Last Updated on July 3, 2019 by LawEuro
SECOND SECTION
DECISION
Application no. 70671/12
Tatiana VERETCA
against the Republic of Moldova
The European Court of Human Rights (Second Section), sitting on 19 June 2018 as a Committee composed of:
Paul Lemmens, President,
Valeriu Griţco,
Stéphanie Mourou-Vikström, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above application lodged on 24 October 2012,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Ms Tatiana Veretca, is a Moldovan national, who was born in 1982 and lives in Chișinău. She was represented before the Court by Mr R. Zadoinov, a lawyer practising in Chișinău.
2. The Moldovan Government (“the Government”) were represented by their Agent at the time, Mr M. Gurin.
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. The applicant’s late husband, Mr Alexei Veretca (“the victim”), was killed on 28 April 2012. The present application is about the circumstances of his death and the investigation carried out by the Moldovan authorities into those circumstances.
5. On 27 April 2012 the victim had a conflict with two persons, V.C. and A.R., outside a bar in Orhei. The conflict grew into a fight during which the victim injured both of them with a knife.
6. On 28 April 2012 the victim was in contact with his friend M.I., who knew V.C., and asked him to help him settle the conflict. After negotiations with V.C., M.I. informed the victim that V.C. and A.R. were ready to accept money in exchange of their not lodging a criminal complaint against the victim. It was also proposed to the victim to meet both men in front of a restaurant on the edge of a forest later that day in order to pay them the money.
7. In the evening of the same day the victim, accompanied by M.I., went to the indicated restaurant. When they entered the parking lot with the M.I.’s car, they saw a group of ten to fifteen men approaching them and understood that there was an ambush. According to the applicant, the men in question were members of a criminal gang from Orhei who were called by V.C. and A.R. with the purpose to kill the victim. The victim and M.I. attempted to drive away but the exit of the parking lot was blocked by another car. Some of the attackers fired their guns into the air shouting at the occupants of the car to stop. After immobilising the car the attackers started beating up the victim and M.I. During the fight the victim fired his gun at one of the attackers and injured him lightly. The injured attacker fired back at the victim. According to a forensic medical report, the bullet hit the victim’s thorax, severely damaging his lungs. He died on the spot.
8. A criminal investigation was initiated into the circumstances of the case shortly thereafter.
9. When questioned, the applicant stated that her late husband had informed her on 28 April 2012 about a conflict which he had had with two persons on the previous evening and that he was going to meet them in order to settle it. He also asked her to give him his gun, arguing that those persons might be dangerous. She did that after loading it with the missing bullets.
10. M.I. told the investigators that in the evening of 28 April 2012 he and the victim went to the parking lot of the restaurant by the forest in order to meet V.C. and settle the conflict. The meeting with V.C. had been organised by him and V.C. over the telephone. After arriving at the place of the meeting, he left the victim in the car and approached V.C., who was standing by his car when he noticed a large group of persons entering the parking lot. He immediately realised that that was an ambush, ran to his car and attempted to drive away. However, his car was blocked by another car belonging to the attackers. During the manoeuvres by which he had attempted to escape he bumped his car into one of the attackers’ cars. After his car was immobilised, both he and the victim were taken out of it and started being beaten up by the attackers who split into two groups. He was punched and kicked while lying on the ground by a group of persons while another group did the same to the victim. At one moment he heard two gun shots after which all the attackers ran away. The victim was lying motionless and someone called an ambulance.
11. On 30 April 2012 a person named C.I. surrendered to the police as being the person who had shot the victim. He stated that on 28 April 2012 he drove his car from Chișinău to Orhei. On the road he stopped at a restaurant in the forest which was located some several hundred metres away from the restaurant where the victim was shot. There he met A.R. who was with another person whose name he did not know. In the restaurant they all met a group of four persons two of whom, O.P. and C.Ț., he knew. Later another person joined them. They started discussing about where to spend the 1 May holiday and decided to go the restaurant which was several hundred metres away to check whether it was any good. They took three cars and drove to that restaurant.
12. When arriving at the restaurant, he saw a car with two persons inside and approximately ten persons around it and heard noise coming from them. Suddenly that car accelerated towards their cars and started doing dangerous manoeuvres. It almost hit a person from their group and he saw that the person on the passenger seat was holding a gun. One of the persons from their group attempted to move his car in order to avoid impact, but to no avail. He attempted to tell the driver of the manoeuvring car to calm down. After the manoeuvring car hit another car, he saw a group of persons fighting with the driver of the manoeuvring car. He then saw the passenger of the manoeuvring car continuing sitting in the car and holding a gun. At that very moment the passenger of the manoeuvring car made a gun shot in his direction. He felt pain in his left side but immediately took out his gun and shot back at that person. He aimed into that person’s shoulder with the intention to immobilise and disarm him. Then that person tilted down. He did not see any of the persons from his group beating up the persons from the manoeuvring car and did not know the persons who beat them up.
13. A medical expert who examined C.I. later found that he had a scratch on the left side of his pelvis which could have been caused by a bullet.
14. A ballistic expert report dated 10 May 2012 found that the victim was shot from a registered gun belonging to C.I. Another ballistic expert report dated 10 May 2012 found that the only bullet found in M.I.’s car had been fired also from C.I.’s gun.
15. C.I. was charged with the offence of premeditated murder committed by two or more persons by using means dangerous for others and was indicted.
16. On different dates V.C., C.Ț. and O.P. were charged with the offence of premeditated murder committed by two or more persons by using means dangerous for others. Later C.Ț. and O.P. were also charged with the offence of aggravated hooliganism with the use of firearms and deliberate severe bodily injury committed by two or more persons. V.C. was also charged with the offence of negligence leading to the death of a person. The indictment orders stated that on 28 April 2012, after receiving information from V.C. about the location of M.I. and the victim, C.Ț. together with C.I., A.R., O.P., C.D., and other unidentified persons immobilised the car in which the victim and M.I. were. For that purpose they blocked its way out of the parking. Their group then started beating up the victim and M.I., after which C.Ț. shot the victim.
17. After indictment C.Ț. stated that he went together with some friends to the restaurant where the victim was killed to place an order for the holiday of 1 May. There he saw a manoeuvring car in the restaurant parking lot which hit another car. Someone made two gun shots and he and his friends started firing in the air just to scare off those who had started the shooting. Then C.Ț. and his friends left the place. O.P. made similar statements and submitted that he made one shot in the air before leaving the place.
18. A ballistic expert examined C.Ț.’s and O.P.’s guns and the bullet cartridges found on the spot of the victim’s killing and concluded that three bullets had been fired from C.Ț.’s gun and one from O.P.’s gun on that evening in that place.
19. V.C. stated that he had been in the parking lot waiting for M.I. and the victim when a group of ten to fifteen unknown men arrived and started shooting in the air and shouting at M.I. and the victim to stop. After immobilising their car, the group of men split into two groups who started beating them up. After a while someone shouted “he has a gun” after which he heard several shots and all the attackers ran away. Before running away he also heard one of the attackers saying to another “take his gun”. He did not know the attackers. They were all well-built and sporty looking. He did not see who fired. He only saw that three or four attackers had guns.
20. On 30 July 2012 the investigators in the case dropped the murder charges against V.C. after accepting his version of the events according to which he had not coordinated his actions with C.I., the person who shot the victim. The investigators reached the conclusion that the available evidence was not sufficient to prove V.C.’s participation in the killing of the victim. Moreover, as it appeared from C.I.’s statements, the intention to fire at the victim had appeared on the spot and was not planned in advance.
21. On 9 August 2012 the investigators in the case dropped also the murder charges against C.Ț. and O.P. after accepting their version of the events according to which they shot their guns in the air and not at the victim.
22. The applicant challenged the above decisions.
23. On 28 August 2012 a hierarchically superior prosecutor quashed that decision, finding that it had been based on a superficial investigation and on an arbitrary assessment of the facts.
24. All three suspects concerned challenged the above decision before an investigating judge. Following a hearing behind closed doors on 17 October 2012, to which the applicant was not invited, a judge of the Râșcani District Court upheld the appeals lodged by the suspects and ordered the termination of the criminal investigation on charges of murder in respect of the three suspects. The decision of the court was final and could not be challenged.
25. It appears that eventually C.I. was convicted for murder by the first instance. The Court was not informed about the outcome of the criminal proceedings against C.I., V.C., C.Ț., and O.P.
COMPLAINT
26. The applicant complains under Article 2 of the Convention that the authorities dropped the charges against V.C., O.P. and C.Ț. and thus the investigation in respect of their involvement into the killing of her husband has not been effective.
THE LAW
27. The applicant complained that the authorities had failed to properly investigate the involvement of V.C., O.P. and C.Ț. into the killing of her husband. She argued that the authorities failed to check the telephone communications between all the persons involved and to secure the video from the scene of the killing of her husband. She also argued that she has not been involved in the investigation. 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…”
28. The Government argued that the investigation into the circumstances surrounding the killing of the applicant’s husband had been effective within the meaning of Article 2 of the Convention.
29. By requiring a State to take appropriate steps to safeguard the lives of those within its jurisdiction, Article 2of the Convention 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. 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 sustained life-threatening injuries in suspicious circumstances, even where the presumed perpetrator of the fatal attack is not a State agent (see Menson v. the United Kingdom (dec.), no. 47916/99, ECHR 2003-V; Pereira Henriques v. Luxembourg, no. 60255/00, § 56, 9 May 2006; and Yotova v. Bulgaria, no. 43606/04, § 68, 23 October 2012).
30. In order to be “effective” as this expression is to be understood in the context of Article 2 of the Convention, an investigation must firstly be adequate (see Ramsahai and Others v. the Netherlands [GC], no. 52391/99, § 324, ECHR 2007‑II). That is, it must be capable of leading to the establishment of the facts and, where appropriate, the identification and punishment of those responsible.
31. The obligation to conduct an effective investigation is an obligation not of result but of means: the authorities must take the reasonable measures available to them to secure evidence concerning the incident at issue (see Jaloud v. the Netherlands[GC], no. 47708/08, § 186, ECHR 2014; and Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 160, ECHR 2005‑VII).
32. In particular, the investigation’s conclusions must be based on thorough, objective and impartial analysis of all relevant elements. Failing to follow an obvious line of inquiry undermines to a decisive extent the investigation’s ability to establish the circumstances of the case and, where appropriate, the identity of those responsible (see Kolevi v. Bulgaria, no. 1108/02, § 201, 5 November 2009).
33. In addition, the investigation must be accessible to the victim’s family to the extent necessary to safeguard their legitimate interests. There must also be a sufficient element of public scrutiny of the investigation, the degree of which may vary from case to case (see Hugh Jordan v. the United Kingdom, no. 24746/94, § 109, 4 May 2001). The requisite access of the public or the victim’s relatives may, however, be provided for in other stages of the procedure (see, among other authorities, Giuliani and Gaggio v. Italy [GC], no. 23458/02, § 304, ECHR 2011 (extracts); and McKerr v. the United Kingdom, no. 28883/95, § 129, ECHR 2001‑III).
34. Turning to the circumstances of the present case, the Court notes in the first place that the scope of the applicant’s complaint is limited to whether the dropping of murder charges in respect of V.C., O.P. and C.Ț. was in compliance with the State’s procedural obligations under Article 2 of the Convention. The Court will therefore limit its examination of the case to this very aspect and will refrain from examining whether the subsequent evolution of the criminal proceedings in respect of all the other accused persons was in compliance with the State’s positive obligations under Articles 2 and/or 3 of the Convention.
35. The Court notes that it was C.I. who shot the applicant’s husband. He admitted that and all evidence gathered including the ballistic expert reports confirmed it. It also appears from the materials of the case-file that no bullets fired by C.Ț. hit the car in which the victim was seated. As stated by C.Ț., and confirmed later by the expert ballistic reports, the three bullets fired from his gun did not hit the car where the victim was.
36. The version of the events which was accepted by the investigators is that the group of men who came to the parking lot had the intention to beat up the victim but not kill him. It was only after the victim had fired his gun at one of the attackers injuring him that C.I. shot back and killed the victim.
37. The Court notes next that it appears from the materials of the case‑file that all the guns used during the brawl, including those belonging to C.Ț. and C.I., were registered guns. In such circumstances, in the Court’s view, it was not unreasonable for the investigators to have assumed that the attackers would not have used registered guns had they had from the beginning the intention of shooting the victim dead. It is for the above reasons that the version of the events as accepted by the investigation appears to be plausible. Therefore, the dropping of the murder charges in respect of V.C., O.P. and C.Ț. does not appear to be unreasonable or arbitrary.
38. In so far as the effectiveness of the investigation concerning V.C.’s, O.P.’s and C.Ț.’s involvement in the attack on the victim and his ill‑treatment is concerned, the Court notes that this question is out of the scope of the present application which only concerns the dropping of the murder charges against V.C., O.P. and C.Ț.
39. The applicant further submitted that she was not sufficiently involved in the investigation. Having perused the materials of the domestic case-file, the Court notes that the applicant was heard by the investigators immediately after the killing of her husband and received victim status within the criminal proceedings. After that she did not appear to have manifested interest in the investigation during the first months. In particular, the case-file does not contain any evidence of her requesting access to the materials of the case-file or making any requests concerning the investigation. It appears that it is only after she was informed about the decisions to drop murder charges against V.C., C.Ț. and O.P., that she decided to take an active role and to challenge those decisions after having been given access to the materials of the case-file. It is true that the applicant was not present during the hearing of 17 October 2012 before the Râșcani District Court. However, that fact alone is not sufficient for the Court to draw the conclusion that the investigation was not effective within the meaning of Article 2 of the Convention. The same is valid in respect of the applicant’s complaint about the authorities’ failure to check the telephone communications between all the persons involved and to secure the video from the scene of the killing of her husband.
40. Given the circumstances of the case and the manner in which the investigation was conducted, the Court considers that the respondent State did not fail to fulfil its obligations under Articles 2 of the Convention when dropping the murder charges against V.C. and C.Ț.
41. The application is therefore manifestly ill-founded and inadmissible within the meaning of Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 12 July 2018.
Hasan Bakırcı Paul Lemmens
Deputy Registrar President
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