CASE OF BAKANOVA v. LITHUANIA (no. 11167/12)
Chamber judgement
31.5.2016
- Violation of Article 2 (investigation)
- The circumstances of the case
The applicant’s husband, V.B., born in 1953, worked as a mechanic in cargo ships. On the morning of 24 October 2007, while on a work voyage to Brazil on the ship Vega, he was found dead in his cabin. He was lying on his back in bed, under blanket, his right hand bent and pressing his chest. On the same day, the ship’s captain assembled a commission to investigate the death. Having inspected V.B.’s cabin, the captain sent a report about the death to his superiors in Klaipėda, the Limarko shipping company. The following day, a Brazilian doctor, P.C.J., gave acute heart attack as V.B.’s cause of death.Brazilian police questioned ship’s captain and chief engineer and inspected the V.B’s cabin. The police considered that no crime had taken place. Afterwards, the body of V.B was put in a zinc coffin and shipped to Lithuania, which it reached inDecember 2007.
On 25 October 2007 a Lithuanian prosecutor opened a criminal investigation on V.B.’s death. The prosecutor ordered the Klaipėda Seaport Police to conduct the investigation.On 9 November 2007 Limarko provided the captain’s service report; an extract from the ship’s logbook; a report on the circumstances of V.B.’s death; two reports (by the captain and by the chief engineer) to the Brazilian authorities; statements by twelve members of the crew; the death certificate; documents about the V.B’s work instructions; his qualifications and photographs from his cabin.
On 21 November 2007 the applicant requested that the prosecutor and the State Labour Inspectorate (body responsible for safety at work, hereinafter – “the SLI”) investigate the cause of death and working conditions on the ship. She submitted that the conditions could have led to V.B’s death.
On 29 December 2007 the prosecutor refused to continue the criminal investigation, finding that there had been no signs of a crime or anything to disprove a finding that the victim had died because of a heart illness. In particular, the forensic report from Brazil had shown no sign of poisonous chemicals in V.B.’s body fluids. Preservation of the body by chemical means altered the chemical composition of the blood, and therefore there was no reason to further examine the body. The prosecutor’s decision was quashed by the Klaipėda Regional Court on 13 February 2008. The court held that the prosecutor had failed properly to investigate the applicant’s submission.
Between January and April 2008, the police questioned the sailors who had worked on the Vega with V.B in the machinery section of the ship, wherein had been frequent fires causing strong smell of fumes, malfunctioning of the air conditioning in the ship’s cabins and high indoor temperatures. Before his death, V.B. had worked intensively for about a week in the machinery section preparing refrigerators.After the death, the ship had been repaired in a Brazilian port. The witnesses also stated that V.B. had not complained about his health.
The SLI’s report of 27 March 2008 stated that V.B.’s death was not connected to his work arguingthat the authorisation to preserve his body did not indicate such connection. The SLI had obtained internal correspondence between Limarko and the Vega, which showed that there were serious technical problems with the ship. However, the SLI held that as V.B.’s duties did not include repairs to the main engine or extinguishing fires, this information was not relevant.
On 31 December 2008 the pre-trial investigation was discontinued by the prosecutor for a second time. The prosecutor held that V.B.had died of a heart attack. The prosecutor relied on the testimony given by an expert, V.A. who pointed out that V.B.’s medical record of 15 June 2001 shows that V.B. had a partial blockage of the nerve in the heart, whichcould in turn cause a heart attack. Also, the position of V.B.’s body was typical of someone who had died of a heart attack. The expert stated that fire could cause a heart attack if a person had been in a closed spacelacking oxygen. However, person would die faster on suffocation.
On 16 January 2009 the applicant appealed against the prosecutor’s decision arguing that there had been flaws in the investigation and that the conclusions had been unclear. The applicant was dissatisfied that the SLI had not inspected the ship, nor had it questioned the crew members. There had also been no autopsy, nor any test for toxins in V.B’s skin or hair. The body had been embalmed without such examinations. The applicant pointed out that V.B had been healthy as concluded by doctors in April 2007 and V.B had not complained about any heart issue. The applicant also maintained that even journalists in Brazil had not been able to find contact data for doctor P.C.J., who concluded the cause of death.The KlaipėdaCity District Court granted the appeal and theKlaipėda Regional Court upheld this decision. The courts argued that; the prosecutor had ignored for several investigative actions proposed by the applicant; alleged breaches had not been properly examined during the criminal investigation; and that the SLI’s report had not been comprehensive. The courts ruled that it is necessary to order a forensic expert to establish whether working conditions had had any impact on V.B.’s death.
As the pre-trial investigation reopened, the prosecutor ordered the Klaipėda Seaport Police to establish whether it was possible to inspect the ship Vega; to question everyone who worked on it, including about working conditions; to obtain documents from Limarko related to safety at work; and to ask the SLI whether they had examined the actual working conditions on the ship. The prosecutor also asked the police to request the Brazilian authorities for legal assistance.
On 31 March 2009 the Seaport Police asked Limarko for documents about the technical state of the ship on 24 October 2007.Limarko replied that the shiphad passed its yearly check by an authorised certification company on 21 August 2007 in Namibia. There had been no remarks as to the technical state of the machinery.
In reply to the investigators’ inquiry the SLI wrote that its inspectors had not examined the working conditions on the Vega becausethe ship had not returned to Lithuanian ports after V.B.’s death. The SLI noted that the circumstances of V.B.’s death had been examined on the basis of the documents provided by Limarko and on the experts’ conclusions.
On 22 July 2009 the applicant questioned the prosecutor why Limarko had not requested that the Brazilian authorities perform a test for toxic substances in the body. The applicant emphasised that the ship at that time had been put up for sale. She asked that the ship’s documents up to the time of the sale be examined to establish whether there were any factors that made for unsafe working conditions. Lastly, the applicant asked the prosecutor to inform her whether and when Limarko had been ordered to keep copies of its communications with the ship during its voyage.
Between April 2009 and August 2010 investigators questioned crew from the Vega.In addition, doctor V.G was questioned. He stated that on 15 June 2001 V.B. had passed a medical board exam as being fit to serve at sea. The partial blockage of the nerve on the right side of his heart, as seen in the cardiogram, had no effect on V.B.’s health, nor on his ability to work.
On 9 September 2009 another witness, V.S., a chief mechanic on the Vega in June 2007, had later refused to work on the ship because of poor working conditions. Failures of the main engine meant that fires on the ship had been frequent, happening almost daily. All the fires and repairs had been registered in the machinery logbook. The crew had worked in the machinery room wearing respirator masks. V.B. would spend about four hours per day in the machinery room.
On 7 January 2010 the Lithuanian Maritime Safety Administration noted the prosecutor that the Vega had been taken off the register of Lithuanian ships, because a foreign company had bought the ship. Limarko confirmed that it had sold the Vega to a third party. It noted that the records from the ship’s machinery room, which the investigators had been seeking, had been destroyed before the ship had been transferred to the new buyers, and thus could not be provided.
On 1 February 2011 the General Prosecutor’s Office sent a request for legal assistance to the Brazilian authorities inquiring; whether an autopsy of V.B. had been performed and his blood tested; whether the Brazilian authorities had inspected the Vega to examine the working conditions on board; and whether doctor P.C.J. can be questioned. The response by the Brazilian authorities, however, contained only internal correspondence between the Brazilian authorities about the fact that V.B. had died. There had been no new information relevant for the investigation.
On 24 August 2010 the police asked experts from the State Forensic Medicine Service to establish whether the working conditions could have caused V.B’s death. The forensic experts prepared a report stating that they had not been provided with any medical documents about V.B.’s autopsy, any blood results or other medical records. Neither were they provided with documents, confirmed by special diagnostic methods, about the exact level of combustion gases on the ship. Therefore, they could rely only on the testimony of the crew.The experts concluded was impossible to either confirm or deny that an acute heart attack had been the cause of death. Accordingly, it was not possible to establish a possible link between V.B.’s working in harmful conditions and his death.
The prosecutor then discontinued the investigation on 14 December 2010, concluding that no crime had been committed. According to him, although the existence of harmful working conditions and leaks of gases in the engine room of the ship had been confirmed, they could not have caused the victim’s heart failure.That decision was upheld by a higher prosecutor, and then by theKlaipėda City District Court. The first instance court noted, inter alia, that the cause of V.B.’s death had already been established by final decisions in administrative courts.
The applicant appealed against the decision to discontinue the criminal investigation, arguing that the report by the specialisthad not definitely confirmed that V.B.had died of a heart attack, given that no autopsy had been carried out. She pointed to shortcomings in the investigation, such as the absence of blood test results and toxicology tests, and the lack of documents concerning safety at work on the ship. The applicant also pointed out that the ship’s logbooks had not been obtained, and that the ship had not been inspected.By a final ruling of 12 September 2011, the Klaipėda Regional Court dismissed the appeal. The court noted that the cause of death had already been established by the final and binding decisionby the Supreme Administrative Court in the administrative case.
In parallel to the ongoing criminal investigation, the applicant also started administrative court proceedings, asking that her husband’s death be recognised as a work accident.By a decision of 7 April 2008, the Klaipėda Regional Administrative Court took into account the conclusion by a forensic expert V.A. about V.B.’s earlier heart condition and that fire or smoke on the shipcould not have caused V.B.’s heart attack. As a result, the applicant’s claim was dismissed.On 5 February 2009 the Supreme Administrative Court upheld the lower court’s decision.
- The Court’s assessment
The Court reiterates that the obligation to protect the right to life under Article 2 of the Convention obliges to arrangean effective official investigation when individuals have been killed as a result of the use of force. The Court notes that this obligation may differ depending on the particular situation that has triggered it. The authorities must take the reasonable steps available to them to secure the evidence concerning the incident. Any deficiency in the investigation which undermines will risk falling foul of this standard.
The Court observes that a procedural obligation of effective criminal inquiry did arise in respect of the Lithuanian authorities to investigate the circumstances of V.B.’s death. As to the adequacy of the criminal investigation, the Court accepts that any possible failure to undertake investigative measures on 24 or 25 October 2007 on Brazilian territory is mostly not down to the Lithuanian ship’s captain and thus not down to the Lithuanian authorities, it also transpires from the facts of the case that there were numerous deficiencies once the investigation into the circumstances of the V.B.’s death was conducted in Lithuania.However, the Court notes that the Lithuanian prosecutor acted hastily in discontinuing the criminal proceedings, essentially relying only on what by then appears to have been a fairly limited amount of evidence, and quickly accepting the fact that V.B. had died of heart attack, as had been indicated in V.B.’s Brazilian death certificate.
The Court observes that after the criminal case had been returned for further investigation, in 2009 the Klaipėda Seaport Police eventually asked the SLI to provide information on whether the Vega had been inspected. It is particularly striking to note the SLI’s answer that they had not inspected the ship after V.B.’s death, which had taken place nearly two years before. The Lithuanian authorities made no effort to bring the ship back to Lithuania, where it could be properly examined. In that connection, the Court further notes that documents and medical experts have established, on the one hand, that V.B. was healthy, and that there were no obstacles to him serving on board a ship; on the other hand, those experts also concluded that in the absence of documents about the gases it was not possible to say that those gases were not the cause of V.B.’s death.
The Court further observes that applicant’s requests to further investigate the working conditions on the ship were ignored. Furthermore, although the applicant had alerted the prosecutor to the fact that Limarko intended to sell the Vega, and had asked the prosecutor to make sure that relevant documents would not be lost, the Lithuanian authorities failed to secure the relevant evidence. When half a year later the police finally asked Limarko to submit documents regarding the Vega’s machinery section, the company confirmed that the ship had been sold to a third party, and the relevant logbooks had been destroyed.
Finally, the Court notes that the request for legal assistance for Brazilian authorities was sent more than three years after the death and after the opening of the pre-trial investigation. It is not astounding that no relevant information was received from the Brazilian authorities. That notwithstanding, the Court cannot but hold that the Lithuanian prosecutors once again simply accepted the lack of information as a fact, without considering whether it was necessary, for example, to submit another request for legal assistance to their Brazilian colleagues.
The Court accordingly finds that there has been a procedural violation of Article 2 of the Convention as regards the failure of the Lithuanian authorities to conduct an effective investigation into V.B.’s death.
Just satisfaction: 10,000 euros (EUR) (non-pecuniary damage) and EUR 2,420 (costs and expenses).