CASE OF MAŽUKNA v. LITHUANIA
Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation;Positive obligations) (Procedural aspect)
András Sajó;Egidijus Kūris;Iulia Motoc;Marko Bošnjak;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano
6. The applicant was born in 1959 and lived in Pamažupiai, Pasvalys Region. 7. In February 2007 the applicant started working as a welder for the company N. On 17 April 2007 he was working at a factory construction site in the city of Klaipėda. Around 4.20 p.m., while the applicant and two other workers were standing on scaffolding approximately two metres above the ground, the scaffolding broke and all the workers fell to the ground (hereinafter “the accident”). 8. According to the applicant, he fell on his back and hit his head on a concrete surface, causing his helmet to break into pieces. One of his coworkers and a metal tool fell on top of him. The applicant lost consciousness. He stated that while he was unconscious, he was moved away from the location of the accident on the orders of his employer and all traces of the accident were removed. At 4.53 p.m. an ambulance was called and the applicant was taken to hospital. It appears that the other workers sustained only minor injuries. 9. The site of the accident was examined the same day by an inspector from the State Labour Inspectorate. He noted that at the time of the examination the scaffolding was intact and no workers were present at the construction site. The inspector spoke to the construction site manager, V.J.S., who stated that he had not seen the accident because he had been elsewhere on the site. The inspector also spoke to the person in charge of work safety in the company N. who informed him that, on the basis of the initial medical examination, the applicant had not sustained any serious injuries. Accordingly, the inspector decided that the State Labour Inspectorate would not investigate the circumstances of the accident. 10. On 31 May 2007 another inspector from the State Labour Inspectorate looked into how the accident had happened and concluded that the applicant had fallen from the scaffolding because of his own recklessness. The applicant submitted a complaint against that conclusion and on 15 July 2007 the Inspectorate adopted a new conclusion, holding that the accident had been caused by “the inappropriate organisation of dangerous work” (netinkamas pavojingo darbo organizavimas), in particular because the scaffolding had not complied with the applicable work safety requirements. 11. On 10 September 2007 the applicant asked the Klaipėda city prosecutor’s office (hereinafter “the prosecutor”) to open a pre-trial investigation into the accident. The investigation was opened on the same day and conducted by an investigator from Klaipėda police (hereinafter “the investigator”). 12. On 9 October 2007 the investigator instructed a court medical expert to examine the applicant’s medical file in order to determine the number, severity and causes of his injuries. The report on the results of that examination, delivered on 18 October 2007, showed that the applicant had sustained a large cut on his head, face and right ear, as well as multiple fractures of his facial bones, and a contusion on the chest. The injuries had been caused by blunt objects and flat surfaces, and could have occurred when falling from a height. The report noted that the injury on the head had bled, so there should have been traces of blood at the site of the accident. It concluded that the injuries to the applicant’s head and face amounted to a minor health impairment (nesunkus sveikatos sutrikdymas) while the injury to his chest amounted to a negligible health impairment (nežymus sveikatos sutrikdymas). However, it also noted that the injury to the face would leave a big scar, possibly resulting in disfigurement and impairment of facial expression. 13. On 13 November 2007 the applicant was interviewed as a witness in the investigation. He stated that just before the accident he and five other workers had been carrying a metal platform to attach to a reservoir tank. The applicant and two other workers had been holding the upper part of the platform while standing on the scaffolding and three others had been on the ground, holding the platform’s bottom part. The weight of the platform was about 200 kg. Suddenly, the scaffolding had collapsed and all three workers had fallen to the ground. At that point the applicant had lost consciousness. When he had come to, he had realised that he was not lying near the scaffolding, where he must have fallen, but in a different place. He had not seen any debris from the scaffolding around him, or any other traces of the accident. On the same day the applicant was granted the status of a victim in the investigation. 14. On the same day the investigator instructed a court medical expert to examine the applicant’s scars caused by the accident. The report on the results of that examination, delivered on 15 November 2007, found that the facial injury had left a large, rough scar, causing a minor disfigurement and impairment of facial expression. It also found that the scar and the resulting deformation could only be removed by plastic surgery, so the injury was considered as irreparable. As a result, the report concluded that the applicant’s injury was legally classified as serious health impairment (sunkus sveikatos sutrikdymas). 15. In November and December 2007 the investigator interviewed several of the applicant’s co-workers and other people who had worked near the factory construction site. It appears that the co-workers stated that no platform had been carried on the day of the accident. None of those interviewed had seen how the applicant had fallen from the scaffolding. From January to June 2008 more witnesses were interviewed and the investigator requested various documents from the applicant’s employer and from several State institutions which had assessed the applicant’s health and ability to work after the accident. 16. On 13 August 2008 the applicant was interviewed again. He stated that before the accident he had sometimes felt dizzy and had a feeling of numbness in his legs, but he had been declared fit to work after a medical examination. 17. On 6 October 2008 the prosecutor discontinued the pre-trial investigation. He relied on the State Labour Inspectorate report that no damage to the scaffolding on the day of the accident had been observed (see paragraph 9 above), and noted that none of the witnesses had corroborated the applicant’s description of how he had fallen. The prosecutor observed that the applicant may have fallen from the scaffolding owing to his own recklessness (dėl savo paties neatsargumo), possibly because of the numbness in his legs. Accordingly, the prosecutor decided that the scaffolding had complied with safety requirements, and that there were no grounds to find that the applicant’s employer had violated any laws. 18. The applicant appealed against the prosecutor’s decision. He also asked for the appointment of a different prosecutor to supervise the case and to carry out a forensic examination in order to determine the causes of the accident. On 27 October 2008 a senior prosecutor dismissed his appeal, noting that around fifty witnesses had been questioned, but nobody had corroborated the applicant’s claims. However, on 5 December 2008 the Klaipėda District Court overruled the prosecutor’s decision and reopened the pre-trial investigation. The court noted that the prosecutor had not addressed the State Labour Inspectorate’s conclusion of 15 July 2007 (see paragraph 10 above), and that other witnesses had only stated that they had not seen how the applicant had fallen from the scaffolding but had not disputed his account. The court also considered that the prosecutor’s conclusion that the applicant had fallen because of his own recklessness or a medical condition had been “speculative and not based on any objective facts”. However, the court rejected the applicant’s request to appoint a different prosecutor as unfounded and did not examine his request to carry out a forensic examination, noting that the choice of investigative measures was the prerogative of investigators and prosecutors. 19. In January and February 2009 the investigator examined the site of the accident and interviewed more witnesses. 20. On 2 April 2009 the prosecutor instructed the investigator to carry out several additional investigative measures. Among other things, the investigator was requested to identify whether on the day of the accident or earlier the applicant and other workers had been ordered by their employer to attach the metal platform to the reservoir tank. 21. In April and May 2009 the investigator carried out additional interviews with several witnesses and requested further information from the applicant’s employer and from the medical institutions which had examined him. 22. On 12 May 2009, in response to a prior complaint by the applicant, the deputy chief prosecutor of the Klaipėda city prosecutor’s office informed him that there were no grounds to find that the pre-trial investigation in his case had been unduly protracted. 23. On 21 May 2009 the applicant’s co-worker V.K. submitted a written statement to the State Labour Inspectorate that on the day of the accident he and other workers had been ordered by their supervisor V.J.S. to attach the metal platform to the reservoir tank. V.K. also submitted that the scaffolding had been made of very thin wood and could have broken at any time. He further alleged that immediately after the accident the director of the company N. had told other workers to repair the scaffolding. V.K. also asserted that he had previously given different testimony because of pressure from his employer. 24. On 8 June 2009, in response to a complaint by the applicant about the length of the investigation, the chief prosecutor of the Klaipėda city prosecutor’s office noted that “the investigation had not always been of sufficient intensity” (tyrimo intensyvumas ne visada buvo pakankamas) and that the prosecutor had been instructed to set a deadline for completing the investigation. The chief prosecutor also informed the applicant that it was still necessary to interview several witnesses living in various parts of the country and to carry out further investigative measures. 25. On 17 June 2009 the State Labour Inspectorate adopted a new conclusion on the circumstances of the accident, holding that the scaffolding had not complied with applicable safety requirements and that the applicant had not been given appropriate instructions for working at height. Accordingly, the Inspectorate concluded that the applicant’s employer had breached the legal requirements concerning safety at work. 26. On 3 July 2009 the prosecutor discontinued the pre-trial investigation. He observed that the applicant and other workers had been using the scaffolding for several days before the accident and there had not been any accidents during that time, so there were no grounds to find that the scaffolding had been unsafe. The prosecutor also concluded that the workers had not been ordered by their employer to attach the metal platform to the reservoir tank because the construction manager, V.J.S., had not been at work on the day of the accident. Accordingly, the employer could not be held responsible for the workers’ decision to carry the platform on the scaffolding. The prosecutor further observed that, in any event, the applicant had had the right to refuse to carry out tasks which were unsafe or for which he was unqualified, but he had not exercised that right. The prosecutor therefore concluded that the accident had been caused by the recklessness of the workers and not by the actions or omissions of the employer. 27. The applicant appealed against the prosecutor’s decision but on 24 July 2009 a senior prosecutor dismissed his appeal. However, on 13 October 2009 the Klaipėda District Court overruled the prosecutor’s decision and reopened the pre-trial investigation. The court observed that the absence of previous accidents on the scaffolding could not be interpreted as evidence that the scaffolding was safe. It also held that the applicant’s right to refuse to carry out tasks in unsafe conditions did not excuse the employer from a duty to ensure that unsafe conditions did not exist at the workplace. The court further noted that attaching the platform to the reservoir tank had clearly been part of the construction work, so the employer had a duty to properly supervise the workers and to instruct them how to carry out that task safely – and by failing to do so, the applicant’s employer had acted contrary to the law. 28. The prosecutor appealed against that judgment, but on 28 October 2009 the Klaipėda Regional Court dismissed the appeal. In its judgment the court noted that although more than two years had passed since the accident, the prosecutor had still not determined the precise way in which the accident had happened, and that without doing that it was not possible to determine who had been responsible for it. The court also considered it unlikely that the workers would have decided to attach the platform without receiving an order from their supervisor or at least informing him, so it was necessary to examine whether the construction manager V.J.S. had been present at the construction site at any time that day. Lastly, the court drew attention to the fact that “some witnesses” had admitted to giving false testimony under pressure from the employer and so it was necessary to investigate those claims further. 29. In November and December 2009 the investigator arranged several formal confrontations between witnesses, interviewed additional witnesses, and requested further information from the applicant’s employer and the hospital where the applicant had been examined. 30. On 17 December 2009, following a complaint by the applicant, the deputy chief prosecutor of the Klaipėda region prosecutor’s office sent a note to the Klaipėda city prosecutor’s office, observing that the pre-trial investigation had been going on for more than two years, and requesting that it promptly carry out any necessary further investigative measures in order to make a well-founded final decision. 31. On 7 January 2010, after an application by the prosecutor, the Klaipėda District Court ordered a forensic examination of the precise way in which the accident had happened and its causes. The forensic expert examined the case file and delivered a report on 17 February 2010. The report noted that there was insufficient information in the case file concerning the technical characteristics of the metal platform and the scaffolding, so the way the accident had happened could be established only in part. On the basis of the available material, the report found that the weight of the platform had exceeded the weight limit of the scaffolding and had thus caused it to collapse. Accordingly, it concluded that the scaffolding had not been suitable for the work for which it was used, and that the workers had not been adequately informed about how to carry out their work safely. The report found that the employer had thereby breached the applicable work safety requirements. 32. In March 2010 the investigator interviewed additional witnesses and arranged formal confrontations. 33. On 19 May 2010 the prosecutor again discontinued the pre-trial investigation. He held that witness testimony and other evidence showed that the applicant’s supervisor V.J.S. had not been present at the construction site on the day of the accident and that he had not ordered the workers to attach the platform. As a result, the prosecutor concluded that V.J.S. had not had any duty to ensure the safety of that operation. He further concluded that the accident had been caused by the workers’ reckless decision to carry the platform, which had exceeded the weight limit of the scaffolding. The prosecutor noted that although the scaffolding had not fully complied with the applicable safety requirements, that had not been the main cause of the accident and thus the applicant’s employer could be held liable only for an administrative offence of failure to comply with work safety requirements (see paragraph 58 below), but not for a criminal offence. The prosecutor also observed that a separate pre-trial investigation should be opened in order to examine the claims of some witnesses that they had been pressured by their employer to give false testimony. However, from the material available to the Court it appears that no such investigation was opened. 34. The applicant appealed against the prosecutor’s decision, but on 7 June 2010 a senior prosecutor dismissed his appeal. However, on 9 August 2010 the Klaipėda District Court overruled the prosecutor’s decision and reopened the pre-trial investigation. The court underlined that attaching the platform to the reservoir tank had been an inherent part of the construction work carried out by the applicant and other workers, so it could not be considered that they had decided to do that of their own free will. It referred to the expert report of 17 February 2010, noting that that report had given grounds to believe that the applicant’s employer had failed to ensure safe working conditions. The court further noted that V.J.S. had not been officially authorised to leave his workplace on the day of the accident, and thus he had failed to ensure the safety of the workers under his supervision. 35. On 15 October 2010 V.J.S. was officially notified that he, being a person authorised by an employer to supervise construction work, was suspected of violating safety requirements at work, which had resulted in an accident, as set out in Article 176 § 1 of the Criminal Code. 36. In October and November 2010 the investigator interviewed V.J.S. and several witnesses. 37. On an unspecified date the applicant complained to the Prosecutor General’s Office that the pre-trial investigation had been protracted, in particular because it had been discontinued and reopened several times. On 26 November 2010 the Prosecutor General’s Office dismissed his complaint and stated that the repeated discontinuation of the investigation did not give grounds to find that any requirements of the Code of Criminal Procedure had been violated. 38. In January and February 2011 the investigator carried out additional interviews with several witnesses and requested further information from the applicant’s employer. 39. On 14 February 2011 the applicant was informed that the pre-trial investigation had been completed. V.J.S. submitted a request to continue the investigation and carry out additional investigative measures but that request was dismissed. 40. On 1 April 2011 the prosecutor issued an indictment against V.J.S. under Article 176 § 1 of the Criminal Code and on 5 April 2011 the case was transferred to the Klaipėda District Court for examination on the merits. On 28 April 2011 the chairperson of that court noted that the case was complex and large-scale, and allowed an additional thirty days to prepare for its examination. 41. The Klaipėda District Court held the first hearing on 30 June 2011 and decided to adjourn the case until 27 September 2011 because several witnesses were not present. 42. The next hearing was held on 27 September 2011 but several witnesses were absent again and the Klaipėda District Court fined them for failing to appear. The court also decided to adjourn the case until 24 November 2011 in order to ensure the participation of all the necessary witnesses and, as requested by the applicant, to obtain the technical details about the metal platform. 43. It appears that subsequently the case was adjourned again and a new hearing was scheduled for 14 December 2011. 44. On 13 December 2011 V.J.S. submitted a medical certificate to the court indicating that he would be sick from 12 to 16 December 2011, and asked for a further adjournment. 45. The Klaipėda District Court held a hearing on 14 December 2011 but because of the absence of the accused it was decided to adjourn and to schedule a new hearing for 5 January 2012. 46. At the hearing of 5 January 2012 V.J.S.’s lawyer informed the Klaipėda District Court that his client was still sick and had a medical certificate that was valid for another seven days. The court scheduled new hearings for 17, 19 and 24 January 2012. 47. On 16 January 2012 the applicant submitted a civil claim against V.J.S., asking for non-pecuniary damages of 300,000 Lithuanian litai (LTL – approximately 86,886 euros (EUR)). 48. On 17 January 2012 V.J.S.’s lawyer asked the court to adjourn the case again because his client had been admitted to hospital. Later, V.J.S. submitted a medical certificate indicating that he would be sick from 16 to 23 January 2012, which also showed that he would undergo rehabilitation treatment from 23 January to 6 February 2012. 49. The Klaipėda District Court held a hearing on 24 January 2012 and decided to adjourn until 14 February 2012. Subsequently, owing to the continued illness of the accused, the case was adjourned until 17 February 2012, then again until 1 March 2012 and 16 March 2012. 50. On 19 March 2012 the applicant asked the Klaipėda District Court to continue its examination of the case in the absence of the accused, complaining that the latter was deliberately avoiding appearing before the court. The Klaipėda District Court dismissed that application, informing the applicant that V.J.S. had submitted the required medical certificates to prove his illness and that domestic law did not allow for the examination of a criminal case in the absence of the accused. The court also noted that examination of the case had not been unduly protracted because the hearings had been scheduled with as little time between them as possible. 51. Subsequently, owing to the accused’s continued illness, the court further adjourned the case to 11 April 2012, 24 April 2012, and then to 8 May 2012. 52. On 7 May 2012 the applicant asked the court to adjourn the hearing because he had to be admitted to hospital for surgery. 53. The Klaipėda District Court held a hearing on 8 May 2012 from which the applicant was absent. During the hearing the prosecutor asked the court to terminate the case against V.J.S. as time-barred. The court adopted a decision on 14 May 2012 and terminated the case. It noted that V.J.S. had been charged with a crime of negligence, and in such cases the statute of limitations, applicable at the time of the accident, was five years (see paragraph 59 below). The court also observed that the domestic law provisions on the statute of limitations, applicable at the time of the accident, were “unconditional” (besąlygiškos nuostatos) and did not provide for the possibility to suspend the limitation period. The domestic law was subsequently amended to allow such a decision (see paragraph 60 below), but the new legal framework could not be applied retroactively to the detriment of the accused. The court did not examine the applicant’s civil claim and noted that he had the right to institute separate civil proceedings for damages. 54. On 4 June 2012 the applicant complained to the Klaipėda Regional Court that the examination of the case before the district court had been so protracted that it had become time-barred, and asked the regional court to identify the reasons for that protraction. The court considered that complaint as an appeal by the applicant against the Klaipėda District Court’s judgment of 14 May 2012 but refused to admit it because the applicant had not signed it or properly outlined the reasons for the appeal. The applicant did not submit another appeal against the judgment of 14 May 2012. 55. On an unspecified date V.J.S. appealed against the Klaipėda District Court’s judgment of 14 May 2012 and asked the court to examine the case on the merits and to acquit him, but on 13 June 2012 his appeal was dismissed. 56. On 22 November 2012 the Prosecutor General’s Office, in response to a complaint by the applicant, informed him that it had analysed the work of the prosecutors involved in the case and had not detected any “substantial violations” (esminiai pažeidimai) of the Code of Criminal Procedure.