SADAUSKIENE v. LITHUANIA
Inadmissible
The applicant, Mrs Krestina Sadauskienė, is a Lithuanian national who was born in 1948 and lives in Vilnius. The Lithuanian Government (“the Government”) were represented by their Agent, Ms E. Baltutytė. The facts of the case, as submitted by the parties, may be summarised as follows. On 12 June 1998 the applicant’s 17-year-old son took part in a schoolchildren’s outdoor camp near the Girija lake in the Vilnius region, uniting over 100 pupils and their supervisors. The applicant’s son came with a group of 22 pupils, supervised by three teachers. On 13 June 1998 the police were alerted that the boy had gone missing. On 14 June 1998 the corpse of the applicant’s son was found in the lake. On the same date the police carried out an examination of the place of the incident and questioned several witnesses. An autopsy of the body began the same day and was completed on 18 June 1998. 1.43% of alcohol was found in his blood, but the body carried no signs of violence. The experts referred to the likelihood that the boy had drowned while swimming in the lake. The applicant applied to the prosecutors, claiming that her son may have been murdered, and that the schoolteachers had not performed their duty of supervision. On 1 July 1998 a Vilnius area district prosecutor refused to institute criminal proceedings in respect of the death of the applicant’s son. On 7 July 1998 a higher prosecutor quashed this decision, ordering further investigation in order to confirm or rule out the hypothesis of a violent death. He instructed the prosecution to question all the schoolchildren who had gone to the camp with the applicant’s son and to examine the scene of the incident, the pictures of the deceased taken by the applicant just before the funeral, as well as, her son’s belongings in order to establish the origin of the blood stains noticeable on some of them. From 9 July 1998 to 17 August 1998, the prosecution questioned 14 witnesses, including the applicant, accepted the opinion of a medical expert, repeatedly examined the place of the incident and conducted an inquiry into a possible fight among the campmates. Furthermore, from 16 to 30 July 1998, a biological DNA examination of the belongings of the applicant’s son was performed. The expert found some blood stains on the T-shirt of the victim but, because of the small amount of blood involved, it was not possible to establish its origin. On 17 August 1998 a Vilnius area district prosecutor again took a decision to refuse to institute criminal proceedings in view of the absence of any indication of a violent death. The prosecutor referred to the results of the autopsy and the DNA examination, as well as the submissions of various witnesses. The applicant complained, requesting further details to be assessed. On 25 August 1998 a higher district prosecutor quashed the decision, ordering, inter alia, the questioning of all the participants of the camp, the divers who had found the corpse, and certain other people. In accordance with that order, the prosecution carried out additional investigative measures; in particular, the submissions of 52 witnesses were recorded, experts were questioned, the police and other relevant officials were called upon to conduct an inquiry into certain details of the incident, and further inspections of the scene of the incident was carried out. On 29 January 1999 a Vilnius area district prosecutor refused to institute criminal proceedings in relation to the death of the applicant’s son (Article 104 of the Criminal Code as then in force). Nor did the prosecutor consider that there were any grounds for the criminal prosecution of the schoolteachers or organisers of the camp for the allegedly improper execution of their official duties (Article 288). The applicant was advised that she could claim damages by way of civil proceedings. The applicant and her husband addressed the General Prosecutor’s Office, submitting further details and requesting an additional inquiry. On 25 June 1999 a prosecutor in the Office of the Prosecutor General quashed the decision, ordering additional investigative measures, including the questioning of new witnesses, the examination of the towel of the deceased, an inquiry into the hypothesis that there may have been a fight at the camp, and a request for information about the meteorological conditions on the day of the incident. On 29 July 1999 the applicant reported that she had received an anonymous letter referring to the alleged “murderers” of her son. An inquiry into these newly discovered details was carried out, including the questioning of 10 witnesses. On 7 September 1999 a Vilnius area district prosecutor again refused to institute criminal proceedings on the same grounds as before. The applicant appealed, alleging that the prosecution had not made an adequate investigation into the anonymous letter. On 2 November 1999 a Vilnius regional prosecutor quashed the decision, instituting criminal proceedings into the death of the applicant’s son. Thereafter, the investigation was prolonged a number of times. During a further examination, 46 witnesses were questioned, some of them repeatedly, several confrontations of the witnesses were undertaken, additional information about the camp participants was gathered, the version of a possible fight in the camp was again assessed, writing samples were taken and an expert examination of the anonymous letter carried out, and several experts were heard. On 1 May 2000 the district prosecutor decided to discontinue the criminal proceedings. It was noted, inter alia, that no evidence of a violent crime could be found, despite the questioning of numerous witnesses and experts. The applicant filed a hierarchical complaint, requesting the quashing of the decision of 1 May 2000. On 16 June 2000 the Office of the Prosecutor General refused her request, stating that the decision to discontinue the investigation was lawful and substantiated. The applicant was advised that she could request judicial review of the decision of 1 May 2000. On 27 November 2001 the applicant applied to the Vilnius District Court, asking it to reinstate the time-limit to complain about the decision of 1 May 2000. On 1 March 2002 a judge the Vilnius District Court granted her request, quashed the decision of 1 May 2000 and ordered the Vilnius area district prosecutors to carry out further investigative measures, including the questioning of the applicant and her husband, as well as establishing the identity of certain persons with whom the applicant’s son could have had contact in the camp. The judge also referred to the pictures of the corpse that the applicant had made after the autopsy which allegedly showed signs of violence on the boy’s face, and ordered them to be submitted to an expert. The judge noted that it was not clear from the case file whether these particular pictures had been the subject of an expert examination before. The criminal investigation was renewed. Between 18 and 22 April 2002 a repeat medical expert examination of the pictures was carried out, in order to establish the credibility of the version of a violent death. The experts confirmed that no signs of violence could be identified from the pictures taken before the funeral. It was noted that the pictures taken by the applicant just before the burial exhibited some marks on the face of the boy. Whereas the applicant considered them to be signs of violence, the experts explained that the marks were the result of the fact that the body had stayed in the water. On 22 April 2002 the prosecutor discontinued the investigation because of the lack of evidence of a crime. On 7 May 2002 a Vilnius regional prosecutor quashed the decision, referring, inter alia, to the need to question witnesses and obtain supplementary data about the participants at the camp. The case was sent to the Vilnius city district prosecutors, who again reinstated the investigation on 13 May 2002. The further questioning of witnesses and experts as well as a confrontation were held. On 13 June 2002 the Vilnius city district prosecutor discontinued the investigation in view of the absence of evidence of the crime of murder or the improper execution of official duties. On 19 July 2002 the Vilnius regional prosecutor quashed the decision, ordering, inter alia, the questioning of further witnesses and the characterisation of certain participants at the camp. On 23 July 2002 the investigation was again renewed by the Vilnius city district prosecutors and further investigative actions were carried out, including the questioning of eight witnesses. On 23 October 2002 a Vilnius city district prosecutor adopted a 23-page long decision, discontinuing the criminal investigation in view of the absence of evidence of a crime under the then Articles 104 and 288 of the Criminal Code. It was concluded that the applicant’s son had drowned in the lake from swimming whilst under the influence of alcohol, and that he had been responsible for his own death. The decision was based on the submissions of 46 witnesses, some of whom had been confronted, in order to eliminate contradictions in the evidence, the results of four expert examinations, the expert submissions, as well as other evidence. On 3 December 2002 the Vilnius Region Prosecutors’ Office rejected the applicant’s hierarchical appeal. It was noted that the investigation had been thorough: 73 witnesses had been questioned, some of them many times; the examination of the place of the incident had been carried out three times; two medical examinations and a DNA examination of the blood sample had been completed, but with no result because of the small amount of blood involved; experts were questioned and a handwriting analysis of the anonymous letter had been performed. There was no evidence to indicate that the boy had been the victim of violence, despite the attempts to examine the numerous versions put forward by his parents. All hypotheses had been dutifully verified, inter alia, by questioning the relevant experts and the witnesses, some of whom had been heard several times but had not been able to provide any new information. The applicant applied to a court. On 23 January 2003 the Vilnius City First District Court examined the applicant’s appeal in a written procedure and rejected it. It noted that the main source of objective evidence – the expert examination of the corpse and the pictures. This hypothesis was corroborated by the submissions of various witnesses and other evidence. The court opined that all possible means to obtain evidence had been exhausted. That decision was final. On 25 August 1998 the three schoolteachers who had accompanied the applicant’s son to the camp received a disciplinary reprimand for their failure to ensure the safety of the camp participants. On an unspecified date the applicant brought civil proceedings for damages against the employer of those teachers – a State-run school. She claimed 9,379 Lithuanian litas (“LTL”; approximately 2,718 euros) to cover the funeral expenses. Whereas the applicant’s claims were rejected at first and second instance by, respectively, the Vilnius City Third District on 20 December 2000 and the Vilnius Regional Court on 14 February 2001, the Supreme Court reversed those decisions on 11 June 2001, holding that the school was liable to cover the expenses of the funeral of the applicant’s son. The Supreme Court reduced the amount claimed to LTL 7,500 (approximately EUR 2,174), referring to the fact that the applicant’s son had been largerly responsible for his own death. The applicant did not claim non-pecuniary damages. The Criminal Code applicable at the material time punished murder (Article 104) and the improper execution of official duties (Article 288). The Code of Criminal Procedure (in force from 12 June 1998 to 23 January 2003) provided: Article 5 “Criminal proceedings shall not be instituted or ... shall be discontinued in the following cases: 1) where no crime has occurred...” Article 128 “The prosecutor ... shall receive the applications and reports of a crime ... and shall take a relevant decision within three or, in exceptional circumstances, ten days from the receipt of the application or report. The necessary material shall be obtained and submissions taken, but no investigative actions foreseen in this Code shall be carried out. One of the following decisions shall be taken regarding the application or report: - to institute criminal proceedings; - to refuse to institute criminal proceedings ... . The applicant shall be informed about the decision taken.” Article 131 “Where no grounds for the institution of criminal proceedings are established ... the prosecutor ... or the court shall refuse to open criminal proceedings. ... The person concerned who submitted an application [about the alleged criminal acts], shall be informed about that decision as well as about his/her right to appeal against it. The decision of the prosecutor ... to refuse to institute criminal proceedings can be challenged before the higher prosecutor or a court ... .” Article 244 of the Code stipulated that the actions and decisions of the prosecutor could be challenged before a higher prosecutor or, since 17 April 2002, before a court. Article 244-2 provided for the judicial review of the actions and decisions of the prosecutor, stipulating as follows: “The prosecutor and the complainant may attend the hearing... . The complainant shall be informed about the court’s decision ... . That decision shall be final.”