CEDH · CASELAW;COMMUNICATEDCASES;ENG — 27 novembre 2018

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s83BE5C30 { font-family:Arial; font-size:8pt; vertical-align:super } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt }   Communicated on 27 November 2018   FOURTH SECTION Application no. 72065/17 Feliksas Augėnius ABUKAUSKAS and others against Lithuania lodged on 28 September 2017 STATEMENT OF FACTS The applicants, Mr Feliksas Augėnius Abukauskas, Mr Gintaras Abukauskas and Ms Vladislava Abukauskienė, are all Lithuanian nationals, who were born in 1952, 1978 and 1948 respectively and live in Panevėžys. A.     The circumstances of the case The facts of the case, as submitted by the applicants, may be summarised as follows. On 30 May 2013 a fire was set to a house that belongs to the applicants. The roof was severely damaged as well as the outside of the house and, subsequently, the applicants’ property was destroyed by water when the fire was put out. On the same day the prosecutor decided to start a pre-trial investigation against P.K., who was suspected of arson. A search was performed in his house but nothing significant for the investigation was found. On 5 June 2013 an additional examination of the house and its surroundings was performed, a sample of soil was taken from there and from the perimeter of P.K.’s house. These samples were packaged in a paper and a paper envelope. On 7 January 2014 the prosecutor decided to terminate the pre-trial investigation in respect of P.K. for the following reasons. The prosecutor established that after the fire a sample of burned substance was taken. Within eighteen metres from the entrance to the house, some footprints were found but they were not suitable for identification. Samples from P.K.’s hands were taken. On 31 May 2013 P.K. submitted his trousers, shirt and shoes for examination. On 3 June 2013, the examination of the samples was ordered, the results were received on 30   October 2013, and it was established that traces of flammable liquid were found on P.K.’s clothes and shoes. Nothing was found in the samples taken from P.K.’s hands. On 16   June 2013, the examination of the soil samples was ordered, the results came back on 23 July 2013, where it was established that there was some soil on P.K.’s shoes but it was impossible to determine how that soil got there. The officer A.P., who was questioned as a witness, stated that he had used a police dog which had led him near the P.K.’s house but then the dog had stopped. P.K. pleaded not guilty and claimed that on 29 May 2013 he went to sleep and only woke up when he heard a police car at around 3 ‑ 4   a.m. The prosecutor thus established that there was no unquestionable direct evidence that P.K. had set fire to the applicants’ property. On 8 January 2014 the prosecutor decided to suspend the pre-trial investigation for the following reasons. It was established that the pecuniary damage amounted to 158,658 euros (EUR) in total but it was impossible to establish who had set fire to the house. On 27 June 2014 the prosecutor refused to start disciplinary proceedings against the officers for mistakes made during the pre-trial investigation. However, the prosecutor stated that A.P. breached his duties when he had stopped tracking with the dog because some cattle had started going towards the dog. The prosecutor held that A.P. had to move the cattle and to continue the tracking. The prosecutor also found that the search in P.K.’s house was carried out eleven hours after the fire, that the officers did not put any efforts into finding out which clothes and shoes P.K. was wearing before the arson, did not look for gloves which P.K. could have used and did not take any of P.K.’s clothes or shoes. Moreover, during the search P.K. was milking cows and this was a grave breach of Article 145 of the Criminal Code because in accordance with that Article, he had to be present during the search. The prosecutor noted that one of the officers, J.B., was dismissed from office on 25 March 2014, thus disciplinary responsibility could not be applied. The prosecutor further noted that the specialists S.G. and A.B. had not properly packaged the objects necessary for further investigation, i. e. instead of packaging the samples into plastic bags, metal or plastic containers, they packed them into paper. The prosecutor also stated that even though some violations were made during the investigation, this did not mean that they had influenced the outcome of the pre-trial investigation. Also, a disciplinary penalty could only be imposed within thirty days from the discovery of the offence and if the authority was carrying out the disciplinary examination within two months from the end of that investigation. A disciplinary penalty could not be imposed a year after the offence unless there were certain specific circumstances, such as if the investigation of the disciplinary offence was suspended, it the offence was established during audit or if it only became clear during the disciplinary review. In these cases the penalty could be imposed within three years following the offence. In the present case, however, because more than a year had passed from the offences in question, the prosecutor refused to start disciplinary proceedings against the officers. The applicants brought a civil claim against the State for compensation in respect of pecuniary and non-pecuniary damage. They asked for EUR   33,938 in respect of pecuniary damage and EUR 9,000 in respect of non-pecuniary damage. The applicants maintained that the authorities had failed to act properly and professionally, and because of their actions the applicants had lost the possibility to require damages from those who were responsible for the arson. On 16 March 2016 the Panevėžys District Court rejected the applicants’ civil claim. The court held that A.P. took several directions with the dog and when the dog came close to P.K.’s house, it stopped. There were some loose cattle in the yard, which tried to attack A.P. and the dog. After that, A.P. went around the house and the dog did not react to any traces. After A.P. came back to the applicants’ house, he was informed that there was a suspect – P.K., and then he decided that it was not necessary to continue tracing the footprints. A.P.’s duty was not to find evidence but the person who had left the footprints. The court held that it could not conclude that because of A.P.’s actions some evidence or a possibility to establish the guilty persons had been lost. As for the actions of S.G., the court came to similar conclusions that his actions could not lead to losing evidence or failure to establish the guilty persons. As regards the violations during the search, the court held that the testimony of the officers was not taken into account precisely because of the violations made. The court rejected the applicants’ arguments that the search was carried out too late. The court held that all the procedural actions had been carried out within two days of the arson and that there were no periods of inactivity. Also, the court determined that the amount of money necessary to restore the house would be EUR   13,207 and that pecuniary damage amounted to EUR 22,915 in total. However, the court held that the applicants failed to indicate the components and the amount of pecuniary damage allegedly caused by the authorities and there was no connection between the damage sustained and the authorities’ actions. The request to award compensation in respect of non-pecuniary damage was also rejected. The applicants appealed. On 7 September 2016 the Panevėžys Regional Court decided to allow the appeal. The court held that the first-instance court erred in assessing the consequences of the officers’ actions to the pre ‑ trial investigation. The entirety of the circumstances remained unclear and it could not be stated that the failure of the officers to carry out their duties properly had not had a major impact to the investigation. The court held that A.P.’s decision to stop tracing the footprints because of the cattle in P.K.’s yard and because a suspect had been arrested could hardly be assessed as corresponding to the requirements of carefulness and thoughtfulness. The court held that A.P. had to remove the obstacle (the cattle) and to continue his job. Also, on one occasion A.P. claimed that P.K. was in his house, and on another, that he was not. The court also stated that the search in P.K.’s house was carried out ten hours after the fire, and before the search the officers had not asked the witnesses to testify in order to find out what clothes P.K. had been wearing, did not look for gloves in P.K.’s house, did not take the clothes he wore during his arrest, P.K. was not photographed at the moment of his arrest. Also, the packages of the samples were not impermeable. The officer V.S., who was responsible for the search of the scene of the fire, did not take a decision to carry out a search in P.K.’s house or to take samples from his hands because his working hours were over. The Panevėžys Regional Court thus held that the pre-trial investigation was not expeditious enough and that it was inconclusive. The court decided to award two of the applicants EUR 900 and the third applicant EUR 200 in respect of non-pecuniary damage. The applicants submitted an appeal on points of law. On 6 April 2017 the Supreme Court overturned the decision of the Panevėžys Regional Court and upheld the decision of the Panevėžys District Court. The Supreme Court observed that in order to establish the unlawful actions, it had to be acknowledged that pre-trial investigation officers, prosecutors or a court had made a mistake that had a major impact on the violation of the claimants’ rights in the criminal proceedings. It was for the claimant to prove the unlawful actions of the authorities, the causal link and the damage. If one of these conditions was not proved, the compensation was not possible. The court found that in the present case the officer A.P. could not remove the cattle from the yard or to confine them somewhere. The first-instance and the appellate courts assessed A.P.’s actions in a different way. The first-instance court held that A.P. carried out his duties properly and without undue delay and the appellate court found that A.P. did not take all the measures available to him and did not carry out his duties with sufficient diligence. The Supreme Court considered that the applicants based their claim on the idea that if the cattle had been removed, the dog would have continued the tracking and would have found the person who had left the footprints. The Supreme Court found, however, that the appellate court did not assess whether A.P. had real possibilities to remove the cattle and whether there was a rational need to do so. The Supreme Court held that A.P. took a decision to go around P.K.’s house and this was in accordance with domestic law. The Supreme Court further held that even if the person who left the footprints had been found, it would not imply that he had committed the offence because the mere fact that a person had passed by the applicants’ house did not mean that he had set their house on fire. The court also held that the mere existence of unlawful actions did not imply civil responsibility. Without having information about the substance that was used to set the applicants’ house on fire, the proper samples taken from the clothes and the hands could not have determined the guilty person. The Supreme Court concluded that in the absence of obvious and serious shortcomings of the pre-trial investigation, the applicants’ civil claim could not be satisfied. B.     Relevant domestic law Article 2 of the Code of Criminal Procedure (the CCP) provides that a prosecutor and pre-trial authorities have to take all the measures prescribed by law that are within their competence to carry out an investigation without undue delay and to disclose the criminal activity whenever there are features of such offence. Article 3 1 § 1 of the CCP provides that when during a pre-trial investigation all the relevant procedural actions are carried out and all the possibilities to determine the guilty person have been used but such person has not been found, the pre-trial investigation can be suspended upon the decision of the prosecutor. Article 3 1 § 2 of the CCP provides that if grounds for suspension no longer exist, the pre-trial investigation is renewed without a separate decision performing at least one investigative action. Article 144 § 1 of the CCP provides that a pre-trial officer or a prosecutor may take samples from the suspect for a comparative examination. Article 144 § 3 of the CCP provides that a protocol regarding the taking of samples has to be drawn up. Article 145 § 1 of the CCP provides that where there are grounds for assuming that there are, on particular premises or in any other place or in the possession of some person, instruments used in a crime, tangible objects and valuables obtained through criminal activity, or items or documents that might be relevant for the investigation of a crime, a pre-trial investigator or a prosecutor may conduct a search in order to locate and seize them. Article   145 § 3 of the CCP provides that such a search is carried out on the basis of a reasoned approval issued by a pre-trial investigation judge. This approval must specify what objects are to be searched for. Article 145 § 4 of the CCP provides that the search must be carried out in the presence of the owner, tenant, or manager of the flat, house or any other premises in which the search is being conducted, or an adult member of their family or a close relative. Article 149 of the CCP provides that an officer has to announce the authorisation to conduct the search and to give one copy of that authorisation to the person whose premises are being searched. Only objects relevant to the investigation can be taken, and all of the objects and documents found have to be shown to those participating in the search and be entered in the record of the search. Article 212 (2) of the CCP provides that a pre-trial investigation must be discontinued if not enough information to prove the suspect’s guilt has been collected. Article 6.272 § 2 of the Civil Code provides that the State shall be liable for full compensation in respect of the damage caused by the unlawful actions of a judge or a court trying a civil case, where the damage is caused through the fault of the judge himself or of any other court official. Article   6.272 §   3 provides that in addition to pecuniary damage, the aggrieved person shall be entitled to non-pecuniary damage. Article   6.272 §   4 provides that where the damage arises from an intentional fault on the part of the preliminary investigation, prosecution or court officials or judges, the State, after compensation has been provided, shall have the right to take action against the officials concerned for recovery, under the procedure established by law, of the sums in question of the amount provided for by the law. At the material time, Article 26 § 4 of the Statute on Interior Ministry Service provided that a disciplinary penalty had to be imposed within thirty days from the date of finding out about the disciplinary violation or if an investigation was carried out – within two months from the end of such investigation or a reasoned conclusion of the disciplinary examination. It was not allowed to impose a disciplinary penalty if one year had passed from the actual violation unless an investigation of the violation was suspended or a violation was established during an audit or monetary inventorisation or during a disciplinary or other investigation. In these cases the penalty had to be imposed within three years following the violation. COMPLAINT The applicants complain under Article 1 of Protocol No. 1 to the Convention that the authorities have breached their duty to establish a person guilty for the arson committed on their house, which had resulted to their inability to require any compensation from that person. The applicants also complain under the same provision that although the State had breached their positive obligation to protect their property, they were not allowed any compensation. QUESTION TO THE PARTIES Was there a positive obligation for the respondent State under Article 1 of Protocol No. 1 to protect the applicants’ right to peaceful enjoyment of their possessions? If so, did the authorities discharge this obligation?