Case No. 39358/05
Judgment date: 15 March 2011
The applicant’s brother had been detained, suspected of participating in the kidnap of the older brother of a top-level oil company executive. The applicant alleged that while in detention from 23rd October 1998 his brother was beaten and frequently deprived of basic necessities. He was detained for around 10 months in various facilities. On 23 August 1999 the applicant’s brother was taken from his cell in a pre-trial facility by four men carrying falsified documents, allegedly to transfer him to another facility. The following day, the applicant’s brother was found dead. There were gunshot wounds to his head. The body was identified from its fingerprints.
Following the discovery of the body, a criminal investigation was instituted. While many important steps were taken in ensuring the success of the investigation, including immediate commencement, efficient notification and interview of relevant family members as well as obtaining forensic and ballistics reports, there were a number of irregularities. Several documents relating to the investigation were not disclosed and many other documents were lost and stolen. Notably, State officials (and former State officials) were questioned insufficiently with regard to their role in the coordination and administration of the applicant’s brother’s detention and movements between facilities. The investigation into his murder was suspended for failure to identify the suspects and reopened on a number of occasions. The applicant repeatedly wrote to the Prosecutor General complaining of the ineffectiveness of the investigation.
The Court held that insufficient evidence had been supplied to show that the men who kidnapped and murdered applicant’s brother were State agents, or that there was a foreseeable, real and immediate risk to his life when he was transferred to those men. Consequently, the Court found that there had been no substantive violation of Article 2 of the Convention in respect of the applicant’s brother (including the State’s positive obligation to protect someone at risk).
However the Court held that there had been a violation with regard to the procedural limb of Article 2 given the ineffectiveness of the investigation following the applicant’s brother’s death. The Court highlighted the fact that in questioning State officials poorly, the investigation had not pursued an obvious avenue of enquiry effectively. Proper questioning of State officials could have provided crucial evidence about the circumstances of the case and the identity of the kidnappers, especially had evidence been sought with regard to who had access to papers permitting the previous transfers of the applicant’s brother.
The Court awarded 15,000 EUR in respect of non-pecuniary damages.