time, place and circumstances in which their injuries had been sustained, as well as to identify who else could corroborate the “football version”. 29.     Lastly, the regional prosecutor noted that the pre-trial investigation had been suspended without any orders having been given to the police in respect of further actions to be performed. Moreover, the execution of earlier orders had not been supervised properly. Only after the above actions, as well as other possible searches, police interviews and related actions, were performed could a procedural decision in the case be adopted. 30.     On 28   March 2002 the Kaišiadorys District Prosecutor again suspended the pre-trial investigation because the identities of the individuals who ought to be charged with A.Č.’s murder could not be established. 31.     On 10   May 2002 the applicant appealed against the above decision to the Kaunas Regional Prosecutor. He argued that the investigation had been superficial. The applicant noted that his son had been beaten for a prolonged period, but the Pravieniškės Prison authorities had not taken appropriate steps in response. The applicant pointed out that on 4   August 2000 the guards had found a metal bar and two masks and had apprehended three identified inmates who had run out of the area where his son had been. Moreover, a witness whose identity had been made confidential had named the people who had beaten his son. For the applicant, there had been sufficient evidence to charge those individuals with the murder of his son and to transfer the case file to court. By refusing to put the case before a court, the Kaišiadorys District Prosecutor’s Office had simply stalled the investigation, which had meant that the individuals who had killed his son would never be punished. 32.     On 13   June 2002 the Kaunas Regional Prosecutor quashed the decision to suspend the investigation and reopened it. The regional prosecutor took notice of the applicant’s complaints and again established that not all investigative actions had been performed. The prosecutor noted that eleven suspects had been identified and that four confidential witnesses had implicated them. He observed, nonetheless, that a person may not be charged on the basis of anonymous witnesses’ testimony, because doing so would be a breach of his or her defence rights. That being so, the regional prosecutor noted that a substantial period of time had passed since the crime had taken place. It was therefore necessary to verify whether the people who had been questioned as anonymous witnesses had already finished serving their sentences, and determine whether it would be appropriate to (i) remove the cloak of confidentiality from them, (ii) rely on their statements when bringing charges, and (iii) perform other investigative actions. The Kaunas Regional Prosecutor also observed that although a number of forensic reports had been commissioned, they had been contradictory. Another expert examination by a panel of experts was therefore necessary. 33.     On 4   September 2002 the applicant wrote to the Attorney General’s Office, complaining that the investigation had been stalled and that the guilty parties had not been brought to justice. 34.     The Attorney General’s Office referred the complaint to the Kaunas Regional Prosecutor. On 10   October 2002 the latter concluded that there was no evidence that their earlier orders had not been followed or that the investigation had been biased or superficial. It was not possible to bring charges on the basis of anonymous witnesses, because doing so would breach the accused’s defence rights. Given that the evidence gathered so far was not sufficiently conclusive to assemble a case, the applicant’s complaint had to be dismissed. The cover letter of the decision specified that “in accordance with Article   234 of the Code of Criminal Procedure, the applicant had five days to appeal against [the] ruling to a higher prosecutor or the courts”. 35.     By a ruling of 7   October 2002, the Vilnius City Prosecutor discontinued the criminal proceedings concerning the charges of negligent performance of official duties (Article   288 of the Penal Code), having failed to find negligence in the actions of the doctors who had treated A.Č. 36.     On 19   November 2002 the applicant lodged another complaint with the Attorney General’s Office. He reiterated his earlier arguments about the investigation into the beatings at Pravieniškės Prison being ineffective. The applicant asked the Attorney General to take over the investigation and to verify the lawfulness of the decision to stop the investigation, arguing that the regional prosecutor’s office had merely been making a pretence of work ( tik atsirašinėja ) and had not taken any concrete steps. 37.     In response to the applicant’s complaints, on 3   December 2002 the Kaunas Regional Prosecutor wrote that the investigation had not been suspended. On the contrary, a new expert report was being carried out, as well as other actions to identify the individuals who had beaten his son. The prosecutor specified that the applicant’s wife had already been granted the status of victim in the proceedings. He also noted that the regional prosecutor had ordered the Chief Prosecutor for the Kaišiadorys District to grant such status to the applicant as well. After the applicant had been granted victim status, he would have the rights flowing from that status. The decision stipulated that “should the applicant disagree with the conclusions of the Kaunas Regional Prosecutor, he may appeal against [the] decision to a higher prosecutor or to the Kaunas City District Court”. 38.     On 16   December 2002 the Kaišiadorys District Prosecutor suspended the investigation, on the grounds that the persons who had attacked the applicant’s son could not be identified. The prosecutor noted that the anonymous witnesses had been questioned on 9-13   December 2002, but had refused to allow their statements to be made public. They had also refused to testify in court. 39.     On 10   February 2003 the Kaunas Regional Prosecutor upheld the above decision. The prosecutor also ordered the district prosecutor’s office to conduct constant monitoring of the situation. 40.     The Government submitted that in August 2005 one anonymous witness had been questioned again as to additional detail, but had provided no new information relevant to the case. 41.     Together with his responses to the Government’s observations on the admissibility and merits of the case, the applicant submitted a letter from the Kaunas City Police Commissioner dated 12   October 2001, stating that the Kaunas City police authorities had received information that in   February   2001 another inmate in Pravieniškės Prison, C.A., had been beaten. The supervisor on duty that day had allowed C.A. to enter Block   2 of the prison. Three identified inmates of that unit had subsequently beaten C.A. near the staircase of the prison’s medical unit. The warden had not informed anyone from the prison administration of the circumstances of the event. C.A. had subsequently died. 6.   Administrative proceedings for damages 42.     In 2004 the applicant, who believed that he was eligible for compensation for non-pecuniary damage he had sustained, instituted proceedings against the Republic of Lithuania, represented by the Ministry of Justice, in the Vilnius Regional Administrative Court. He argued that the prison authorities had been responsible for ensuring the safety of his son while the latter was detained. The applicant disagreed with the suspension of the investigation into the murder. In his opinion, the authorities had stopped trying to identify the perpetrators of the crime. The applicant claimed that, because of the loss of their son, his wife had fallen ill and had died in October 2001. The applicant himself had been recognised as having a second-degree disability. 43.     On 7   October 2004 the court found that the lawsuit had been filed against the wrong defendant and that the Ministry of Justice did not have responsibility for ensuring the safety of prisoners. The court also noted that the State officials had not failed to act as required, and dismissed the lawsuit as ill-founded. 44.     The applicant lodged an appeal with the Supreme Administrative Court. The court agreed with the conclusions of the lower court that there was no evidence establishing the responsibility of State officials (whether officials of the Ministry of Justice or of Pravieniškės Prison) regarding the murder of the applicant’s son. Therefore, in a ruling of 26   January 2005, the Supreme Administrative Court found in favour of the State. 45.     The applicant started judicial proceedings against the Republic of Lithuania, this time represented by Pravieniškės Prison, seeking compensation for non-pecuniary damage. The applicant relied on the same grounds as during the first set of proceedings. On 27   June 2005 the Vilnius Regional Administrative Court dismissed the applicant’s claims, finding that his son’s murder could not be attributed to any deficiencies in the prison officials’ actions. In the opinion of the court, A.Č. had been killed not as a result of any unlawful actions by the authorities, but as a result of the deliberate actions of unidentified persons. No causal link existed between the actions (or inaction) of the prison authorities and the death of the applicant’s son. Therefore, the Vilnius Regional Administrative Court concluded that no grounds existed for civil liability on the part of the State and dismissed the applicant’s claim for compensation for non-pecuniary damage. 46.     The applicant appealed to the Supreme Administrative Court. By a ruling of 28   October 2005 the court agreed with the conclusion of the lower court that A.Č. had been killed by unidentified persons, and found no link between the actions (or inaction) of the prison authorities and any non-pecuniary damage sustained by the applicant. More specifically, the court found that Article   70, part   1, point   3 of the Prison Code, on which the applicant had expressly relied, and which provided that one of the purposes of accommodating detainees separately or in isolation was to help ensure their safety, was a legal norm of a general nature and therefore did not directly govern prison officials’ activities. For these reasons, the Supreme Administrative Court dismissed the applicant’s appeal.   II.   RELEVANT DOMESTIC LAW 47.     Article   19 of the Constitution of the Republic of Lithuania provides that the right to life shall be protected by law. 48.     Article   104 of the Penal Code stipulates that an intentional murder may be punished by imprisonment for a term of from five to twelve years. 49.     The Code of Criminal Procedure, as in force during the relevant period, provided that when elements of a crime are discovered, the courts, prosecutor or investigating authorities must, within the limits of their competence, take all measures provided by law to institute criminal proceedings in order to establish that a criminal act has been committed and that the guilty parties are punished (Article   3 of the Code). The Attorney General and his subordinate prosecutors must supervise the activities of pre-trial investigating authorities. A prosecutor must employ all measures available by law in order to eliminate any violations of laws (Article   24). 50.     Pursuant to Article   218 §   1 (3) and Article   219 of the Code of Criminal Procedure, a pre-trial investigation must be suspended if the person against whom criminal charges should be brought has not been identified. An investigator, before suspending a pre-trial investigation, shall perform all actions that can be performed without the presence of the accused and shall take all measures to find the accused or to identify the person who committed the crime. The investigation shall remain suspended until the person to be charged can be identified. 51.     As regards appeals against the decisions of a prosecutor, the Code of Criminal Procedure reads as follows: Article 244 [valid until 1 April 2002] Appeals against a prosecutor’s actions and decisions “Appeals against actions and decisions of a prosecutor shall be lodged with the higher prosecutor (...)” Article 244 [valid from 2 April 2002 until 30 April 2003] Appeals against a prosecutor’s actions and decisions “Appeals against actions and decisions of a prosecutor shall be lodged with the higher prosecutor (...) Appeals against actions and decisions of a higher prosecutor may be lodged with a district court (...)”   52.     The Code of Correctional Labour, as in force at the material time, provided that convicts may be accommodated separately or in isolation to help to ensure their supervision and safety (Article   18). The same provision is included in Article   70 of the Prisons Code. 53.     On 4   June 2003 the Minister of Justice issued Order No.   168 confirming the regulations applicable to Pravieniškės Prison. The relevant regulations read as follows: “11. The administration of Pravieniškės Prison shall perform the following functions: 11.1. ensuring the safety and supervision of convicted persons as prescribed by law ...” 54.     The relevant provisions of the Civil Code read as follows: Article 6.246 Unlawful actions “1. Civil liability shall arise from the non-performance of a duty established by law or by contract (unlawful failure to act), or from the performance of actions that are prohibited by law or by contract (unlawful action), or from a violation of the general duty to behave with care. ...” Article 6.271 Liability to compensation for damage caused by unlawful actions of institutions of public authority “1. Damage caused by unlawful acts of institutions of public authority must be compensated by the State from the resources of the State budget, irrespective of any fault on the part of a particular public servant or other employee of a public authority institution. ... 2. For the purposes of this Article, the notion ‘institution of public authority’ shall mean any subject of public law (State or municipal institutions, officials, public servants or any other employee of these institutions, etc.), as well as private persons performing functions of a public authority. 3. For the purposes of this Article, the notion ‘action’ shall mean any action (or inaction) by an institution of public authority or its employees that directly affects the rights, liberties and interests of persons (legal acts or individual acts adopted by the institutions of State and municipal authorities, administrative acts, physical acts, etc., with the exception of court judgments, verdicts in criminal cases, decisions in civil and administrative cases and orders). 4. Civil liability of the State or a municipality subject to this Article shall arise where employees of institutions of public authority fail to act in the manner prescribed by law for those institutions and their employees.” THE LAW I.     ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 55.     The applicant made a twofold complaint under Article   2 of the Convention. He contended firstly that the State had failed to comply with its positive obligations in order to prevent the death of his son whilst the latter had been in prison. Secondly, the applicant argued that the State had failed to conduct a thorough investigation into the circumstances of his son’s death and that the culprits had remained unpunished. Article   2 of the Convention reads as follows: “1.   Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. (...)” A.     Admissibility 1.     The parties’ submissions (a)     The applicant 56.     The applicant contended that his son had died as a consequence of the prison authorities’ failure to protect his life. Moreover, the pre-trial investigation into the events had not complied with the requirements of Article   2 of the Convention. The investigation had been suspended and restarted on numerous occasions. Upon seeing that the investigation was not being conducted promptly and thoroughly, the applicant and his lawyer had repeatedly visited the offices of the Kaišiadorys District Prosecutor. He had persistently complained in writing to the Kaišiadorys District Prosecutor’s Office, the Kaunas Regional Prosecutor’s Office and even to the Attorney General. The applicant emphasised that on his initiative the investigation had been restarted several times, because the Kaišiadorys District Prosecutor’s Office had failed to take the necessary investigative actions by itself. (b)     The Government 57.     The Government argued that the State had fulfilled its positive obligations under Article   2 of the Convention and that the right to life of the applicant’s son had been respected. In their view, the applicant’s complaint under the substantive aspect of the aforementioned provision was manifestly-ill-founded. 58.     The Government further submitted that the applicant had failed to exhaust domestic remedies as regards the alleged failure by the State to comply with the procedural requirements of Article   2 of the Convention. In this connection, they put forward two arguments. Firstly, although the pre-trial investigation into the alleged murder had been suspended and restarted several times, the applicant had not appealed to a court against the prosecutors’ decisions suspending the investigation, including the last suspension decision of 16   December 2002. The Government contended that appealing against prosecutors’ decisions to the courts, notwithstanding the nature of those decisions, had been unambiguously possible since 2   April   2002 by an amendment to the Code of Criminal Procedure. The applicant had also been informed of the possibility of appealing against the prosecutors’ decisions in the cover letters sent with the prosecutors’ decisions dated 10   October and 3   December   2002. Nonetheless, the applicant had failed to avail himself of that right. 59.     Secondly, the Government argued that in the administrative proceedings brought by him against the State, the applicant had raised the question of the prison authorities’ failure to protect his son’s right to life, which in fact corresponded to the material requirements of Article   2 of the Convention. However, to the Government’s knowledge, the applicant had not addressed the domestic courts with a claim of allegedly deficient investigation into his son’s death, pursuant to Articles   6.246 and   6.271 of the Civil Code. 60.     Lastly, and should the Court consider the complaint of an alleged procedural violation of Article   2 of the Convention admissible as regards exhaustion of domestic remedies, the Government submitted that that complaint was manifestly ill-founded. 2.     The Court’s assessment 61.     The Court reiterates that the purpose of Article   35 of the Convention 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. The existence of such remedies must be sufficiently certain, not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness. It falls to the respondent State to establish that these various conditions are satisfied (see Selmouni v.   France [GC], no.   25803/94, §§   74 and   75, ECHR 1999-V, and Branko Tomašić and Others v. Croatia , no. 46598/06, §§   35-37, 15 January 2009). 62.     The Court also recalls that Article   35 of the Convention provides for a distribution of the burden of proof. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was one which was capable of providing redress in respect of the complaints invoked and offered reasonable prospects of success (see Akdivar and Others v.   Turkey , 16   September 1996, §   68, Reports of Judgments and Decisions 1996-IV). 63.     The Court would emphasise that the application of this rule must make due allowance for the context. Accordingly, it has recognised that Article   35 must be applied with some degree of flexibility and without excessive formalism (see Cardot v.   France , 19   March 1991, §   34, Series   A no.   200). It has further recognised that the rule of exhaustion of domestic remedies is neither absolute nor capable of being applied automatically; in reviewing whether the rule has been observed, it is essential to have regard to the particular circumstances of the individual case (see Van Oosterwijck v.   Belgium , 6   November 1980, §   35, Series   A no.   40). This means, amongst other things, that the Court must take realistic account not only of the existence of formal remedies in the legal system of the Contracting Party concerned but also the personal circumstances of the applicant (see, mutatis mutandis , Akdivar and Others , cited above, §   69). 64.     With regard to the Civil Code based remedy at the applicant’s disposal and on the basis of the materials submitted by the parties the Court notes that in his claims lodged before the administrative courts the applicant brought up two issues. Firstly, he contended that the administration of Pravieniškės Prison had not guaranteed his son’s safety and that as a result A.Č. had been murdered. Secondly, the applicant mentioned that at t