CASE OF BAKANOVA v. LITHUANIA
Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano
5. The applicant was born in 1951 and lives in Klaipėda. 6. The applicant’s husband, V.B., born in 1953, worked as a mechanic in cargo ships. On the morning of 24 October 2007, while on a work voyage to Brazil on the private ship Vega, he was found dead in his cabin. He was lying on his back in bed, with the blanket drawn up to his chest, his right hand bent and pressing his chest. On the same day, the ship’s captain assembled a commission to investigate the death. Having inspected V.B.’s cabin, the captain sent a report about the death to his superiors in Klaipėda, the Limarko shipping company. 7. The following day, 25 October 2007, a Brazilian doctor, P.C.J., gave acute heart attack (ūmus miokardo infarktas) as V.B.’s cause of death. The Brazilian authorities also issued an authorisation to preserve V.B.’s body (žmogaus palaikų konservavimo aktas). The authorisation noted that there were no indications against preserving the body, and therefore V.B.’s remains were set to be embalmed with the help of chemicals (phenol, formalin and others) at 8 a.m. that day. Afterwards, the body of the applicant’s husband’s was put in a zinc coffin and shipped to Lithuania, which it reached on 1 December 2007. On 25 October 2007 the ship’s captain and chief engineer were questioned by the Brazilian police authorities. The police also inspected the cabin where V.B. had been found dead. Considering that no crime had taken place and that V.B. had died of a heart attack, the Brazilian police sent the investigation material to a local court. 8. The death certificate issued by the Brazilian authorities on 5 November 2007 gave heart attack as V.B.’s cause of death. 9. On 25 October 2007 a Lithuanian prosecutor opened a criminal investigation on the basis of Article 176 of the Criminal Code (see paragraph 51 below), after receiving notification of V.B.’s death from Limarko. The prosecutor ordered the Klaipėda Seaport Police to conduct the investigation. 10. On 9 November 2007 Limarko provided the investigators with the following documents: the captain’s service report; an extract from the ship’s logbook of 24 October 2007; a report on the circumstances of V.B.’s death, signed by the captain and two assistant captains; two reports (one by the captain and one by the chief engineer) to the Brazilian authorities; statements by twelve members of the crew; the death certificate issued on 5 November 2007 in Brazil; documents about the work instructions given to V.B.; his qualifications and photographs from his cabin. 11. On 21 November 2007 the applicant requested that the prosecutor and the State Labour Inspectorate (Valstybinė darbo inspekcija, a State body responsible for safety at work, hereinafter – “the SLI”) examine her husband’s body and investigate the cause of his death and his working conditions on the ship. She submitted that conditions on the Vega were dangerous, and could have led to her husband’s death. 12. In the meantime, on 16 November 2007 the applicant was granted victim status in the criminal proceedings. 13. On 29 December 2007 the prosecutor refused to continue the criminal investigation, finding that there had been no signs of a crime or anything to disprove a finding that the victim had died because of a heart illness. In particular, the forensic report from Brazil had shown no sign of poisonous chemicals in V.B.’s body fluids; there had also been no traces of alcohol, and V.B.’s body had been embalmed because there had been no indications against such a procedure. Preservation of the body by chemical means irreparably altered the chemical composition of the blood, and therefore there had been no reason to carry out a further examination of the body. The prosecutor noted that in April 2007 V.B. had passed medical check, which showed that he had been fit to serve at sea. The Vega’s logbook had had no entry about V.B. ever complaining about his health. 14. After a complaint by the applicant, that decision, however, was quashed by the Klaipėda Regional Court on 13 February 2008. The court held that the prosecutor had failed properly to investigate the applicant’s submission that her husband had died because of dangerous conditions on the Vega. The pre-trial investigation resumed. 15. Between January and April 2008, the Klaipėda Seaport Police questioned as witnesses the sailors who had worked on the Vega with V.B. The sailors testified that V.B., who was a refrigerator mechanic, worked in the machinery section of the ship, where the refrigerators were placed. There had been frequent fires in the machinery section of the ship during the voyage by the Vega. When fires broke out, there was a strong smell of fumes. When there was a fire in the machinery section, the air conditioning in the ship’s cabins did not work, and the temperature would rise as high as 50˚C. In the run up to 24 October 2007, the ship had been preparing to have goods loaded. For that reason, V.B. had worked for about a week prior to his death in the machinery section preparing refrigerators for the shipment. The applicant’s husband was seen working in the machinery section both with and without a gas mask. In the week before his death, V.B. had worked intensively and rested little. No repairs in the machinery section had been carried out until V.B.’s death. After the death, the ship had been repaired in a Brazilian port, after which there had been no smell of gas in the machinery section. The witnesses also stated that V.B. had not complained about his health or stated that he had any heart problems. 16. The applicant was also questioned. Citing conversations with her late husband, the applicant said that in reality the conditions of work on the Vega had been very difficult as the ship had been in a bad technical state and its mechanics had had to deal permanently with fires and leaks of gas, without any adequate protection. 17. The SLI’s report of 27 March 2008, no. SD-5662, stated that the SLI had examined the possible cause of V.B.’s death. The SLI held that the reasons for V.B.’s death were not connected to his work. The SLI discontinued its investigation, on the grounds that V.B.’s death certificate had indicated that he had died of a heart attack, and that the authorisation to preserve his body had read that there had been no indication against such an action. When examining the applicant’s complaint, the SLI had obtained internal correspondence between Limarko and the Vega, which showed that the working conditions on the ship had been hard – the ship’s machinery, including the main engine, would often break down, and the engine emitted combustion gases into the ship; there had also been frequent fires. However, according to the SLI, V.B.’s duties did not include repairs to the main engine or extinguishing fires, and he had not done such jobs. The SLI did not have any other proof that the working conditions on the Vega had been harmful. The SLI also observed that they had not performed any readings on the ship, because they had not been able to check it when it was at sea. 18. On 7 April 2008 Limarko stated that it had been informed about a breakdown of the main engine, which could have led to a worsening of the working conditions on the Vega. Repairs had taken place in the summer of 2007, and the problems had finally been solved in November 2007. 19. On 31 December 2008 the pre-trial investigation was discontinued by the prosecutor for a second time. The prosecutor held that no crime had taken place and that the applicant’s husband had died of a heart attack, when ‘the ship was on a voyage in the Atlantic Ocean near the Brazilian port of Imbituba’. The prosecutor also relied on the testimony given by an expert, V.A. during the hearing in April 2008 before the Klaipėda Regional Administrative Court (see paragraph 49 below). On the basis of V.B.’s medical record of 15 June 2001 that expert had testified that V.B. had a partial blockage of the nerve in the heart which makes the heart contract. If the nerve did not work properly, heart arrhythmia could occur, which could in turn cause a heart attack. The position of V.B.’s body was typical of someone who had died of a heart attack. According to that expert, fire could cause a heart attack if a person had been in a smoky environment or a closed space, and there had been a lack of oxygen. However, a heart attack would happen at a slower pace than a person would die of suffocation. Death from a heart attack caused by a fire could not take a day or week to happen. The prosecutor noted that, according to the Brazilian authorities who had considered that the cause of death was a heart attack, no poisons or other toxic materials had been found in the applicant’s body fluids. The prosecutor also pointed out that V.B.’s health had been checked on 24 April 2007, and it had been concluded that he had been “fit to work in the fleet”. 20. Following a request by the applicant, on 8 January 2009 she was allowed access to the entire criminal case file, which by then comprised 279 pages. 21. On 16 January 2009 the applicant appealed against the prosecutor’s decision to discontinue the criminal investigation. She argued that there had been many flaws in the investigation and that the conclusions as to her husband’s death had been unclear. In particular, the applicant submitted that the SLI’s decision not to treat the death as an accident at work had been hasty. The applicant was also dissatisfied that the SLI had not inspected the Vega itself, nor had it questioned the crew members, who could have confirmed the unsafe working conditions on board. There had also been no autopsy, nor any test for toxins in her husband’s skin or hair. The body had been embalmed too quickly, without such examinations. The applicant further submitted that Lithuanian diplomats had not been present when the body had been embalmed. The applicant also pointed out that her husband had been healthy: he had been examined by a doctors’ commission in April 2007 and that that conclusion was valid for one year; moreover, her husband had not complained about any heart issue. The applicant also maintained that even local journalists in the town in Brazil where V.B.’s death had been given as a heart attack had not been able to find contact data for doctor P.C.J., thus raising doubts about his credentials. 22. On 21 February 2009 the Klaipėda City District Court granted the applicant’s appeal. The court observed that on 10 September 2008 the applicant had asked the prosecutor to order an expert examination to establish whether the constant breathing of combustion gases could cause a heart attack, and to ask the Brazilian authorities to provide the report on her husband’s autopsy and the results of blood tests, as those documents had not been present among those brought back with V.B.’s body. She had also asked for documents confirming whether it had been verified that V.B. could have died of poisoning by combustion gases; for the questioning of doctor V.G., who had signed the conclusion of the doctors’ commission (of April 2007) as to V.B.’s health; and for other investigative actions. Given that the applicant had had the status of a victim, the prosecutor had been under an obligation to take a decision on those requests. However, he had ignored the applicant’s requests for three months, until he had taken the decision to discontinue the criminal investigation, which had been in breach of Article 178 of the Code of Criminal Procedure (see paragraph 52 below). 23. On 20 March 2009 the Klaipėda Regional Court upheld the lower court’s decision. It emphasised that what was at issue was a criminal investigation into charges of a violation of requirements to protect health and safety at work. Having examined the pre-trial investigation material, the regional court concluded that the kind of breaches alleged by the applicant had not been properly examined during the criminal investigation. Furthermore, as could be seen from the SLI’s report of 27 March 2008, the inquiry performed by that body had not been sufficiently comprehensive either (see paragraph 17 above). Accordingly, it could not be stated that the pre-trial investigation into the circumstances of V.B.’s death had been performed thoroughly. In the opinion of the Klaipėda Regional Court, it was therefore vital to continue the pre-trial investigation and to eliminate the doubts raised by the applicant as to the reliability of the results of the medical examination of V.B.’s body, and to establish whether V.B. had indeed worked in harmful conditions during the voyage, including whether regulations on hours of work had been observed. Should breaches of working conditions be established, it was also necessary to order a forensic expert to perform an objective investigation and to establish whether such breaches had had any impact on V.B.’s death. Without a comprehensive examination of those aspects, it had not been reasonable or lawful to discontinue the pre-trial investigation. 24. On 24 March 2009 the prosecutor ordered the Klaipėda Seaport Police to establish the whereabouts of the Vega and whether it was possible to inspect the ship; to question everyone who worked on it, including about working conditions, as noted in the applicant’s complaint; to obtain documents from Limarko related to safety at work; and to ask the SLI whether they had examined the actual working conditions on the ship. The prosecutor also asked the Klaipėda Seaport Police to prepare a request to the Brazilian authorities for legal assistance. 25. On 31 March 2009 the Klaipėda Seaport Police asked Limarko for documents about the technical state of the ship on 24 October 2007, information about the ship’s whereabouts, and whether it was possible to inspect it. On 10 April 2009 the shipping company Limarko replied that the ship usually worked in the region of south west Africa; currently it was near the coast of Namibia. The ship had passed its yearly check by authorised certification company Det Norske Veritas on 21 August 2007 in Walvis Bay port in Namibia, and the inspector of that company had had no remarks as to the technical state of the ship’s machinery. That report was given to investigators. 26. On 9 June 2009 the prosecutor again asked the Klaipėda Seaport Police to “take active measures” to question everyone who had been working on the ship at the relevant time. It was also necessary to obtain V.B.’s medical records and question the doctor who on 15 June 2001 had diagnosed V.B. with a heart problem, and to obtain documents from Limarko related to repairs in the machinery section of the ship, to fires on board and to issues of safety at work. 27. In reply to the investigators’ inquiry of 26 May 2009, on 16 June 2009 the SLI wrote that its inspectors had not examined the working conditions on the Vega because, as far as they knew, the ship had not returned to Lithuanian ports after V.B.’s death. It had not been technically possible to examine the ship in the ports of other countries. The SLI noted that the circumstances of V.B.’s death had been examined on the basis of the documents provided by Limarko and on the experts’ conclusions. 28. On 22 July 2009 the applicant wrote to the prosecutor, questioning why Limarko had not requested that the Brazilian authorities perform a test for toxic substances in the body as such an examination could have been performed within four to six weeks. She stated that she had not been asked whether any other reports by experts should have been done, yet V.B.’s body had been taken straight away to a funeral parlour on 24 October and embalmed at 8 a.m. the following day. The applicant emphasised that the ship at that time had been put up for sale. She asked that the ship’s documents up to the time of the sale be examined to establish whether there were any toxic gases in the machinery room or other factors that made for unsafe working conditions. She mentioned the records in the logs of the machinery room; the service reports to Limarko by the captain and chief mechanic; the description of repairs to the main engine; and the work which her husband performed on the ship. Lastly, the applicant asked the prosecutor to inform her whether and when Limarko had been ordered to keep copies of its communications with the ship during its voyage. 29. Between April 2009 and August 2010 investigators questioned crew from the Vega, some of them repeatedly. 30. In addition, on 7 July 2009 doctor V.G. stated that from February 2001 he had worked as chief doctor at the sailors’ health-care centre (Jūrininkų sveikatos priežiūros centras) in Klaipėda. On 15 June 2001 V.B. had passed a medical board exam as being fit to serve at sea. The conclusion of the medical board examination had been signed by doctor V.G. himself, and it meant that the applicant’s husband was healthy enough to work at sea. The partial blockage of the nerve on the right side of his heart, as seen in the cardiogram, had no effect on V.B.’s health, nor on his ability to work at sea. In the doctor’s opinion, inhalation of combustion gases could lead to poisoning, but not to an acute heart attack. 31. On 9 September 2009 another witness, V.S., stated that he had been a chief mechanic on the Vega in June 2007, but had later refused to work on the ship because of poor working conditions. Failures of the main engine meant that fires on the ship had been frequent, happening almost daily. All the fires and repairs had been registered in the machinery logbook. Limarko had been notified of those facts. The crew had worked in the machinery room wearing respirator masks, but no gas masks had been provided. V.B. would spend about four hours (per day) in the machinery room. 32. On 13 October 2009 the Klaipėda Seaport Police transferred the criminal file to the applicant so that she could acquaint herself with it. By then, the file comprised 418 pages. 33. On 7 January 2010, in reply to a request made the same day by the prosecutor, the Lithuanian Maritime Safety Administration (Lietuvos saugios laivybos administracija) noted that the Vega had been taken off the register of Lithuanian ships, because a foreign company, Pantex Trading Limited (Nevis), had bought the ship. 34. In reply to a question from the Klaipėda Seaport Police of 18 January 2010, Limarko confirmed that it had sold the Vega to a third party. It noted that the records from the ship’s machinery room, which the investigators had been seeking, had been destroyed before the ship had been transferred to the new buyers, and thus could not be provided. 35. On 25 February 2010 the investigators again provided the case file to the applicant. It by then comprised three volumes and 565 pages. 36. On 26 May 2009 the Klaipėda Seaport Police sent documents to Klaipėda prosecutors concerning a request for legal assistance to be sent to the Brazilian authorities. The police stated that in order to establish whether V.B.’s death had been caused by dangerous conditions on the Vega, it was important to establish whether an autopsy of V.B. had been performed and his blood tested (and, if so, to provide the results of the autopsy and the tests), and whether the Brazilian authorities had inspected the Vega after the death to examine the working conditions on board. 37. On 13 October 2010 the Klaipėda Seaport Police submitted a fresh request to the Klaipėda prosecutors for legal assistance from the Brazilian authorities, this time adding a request that doctor P.C.J. be questioned. The prosecutor then returned the documents, because they had not met the right requirements. On 1 February 2011 the General Prosecutor’s Office sent a request for legal assistance to the Brazilian authorities. 38. On 3 December 2010 a response to the request for legal assistance was received from the Brazilian authorities. However, according to the Lithuanian investigators, the documents contained only internal correspondence between the Brazilian authorities about the fact that V.B. had died. As a result, there had been no new information relevant for the investigation. 39. On 24 August 2010 the Klaipėda Seaport police asked experts from the State Forensic Medicine Service (Valstybinės teismo medicinos tarnyba) to answer the following questions: 1) what is characteristic evidence that a person has died from an acute heart attack and is it possible to conclude that a person has died from a heart attack without an autopsy; 2) could a dangerous working environment in a non-ventilated ship machinery room (where emission gases were present) have had an impact on V.B.’s death, that is, could such conditions have caused an acute heart attack; 3) how long must a person work in a harmful working environment, where there is an elevated level of emission gases, before getting a heart attack. 40. On 7 December 2010 the forensic experts J.R. and R.S. prepared a report stating that they had not been provided with any medical documents about V.B.’s autopsy (if one had ever been performed), any blood results or other medical records. Neither were they provided with documents, confirmed by special diagnostic methods, about the exact level of combustion gases on the ship. Therefore, they could rely only on the testimony of the crew who had worked on the ship with V.B. 41. Proceeding on that basis, the experts stated that, in medical practice, death certificates without an autopsy were delivered only when there was documented medical data that the person had been ill with a long-term disease (sirgo lėtine liga), that the circumstances of death were clear, and that there was no evidence that the cause of death could have been due to physical injuries or other external factors. 42. For the experts, it was known from the criminal case file that V.B. had been found dead in a cabin. Without examining the body, and in the absence of any data about V.B.’s state of health, or information about any physical injuries or external factors (for example, acute gas poisoning), which could have caused his death, it was possible only to state (galima tik teigti) that the cause of V.B.’s death was that his heart had stopped for unknown reasons. In that case, it was impossible to either confirm or deny that an acute heart attack had been the cause of V.B.’s death. Accordingly, it was not possible to establish a possible link between V.B.’s working in harmful conditions and his death. 43. The experts also stated that the main reason for an acute heart attack was a failure of arterial blood vessels. That happened when physical exhaustion or nervous tension caused the heart muscle suddenly to need a lot of oxygen. Long working hours, in an environment where there were elevated levels of emission gases, was not a risk factor for a heart attack. 44. The prosecutor then discontinued the investigation on 14 December 2010, concluding that no crime had been committed ‘on the ship, which sailed under a Lithuanian flag’. According to him, although the existence of harmful working conditions and leaks of gases in the engine room of the ship had been confirmed, they could not have caused the victim’s heart failure. 45. That decision was upheld by a higher prosecutor, and then by the Klaipėda City District Court on 11 August 2011. The first instance court noted, inter alia, that the cause of V.B.’s death had already been established by final decisions in administrative courts. 46. The applicant appealed against the decision to discontinue the criminal investigation, arguing that the report by the specialist, J. R., had not definitely confirmed that her husband had died of a heart attack, given that no autopsy had been carried out. She pointed to shortcomings in the investigation, such as the absence of blood test results and toxicology tests, and the lack of documents concerning safety at work on the ship. The applicant also pointed out that the ship’s logbooks had not been obtained, and that the ship had not been inspected. 47. By a final ruling of 12 September 2011, the Klaipėda Regional Court dismissed the appeal. The court noted that the cause of death had already been established by the final and binding decision of 5 February 2009 by the Supreme Administrative Court in the administrative case (see paragraph 50 below). In addition, the criminal court held that the investigation had been wide-ranging, that numerous witnesses and experts had been questioned and that the necessary forensic examinations had been carried out. As concerned the applicant’s argument about the collection of additional evidence, it was considered as serving no purpose given the amount of time which had elapsed. The criminal court also noted that at certain stage the expert, V.A., had been questioned by the first-instance court of criminal jurisdiction, and had testified that V.B. could have died from his heart condition. 48. In parallel to the ongoing criminal investigation, the applicant also started administrative court proceedings, asking that her husband’s death be recognised as a work accident. 49. By a decision of 7 April 2008, the Klaipėda Regional Administrative Court acknowledged, on the basis of the SLI report of 18 December 2007, that work conditions on Vega were bad, and the main engine would often break down, causing leaks of dangerous gases. For that reason many mechanics had left the ship. However, the administrative court also took into account the conclusion by a forensic expert V.A. about V.B.’s earlier heart condition and that fire or smoke on the ship, even if they had been present, could not have caused V.B.’s heart attack (see paragraph 19 above). As a result, the applicant’s claim before the administrative courts for her husband’s death to be recognised as a work accident was dismissed. 50. On 5 February 2009 the Supreme Administrative Court upheld the lower court’s decision.