EUROPEAN COURT OF HUMAN RIGHTS
SECOND SECTION
CASE OF TRUBNIKOV v. RUSSIA
(Application No. 49790/99)
JUDGMENT <*>
(Strasbourg, 5.VII.2005)
--------------------------------
<*> This judgment will become final in the circumstances set
out in Article 44 з 2 of the Convention. It may be subject to
editorial revision.
In the case of Trubnikov v. Russia,
The European Court of Human Rights (Second Section), sitting as
a Chamber composed of:
Mr J.-P. Costa, President,
Mr I. Cabral Barreto,
Mr {R. Turmen} <*>,
--------------------------------
<*> Здесь и далее по тексту слова на национальном языке набраны
латинским шрифтом и выделены фигурными скобками.
Mr V. Butkevych,
Mr M. Ugrekhelidze,
Mr A. Kovler,
Ms {D. Jociene}, judges,
and Mrs {S. Dolle}, Section Registrar,
Having deliberated in private on 14 June 2005,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
1. The case originated in an application (No. 49790/99) against
the Russian Federation lodged with the Court under Article 34 of
the Convention for the Protection of Human Rights and Fundamental
Freedoms ("the Convention") by Vladimir Grigoryevich Trubnikov, a
Russian national. The applicant, who had been granted legal aid,
was represented before the Court by Karinna Akopovna Moskalenko, a
lawyer practising in Moscow.
2. The Russian Government ("the Government") were represented
by Mr P. Laptev, Representative of the Russian Federation at the
European Court of Human Rights.
3. The applicant alleged that the domestic authorities were
responsible for the death of his son, Viktor Trubnikov, in prison.
He also alleged that the authorities had failed to investigate the
circumstances of his son's death. He invoked Article 2 of the
Convention.
4. The application was allocated to the Second Section of the
Court (Rule 52 з 1 of the Rules of Court). Within that Section,
the Chamber that would consider the case (Article 27 з 1 of the
Convention) was constituted as provided in Rule 26 з 1. On 1
November 2001 and 1 November 2004, the Court changed the
composition of its Sections (Rule 25 з 1). This case was assigned
to the newly composed Second Section (Rule 52 з 1).
5. By a decision of 14 October 2003, the Court declared the
application partly admissible.
6. The applicant and the Government each filed observations on
the merits (Rule 59 з 1). The Chamber having decided, after
consulting the parties, that no hearing on the merits was required
(Rule 59 з 3 in fine), the parties replied in writing to each
other's observations.
THE FACTS
I. The circumstances of the case
7. The applicant was born in 1940 and lives in the village of
Khokholskiy in the Voronezh Region. He is the father of Viktor
Trubnikov, who was found dead on 13 September 1998 in a punishment
cell of the prison where he had been serving his sentence. He had
died of asphyxia caused by hanging. At the time of his death,
Viktor Trubnikov was 26 years old and was due to be released 21
days later.
8. The facts of the case, as submitted by the parties, may be
summarised as follows.
9. On 8 July 1993 Viktor Trubnikov was remanded in custody in
connection with criminal charges brought against him.
10. On 30 August 1993 Viktor Trubnikov was convicted of
manslaughter and sentenced to seven years' imprisonment. He was
serving his sentence in the correctional labour colony
(исправительно-трудовая колония) OZH 118/8 in Rossosh, Voronezh
Region. He expected to be released on probation on 4 October 1998.
11. According to the records submitted by the Government, on
three occasions in 1994 - 1995 Viktor Trubnikov had been found to
be under the influence of alcohol and placed in a punishment cell.
During his second disciplinary confinement, Viktor Trubnikov
inflicted bodily injury on himself, and during his third
disciplinary confinement he attempted suicide (see the section
entitled "Medical records").
12. Following the suicide attempt, Viktor Trubnikov was placed
under regular psychiatric supervision.
13. On 13 September 1998 a prison football team, of which
Viktor Trubnikov was a member, took part in a match outside the
prison.
14. On return to the prison after the match, Viktor Trubnikov
was found to be under the influence of alcohol. At 7.15 p.m. a
prison officer placed him in a punishment cell where he was to be
kept in solitary confinement before his inspection by the prison
warder the following morning. At 8.20 p.m. Viktor Trubnikov was
found dead, hanged by the sleeve of his jacket with another sleeve
attached to a water pipe.
15. That evening the prison governor conducted an inquest. He
examined six documents: (i) the order to place Viktor Trubnikov in
the punishment cell, (ii) the disciplinary offence report, (iii)
the report drawn up on finding Viktor Trubnikov dead, (iv) the
site inspection report, (v) the site plan and (vi) the post mortem
report. On the basis of this file, he stated that Viktor Trubnikov
had hanged himself using the sleeve of his jacket and ordered that
no criminal investigation be opened, as there had been no
appearance that a crime had been committed. A reference was also
made to his attempted suicide in June 1995, and it was stated that
he had had suicidal tendencies.
16. On 15 September 1998 an autopsy was performed on the body.
In October 1998 a post mortem report was issued according to which
abrasions and bruises were found on the nose, hand, forearm and
elbow. The expert came to the conclusion that death had been
caused by pressure on the neck through hanging.
17. The applicant was informed orally that his son had
committed suicide. He asked the prison authorities to initiate a
criminal investigation. The authorities did not inform him that a
decision had already been taken not to do so.
18. In March 1999 the applicant requested the Voronezh Regional
Prosecutor's Office to provide him with information about the
circumstances of his son's death. The request was transmitted to
the Voronezh City Special Prosecutor's Office supervising
penitentiary institutions.
19. On 8 April 1999 the Voronezh City Special Prosecutor's
Office supervising penitentiary institutions informed the
applicant of the decision not to investigate the circumstances of
Viktor Trubnikov's death in criminal proceedings. The applicant
was informed that his son had had a record of good conduct, that
he had been rewarded on several occasions and that no conflict had
been registered between him and other inmates or the prison
administration. He was also informed that, in the circumstances,
the decision not to institute a criminal investigation was lawful
and well-founded.
20. On 16 April 1999 the Voronezh Regional Prosecutor's Office
informed the applicant of the refusal to institute criminal
proceedings and invited him, on 30 April 1999, to view the case
file concerning the death of his son.
21. On 30 April 1999 the applicant arrived at the prosecutor's
office for the appointment to view the file, but the officer in
charge was absent and he could not gain access to the file.
22. On 26 June 1999 the applicant received a copy of the prison
governor's decision of 13 September 1998.
23. On 18 September 2000 the applicant lodged a request with
the Rossoshanskiy District Court of the Voronezh Region that it
order a criminal investigation into his son's death. The court
declined jurisdiction in the matter, however, on 2 October 2000.
It stated that the institution of criminal proceedings fell within
the competence of the prosecutor's office.
24. After the case had been communicated to the respondent
Government by the Court, the Voronezh Regional Prosecutor's Office
annulled the decision of 13 September 1998 on 5 February 2002 and
instituted a criminal investigation into Viktor Trubnikov's death.
25. On 23 March 2001 the applicant brought proceedings before
the same district court to have the refusal of the prison governor
to institute criminal proceedings declared unlawful.
26. On 20 March 2002 the Rossoshanskiy District Court of the
Voronezh Region held that the decision of 13 September 1998 was
unlawful. At the same time it discontinued the examination of the
applicant's claim as no longer necessary, given the prosecutor's
decision of 5 February 2002 which had already dealt with the
issue.
27. In June 2002 two forensic examinations were carried out.
First, experts were appointed to conduct a new autopsy of the
body. Secondly, another group of experts carried out a posthumous
examination of Viktor Trubnikov's psychiatric and psychological
condition.
28. The autopsy resulted in substantially the same findings as
the first post mortem report, namely, that the death had been
caused by mechanical asphyxia (more specifically, strangling), and
established a medium-degree alcoholic intoxication at the time of
death.
29. On 27 June 2002 the posthumous psychiatric report was
submitted. The experts concluded that at the time of his death
Viktor Trubnikov had not been predisposed to suicide on account of
any long or short-term psychiatric disorder. However, they
concluded that he had been under the influence of alcohol and that
it could have triggered his decision to commit suicide.
30. During the investigation the following witnesses were
examined and gave the following testimonies:
(i) Six officers who were on duty at the prison entrance when
Viktor Trubnikov returned to the prison after the football match,
testified that he had been drunk and had behaved aggressively. He
therefore had to be isolated in the punishment cell. They all
stated that no force had been applied to him.
(ii) Two inmates who had been on the same football team
testified that Viktor Trubnikov had been under the influence of
alcohol on their return from the match, and that was why he had
been stopped by the prison warders at the prison entrance. They
stated that there had been no threats or violence at the prison
entrance.
(iii) Three other inmates who had known Viktor Trubnikov well
testified that he had had good relations with other inmates and
warders and that there had been no conflict between him and the
prison administration.
(iv) Six officers who had been on duty in the punishment ward
when Viktor Trubnikov died, testified that he had been placed in
the cell at about 7.30 p.m. and had been found dead during the
warder's round at 8.15 p.m. They stated that first aid had been
administered, but that it had been too late.
(v) Inmates L. and M. testified that they had been confined to
punishment cells next to Viktor Trubnikov. M. stated that at first
they had communicated through the wall, but then Viktor Trubnikov
had gone quiet. Neither of them had heard any noises or screams.
(vii) Two officers testified that they had witnessed Viktor
Trubnikov's previous suicide attempt in 1995 and administered
first aid to him. They considered that that attempt had not been a
genuine suicide, but that he had rather been trying to attract
attention and demonstrate his independence.
(viii) Ms. K, the psychiatrist who had supervised Viktor
Trubnikov, testified that his first suicide attempt had been
demonstrative and had not reflected a genuine wish to die. She
also considered, on the basis of her observations, that he had
been likely to make another attempt, also demonstrative and not
aimed at causing death, and that the probability of such behaviour
increased under the influence of alcohol.
31. On 10 October 2002 the Voronezh City Special Prosecutor's
Office supervising penitentiary institutions terminated the
criminal investigation, having established that Viktor Trubnikov
had committed suicide.
32. On 3 March 2003 the applicant received a copy of the
termination order of 10 October 2002.
B. Medical records
33. The Government submitted a collection of medical records
concerning Viktor Trubnikov's condition throughout his detention.
In so far as the copies are legible, they contain the following
relevant entries.
34. On 13 July 1993, upon his arrest, Viktor Trubnikov was
examined by a psychiatrist and found to be in good health.
35. On 10 September 1994 an alcohol test revealed that Viktor
Trubnikov was under the influence of alcohol. He was placed in a
punishment cell.
36. On 21 March 1995 an alcohol test revealed that Viktor
Trubnikov was under the influence of alcohol. He was placed in a
punishment cell where he inflicted injuries on himself, recorded
as follows:
"As a protest against being put in a punishment cell [Viktor
Trubnikov] inflicted three horizontal cuts on his abdomen:
measuring 10 x 2 cm, 8 x 2 cm and 6 x 1 cm, each about 1.5 cm
deep. Minor bleeding..."
37. From 21 to 27 March 1995 Viktor Trubnikov was kept in the
medical block for treatment of the self-inflicted wounds.
38. On 22 June 1995 an alcohol test revealed that Viktor
Trubnikov was under the influence of alcohol. He was placed in a
punishment cell where he attempted to hang himself, as recorded:
"Emergency call for an attempted suicide. Trubnikov detained in
the punishment cell No. 22 attempted to hang himself by a string
attached to a water pipe... Consultation with a psychiatrist is
required."
39. Following that incident, Viktor Trubnikov was supervised by
a psychiatrist, Ms K., who made the following entries in the
records.
On 23 June 1995:
"Complains about depression, unwillingness to live, weakness,
insomnia, irritability. Psychologically [stable]. Enters into
contact. Orientation in space and time, as regards own personality
is correct. Depressed overall. Thinking is consistent. Memory and
reason are intact. No acute psychiatric symptoms can be observed
at the time of examination. Diagnosis: short-term depressive
reaction; suicide attempt. (i) [prescription medicines]; (ii)
psychotherapy."
On 24 (29) June 1995:
"Conscious. Enters into contact. Depressed. Thinking is
consistent. Demonstrative behaviour. Explains the suicide attempt
by saying that he is "fed up with a life like that". The attitude
to the suicide attempt is not self-critical. Memory and reason are
intact. No pathological psychiatric condition. Diagnosis: short-
term depressive reaction. Suicide attempt. Fixation behaviour.
Continue treatment."
On 30 June 1995:
"Has no medical complaints. His mood is steady and positive.
Goes in for sport. Thinking is consistent. Memory and reason are
intact. No acute psychiatric symptoms can be observed. Self-
critical attitude to the recent suicide attempt. No acute
psychiatric symptoms are observed. Prescribed rational
psychotherapy. The next visit is scheduled for 25 December 1995."
On 25 December 1995:
"Has no medical complaints. Mood is steady. Demonstrative
behaviour. Thinking is consistent. Memory and reason are intact.
No acute psychiatric symptoms are observed. Diagnosis: fixation
behaviour. Prescribed rational psychotherapy. The next visit is
scheduled for 25 June 1996."
On 25 June 1996:
"Complains about depression, weakness, irritability, insomnia,
inability to work. Thinking is consistent. Memory and reason are
intact. No acute psychiatric symptoms are observed. Diagnosis:
hyposthenic form of neurasthenia."
On 25 December 1996:
"Has no medical complaints. His mood is steady. Thinking is
consistent. Self-critical attitude to the suicide attempt in the
past. Memory and reason are intact. Demonstrative behaviour.
Diagnosis: hyposthenic form of neurasthenia. The next visit is
scheduled for 25 June 1997."
On 25 June 1997:
"Mood is changeable. Thinking is consistent. Self-critical
attitude to the suicide attempt in the past. No acute psychiatric
symptoms are observed. Diagnosis: hyposthenic form of
neurasthenia. The next visit is scheduled for 25 December 1997."
On 25 December 1997:
"Complains about depression, weakness, insomnia, irritability.
No acute psychiatric symptoms are observed. Depressed. The next
visit is scheduled for 25 June 1997."
The next entry is dated 25 June 1997, although it immediately
follows the above record of 25 December 1997:
"Condition has improved. Mood has stabilised. Thinking is
consistent. Memory and reason are intact. No acute psychiatric
symptoms are observed. Diagnosis: the same. The next visit is
scheduled for 25 December 1998."
The next entry is dated 17 February 1997, although it
immediately follows the above record dated 25 June 1997:
"Has no medical complaints. Mood is steady, depressed. No acute
psychiatric symptoms are observed. Diagnosis: depressive reaction.
Attempted suicide in the past. No complaints at the time of
examination. [Fixation]. The next visit is scheduled for 17 August
1998. Rat[ional] psychotherapy."
40. On 8 August 1998 a psychological test revealed, inter alia,
a potential psychiatric condition, a tendency towards impulsive
reactions and, possibly, a tendency towards conflict with others.
41. The last record in Viktor Trubnikov's lifetime was made on
17 August 1998:
"Complains about depression, weakness, insomnia, irritability.
Enters into contact. Orientation is correct. Depressed. Thinking
is consistent. No acute psychiatric symptoms are observed. No
suicidal thoughts. Diagnosis: short-term depressive syndrome. The
next visit is scheduled for [unclear]."
42. On 20 February 2002 the deputy prison warder in charge of
the prison medical office issued a certificate that Viktor
Trubnikov had been under permanent psychiatric supervision, having
been diagnosed as suffering from neurasthenia and a psychopathic
condition with depressive reactions.
II. Relevant domestic law
A. Supervision of inmates with suicidal tendencies
43. Article 20 of the Constitution of the Russian Federation
protects the right to life.
44. The Health Care (General Principles) Act of 22 July 1993
provides that persons serving a sentence in prisons are entitled
to medical assistance at the State's expense and, as the case may
be, at institutions run by the general public health service
(Section 29).
45. The Law on Penitentiary Institutions of 21 July 1993
provides that penitentiary institutions are responsible for
inmates' security and health care (section 13).
46. Article 18 of the 1997 Penitentiary Code, as it read at the
material time, provided that inmates suffering from a psychiatric
disorder which did not affect their capacity to serve a criminal
sentence could be subjected to medical treatment at the
penitentiary institutions. The authorisation of a competent court
was required for any such treatment.
After recent amendments, the same provision specifies that such
inmates include persons who pose a danger to others or themselves.
The provisions currently in force require the penitentiary
authorities to identify such inmates and to apply for a court
order imposing medical treatment on them.
B. Inquest proceedings
47 The 1960 Code of Criminal Procedure, which was in force at
the material time, required that a competent authority institute
criminal proceedings if there was a suspicion that a crime had
been committed. That authority was under an obligation to carry
out all measures provided for by law to establish the facts and to
identify those responsible and secure their conviction. The
decision whether or not to institute criminal proceedings had to
be taken within three days of the first report on the relevant
facts (Articles 3, 108-09).
48. No criminal proceedings could be brought in the absence of
a corpus delicti (Article 5). Where an investigating body refused
to open or terminated a criminal investigation, a reasoned
decision was to be provided. Such decisions could be appealed to a
higher-ranking prosecutor or to a court (Articles 113 and 209).
49. During criminal proceedings, persons who had been granted
victim status could submit evidence and file applications, had
full access to the case file once the investigation was complete,
and could challenge appointments and appeal decisions or judgments
in the case. At an inquest, the close relatives of the deceased
were to be granted victim status (Article 53).
THE LAW
I. The Court's assessment of the evidence
and establishment of the facts
A. Assessment of the medical records
50. The Court is required to determine whether the facts of the
instant case disclose a failure by the respondent State to protect
the applicant's right to life and to comply with the procedural
obligation imposed by Article 2 of the Convention to carry out an
adequate and effective investigation into the incident. In order
to obtain an account of Viktor Trubnikov's condition prior to his
death and examine the adequacy of his medical supervision, the
Court requested the Government to submit his medical file.
51. The Government submitted a photocopy of what they claimed
to be the psychiatric records made while Viktor Trubnikov was
alive. They did not specify whether it was a copy of the file
itself or an extract from it. Due to the poor quality of the copy,
the distorted chronology of records, in particular those relating
to the period 1997 - 1998, and the absence of page numbers, it is
impossible to follow the sequence of the records or establish if
it is an extract, who issued it and when.
52. The Court therefore requested the Government to submit the
original medical file. The Government refused on the grounds that
it was unsafe to remove it from the prison archives where it was
kept. The Court reiterated its request, giving assurances that the
original would be returned to the Russian authorities at the end
of the proceedings. However, the Government still refused to
comply with the Court's request.
53. In view of the above, the Court decided to examine the
merits of the case on the basis of the existing elements in the
file, even though the fragmentary medical records leave certain
facts unclear.
B. The Court's considerations under Article 38 з 1 (a)
54. Article 38 з 1 (a) of the Convention provides:
"If the Court declares the application admissible, it shall
(a) pursue the examination of the case, together with the
representatives of the parties, and if need be, undertake an
investigation, for the effective conduct of which the States
concerned shall furnish all necessary facilities..."
55. The Court reiterates that it is of utmost importance for
the effective operation of the system of individual petition
instituted by Article 34 that States should furnish all necessary
facilities to make possible a proper and effective examination of
applications (see, as the most recent authority, Orhan v. Turkey,
No. 25656/94, з 266, 18 June 2002, and Tanrikulu v. Turkey [GC],
No. 23763/94, з 70, ECHR 1999-IV). It is inherent in proceedings
relating to cases of this nature, where an individual applicant
accuses State agents of violating rights under the Convention,
that in certain instances solely the respondent Government have
access to information capable of corroborating or refuting these
allegations. A failure on a Government's part to submit such
information which is in their hands without a satisfactory
explanation may not only give rise to the drawing of inferences as
to the well-foundedness of the applicant's allegations, but may
also reflect negatively on the level of compliance by a respondent
State with its obligations under Article 38 з 1 (a) of the
Convention (see (Timurtas} v. Turkey, No. 23531/94, зз 66 and 70,
ECHR 2000-VI). The same applies to delays by the State in
submitting information which prejudices the establishment of the
facts in a case (see Orhan, cited above, з 266).
56. In the light of the above principles and having regard to
the Government's obligations under Article 38 з 1 (a) of the
Convention, the Court has examined the Government's conduct in the
present case with particular regard to their failure to provide
the original medical file concerning the psychiatric supervision
of Viktor Trubnikov prior to his death.
57. The Court concludes that the Government have failed to
provide any convincing explanation for their refusal to do so. The
Court therefore considers that it can draw inferences from the
Government's conduct in the instant case (cf. Orhan, cited above,
з 274). Bearing in mind the difficulties arising from the
establishment of the facts in the present case, and in view of the
importance of a respondent Government's cooperation in Convention
proceedings, the Court finds that the Government have failed to
furnish all necessary facilities to the Court in its task of
establishing the facts for the purposes of Article 38 з 1 (a) of
the Convention.
II. Alleged violation of Article 2 of the Convention
58. The first sentence of Article 2 of the Convention provides:
"1. Everyone's right to life shall be protected by law..."
59. The applicant complained that the authorities had failed to
protect the life of his son and were responsible for his death. He
also complained that the investigation into his son's death had
not been adequate or effective, as required by the procedural
obligation imposed by Article 2 of the Convention.
A. Concerning the positive obligation to protect life
1. Submissions of the parties
(a) The applicant
60. The applicant submitted that there had been a breach of the
positive obligation imposed on the authorities to protect the life
of his son. First, he maintained that the authorities had known of
Viktor Trubnikov's suicidal tendencies, since his attempted
suicide in 1995 and his subsequent monitoring by the prison
psychiatrist.
61. The applicant further claimed that, even if the authorities
denied having had such knowledge, on the basis of the information
at their disposal they ought at least to have known of the
existence of a real and imminent risk that he might attempt to
commit suicide.
62. The applicant also observed that the investigator's
conclusions as to Viktor Trubnikov's condition were both unclear
and unfounded. He referred to the medical file, claiming that it
could not be concluded with certainty from it whether Viktor
Trubnikov was mentally stable. He also challenged the conclusion
of the posthumous psychological/psychiatric examination as being
inconsistent with the assessment given by the prison psychiatrist
throughout the routine supervision. He saw a contradiction in that
the latter showed that Viktor Trubnikov was emotional,
demonstrative and irresponsible, but stable at the same time,
while the posthumous report unambiguously stated that he had not
been suffering from any psychiatric disorder and had generally
been well. The applicant contended that, since no clear conclusion
could be reached about the condition of Viktor Trubnikov on the
basis of his medical file, the conclusion should have been reached
that his behaviour had varied over time. In such circumstances,
even if the real and immediate risk was not always present, it was
incumbent on the authorities to monitor his condition carefully in
case of any sudden deterioration. In any event, the applicant had
difficulties accepting the allegation that Viktor Trubnikov's
condition had been normal and stable, since the authorities had
not offered any other explanation for his suicide, thus
reinforcing doubts as to whether it had indeed been a suicide. The
applicant himself could not rule out the possibility that his son
had in fact been murdered by a cell mate or a prison guard.
63. Overall, the applicant considered that the authorities had
failed to take measures to prevent Viktor Trubnikov's death
resulting from either self-harm or another person's act, and that
such failure engaged their responsibility under Article 2 of the
Convention.
(b) The Government
64. The Government alleged that the prison authorities could
not have foreseen Viktor Trubnikov's suicide.
65. They admitted that Viktor Trubnikov had been diagnosed as
suffering from neurasthenia, and had had a psychopathic
personality with depressive reactions, as well as a history of
injuring himself when placed in a punishment cell. The Government
still considered, however, that placing him in a punishment cell
had been reasonably safe because he had never had a genuine
intention of killing himself, and his previous suicide attempt had
merely been "demonstrative". The investigation conducted in 2002
had concluded that Viktor Trubnikov was likely to attempt suicide
again, but that this would be no more than another "demonstrative"
act, not aimed at causing his death. It was found that Viktor
Trubnikov's suicidal behaviour had been only an effort to
manipulate the prison authorities in order to avoid being placed
in a punishment cell. They referred to the posthumous psychiatric
report of 2002, according to which the probability of such
behaviour increased under the influence of alcohol.
66. The Government claimed that the officer on duty had acted
lawfully and adequately in the circumstances, as he had had no way
of knowing of any real or immediate threat to Viktor Trubnikov's
life when placing him provisionally in the punishment cell. They
submitted that no medical personnel had been present in the prison
at the time, as the applicable regulations did not provide for
their presence over the weekend. As a general suicide-prevention
measure, however, Viktor Trubnikov's shoe laces and trouser belt
had been taken away from him before he was placed in the
punishment cell. The punishment cell had also been under
surveillance; however, in view of the short time Viktor Trubnikov
had spent in the punishment cell (about an hour), it had not been
effective.
2. The Court's assessment
(a) General principles
67. The Court reiterates that Article 2, which safeguards the
right to life, ranks as one of the most fundamental provisions in
the Convention. Together with Article 3, it also enshrines one of
the basic values of the democratic societies making up the Council
of Europe. The object and purpose of the Convention as an
instrument for the protection of individual human beings requires
that Article 2 be interpreted and applied so as to make its
safeguards practical and effective (see McCann and Others v. the
United Kingdom, judgment of 27 September 1995, Series A No. 324,
pp. 45 - 46, зз 146 - 47).
68. The first sentence of Article 2 з 1 enjoins the State not
only to refrain from the intentional and unlawful taking of life,
but also to take appropriate steps to safeguard the lives of those
within its jurisdiction (see L.C.B. v. the United Kingdom,
judgment of 9 June 1998, Reports 1998-III, p. 1403, з 36). In the
context of prisoners, the Court has had previous occasion to
emphasise that persons in custody are in a vulnerable position and
that the authorities are under a duty to protect them. It is
incumbent on the State to account for any injuries suffered in
custody, which obligation is particularly stringent when an
individual dies (see, for example, Salman v. Turkey [GC], No.
21986/93, ECHR 2000-VII, з 99).
69. Bearing in mind the difficulties in policing modern
societies, the unpredictability of human conduct and the
operational choices which must be made in terms of priorities and
resources, the scope of the positive obligation must be
interpreted in a way which does not impose an impossible or
disproportionate burden on the authorities. Accordingly, not every
claimed risk to life can entail for the authorities a Convention
requirement to take operational measures to prevent that risk from
materialising. For a positive obligation to arise regarding a
prisoner with suicidal tendencies, it must be established that the
authorities knew, or ought to have known at the time, of the
existence of a real and immediate risk to the life of an
identified individual and, if so, that they failed to take
measures within the scope of their powers which, judged
reasonably, might have been expected to avoid that risk (see
Keenan v. the United Kingdom, No. 27229/95, зз 89 and 92, ECHR
2001-III).
70. The Court has recognised that the prison authorities must
discharge their duties in a manner compatible with the rights and
freedoms of the individual prisoner concerned. There are general
measures and precautions which ought to be available to diminish
the opportunities for self-harm, without infringing personal
autonomy. Whether any more stringent measures are necessary in
respect of a prisoner and whether it is reasonable to apply them
will depend on the circumstances of the case (see Keenan, cited
above, з 91).
(b) Application in the present case
71. In the light of the above, the Court has examined whether
the authorities knew or ought to have known that Viktor Trubnikov
posed a real and immediate risk of suicide and, if so, whether
they did all that could reasonably have been expected of them to
prevent that risk.
72. The Court notes that Viktor Trubnikov served his sentence
under the general regime, whilst being recognised as a person with
certain psychological problems. During the first years of his
sentence he showed a tendency to inflict self-harm in response to
being subjected to disciplinary punishments when under the
influence of alcohol, and in 1995, more than three years before
the events in question, he attempted to commit suicide. This
attempt was assessed as a "cry for help" rather than a true
attempt to terminate his life. Following this incident he received
psychiatric treatment and surveillance, his mental condition being
reviewed at regular six-monthly intervals.
73. The Court observes that Viktor Trubnikov's condition was
not so serious as to require the intervention of a court order
imposing compulsory psychiatric treatment. His prison medical
records indicated that he displayed no acute psychiatric symptoms,
even after his suicide attempt in 1995. Rather they showed a
disturbed personality and behavioural setbacks, which apparently
did not reach the threshold of a mental illness (see, by contrast,
Keenan, cited above, зз 94 - 95).
74. Accordingly, it has not been established that Viktor
Trubnikov's conduct was associated with any dangerous psychiatric
condition. Moreover, no opinion had ever been expressed - by
Viktor Trubnikov's psychiatrist or other officials involved in his
supervision - that Viktor Trubnikov was likely to make a serious
attempt to commit suicide or inflict self-harm in the future.
Accordingly, there was no formal acknowledgement which would lead
the Court to conclude that the authorities were aware of the
imminent threat to Viktor Trubnikov's life.
75. As to whether the authorities ought to have known of the
risk, the Court observes that for the last three years of Viktor
Trubnikov's life, when he was under psychiatric supervision, he
did not reveal any dangerous symptoms, such as the persistence of
his suicidal tendency. On the contrary, the records reflected a
certain improvement in his attitude towards his previous suicide
attempt. Viktor Trubnikov's mental and emotional state, in
general, apparently stabilised after the initial intensive
treatment he received in 1995, and remained unchanged for more
than three years. During that period no substantial variations
were registered, and Viktor Trubnikov's state was consistently
described as stable. Against such a background, the Court accepts
that it would have been difficult to predict any quick and drastic
deterioration that would lead to Viktor Trubnikov's suicide.
76. For these reasons the Court does not find that, in the
circumstances, the authorities could have reasonably foreseen
Viktor Trubnikov's decision to hang himself. Nor does the Court
find any manifest omission on the part of the domestic authorities
in providing medical assistance or in monitoring Viktor
Trubnikov's mental and emotional condition throughout his
imprisonment which would have prevented them from making a correct
assessment of the situation.
77. However, the Court considers that Viktor Trubnikov's
history should have alerted the authorities to the fact that the
combination of his inebriation with a disciplinary punishment was
not without some risk to his condition. The fact that Viktor
Trubnikov was able to have any access to alcohol on the fatal day
is of concern to the Court. Nevertheless, the Court does not find
this oversight sufficient to vest the domestic authorities with
the entire responsibility for Viktor Trubnikov's death.
78. Having regard to the above, the Court does not find that in
the circumstances of the present case the Russian authorities
failed to prevent a real and immediate risk of suicide or that
they otherwise acted in a way incompatible with their positive
obligations to guarantee the right to life.
79. Accordingly there has been no violation of Article 2 of the
Convention in this respect.
B. The procedural obligation to carry out
an effective investigation
1. Submissions of the parties
(a) The applicant
80. The applicant submitted that the investigation conducted
following the death of his son in prison was not effective as
required by the Court's case-law under Article 2 of the
Convention.
81. First, he alleged that it was not carried out promptly. He
observed that Viktor Trubnikov had died on 13 September 1998, but
the criminal investigation was only opened on 5 February 2002,
after the present case had been communicated to the Government. He
claimed that the delay of over three years did not satisfy the
criteria of promptness or reasonable expedition of the
investigation.
82. Secondly, he challenged the evidence collected after the
investigation had been opened. He claimed that all witnesses but
one had been biased, either through personal involvement in the
case (prison staff and medical personnel), or by being dependent
on the prison administration (the inmates still serving their
sentence). He also challenged the psychiatric records and the
posthumous forensic examination of Viktor Trubnikov's
psychological and psychiatric condition as being controversial and
generally open to objection. Moreover, he complained that some
evidence could no longer be obtained due to the length of time
which had elapsed since the incident.
83. Finally, the applicant claimed that the investigation had
not been public. He alleged that the initial inquest lacked
transparency in that the family had not even been informed of the
order not to open criminal proceedings. In 2002, likewise, neither
he nor other family members had been involved in the investigation
or even informed of its progress or closure.
(b) The Government
84. The Government considered that the investigation into
Viktor Trubnikov's death had been thorough and complete. They
first referred to the prison's internal inquest conducted
immediately upon his death and, secondly, to the 2002 criminal
investigation. They maintained that the overall investigation into
the death of Viktor Trubnikov had been effective.
2. The Court's assessment
(a) General principles
85. The Court reiterates that where lives have been lost in
circumstances potentially engaging the responsibility of the
State, Article 2 entails a duty for the State to ensure, by all
means at its disposal, an adequate response - judicial or
otherwise - so that the legislative and administrative framework
set up to protect the right to life is properly implemented and
any breaches of that right are repressed and punished (see
{Oneryildiz} v. Turkey [GC], No. 48939/99, з 91, ECHR 2004-...,
and, mutatis mutandis, Paul and Audrey Edwards v. the United
Kingdom, No. 46477/99, з 54, ECHR 2002-II).
86. In that connection the Court has held that, if the
infringement of the right to life or to physical integrity is not
caused intentionally, the positive obligation to set up an
"effective judicial system" does not necessarily require criminal
proceedings to be brought in every case and may be satisfied if
civil, administrative or even disciplinary remedies were available
to the victims (see, for example, Vo v. France [GC], No. 53924/00,
з 90, ECHR 2004-VII; Calvelli and Ciglio v. Italy [GC], No.
32967/96, з 51, ECHR 2002-I; Mastromatteo v. Italy [GC], No.
37703/97, зз 90, 94 and 95, ECHR 2002-VIII). However, the minimum
requirement for such a system is that the persons responsible for
the investigation must be independent from those implicated in the
events. This means hierarchical or institutional independence and
also practical independence (see Paul and Audrey Edwards, cited
above, з 70, and Mastromatteo, cited above, з 91).
87. The Court further reiterates that, in cases of homicide,
the interpretation of Article 2 as entailing an obligation to
conduct an official investigation is justified not only because
any allegations of such an offence normally give rise to criminal
liability, but also because often, in practice, the true
circumstances of the death are, or may be, largely confined within
the knowledge of State officials or authorities. Therefore the
applicable principles are rather to be found in those which the
Court has already had occasion to develop in relation notably to
the use of lethal force, principles which lend themselves to
application in other categories of cases (see {Oneryildiz}, cited
above, з 93).
88. Accordingly, where a positive obligation to safeguard the
life of persons in custody is at stake, the system required by
Article 2 must provide for an independent and impartial official
investigation that satisfies certain minimum standards as to
effectiveness. Thereby, the competent authorities must act with
exemplary diligence and promptness and must of their own motion
initiate investigations which would be capable of, firstly,
ascertaining the circumstances in which the incident took place
and any shortcomings in the operation of the regulatory system
and, secondly, identifying the State officials or authorities
involved. The requirement of public scrutiny is also relevant in
this context (see, for example, {Gulec} v. Turkey, judgment of 27
July 1998, Reports 1998-IV, p. 1733, зз 81 - 82; {Ogur} v. Turkey
[GC], No. 21954/93, зз 88, 91 - 92, ECHR 1999-III; Hugh Jordan v.
the United Kingdom, No. 24746/94, з 120; Kelly and Others v. the
United Kingdom, No. 30054/96, з 114, both of 4 May 2001; McCann
and Others, cited above, з 161; Mahmut Kaya v. Turkey, No.
22535/93, зз 106 - 07, ECHR 2000-III; {Ilhan} v. Turkey [GC], No.
22277/93, з 63, ECHR 2000-VII; McKerr v. the United Kingdom, No.
28883/95, з 148, ECHR 2001-III).
(b) Application in the present case
89. The Court finds that a procedural obligation arose to
investigate the circumstances of Viktor Trubnikov's death. He was
a prisoner under the care and responsibility of the authorities
when he died as a result of what appeared to be a suicide. The
investigation was necessary to establish, firstly, the cause of
death to the exclusion of an accident or manslaughter and,
secondly, once suicide was established, to examine whether the
authorities were in any way responsible for a failure to prevent
it. The investigation had to fulfil the requirements set out above
(see paragraph 88).
90. The Court observes that the initial inquest into the death
was carried out promptly, within several days of the incident.
However, it did not satisfy the minimum requirement of
independence since the investigating body - the prison governor -
represented the authority involved. Predictably, the scope of this
examination was limited to establishing the fact of death from
hanging; the question of the possible responsibility of the prison
authorities did not feature. Moreover, this inquest did little to
satisfy the need for public scrutiny. It is undisputed that the
family was not even informed about the formal refusal to institute
criminal proceedings. Finally, the domestic court considered this
investigation insufficient, and it declared the refusal to open
criminal proceedings unlawful. With regard to all the above
considerations, the Court cannot accept that the initial inquest
constituted an effective investigation within the meaning of the
Court's case-law.
91. The Court will now examine the investigation carried out in
2002 with regard to the same requirements.
92. First of all, the Court notes that it was only conducted
after the present application was communicated by the Court to the
respondent Government, that is, more than three years after the
incident. The Court reiterates that it is crucial in cases of
deaths in contentious situations for the investigation to be
prompt. The passage of time will inevitably erode the amount and
quality of the evidence available and the appearance of a lack of
diligence will cast doubt on the good faith of the investigative
efforts, as well as drag out the ordeal for the members of the
family (see Paul and Audrey Edwards, cited above, з 86). Such a
substantial delay, unexplained in this case, not only demonstrates
the authorities' failure to act of their own motion but also
constitutes a breach of the obligation to exercise exemplary
diligence and promptness.
93. The Court notes, furthermore, that throughout the
investigation the applicant and the rest of the family were
entirely excluded from the proceedings. Contrary to the usual
practice under national law, they were not granted the official
status of victims in criminal proceedings, a procedural role which
would have entitled them to intervene during the course of the
investigation. Even assuming that the family's participation could
have been secured otherwise, this was not the case here. The terms
of their access to the file were not defined. They were never
informed or consulted about any proposed evidence or witnesses,
including the appointment of posthumous psychological and
psychiatric experts, so they could not take part in instructing
the experts. The applicant did not receive any information about
the progress of the investigation and, when it was discontinued on
10 October 2002, he was only notified five months later.
Accordingly, the investigation did not ensure sufficient public
accountability to provide the investigation and its results with a
sufficient element of public scrutiny; nor did it safeguard the
interests of the next-of-kin.
94. The Court notes that the authorities took a number of
important steps to establish the true circumstances of Viktor
Trubnikov's death, such as examining key witnesses and appointing
experts to prepare a posthumous psychological and psychiatric
examination. However, having established that the investigation
fell short of such essential requirements as promptness, exemplary
diligence, initiative on the part of the authorities and public
scrutiny, the Court does not find it necessary to examine its
scope, and concludes that the investigation failed to meet the
minimum standards of effectiveness.
95. The Court concludes that there has been a violation of the
respondent State's obligation under Article 2 з 1 of the
Convention to conduct an effective investigation into the death of
Viktor Trubnikov.
III. Application of Article 41 of the Convention
96. Article 41 of the Convention provides:
"If the Court finds that there has been a violation of the
Convention or the Protocols thereto, and if the internal law of
the High Contracting Party concerned allows only partial
reparation to be made, the Court shall, if necessary, afford just
satisfaction to the injured party."
A. Damage
97. The applicant claimed 8,000 euros (EUR) for non-pecuniary
damage in respect of the grief and distress he suffered as a
result of his son's death and the anguish caused by the
authorities' failure to carry out an effective investigation.
98. The Government considered this amount excessive and
unfounded. They maintained that, if the Court found in the
applicant's favour, the finding of a violation would constitute
sufficient just satisfaction in this case.
99. The Court observes that it has found above that the
authorities failed to protect the life of Viktor Trubnikov or to
provide a prompt and public investigation meeting the requirements
of Article 2 of the Convention. The applicant must have suffered
anguish and distress from the circumstances of his son's death and
his inability to obtain an effective investigation in this
respect. In these circumstances, the Court finds the applicant's
claim reasonable and therefore awards him, in his personal
capacity, EUR 8,000 for non-pecuniary damage.
B. Costs and expenses
100. The applicant claimed EUR 3,000, less the amount already
paid in legal aid, for costs and expenses incurred in the domestic
proceedings and before the Court in respect of himself and his
legal advisers. He submitted that he had paid 30,000 roubles
(about EUR 1,000) for the representation of his case before the
domestic courts, but that the rest of the work for him had been
done pro bono and he wished to remunerate the lawyers for the
advice and representation in the domestic proceedings and before
the Court.
101. The Government contested this sum as unsubstantiated. They
considered that the claim should be rejected in full.
102. The Court notes that the applicant was granted legal aid
under the Court's legal-aid scheme, under which the sum of EUR 685
was paid to the applicant's lawyer to cover the submission of the
applicant's observations on the admissibility and merits of the
application. The submission of additional observations was not
covered by this sum.
103. The Court observes that only legal costs and expenses
necessarily and actually incurred and which are reasonable as to
quantum can be reimbursed pursuant to Article 41 of the
Convention. It notes that this case involved complex issues of
fact and law which required qualified legal advice to submit the
application to the Court, conduct domestic proceedings and which
gave rise to two sets of written observations.
104. Against the above background, the Court finds the
applicant's claim reasonable and therefore awards him EUR 3,000
for legal costs and expenses, less the EUR 685 received by way of
legal aid from the Council of Europe, together with any value-
added tax that may be chargeable.
C. Default interest
105. The Court considers it appropriate that the default
interest should be based on the marginal lending rate of the
European Central Bank, to which should be added three percentage
points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that there has been no violation of Article 2 of the
Convention as regards the authorities' positive obligations to
protect the right to life;
2. Holds that there has been a violation of Article 2 of the
Convention as regards the authorities' failure to provide an
effective investigation;
3. Holds that the Government have failed to fulfil their
obligation under Article 38 з 1 (a) of the Convention;
4. Holds:
(a) that the respondent State is to pay the applicant, within
three months from the date on which the judgment becomes final
according to Article 44 з 2 of the Convention, the following
amounts to be converted into the national currency of the
respondent State at the rate applicable at the date of settlement:
(i) EUR 8,000 (eight thousand euros) in respect of
non-pecuniary damage;
(ii) EUR 2,315 (two thousand three hundred and fifteen
euros) in respect of costs and expenses;
(iii) any tax that may be chargeable on the above amounts;
(b) that from the expiry of the above-mentioned three months
until settlement simple interest shall be payable on the above
amounts at a rate equal to the marginal lending rate of the
European Central Bank during the default period plus three
percentage points;
Done in English, and notified in writing on 5 July 2005,
pursuant to Rule 77 зз 2 and 3 of the Rules of Court.
J.-P.COSTA
President
{S.DOLLE}
Registrar
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