SEDBARIENE v. LITHUANIA
Inadmissible
András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
The applicant, Ms Marė Šedbarienė, is a Lithuanian national who was born in 1943 and lives in Tauragė. On 10 April 2005 the applicant's son, M.Š., who was 20 years old at the time, was found dead in the grounds of a kindergarten. His body showed traces of violence. The same day, the authorities opened a pre-trial investigation on suspicion that a murder had been committed (Article 129 § 1 of the Criminal Code). On 11 April 2005 the authorities issued the death certificate, which stated that the cause of death had been the loss of body temperature. On 12 April 2005 the investigator requested the Mykolas Romeris University Forensic Medicine Institute (hereinafter the “MRU FMI”) to establish M.Š.'s cause of death. On 19 May 2005 the MRU FMI's expert, D. Vitkus, in a report (no. M327/05 (03), “the first expert report”), found that M.Š.'s blood alcohol level content (BAC) and urine alcohol level content had been 2.8 and 4.9 respectively, which showed that, before his death, M.Š. had been highly intoxicated and could have died from alcohol poisoning. Given that there were no cracks in M.Š.'s skull and his inner organs had not been damaged, there was no ground to conclude that his death was the result of violence. The expert report also stated that, after sustaining the injuries, the applicant's son could have lived for a few hours and that the injuries which M.Š. had sustained would have amounted to a light health impairment for a living person. The applicant and her lawyer contacted another expert, A. Garmus, asking if he would conduct a new expert examination. On 17 September 2005 that expert produced his report (no. A-KJ-38-51, “the second expert report”), stating that the cause of M.Š.'s death could have been (galėjo būti) a severe head injury, since M.Š. had sustained no fewer than fourteen blows to the head. The expert ruled out alcohol poisoning or loss of body temperature as possible causes of death. On 31 August 2005 the prosecutors transferred the case to the Tauragė District Court, charging Donatas V. and Darius V. with having lightly impaired the health of the applicant's son, as well as offences of theft and robbery. On 7 February 2006 the Tauragė District Court, on a request of the prosecutor and the applicant's counsel, commissioned the MRU FMI to conduct a new expert examination. On 28 March 2006 the MRU FMI's experts, J. Rybalko and R. Sitienė, concluded their examination and presented their results in a report (no. EKM 42/06(01), “the third expert report”), stating that M.Š. had died from alcohol poisoning and that there was no causal link between his death and the injuries he had sustained. Furthermore, there was no evidence that M.Š. had died from a loss of body temperature. In view of inconsistencies in the expert reports as to the cause of M.Š.'s death, at a hearing held on 18 May 2006 the applicant asked the Tauragė District Court to commission the experts who had already given their reports, as well as an expert on toxicology and a neurosurgeon, to conduct one more expert examination. The court dismissed the applicant's request without giving any reasons. On 22 May 2006 the Tauragė District Court convicted Donatas V. and Darius V. of slightly impairing the health of the applicant's son (Article 138 § 1 of the Criminal Code), theft (Article 178 § 1 of the Criminal Code) and robbery (Article 180 § 1 of the Criminal Code). In so finding, the court noted that, at midnight on 9 April 2005, Donatas V. and Darius V., being intoxicated and with the aim of stealing from the applicant's son, had attacked him, hitting him approximately nine times in the area of his head, face and hands. When M.Š. fell, Donatas V. and Darius V. took his jacket, wallet and two mobile telephones, and ran away. Donatas V. and Darius V. were sentenced to three years' imprisonment. The court also granted the applicant's claim for pecuniary damages in the amount of 360 Lithuanian litai (LTL, approximately 105 euros (EUR)). The applicant appealed, claiming that the lower court had wrongly convicted Donatas V. and Darius V. of robbery, when they should have been convicted of manslaughter. The applicant argued, inter alia, that the trial court had restricted her right to submit evidence and make requests. Given that there were different hypotheses as to the reasons for her son's death, she requested a supplementary expert report. However, the trial court dismissed her motion. Moreover, the trial court did not grant her request to have the experts examined at the hearing. Lastly, the applicant submitted that the first-instance court had inaccurately examined the evidence and had therefore reached wrong legal conclusions. In the meantime, the applicant's counsel approached A. Garmus with a request that, for a second time, he determine the cause of M.Š.'s death. A. Garmus consented and, on 5 July 2006, produced a new report (no. A-KI-42-52, “the fourth expert report”). The applicant's counsel presented that report to the appellate court. The report stipulated that M.Š. had died from multiple head injuries. The report ruled out alcohol poisoning as a possible cause of death, finding that the third expert report had been inconclusive and unfounded. On 11 September 2006 the Klaipėda Regional Court examined the case on appeal and upheld the lower court's judgment. The appellate court upheld the trial court's decision not to order a new expert examination and not to summon the expert, J. Rybalko, to the hearing, since, under domestic law, an expert is to be summoned only if the court decides that his testimony is necessary to explain or to supplement a written report. The Klaipėda Regional Court also noted that the applicant's right to take part in the criminal proceedings had not been breached, given that she had had a lawyer who had attended the hearing and had been able to put questions to the accused, the witnesses and those experts who had been present before the trial court. Moreover, upon a request by the applicant, the expert, A. Garmus, had prepared his second expert report. The applicant thus actively participated in the proceedings and the principle of adversarial proceedings had not been breached. On 13 March 2007 the Supreme Court examined the applicant's cassation appeal. Observing that the appellate court had joined the second expert report by A. Garmus to the case and yet had refused to analyse it without giving any grounds for such a refusal, the Supreme Court concluded that the appellate court had breached the applicant's right to put forward evidence and take part in the investigation. The Supreme Court also noted that the applicant and her lawyer had asked the appellate court to summon the experts D. Vitkus, J. Rybalko and A. Garmus for questioning in open court, since they had had different views about the cause of M.Š.'s death. Nonetheless, the appellate court dismissed that request, again without explanation. The Supreme Court concluded that the appellate court had committed an essential breach of criminal procedure, restricting the applicant's rights, and had failed to deal with the case thoroughly and impartially and to adopt a fair decision. The case was remitted to the court of appeal for fresh examination. On 5 July 2007 the Klaipėda Regional Court varied the trial court's judgment. The court noted that the experts had agreed on only one essential point, namely, that the loss of body temperature had not caused M.Š.'s death. However, they had come to different conclusions as regards the actual cause of death. For D. Vitkus, it was alcohol poisoning. For A. Garmus, the likely cause of death was a head injury. In view of diverging conclusions, it was necessary to elucidate which evidence was more reliable. The appellate court observed that, under domestic law, it was free to assess the evidence, relying on its inner belief. Expert or specialist reports had evidentiary value because they had been drafted by a person having specialist knowledge. Whilst conceding that the judges did not have such specialised competence, the appellate court nevertheless noted that the presence of contradictory evidence was not an absolute ground for a new expert examination to be conducted. This time, the Klaipėda Regional Court analysed the evidence which had not been examined at first instance. In particular, the appellate court studied the second expert report by A. Garmus. Experts D. Vitkus, J. Rybalko, A. Garmus and an expert in toxicology, P. Martinek, were summoned and questioned. The appellate court noted that the experts D. Vitkus, J. Rybalko and P. Martinek, when questioned at the hearing, testified that M.Š.'s BAC had been 4.9, which was a lethal dose in medical theory. For the court, A. Garmus, when questioned, was not able to constructively contradict (konstruktyviai paprieštarauti) those expert conclusions and agreed that, had there been no sign of head injuries, the single cause of death could have been certified as alcohol poisoning. Given the above, the appellate court concluded that A. Garmus's previous evaluation, dismissing alcohol poisoning as the cause of death, had to be rejected (visiškai paneigtas) as clearly unfounded and based on an unobjective, unilateral and tendentious evaluation of the evidence. In the opinion of the court, having examined all the material in the case file and having had recourse to all possibilities of obtaining supplementary evidence, no objective and reliable data had been established to contradict the other experts' conclusion that M.Š. had died of alcohol poisoning. At the same time, there was no reliable evidence to confirm, without a doubt, a supposition that M.Š. had died from head injuries. Consequently, when resolving the matter of the accountability of Donatas V. and Darius V., the applicant's argument that the true cause of M.Š.'s death had not been established and that therefore yet another expert report was necessary, was unfounded. The appellate court partly amended the judgment of 22 May 2006, reducing the applicant's award for pecuniary damages to LTL 240 (approximately EUR 70). On 22 January 2008 the Supreme Court upheld the lower court's reasoning and dismissed the applicant's cassation appeal. It observed that the appellate court had granted the request of the applicant's representative for the third expert report, had admitted in evidence the fourth expert report and examined it, had summoned and questioned the experts and had given reasons for the decision not to grant the applicant's request for yet another expert opinion. The Supreme Court concluded that the applicant's allegation that the lower courts had committed a breach of criminal procedure, because they had not collected enough evidence to establish the cause of her son's death, was unfounded. Article 7 of the Code on Criminal Procedure provides that criminal proceedings are adversarial (laikantis rungimosi principo On 16 January 2006 the Constitutional Court