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SECOND SECTION
CASE OF TRUBNIKOV v.
RUSSIA
(Application no.
49790/99)
JUDGMENT
STRASBOURG
5 July 2005
This judgment will
become final in the circumstances set out in Article 44 § 2 of the Convention.
It may be subject to editorial revision.
In the case of
Trubnikov v. Russia,
The European Court of
Human Rights (Second Section), sitting as a Chamber composed of:
Mr J.-P. Costa, President,
Mr I. Cabral Barreto,
Mr R. Türmen,
Mr V. Butkevych,
Mr M. Ugrekhelidze,
Mr A. Kovler,
Ms D. Jočienė, judges,
and Mrs S. Dollé, Section Registrar,
Having deliberated in
private on 14 June 2005,
Delivers the
following judgment, which was adopted on that date:
PROCEDURE
1. The case
originated in an application (no. 49790/99)
against the Russian Federation lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by Vladimir Grigoryevich Trubnikov, a Russian national. The
applicant, who had been granted legal aid, was represented before the Court by
Karinna Akopovna Moskalenko, a lawyer practising in Moscow.
2. The Russian
Government (“the Government”) were represented by Mr P. Laptev, Representative
of the Russian Federation at the European Court of Human Rights.
3. The applicant
alleged that the domestic authorities were responsible for the death of his son,
Viktor Trubnikov, in prison. He also alleged that the authorities had failed to
investigate the circumstances of his son’s death. He invoked Article 2 of the
Convention.
4. The application
was allocated to the Second Section of the Court (Rule 52 § 1 of the Rules of
Court). Within that Section, the Chamber that would consider the case (Article
27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.
On 1 November 2001 and 1 November 2004,
the Court changed the composition
of its Sections (Rule 25 § 1). This case was assigned to the newly composed
Second Section (Rule 52 § 1).
5. By a decision of
14 October 2003, the Court declared the application partly admissible.
6. The applicant and
the Government each filed observations on the merits (Rule 59 § 1). The Chamber
having decided, after consulting the parties, that no hearing on the merits was
required (Rule 59 § 3 in fine), the parties replied in writing to each
other’s observations.
THE FACTS
I. THE CIRCUMSTANCES
OF THE CASE
7. The applicant was
born in 1940 and lives in the village of Khokholskiy in the Voronezh Region. He
is the father of Viktor Trubnikov, who was found dead on 13 September 1998 in a
punishment cell of the prison where he had been serving his sentence. He had
died of asphyxia caused by hanging. At the time of his death, Viktor Trubnikov
was 26 years old and was due to be released 21 days later.
8. The facts of the
case, as submitted by the parties, may be summarised as follows.
9. On 8 July 1993
Viktor Trubnikov was remanded in custody in connection with criminal charges
brought against him.
10. On 30 August
1993 Viktor Trubnikov was convicted of manslaughter and sentenced to seven
years’ imprisonment. He was serving his sentence in the correctional labour
colony (исправительно-трудовая колония) OZH 118/8 in Rossosh, Voronezh
Region. He expected to be released on probation on 4 October 1998.
11. According to the
records submitted by the Government, on three occasions in 1994-1995 Viktor
Trubnikov had been found to be under the influence of alcohol and placed in a
punishment cell. During his second disciplinary confinement, Viktor Trubnikov
inflicted bodily injury on himself, and during his third disciplinary
confinement he attempted suicide (see the section entitled “Medical records”).
12. Following the
suicide attempt, Viktor Trubnikov was placed under regular psychiatric
supervision.
13. On 13 September
1998 a prison football team, of which Viktor Trubnikov was a member, took part
in a match outside the prison.
14. On return to the
prison after the match, Viktor Trubnikov was found to be under the influence of
alcohol. At 7.15 p.m. a prison officer placed him in a punishment cell where he
was to be kept in solitary confinement before his inspection by the prison
warder the following morning. At 8.20 p.m. Viktor Trubnikov was found dead,
hanged by the sleeve of his jacket with another sleeve attached to a water pipe.
15. That evening the
prison governor conducted an inquest. He examined six documents: (i) the order
to place Viktor Trubnikov in the punishment cell, (ii) the disciplinary offence
report, (iii) the report drawn up on finding Viktor Trubnikov dead, (iv) the
site inspection report, (v) the site plan and (vi) the post mortem
report. On the basis of this file, he stated that Viktor Trubnikov had hanged
himself using the sleeve of his jacket and ordered that no criminal
investigation be opened, as there had been no appearance that a crime had been
committed. A reference was also made to his attempted suicide in June 1995, and
it was stated that he had had suicidal tendencies.
16. On 15 September
1998 an autopsy was performed on the body. In October 1998 a post mortem
report was issued according to which abrasions and bruises were found on the
nose, hand, forearm and elbow. The expert came to the conclusion that death had
been caused by pressure on the neck through hanging.
17. The applicant
was informed orally that his son had committed suicide. He asked the prison
authorities to initiate a criminal investigation. The authorities did not inform
him that a decision had already been taken not to do so.
18. In March 1999
the applicant requested the Voronezh Regional Prosecutor’s Office to provide him
with information about the circumstances of his son’s death. The request was
transmitted to the Voronezh City Special Prosecutor’s Office supervising
penitentiary institutions.
19. On 8 April 1999
the Voronezh City Special Prosecutor’s Office supervising penitentiary
institutions informed the applicant of the decision not to investigate the
circumstances of Viktor Trubnikov’s death in criminal proceedings. The applicant
was informed that his son had had a record of good conduct, that he had been
rewarded on several occasions and that no conflict had been registered between
him and other inmates or the prison administration. He was also informed that,
in the circumstances, the decision not to institute a criminal investigation was
lawful and well-founded.
20. On 16 April 1999
the Voronezh Regional Prosecutor’s Office informed the applicant of the refusal
to institute criminal proceedings and invited him, on 30 April 1999, to view the
case file concerning the death of his son.
21. On 30 April 1999
the applicant arrived at the prosecutor’s office for the appointment to view the
file, but the officer in charge was absent and he could not gain access to the
file.
22. On 26 June 1999
the applicant received a copy of the prison governor’s decision of 13 September
1998.
23. On 18 September
2000 the applicant lodged a request with the Rossoshanskiy District Court of the
Voronezh Region that it order a criminal investigation into his son’s death. The
court declined jurisdiction in the matter, however, on 2 October 2000. It stated
that the institution of criminal proceedings fell within the competence of the
prosecutor’s office.
24. After the case
had been communicated to the respondent Government by the Court, the Voronezh
Regional Prosecutor’s Office annulled the decision of 13 September 1998 on 5
February 2002 and instituted a criminal investigation into Viktor Trubnikov’s
death.
25. On 23 March 2001
the applicant brought proceedings before the same district court to have the
refusal of the prison governor to institute criminal proceedings declared
unlawful.
26. On 20 March 2002
the Rossoshanskiy District Court of the Voronezh Region held that the decision
of 13 September 1998 was unlawful. At the same time it discontinued the
examination of the applicant’s claim as no longer necessary, given the
prosecutor’s decision of 5 February 2002 which had already dealt with the issue.
27. In June 2002 two
forensic examinations were carried out. First, experts were appointed to conduct
a new autopsy of the body. Secondly, another group of experts carried out a
posthumous examination of Viktor Trubnikov’s psychiatric and psychological
condition.
28. The autopsy
resulted in substantially the same findings as the first post mortem
report, namely, that the death had been caused by mechanical asphyxia (more
specifically, strangling), and established a medium-degree alcoholic
intoxication at the time of death.
29. On 27 June 2002
the posthumous psychiatric report was submitted. The experts concluded that at
the time of his death Viktor Trubnikov had not been predisposed to suicide on
account of any long or short-term psychiatric disorder. However, they concluded
that he had been under the influence of alcohol and that it could have triggered
his decision to commit suicide.
30. During the
investigation the following witnesses were examined and gave the following
testimonies:
(i) Six officers who
were on duty at the prison entrance when Viktor Trubnikov returned to the prison
after the football match, testified that he had been drunk and had behaved
aggressively. He therefore had to be isolated in the punishment cell. They all
stated that no force had been applied to him.
(ii) Two inmates who
had been on the same football team testified that Viktor Trubnikov had been
under the influence of alcohol on their return from the match, and that was why
he had been stopped by the prison warders at the prison entrance. They stated
that there had been no threats or violence at the prison entrance.
(iii) Three other
inmates who had known Viktor Trubnikov well testified that he had had good
relations with other inmates and warders and that there had been no conflict
between him and the prison administration.
(iv) Six officers
who had been on duty in the punishment ward when Viktor Trubnikov died,
testified that he had been placed in the cell at about 7.30 p.m. and had been
found dead during the warder’s round at 8.15 p.m. They stated that first aid had
been administered, but that it had been too late.
(v) Inmates L. and
M. testified that they had been confined to punishment cells next to Viktor
Trubnikov. M. stated that at first they had communicated through the wall, but
then Viktor Trubnikov had gone quiet. Neither of them had heard any noises or
screams.
(vii) Two officers
testified that they had witnessed Viktor Trubnikov’s previous suicide attempt in
1995 and administered first aid to him. They considered that that attempt had
not been a genuine suicide, but that he had rather been trying to attract
attention and demonstrate his independence.
(viii) Ms. K, the
psychiatrist who had supervised Viktor Trubnikov, testified that his first
suicide attempt had been demonstrative and had not reflected a genuine wish to
die. She also considered, on the basis of her observations, that he had been
likely to make another attempt, also demonstrative and not aimed at causing
death, and that the probability of such behaviour increased under the influence
of alcohol.
31. On 10 October
2002 the Voronezh City Special Prosecutor’s Office supervising penitentiary
institutions terminated the criminal investigation, having established that
Viktor Trubnikov had committed suicide.
32. On 3 March 2003
the applicant received a copy of the termination order of 10 October 2002.
B. Medical records
33. The Government
submitted a collection of medical records concerning Viktor Trubnikov’s
condition throughout his detention. In so far as the copies are legible, they
contain the following relevant entries.
34. On 13 July 1993,
upon his arrest, Viktor Trubnikov was examined by a psychiatrist and found to be
in good health.
35. On 10 September
1994 an alcohol test revealed that Viktor Trubnikov was under the influence of
alcohol. He was placed in a punishment cell.
36. On 21 March 1995
an alcohol test revealed that Viktor Trubnikov was under the influence of
alcohol. He was placed in a punishment cell where he inflicted injuries on
himself, recorded as follows:
“As a protest against
being put in a punishment cell [Viktor Trubnikov] inflicted three horizontal
cuts on his abdomen: measuring 10x2 cm, 8x2 cm and 6x1 cm, each about 1.5 cm
deep. Minor bleeding ...”
37. From 21 to 27
March 1995 Viktor Trubnikov was kept in the medical block for treatment of the
self-inflicted wounds.
38. On 22 June 1995
an alcohol test revealed that Viktor Trubnikov was under the influence of
alcohol. He was placed in a punishment cell where he attempted to hang himself,
as recorded:
“Emergency call for an
attempted suicide. Trubnikov detained in the punishment cell No. 22 attempted to
hang himself by a string attached to a water pipe ... Consultation with a
psychiatrist is required.”
39. Following that
incident, Viktor Trubnikov was supervised by a psychiatrist, Ms K., who made the
following entries in the records.
On 23 June 1995:
“Complains about
depression, unwillingness to live, weakness, insomnia, irritability.
Psychologically [stable]. Enters into contact. Orientation in space and time, as
regards own personality is correct. Depressed overall. Thinking is consistent.
Memory and reason are intact. No acute psychiatric symptoms can be observed at
the time of examination. Diagnosis: short-term depressive reaction; suicide
attempt. (i) [prescription medicines]; (ii) psychotherapy.”
On 24(29) June 1995:
“Conscious. Enters
into contact. Depressed. Thinking is consistent. Demonstrative behaviour.
Explains the suicide attempt by saying that he is ‘fed up with a life like
that’. The attitude to the suicide attempt is not self-critical. Memory and
reason are intact. No pathological psychiatric condition. Diagnosis: short-term
depressive reaction. Suicide attempt. Fixation behaviour. Continue treatment.”
On 30 June 1995:
“Has no medical
complaints. His mood is steady and positive. Goes in for sport. Thinking is
consistent. Memory and reason are intact. No acute psychiatric symptoms can be
observed. Self-critical attitude to the recent suicide attempt. No acute
psychiatric symptoms are observed. Prescribed rational psychotherapy. The next
visit is scheduled for 25 December 1995.”
On 25 December 1995:
“Has no medical
complaints. Mood is steady. Demonstrative behaviour. Thinking is consistent.
Memory and reason are intact. No acute psychiatric symptoms are observed.
Diagnosis: fixation behaviour. Prescribed rational psychotherapy. The next visit
is scheduled for 25 June 1996.”
On 25 June 1996:
“Complains about
depression, weakness, irritability, insomnia, inability to work. Thinking is
consistent. Memory and reason are intact. No acute psychiatric symptoms are
observed. Diagnosis: hyposthenic form of neurasthenia.”
On 25 December 1996:
“Has no medical
complaints. His mood is steady. Thinking is consistent. Self-critical attitude
to the suicide attempt in the past. Memory and reason are intact. Demonstrative
behaviour. Diagnosis: hyposthenic form of neurasthenia. The next visit is
scheduled for 25 June 1997.”
On 25 June 1997:
“Mood is changeable.
Thinking is consistent. Self-critical attitude to the suicide attempt in the
past. No acute psychiatric symptoms are observed. Diagnosis: hyposthenic form of
neurasthenia. The next visit is scheduled for 25 December 1997.”
On 25 December 1997:
“Complains about
depression, weakness, insomnia, irritability. No acute psychiatric symptoms are
observed. Depressed. The next visit is scheduled for 25 June 1997.”
The next entry is
dated 25 June 1997, although it immediately follows the above record of 25
December 1997:
“Condition has
improved. Mood has stabilised. Thinking is consistent. Memory and reason are
intact. No acute psychiatric symptoms are observed. Diagnosis: the same. The
next visit is scheduled for 25 December 1998.”
The next entry is
dated 17 February 1997, although it immediately follows the above record dated
25 June 1997:
“Has no medical
complaints. Mood is steady, depressed. No acute psychiatric symptoms are
observed. Diagnosis: depressive reaction. Attempted suicide in the past. No
complaints at the time of examination. [Fixation]. The next visit is scheduled
for 17 August 1998. Rat[ional] psychotherapy.”
40. On 8 August 1998
a psychological test revealed, inter alia, a potential psychiatric
condition, a tendency towards impulsive reactions and, possibly, a tendency
towards conflict with others.
41. The last record
in Viktor Trubnikov’s lifetime was made on 17 August 1998:
“Complains about
depression, weakness, insomnia, irritability. Enters into contact. Orientation
is correct. Depressed. Thinking is consistent. No acute psychiatric symptoms are
observed. No suicidal thoughts. Diagnosis: short-term depressive syndrome. The
next visit is scheduled for [unclear].”
42. On 20 February
2002 the deputy prison warder in charge of the prison medical office issued a
certificate that Viktor Trubnikov had been under permanent psychiatric
supervision, having been diagnosed as suffering from neurasthenia and a
psychopathic condition with depressive reactions.
II. RELEVANT DOMESTIC
LAW
A. Supervision of
inmates with suicidal tendencies
43. Article 20 of
the Constitution of the Russian Federation protects the right to life.
44. The Health Care
(General Principles) Act of 22 July 1993 provides that persons serving a
sentence in prisons are entitled to medical assistance at the State’s expense
and, as the case may be, at institutions run by the general public health
service (Section 29).
45. The Law on
Penitentiary Institutions of 21 July 1993 provides that penitentiary
institutions are responsible for inmates’ security and health care (section 13).
46. Article 18 of
the 1997 Penitentiary Code, as it read at the material time, provided that
inmates suffering from a psychiatric disorder which did not affect their
capacity to serve a criminal sentence could be subjected to medical treatment at
the penitentiary institutions. The authorisation of a competent court was
required for any such treatment.
After recent
amendments, the same provision specifies that such inmates include persons who
pose a danger to others or themselves. The provisions currently in force require
the penitentiary authorities to identify such inmates and to apply for a court
order imposing medical treatment on them.
B. Inquest
proceedings
47 The 1960 Code of
Criminal Procedure, which was in force at the material time, required that a
competent authority institute criminal proceedings if there was a suspicion that
a crime had been committed. That authority was under an obligation to carry out
all measures provided for by law to establish the facts and to identify those
responsible and secure their conviction. The decision whether or not to
institute criminal proceedings had to be taken within three days of the first
report on the relevant facts (Articles 3, 108-09).
48. No criminal
proceedings could be brought in the absence of a corpus delicti (Article
5). Where an investigating body refused to open or terminated a criminal
investigation, a reasoned decision was to be provided. Such decisions could be
appealed to a higher-ranking prosecutor or to a court (Articles 113 and 209).
49. During criminal
proceedings, persons who had been granted victim status could submit evidence
and file applications, had full access to the case file once the investigation
was complete, and could challenge appointments and appeal decisions or judgments
in the case. At an inquest, the close relatives of the deceased were to be
granted victim status (Article 53).
THE LAW
I. THE COURT’S
ASSESSMENT OF THE EVIDENCE AND ESTABLISHMENT OF THE FACTS
A. Assessment of
the medical records
50. The Court is
required to determine whether the facts of the instant case disclose a failure
by the respondent State to protect the applicant’s right to life and to comply
with the procedural obligation imposed by Article 2 of the Convention to carry
out an adequate and effective investigation into the incident. In order to
obtain an account of Viktor Trubnikov’s condition prior to his death and examine
the adequacy of his medical supervision, the Court requested the Government to
submit his medical file.
51. The Government
submitted a photocopy of what they claimed to be the psychiatric records made
while Viktor Trubnikov was alive. They did not specify whether it was a copy of
the file itself or an extract from it. Due to the poor quality of the copy, the
distorted chronology of records, in particular those relating to the period
1997-1998, and the absence of page numbers, it is impossible to follow the
sequence of the records or establish if it is an extract, who issued it and
when.
52. The Court
therefore requested the Government to submit the original medical file. The
Government refused on the grounds that it was unsafe to remove it from the
prison archives where it was kept. The Court reiterated its request, giving
assurances that the original would be returned to the Russian authorities at the
end of the proceedings. However, the Government still refused to comply with the
Court’s request.
53. In view of the
above, the Court decided to examine the merits of the case on the basis of the
existing elements in the file, even though the fragmentary medical records leave
certain facts unclear.
B. The Court’s
considerations under Article 38 § 1 (a)
54. Article 38 § 1
(a) of the Convention provides:
“If the Court declares
the application admissible, it shall
(a) pursue the
examination of the case, together with the representatives of the parties, and
if need be, undertake an investigation, for the effective conduct of which the
States concerned shall furnish all necessary facilities...”
55. The Court
reiterates that it is of utmost importance for the effective operation of the
system of individual petition instituted by Article 34 that States should
furnish all necessary facilities to make possible a proper and effective
examination of applications (see, as the most recent authority, Orhan v.
Turkey, no. 25656/94, § 266, 18 June 2002, and Tanrıkulu v. Turkey
[GC], no. 23763/94, § 70, ECHR 1999-IV). It is inherent in proceedings relating
to cases of this nature, where an individual applicant accuses State agents of
violating rights under the Convention, that in certain instances solely the
respondent Government have access to information capable of corroborating or
refuting these allegations. A failure on a Government’s part to submit such
information which is in their hands without a satisfactory explanation may not
only give rise to the drawing of inferences as to the well-foundedness of the
applicant’s allegations, but may also reflect negatively on the level of
compliance by a respondent State with its obligations under Article 38 § 1 (a)
of the Convention (see Timurtaş v. Turkey, no. 23531/94, §§ 66 and 70,
ECHR 2000-VI). The same applies to delays by the State in submitting information
which prejudices the establishment of the facts in a case (see Orhan,
cited above, § 266).
56. In the light of
the above principles and having regard to the Government’s obligations under
Article 38 § 1 (a) of the Convention, the Court has examined the Government’s
conduct in the present case with particular regard to their failure to provide
the original medical file concerning the psychiatric supervision of Viktor
Trubnikov prior to his death.
57. The Court
concludes that the Government have failed to provide any convincing explanation
for their refusal to do so. The Court therefore considers that it can draw
inferences from the Government’s conduct in the instant case (cf. Orhan,
cited above, § 274). Bearing in mind the difficulties arising from the
establishment of the facts in the present case, and in view of the importance of
a respondent Government’s cooperation in Convention proceedings, the Court finds
that the Government have failed to furnish all necessary facilities to the Court
in its task of establishing the facts for the purposes of Article 38 § 1 (a) of
the Convention.
II. ALLEGED VIOLATION
OF ARTICLE 2 OF THE CONVENTION
58. The first
sentence of Article 2 of the Convention provides:
“1. Everyone’s right
to life shall be protected by law. ...”
59. The applicant
complained that the authorities had failed to protect the life of his son and
were responsible for his death. He also complained that the investigation into
his son’s death had not been adequate or effective, as required by the
procedural obligation imposed by Article 2 of the Convention.
A. Concerning the
positive obligation to protect life
1. Submissions of
the parties
(a) The applicant
60. The applicant
submitted that there had been a breach of the positive obligation imposed on the
authorities to protect the life of his son. First, he maintained that the
authorities had known of Viktor Trubnikov’s suicidal tendencies, since his
attempted suicide in 1995 and his subsequent monitoring by the prison
psychiatrist.
61. The applicant
further claimed that, even if the authorities denied having had such knowledge,
on the basis of the information at their disposal they ought at least to have
known of the existence of a real and imminent risk that he might attempt to
commit suicide.
62. The applicant
also observed that the investigator’s conclusions as to Viktor Trubnikov’s
condition were both unclear and unfounded. He referred to the medical file,
claiming that it could not be concluded with certainty from it whether Viktor
Trubnikov was mentally stable. He also challenged the conclusion of the
posthumous psychological/psychiatric examination as being inconsistent with the
assessment given by the prison psychiatrist throughout the routine supervision.
He saw a contradiction in that the latter showed that Viktor Trubnikov was
emotional, demonstrative and irresponsible, but stable at the same time, while
the posthumous report unambiguously stated that he had not been suffering from
any psychiatric disorder and had generally been well. The applicant contended
that, since no clear conclusion could be reached about the condition of Viktor
Trubnikov on the basis of his medical file, the conclusion should have been
reached that his behaviour had varied over time. In such circumstances, even if
the real and immediate risk was not always present, it was incumbent on the
authorities to monitor his condition carefully in case of any sudden
deterioration. In any event, the applicant had difficulties accepting the
allegation that Viktor Trubnikov’s condition had been normal and stable, since
the authorities had not offered any other explanation for his suicide, thus
reinforcing doubts as to whether it had indeed been a suicide. The applicant
himself could not rule out the possibility that his son had in fact been
murdered by a cell mate or a prison guard.
63. Overall, the
applicant considered that the authorities had failed to take measures to prevent
Viktor Trubnikov’s death resulting from either self-harm or another person’s
act, and that such failure engaged their responsibility under Article 2 of the
Convention.
(b) The Government
64. The Government
alleged that the prison authorities could not have foreseen Viktor Trubnikov’s
suicide.
65. They admitted
that Viktor Trubnikov had been diagnosed as suffering from neurasthenia, and had
had a psychopathic personality with depressive reactions, as well as a history
of injuring himself when placed in a punishment cell. The Government still
considered, however, that placing him in a punishment cell had been reasonably
safe because he had never had a genuine intention of killing himself, and his
previous suicide attempt had merely been “demonstrative”. The investigation
conducted in 2002 had concluded that Viktor Trubnikov was likely to attempt
suicide again, but that this would be no more than another “demonstrative” act,
not aimed at causing his death. It was found that Viktor Trubnikov’s suicidal
behaviour had been only an effort to manipulate the prison authorities in order
to avoid being placed in a punishment cell. They referred to the posthumous
psychiatric report of 2002, according to which the probability of such behaviour
increased under the influence of alcohol.
66. The Government
claimed that the officer on duty had acted lawfully and adequately in the
circumstances, as he had had no way of knowing of any real or immediate threat
to Viktor Trubnikov’s life when placing him provisionally in the punishment
cell. They submitted that no medical personnel had been present in the prison at
the time, as the applicable regulations did not provide for their presence over
the weekend. As a general suicide-prevention measure, however, Viktor
Trubnikov’s shoe laces and trouser belt had been taken away from him before he
was placed in the punishment cell. The punishment cell had also been under
surveillance; however, in view of the short time Viktor Trubnikov had spent in
the punishment cell (about an hour), it had not been effective.
2. The Court’s
assessment
(a) General
principles
67. The Court
reiterates that Article 2, which safeguards the right to life, ranks as one of
the most fundamental provisions in the Convention. Together with Article 3, it
also enshrines one of the basic values of the democratic societies making up the
Council of Europe. The object and purpose of the Convention as an instrument for
the protection of individual human beings requires that Article 2 be interpreted
and applied so as to make its safeguards practical and effective (see McCann
and Others v. the United Kingdom, judgment of 27 September 1995, Series A
no. 324, pp. 45-46, §§ 146-47).
68. The first
sentence of Article 2 § 1 enjoins the State not only to refrain from the
intentional and unlawful taking of life, but also 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). In the context of prisoners, the Court has had previous occasion to
emphasise that persons in custody are in a vulnerable position and that the
authorities are under a duty to protect them. It is incumbent on the State to
account for any injuries suffered in custody, which obligation is particularly
stringent when an individual dies (see, for example, Salman v. Turkey
[GC], no. 21986/93, ECHR 2000-VII, § 99).
69. Bearing in mind
the difficulties in policing modern societies, the unpredictability of human
conduct and the operational choices which must be made in terms of priorities
and resources, the scope of the positive obligation must be interpreted in a way
which does not impose an impossible or disproportionate burden on the
authorities. Accordingly, not every claimed risk to life can entail for the
authorities a Convention requirement to take operational measures to prevent
that risk from materialising. For a positive obligation to arise regarding a
prisoner with suicidal tendencies, it must be established that the authorities
knew, or ought to have known at the time, of the existence of a real and
immediate risk to the life of an identified individual and, if so, that they
failed to take measures within the scope of their powers which, judged
reasonably, might have been expected to avoid that risk (see Keenan v. the
United Kingdom, no. 27229/95, §§ 89 and 92, ECHR 2001-III).
70. The Court has
recognised that the prison authorities must discharge their duties in a manner
compatible with the rights and freedoms of the individual prisoner concerned.
There are general measures and precautions which ought to be available to
diminish the opportunities for self-harm, without infringing personal autonomy.
Whether any more stringent measures are necessary in respect of a prisoner and
whether it is reasonable to apply them will depend on the circumstances of the
case (see Keenan, cited above, § 91).
(b) Application in
the present case
71. In the light of
the above, the Court has examined whether the authorities knew or ought to have
known that Viktor Trubnikov posed a real and immediate risk of suicide and, if
so, whether they did all that could reasonably have been expected of them to
prevent that risk.
72. The Court notes
that Viktor Trubnikov served his sentence under the general regime, whilst being
recognised as a person with certain psychological problems. During the first
years of his sentence he showed a tendency to inflict self-harm in response to
being subjected to disciplinary punishments when under the influence of alcohol,
and in 1995, more than three years before the events in question, he attempted
to commit suicide. This attempt was assessed as a “cry for help” rather than a
true attempt to terminate his life. Following this incident he received
psychiatric treatment and surveillance, his mental condition being reviewed at
regular six-monthly intervals.
73. The Court
observes that Viktor Trubnikov’s condition was not so serious as to require the
intervention of a court order imposing compulsory psychiatric treatment. His
prison medical records indicated that he displayed no acute psychiatric
symptoms, even after his suicide attempt in 1995. Rather they showed a disturbed
personality and behavioural setbacks, which apparently did not reach the
threshold of a mental illness (see, by contrast, Keenan, cited above,
§§ 94-95).
74. Accordingly, it
has not been established that Viktor Trubnikov’s conduct was associated with any
dangerous psychiatric condition. Moreover, no opinion had ever been expressed –
by Viktor Trubnikov’s psychiatrist or other officials involved in his
supervision – that Viktor Trubnikov was likely to make a serious attempt to
commit suicide or inflict self-harm in the future. Accordingly, there was no
formal acknowledgement which would lead the Court to conclude that the
authorities were aware of the imminent threat to Viktor Trubnikov’s life.
75. As to whether
the authorities ought to have known of the risk, the Court observes that for the
last three years of Viktor Trubnikov’s life, when he was under psychiatric
supervision, he did not reveal any dangerous symptoms, such as the persistence
of his suicidal tendency. On the contrary, the records reflected a certain
improvement in his attitude towards his previous suicide attempt. Viktor
Trubnikov’s mental and emotional state, in general, apparently stabilised after
the initial intensive treatment he received in 1995, and remained unchanged for
more than three years. During that period no substantial variations were
registered, and Viktor Trubnikov’s state was consistently described as stable.
Against such a background, the Court accepts that it would have been difficult
to predict any quick and drastic deterioration that would lead to Viktor
Trubnikov’s suicide.
76. For these
reasons the Court does not find that, in the circumstances, the authorities
could have reasonably foreseen Viktor Trubnikov’s decision to hang himself. Nor
does the Court find any manifest omission on the part of the domestic
authorities in providing medical assistance or in monitoring Viktor Trubnikov’s
mental and emotional condition throughout his imprisonment which would have
prevented them from making a correct assessment of the situation.
77. However, the
Court considers that Viktor Trubnikov’s history should have alerted the
authorities to the fact that the combination of his inebriation with a
disciplinary punishment was not without some risk to his condition. The fact
that Viktor Trubnikov was able to have any access to alcohol on the fatal day is
of concern to the Court. Nevertheless, the Court does not find this oversight
sufficient to vest the domestic authorities with the entire responsibility for
Viktor Trubnikov’s death.
78. Having regard to
the above, the Court does not find that in the circumstances of the present case
the Russian authorities failed to prevent a real and immediate risk of suicide
or that they otherwise acted in a way incompatible with their positive
obligations to guarantee the right to life.
79. Accordingly
there has been no violation of Article 2 of the Convention in this respect.
B. The procedural
obligation to carry out an effective investigation
1. Submissions of
the parties
(a) The applicant
80. The applicant
submitted that the investigation conducted following the death of his son in
prison was not effective as required by the Court’s case-law under Article 2 of
the Convention.
81. First, he
alleged that it was not carried out promptly. He observed that Viktor Trubnikov
had died on 13 September 1998, but the criminal investigation was only opened on
5 February 2002, after the present case had been communicated to the Government.
He claimed that the delay of over three years did not satisfy the criteria of
promptness or reasonable expedition of the investigation.
82. Secondly, he
challenged the evidence collected after the investigation had been opened. He
claimed that all witnesses but one had been biased, either through personal
involvement in the case (prison staff and medical personnel), or by being
dependent on the prison administration (the inmates still serving their
sentence). He also challenged the psychiatric records and the posthumous
forensic examination of Viktor Trubnikov’s psychological and psychiatric
condition as being controversial and generally open to objection. Moreover, he
complained that some evidence could no longer be obtained due to the length of
time which had elapsed since the incident.
83. Finally, the
applicant claimed that the investigation had not been public. He alleged that
the initial inquest lacked transparency in that the family had not even been
informed of the order not to open criminal proceedings. In 2002, likewise,
neither he nor other family members had been involved in the investigation or
even informed of its progress or closure.
(b) The Government
84. The Government
considered that the investigation into Viktor Trubnikov’s death had been
thorough and complete. They first referred to the prison’s internal inquest
conducted immediately upon his death and, secondly, to the 2002 criminal
investigation. They maintained that the overall investigation into the death of
Viktor Trubnikov had been effective.
2. The Court’s
assessment
(a) General
principles
85. The Court
reiterates that where lives have been lost in circumstances potentially engaging
the responsibility of the State, Article 2 entails a duty for the State to
ensure, by all means at its disposal, an adequate response – judicial or
otherwise – so that the legislative and administrative framework set up to
protect the right to life is properly implemented and any breaches of that right
are repressed and punished (see Öneryıldız v. Turkey [GC], no. 48939/99,
§ 91, ECHR 2004-..., and, mutatis mutandis, Paul and Audrey Edwards v.
the United Kingdom, no. 46477/99, § 54, ECHR 2002-II).
86. In that
connection the Court has held that, if the infringement of the right to life or
to physical integrity is not caused intentionally, the positive obligation to
set up an “effective judicial system” does not necessarily require criminal
proceedings to be brought in every case and may be satisfied if civil,
administrative or even disciplinary remedies were available to the victims (see,
for example, Vo v. France [GC], no. 53924/00, § 90, ECHR 2004-VII;
Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 51, ECHR 2002-I;
Mastromatteo v. Italy [GC], no. 37703/97, §§ 90, 94 and 95, ECHR
2002-VIII). However, the minimum requirement for such a system is that the
persons responsible for the investigation must be independent from those
implicated in the events. This means hierarchical or institutional independence
and also practical independence (see Paul and Audrey Edwards,
cited above, § 70, and Mastromatteo, cited above, § 91).
87. The Court
further reiterates that, in cases of homicide, the interpretation of Article 2
as entailing an obligation to conduct an official investigation is justified not
only because any allegations of such an offence normally give rise to criminal
liability, but also because often, in practice, the true circumstances of the
death are, or may be, largely confined within the knowledge of State officials
or authorities. Therefore the applicable principles are rather to be found in
those which the Court has already had occasion to develop in relation notably to
the use of lethal force, principles which lend themselves to application in
other categories of cases (see Öneryıldız, cited above, § 93).
88. Accordingly,
where a positive obligation to safeguard the life of persons in custody is at
stake, the system required by Article 2 must provide for an independent and
impartial official investigation that satisfies certain minimum standards as to
effectiveness. Thereby, the competent authorities must act with exemplary
diligence and promptness and must of their own motion initiate investigations
which would be capable of, firstly, ascertaining the circumstances in which the
incident took place and any shortcomings in the operation of the regulatory
system and, secondly, identifying the State officials or authorities involved.
The requirement of public scrutiny is also relevant in this context (see, for
example, Güleç v. Turkey, judgment of 27 July 1998, Reports
1998-IV, p. 1733, §§ 81-82; Oğur v. Turkey [GC], no. 21954/93, §§ 88,
91-92, ECHR 1999-III; Hugh Jordan v. the United Kingdom, no. 24746/94, §
120; Kelly and Others v. the United Kingdom, no. 30054/96, § 114, both of
4 May 2001; McCann and Others, cited above, § 161; Mahmut Kaya v.
Turkey, no. 22535/93, §§ 106-07, ECHR 2000-III; İlhan v. Turkey [GC],
no. 22277/93, § 63, ECHR 2000-VII; McKerr v. the United Kingdom, no.
28883/95 , § 148, ECHR 2001-III).
(b) Application in
the present case
89. The Court finds
that a procedural obligation arose to investigate the circumstances of Viktor
Trubnikov’s death. He was a prisoner under the care and responsibility of the
authorities when he died as a result of what appeared to be a suicide. The
investigation was necessary to establish, firstly, the cause of death to the
exclusion of an accident or manslaughter and, secondly, once suicide was
established, to examine whether the authorities were in any way responsible for
a failure to prevent it. The investigation had to fulfil the requirements set
out above (see paragraph 88).
90. The Court
observes that the initial inquest into the death was carried out promptly,
within several days of the incident. However, it did not satisfy the minimum
requirement of independence since the investigating body – the prison governor –
represented the authority involved. Predictably, the scope of this examination
was limited to establishing the fact of death from hanging; the question of the
possible responsibility of the prison authorities did not feature. Moreover,
this inquest did little to satisfy the need for public scrutiny. It is
undisputed that the family was not even informed about the formal refusal to
institute criminal proceedings. Finally, the domestic court considered this
investigation insufficient, and it declared the refusal to open criminal
proceedings unlawful. With regard to all the above considerations, the Court
cannot accept that the initial inquest constituted an effective investigation
within the meaning of the Court’s case-law.
91. The Court will
now examine the investigation carried out in 2002 with regard to the same
requirements.
92. First of all,
the Court notes that it was only conducted after the present application was
communicated by the Court to the respondent Government, that is, more than three
years after the incident. The Court reiterates that it is crucial in cases of
deaths in contentious situations for the investigation to be prompt. The passage
of time will inevitably erode the amount and quality of the evidence available
and the appearance of a lack of diligence will cast doubt on the good faith of
the investigative efforts, as well as drag out the ordeal for the members of the
family (see Paul and Audrey Edwards, cited above, § 86). Such a
substantial delay, unexplained in this case, not only demonstrates the
authorities’ failure to act of their own motion but also constitutes a breach of
the obligation to exercise exemplary diligence and promptness.
93. The Court notes,
furthermore, that throughout the investigation the applicant and the rest of the
family were entirely excluded from the proceedings. Contrary to the usual
practice under national law, they were not granted the official status of
victims in criminal proceedings, a procedural role which would have entitled
them to intervene during the course of the investigation. Even assuming that the
family’s participation could have been secured otherwise, this was not the case
here. The terms of their access to the file were not defined. They were never
informed or consulted about any proposed evidence or witnesses, including the
appointment of posthumous psychological and psychiatric experts, so they could
not take part in instructing the experts. The applicant did not receive any
information about the progress of the investigation and, when it was
discontinued on 10 October 2002, he was only notified five months later.
Accordingly, the investigation did not ensure sufficient public accountability
to provide the investigation and its results with a sufficient element of public
scrutiny; nor did it safeguard the interests of the next-of-kin.
94. The Court notes
that the authorities took a number of important steps to establish the true
circumstances of Viktor Trubnikov’s death, such as examining key witnesses and
appointing experts to prepare a posthumous psychological and psychiatric
examination. However, having established that the investigation fell short of
such essential requirements as promptness, exemplary diligence, initiative on
the part of the authorities and public scrutiny, the Court does not find it
necessary to examine its scope, and concludes that the investigation failed to
meet the minimum standards of effectiveness.
95. The Court
concludes that there has been a violation of the respondent State’s obligation
under Article 2 § 1 of the Convention to conduct an effective investigation into
the death of Viktor Trubnikov.
III. APPLICATION OF
ARTICLE 41 OF THE CONVENTION
96. Article 41 of
the Convention provides:
“If the Court finds
that there has been a violation of the Convention or the Protocols thereto, and
if the internal law of the High Contracting Party concerned allows only partial
reparation to be made, the Court shall, if necessary, afford just satisfaction
to the injured party.”
A. Damage
97. The applicant
claimed 8,000 euros (EUR) for non-pecuniary damage in respect of the grief and
distress he suffered as a result of his son’s death and the anguish caused by
the authorities’ failure to carry out an effective investigation.
98. The Government
considered this amount excessive and unfounded. They maintained that, if the
Court found in the applicant’s favour, the finding of a violation would
constitute sufficient just satisfaction in this case.
99. The Court
observes that it has found above that the authorities failed to protect the life
of Viktor Trubnikov or to provide a prompt and public investigation meeting the
requirements of Article 2 of the Convention. The applicant must have suffered
anguish and distress from the circumstances of his son’s death and his inability
to obtain an effective investigation in this respect. In these circumstances,
the Court finds the applicant’s claim reasonable and therefore awards him, in
his personal capacity, EUR 8,000 for non-pecuniary damage.
B. Costs and
expenses
100. The applicant
claimed EUR 3,000, less the amount already paid in legal aid, for costs and
expenses incurred in the domestic proceedings and before the Court in respect of
himself and his legal advisers. He submitted that he had paid 30,000 roubles
(about EUR 1,000) for the representation of his case before the domestic courts,
but that the rest of the work for him had been done pro bono and he
wished to remunerate the lawyers for the advice and representation in the
domestic proceedings and before the Court.
101. The Government
contested this sum as unsubstantiated. They considered that the claim should be
rejected in full.
102. The Court notes
that the applicant was granted legal aid under the Court’s legal-aid scheme,
under which the sum of EUR 685 was paid to the applicant’s lawyer to cover the
submission of the applicant’s observations on the admissibility and merits of
the application. The submission of additional observations was not covered by
this sum.
103. The Court
observes that only legal costs and expenses necessarily and actually incurred
and which are reasonable as to quantum can be reimbursed pursuant to Article 41
of the Convention. It notes that this case involved complex issues of fact and
law which required qualified legal advice to submit the application to the
Court, conduct domestic proceedings and which gave rise to two sets of written
observations.
104. Against the
above background, the Court finds the applicant’s claim reasonable and therefore
awards him EUR 3,000 for legal costs and expenses, less the EUR 685 received by
way of legal aid from the Council of Europe, together with any value-added tax
that may be chargeable.
C. Default interest
105. The Court
considers it appropriate that the default interest should be based on the
marginal lending rate of the European Central Bank, to which should be added
three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that
there has been no violation of Article 2 of the Convention as regards the
authorities’ positive obligations to protect the right to life;
2. Holds that
there has been a violation of Article 2 of the Convention as regards the
authorities’ failure to provide an effective investigation;
3. Holds that
the Government have failed to fulfil their obligation under Article 38 § 1 (a)
of the Convention;
4. Holds:
(a) that the
respondent State is to pay the applicant, within three months from the date on
which the judgment becomes final according to Article 44 § 2 of the Convention,
the following amounts to be converted into the national currency of the
respondent State at the rate applicable at the date of settlement:
(i) EUR 8,000 (eight
thousand euros) in respect of non-pecuniary damage;
(ii) EUR 2,315 (two
thousand three hundred and fifteen euros) in respect of costs and expenses;
(iii) any tax that may
be chargeable on the above amounts;
(b) that from the
expiry of the above-mentioned three months until settlement simple interest
shall be payable on the above amounts at a rate equal to the marginal lending
rate of the European Central Bank during the default period plus three
percentage points;
Done in English, and
notified in writing on 5 July 2005, pursuant to Rule 77 §§ 2 and 3 of the Rules
of Court.
S. Dollé J.-P. Costa
Registrar President
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