VRABEL v. SLOVAKIA
Inadmissible
David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
The applicant, Mr Tibor Vrábel, is a Slovakian national who was born in 1952 and lives in Levice. He was represented before the Court by Ms Z. Kupcová, a lawyer practising in Bratislava. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková. The facts of the case, as submitted by the parties, may be summarised as follows. On 6 June 1998 the applicant’s son, then 21 years old, was to participate in a triathlon competition at a lake near Senec. On the same day, an association of model boat builders from Senec organised an international competition of radio-controlled model boats in the adjacent part of the same lake. The organisers of the two events had arranged between themselves that no model boats would be on the lake between 1.45 and 3 p.m. when the triathlon competition was to take place. After noon and prior to the start of the triathlon competition the applicant’s son had a swim in the lake. A model boat belonging to a participant from Ukraine suddenly changed its trajectory after having touched a buoy demarcating the race circuit. It hit the applicant’s son’s head and spine. After his body was brought to shore by divers, a physician established that the applicant’s son had suffered fatal head injuries. Later the same day police officers drew up reports on the accident and on the examination carried out on the spot. They further photographed the victim and drew up a record concerning the identification of the body. The police retained the model boat which had apparently hit the applicant’s son and heard what its owner had to say. His replies were interpreted by the director of the model boat competition. A written report by the doctor who had examined the corpse was prepared on 6 June 1998. Several objects belonging to the victim were given to the applicant. On 8 June 1998 the police in Senec appointed a forensic expert with a view to determining the cause of death of the applicant’s son. On the same day the police concluded that there were no grounds for a criminal prosecution of the Ukrainian owner of the boat. The responsibility for safety of the event lay with the club which had organised the competition. The boat owner could not be held responsible for the fact that a swimmer, who was not supposed to be in the area of the competition, had entered the raceway. The boat owner was allowed to return to Ukraine, but the police kept the model boat for the purpose of an examination by experts. In a preliminary report of 9 June 1998 the forensic institute which had carried out an autopsy of the victim’s corpse concluded that the fatal injury had been inflicted by an object which had fractured the victim’s skull, concussed his cerebral tissue and caused bleeding in the brain chambers. Between 8 and 16 June 1998 police officers interviewed twelve persons with a view to establishing the relevant facts. In the meantime, on 10 June 1998, the applicant consulted the police file and copies of several documents included in it were given to him. On 12 June 1998 the applicant complained to the Inspection Department of the Ministry of the Interior that the police had acted erroneously in that, inter alia, they had failed to accuse the owner of the model boat of an offence and to carry out an alcohol test on him. The applicant further expressed the view that the police had disregarded attempts by the organisers of the model boat race to distort the account of the events. In a letter of 6 July 1998 a public prosecutor pointed out that, at that time, it had not been clearly shown whether the criminal liability for the accident lay with the Ukrainian participant, the organisers or whether it was attributable to the behaviour of the applicant’s son. On 10 July 1998 the applicant complained to the Bratislava III District Prosecutor’s Office that the police had attempted to manipulate the investigation with a view to concealing the real cause of his son’s death. On 23 July 1998 the Bratislava III District Prosecutor replied to the applicant that his allegation was unsubstantiated. According to a forensic report submitted to the police on 16 August 1998, the applicant’s son had drowned after a serious injury to the skull during a sporting activity performed in water. The injuries were so serious that death could not have been avoided, even if there had been immediate medical assistance. On 26 August 1998 the Inspection Department of the Ministry of the Interior informed the applicant that the police investigation had been supervised by a public prosecutor and that his complaint about misconduct of the policemen concerned was unsubstantiated. Between 7 and 17 September 1998 police officers questioned five people. On 10 November 1998 a public prosecutor heard the director and an organiser of the triathlon competition. In a letter of 21 December 1998 a public prosecutor instructed the Bratislava III Investigation Office of the Police Corps to accuse the director of the model boats competition of having caused damage to another’s health. The letter stated that all documents submitted by the applicant should be included in the file. On 4 January 1999 the Regional Prosecutor’s Office in Bratislava informed the applicant, in reply to his complaint, that the public prosecutor dealing with the case had concluded that the organisers of the model boat race had not complied with the statutory security measures, as a result of which his son had been fatally injured. On 25 January 1999 a police investigator accused the director of the model boats competition of having caused injury to another’s health. The director was accused of failing to take appropriate measures with a view to protecting the lives and health of other persons. In the course of February 1999 the investigator obtained information about the accused from several authorities and institutions. The investigator examined the accused from 8 a.m. to 4.30 p.m. on 23 February 1999. She heard the applicant from 9 a.m. to 2.20 p.m. on 24 February 1999. The applicant stated that he wished to join the proceedings as a civil party claiming compensation for pecuniary and non-pecuniary damage. On 25 February 1999 the director of the triathlon race was examined for more than four hours. Another person involved in organising the triathlon race was heard as a witness on the same day. Between 26 February and 3 March 1999 the investigator heard ten other witnesses. On 10 March 1999 the Bratislava Regional Prosecutor’s Office dismissed a complaint by the accused against the decision to start criminal proceedings against him. Between 10 March and 25 March 1999 the police investigator examined sixteen witnesses. In the meantime, on 22 March 1999, the applicant submitted his claim for damages as an injured party. In a report of 26 April 1999 the police investigator indicated that the investigation could not be concluded within three months as, inter alia, the public prosecutor supervising the proceedings had concluded that there was a need to hear the Ukrainian competitor as a witness. For that purpose a request for legal assistance was to be sent quickly to the Ukrainian authorities. Following his request of 10 May 1999, the applicant consulted the entire investigation file on 31 May 1999. On 14 June 1999 the Bratislava III District Prosecutor’s Office submitted to the General Prosecutor’s Office a translation of the request for legal assistance in obtaining a statement from the Ukrainian boat owner. Subsequently the request was transmitted to the Ukrainian authorities. In September 1999 and in February 2000 the investigator obtained further information about the accused. The Ukrainian authorities heard the owner of the model boat in Kiev on 9 March 2000. The Bratislava III District Prosecutor’s Office received their reply on 5 May 2000. A Slovak translation of the statement was submitted to the police investigator on 6 June 2000. In his statement the model boat owner explained that, because of an obstacle, he had had to change the trajectory of his model when passing around a buoy demarcating the race area. After that, the model had come to a standstill. The competitor expressed the view that the race area had not been sufficiently secured. The organisers had warned visitors and requested them to abstain from swimming in the lake or approaching its shore. However, several persons had disregarded that warning. The witness further stated that he had drunk no alcoholic beverage before the race. There had been several kiosks around the lake where such beverages were being sold. Nobody had moved the buoys after the accident. During the course of the investigation the applicant complained of shortcomings to public prosecutors at several levels and to the Inspection Service of the Ministry of the Interior. He alleged that the policemen involved had committed an offence and that no effective investigation had been carried out into the case. In particular, the applicant contended that the police had failed to inform him of his rights and about the procedure after the incident had occurred; had not checked whether the persons involved had consumed alcohol; had refused to record the applicant’s statement; that the first statement of the Ukrainian participant had not been interpreted by an authorised interpreter, and that photographs had neither been taken nor drawings made of the scene of the incident. The failure to carry out an appropriate investigation at the outset had been, according to the applicant, the result of undue influence of members of a political party then in government who had acted as patrons of the model boat race. The applicant also maintained that the organisers of the race and divers involved had manipulated the scene of the accident, and complained that the model boat owner had not been prosecuted. The applicant’s complaints were examined by several police and public prosecution authorities but they were dismissed as being wholly unsubstantiated. However, a public prosecutor of the Bratislava Regional Prosecutor’s Office admitted, in September 1999, that the police had proceeded erroneously in that they had let the director of the competition interpret the Ukrainian participant’s statement on 6 June 1998. On 14 June 2000 the applicant examined the police file concerning the case and obtained copies of the relevant documents. According to the record of the examination, the applicant declared that he had no proposals for further action to be taken within the preliminary proceedings On 19 July 2000 a public prosecutor charged the director of the model boats race with causing injury to another’s health before the Bratislava III District Court. The District Court held hearings on 16 October and 14 November 2000, and 16 and 19 January 2001. On the last-mentioned date it convicted the accused of causing injury to health. It imposed an eighteen-month prison sentence on him, conditionally suspended for a probationary period of three years. At the main hearing the court heard the accused and the applicant, as well as nineteen witnesses. The statements of four other persons were read out. The court also had regard to extensive documentary evidence including forensic reports. In his statement, the applicant affirmed that the area of the model boat race had not been duly secured. He accused the organisers of having manipulated the buoys after the incident. The applicant further referred to the Ukrainian participant’s statement according to which alcoholic beverages had been served at the place of the competition. The District Court established that the accused, in his capacity as director of the model boat race, had acted negligently in that he had not taken appropriate measures, as required by sections 3, 4, 5 and 9 of Law no. 315/1992, with a view to preventing injury to other persons present. In particular, the model boat race had continued despite the fact that there had been swimmers in the lake. Safety barriers had not been arranged in an appropriate manner in order to ensure that visitors were kept separate from the competition area. The applicant claimed 469,359 Slovakian korunas (SKK) in compensation for damage from the accused. The District Court found that the applicant had incontestably suffered damage of SKK 35,420. It awarded that sum to the applicant and referred him, with the remainder of his claim, to a civil court. The accused appealed, claiming that he had committed no offence. At the hearing before the appellate court, the applicant requested that the first-instance decision on his claim for damages be upheld. On 26 September 2001 the Bratislava Regional Court varied the first-instance judgment, reducing the sentence to one year’s imprisonment conditionally suspended for two years. The Regional Court held, in particular, that the sentence originally imposed was excessively severe as, inter alia, the accused was not the only person who was responsible for the accident. The appellate court expressed the view that other persons who had given authorisation for the two events to be held concurrently without ensuring that appropriate safety measures were taken also bore responsibility for the accident. The Regional Court further quashed the first-instance decision on the applicant’s claim for damages. The appellate court noted that the sum awarded to the applicant had not been sufficiently specified and, more importantly, it was not clear whether the accused was liable for damage under the provisions of civil law or labour law. The determination of that issue depended on the legal status of the model builders’ club of which the accused was a member. If the club was a part of the Slovak Association of Model Builders, that association was liable for the damage. In such a case the question arose as to whether the Ministry of the Interior was not also liable. The appellate court held that the determination of those issues was beyond the scope of the criminal proceedings and that the applicant should bring his claim for damages before a civil court. The judgment became final on 26 September 2001. It was served on the applicant on 7 December 2001. In November 2001 the applicant sought assistance from the Crime Victims Centre with a view to obtaining compensation for damage which he had suffered. In a letter of 24 October 2003 a lawyer of that Centre informed the applicant that the model boat competition had been organised by the club from Senec, which was a legal person. In accordance with Article 420 § 2 of the Civil Code, that club was liable for damage resulting from the criminal offence committed by its president when organising the competition. The applicant’s claim against the latter had not interrupted the running of the statutory limitation period, which had therefore expired on 6 June 2001. The view was further expressed in the letter that, for similar reasons, the applicant’s right to claim compensation for non-pecuniary damage under Article 13 of the Civil Code had also lapsed on 6 June 2001. It was therefore no longer possible for the applicant to claim compensation before the civil courts. Since August 1998 the applicant has been treated as an outpatient for psychological trauma suffered as a result of his son’s death. In 1999 the applicant’s contract of employment was terminated. The applicant submitted that, as a result of the mental problems which he had been experiencing, he was no longer able to carry out his job. The Government contested that argument. Relying on the relevant document, they argued that the applicant’s contract had been terminated for redundancy. In August 2000 the applicant was found to be fully disabled, one of the reasons being his mental disorder. In 2005 a physician confirmed that the applicant continued to suffer from severe depression. For that reason an expert commission confirmed, in November 2005, that the applicant was still disabled. At the relevant time Law no. 315/1992 governed the organisation of sporting and tourist events accessible to the public. Under section 1(3), prior approval of a State authority is not required for a sporting event to be held. Section 3 obliges the organiser to notify the municipality concerned in writing of the plan to organise a sporting event within its territory. Such notification must indicate, inter alia, the name and purpose of the event, its venue and time, the expected number of participants as well as the measures which the organiser will take with a view to maintaining public order and preventing harm to the lives or health of the participants or to the environment. Section 4(1) provides for an obligation of the organiser of a sporting event to maintain public order both at the place where the event takes place and in the adjacent area, to comply with the relevant rules relating to security and health protection, to establish teams of organisers and to give relevant instructions to its members. It also provides that an organiser has to suspend or put an end to an event where public order has been disturbed and where it is not possible to restore it. Where an organiser is unable to maintain public order, he or she shall ask the municipal authority or the police for assistance. Under section 6, the organiser is entitled, inter alia, to ask participants to refrain from inappropriate behaviour and to expel persons who, despite a prior warning, seriously disturb the event. Section 8(1) gives municipalities the right to verify whether an event is held in accordance with the earlier notification submitted by the organiser. Pursuant to section 8(4), a person whom the municipality has authorised in writing to supervise the event shall draw the organiser’s attention to any shortcomings established. The supervisor has to stop or suspend an event at which human rights and freedoms are being breached. Section 9 provides that the area where an event is held is to be arranged in a manner permitting the effective control of all participants, appropriate placement of security barriers, and the designation and separation of individual sectors. An organiser is authorised to close an area where the circumstances or the participants’ behaviour indicate that the event could be disturbed. Finally, an event cannot start unless all relevant provisions of the Act are complied with. Pursuant to Article 224 § 1, a person who negligently causes the death or serious damage to the health of another person is to be punished with a prison sentence of up to two years or a ban on any involvement in the activity in issue. Paragraph 2 of Article 224 provides that the perpetrator of such an offence is to be punished with a prison term of between six months and five years where the offence results from his or her failure to comply with an important obligation relating to his or her job, position or function or an important obligation imposed by law. Article 43 §§ 1 and 2 provide, inter alia, that a person who has suffered damage as a result of a criminal offence can claim compensation from the accused person and request that the court, in a judgment convicting the accused, order the latter to compensate for such damage. Under Article 158 §§ 4-6, where no criminal proceedings can be brought because the person who could be liable for an offence has not yet been identified, the police or investigator can take action for the purpose of criminal proceedings, such as taking evidence, but only to the extent that such action cannot be delayed or repeated later. Within the meaning of this provision, an action or procedural step cannot be postponed until criminal proceedings are brought where, in view of the purpose of the criminal proceedings, there is a danger of it or its object being thwarted, destroyed or lost. Under Article 229 § 1, a criminal court shall refer a person claiming damages to a civil court where the evidence available is not sufficient for determining that claim or where the taking of further evidence going beyond the scope of the criminal case is required and the criminal proceedings would be thereby unduly prolonged. Article 246 § 1 (d) provides that an injured party may appeal against a first-instance judgment only to the extent that it concerns his or her claim for damages. The following provisions are relevant in the present case. “Every natural person shall have the right to protection of his or her personal integrity, in particular his or her life and health...” “1. Every natural person shall have the right in particular to request an order restraining any unjustified interference with his or her personal integrity, an order cancelling out the effects of such interference and an award of appropriate compensation. 2. If the satisfaction afforded under paragraph 1 of this Article is insufficient, in particular because the injured party’s dignity or social standing has been considerably diminished, the injured party shall also be entitled to financial compensation for nonpecuniary damage. 3. When determining the amount of compensation payable under paragraph 2 of this Article, the court shall take into account the seriousness of the harm suffered by the injured party and the circumstances in which the violation of his or her rights occurred.” “After the death of the injured party the right to the protection of his or her personal integrity shall pass to his or her spouse and children or, if none, to his or her parents.” “A person who by unjustified interference with another person’s personal rights causes [pecuniary] damage is responsible for it in accordance with the provisions of this law on liability for damage.” “1. The right to compensation for damage shall lapse two years from the date when the injured party learns about the damage and who is liable for it. 2. The right to compensation for damage shall lapse, at the latest, three years ... from the event which is at the origin of the damage ...” “Where the creditor, prior to the expiry of the limitation period, asserts his or her right before a court or other appropriate authority and where he or she duly pursues the proceedings, the limitation period does not run from the moment when the claim was submitted and during the period when the proceedings are pending...” “1. Everyone shall be liable for any damage he or she causes by breach of statutory duty. 2. Damage is considered to have been caused by a legal person ... when it has arisen in the context of an activity carried out by other persons whom [that legal person] has entrusted with carrying out that activity. Such other persons do not bear liability under the Civil Code for damage thus caused.” ... “1. Compensation shall cover actual damage and loss of profit. 2. Damage shall be made good in money. However, if the injured party so requests and it is possible and appropriate, damage shall be repaired by restitution in full...” “Indemnification for damage to health shall consist of a lump-sum payment for suffering (bolestné) and reduced capacity for work (sťaženie spoločenského uplatnenia).” ...“2. In the event of fatal injury, the compensation shall cover reasonable funeral costs provided such costs have not been paid by the health insurer.” Information on the legal opinion and domestic courts’ practice as regards the protection of one’s personal rights under Articles 11 et seq. of the Civil Code are set out in Kontrová v. Slovakia, no. 7510/04, decision of 13 June 2006 and judgment of 31 May 2007, §§ 33-35, ECHR 2007VI (extracts), and Furdík v. Slovakia (dec.), no. 42994/05, 2 December 2008.