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CASE OF IORGA v. MOLDOVA
CASE OF IORGA v. MOLDOVA
JUDGMENT
STRASBOURG
23 March 2010
FINAL
23/06/2010
PROCEDURE
1. The case originated in an application (no. 12219/05) against the
Republic of Moldova lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental Freedoms
(“the Convention”) by a Moldovan national, Ms Svetlana Iorga (“the
applicant”), on 23 March 2005.
2. The Moldovan Government (“the Government”) were represented by
their Agent, Mr V. Grosu.
3. The applicant alleged, in particular, that the authorities had failed to
carry out an effective investigation into the death of her son.
4. The application was allocated to the Fourth Section of the Court. On
9 December 2008 the President of that Section decided to give notice of the
application to the Government. It was also decided to examine the merits of
the application at the same time as its admissibility (Article 29 § 3).
THE FACTS
been properly summoned but had failed to appear. It considered that the
investigation had been exhaustive and that its discontinuation was based on
the evidence in the file. According to its provisions, the decision was final.
16. A further complaint to the Prosecutor General's Office was rejected
on 23 December 2004, with reference to the decision of 9 November 2004.
17. The applicant submitted press articles accusing an officer in V. I.'s
military unit of possible involvement in his murder. The article added that a
video recording had been made of the moment when V. I.'s body had been
discovered, but that his relatives had been prevented from seeing it in order
to verify that it had been V. I.'s body. The newspaper also described a fact
apparently relied on early in the investigation, namely, that a letter had been
found in V. I.'s clothes informing him that his girlfriend had decided to
marry another man. However, having contacted the former girlfriend, it was
revealed that she denied having ever written such a letter. As part of a
telephone interview with another newspaper, a prosecutor was quoted as
saying “I do not exclude that this is a suicide as a result of possible
inappropriate relations. There are a number of similar cases in this
battalion.”
The victim is the person who has suffered pecuniary or non-pecuniary damage as a
result of an offence.
The person declared to be a victim of a crime has the right to make declarations
concerning the case. The victim and his or her representative have the right: ... to
submit evidence; to make requests; to access all the materials of the case from the
time when the preliminary investigation is finished; ... to challenge the actions of the
investigator, the prosecutor or the court, and to appeal against court decisions; ...
...
In cases concerning offences as a result of which the victim has died, the rights
provided for in the present article shall pass to the close relatives or legal
representatives.
Recognition of victim status shall be made by a decision of the ... investigator, the
judge or the court.”
IORGA v. MOLDOVA JUDGMENT 5
“Article 51. The obligation to inform the participants in the proceedings of their
rights and to ensure their enjoyment of those rights.
The court, the investigator ... have the obligation to inform the participants in the
proceedings of their rights and to ensure their enjoyment of those rights.”
THE LAW
19. The applicant complained under Article 6 of the Convention of a
violation of her right to challenge the discontinuation of the investigation,
since her complaint was examined in her absence on 9 November 2004, of
the lack of a right to appeal against the decision of that date, and of the
repeated discontinuation of the proceedings in her son's case.
20. The Court considered that this complaint would be more
appropriately examined under Article 2 of the Convention. The parties were
therefore asked to make their comments in the light of that provision, the
relevant part of which reads:
“1. Everyone's right to life shall be protected by law. No one shall be deprived of
his life intentionally save in the execution of a sentence of a court following his
conviction of a crime for which this penalty is provided by law. ...”
I. ADMISSIBILITY
21. The Government considered that the application was manifestly ill
founded since no crime had been committed against the applicant's son and,
accordingly, the applicant did not have any legal right of access to the
materials of the case or to be recognised as a victim's representative, with all
ensuing rights, within the framework of the criminal investigation.
22. The Court considers that the issue raised by the Government is
closely linked with the substance of the applicant's complaint. It will
therefore examine this objection together with the arguments concerning the
complaint under Article 2.
23. The Court considers that the applicant's complaint under Article 2 of
the Convention raises questions of fact and law which are sufficiently
serious that their determination should depend on an examination of the
merits, and no other grounds for declaring them inadmissible have been
established. The Court therefore declares this complaint admissible. In
accordance with its decision to apply Article 29 § 3 of the Convention (see
paragraph 4 above), the Court will immediately consider the merits of the
complaint.
6 IORGA v. MOLDOVA JUDGMENT
32. In the present case the Government submitted that, since no crime
had been committed, there was no obligation to inform the applicant of the
course of the investigation. In this connection, the Court observes that it is
in the first place for the domestic courts to interpret provisions of domestic
law. As found by the domestic courts in the present case, the applicant had
the right to be formally recognised as the victim's representative and to
exercise a number of procedural rights (see paragraphs 11 and 18 above).
This was true even if the investigation concerned suicide and not murder,
since it had to be verified whether the crime of incitement to suicide had
been committed (see paragraph 12 above). The domestic courts expressly
found that the applicant had been deprived of the possibility of exercising
her procedural rights and that she had not been informed of those rights (see
paragraph 11 above). The Court has no reason to doubt the domestic courts'
interpretation of the law, which is moreover consistent with the State's
obligations under Article 2 of the Convention. Therefore, it cannot accept
the Government's argument that the applicant had no right to be informed or
to be involved in the proceedings.
33. The Government referred to the fact that the applicant was informed
of the course of the investigation of her son's death (see paragraph 25
above). The Court notes that the applicant was so informed only on
6 February 2002 – more than a month after the investigation had ended (see
paragraph 7 above) and almost eight months after it had begun (see
paragraph 8 above). This lack of information included the important initial
phase of the investigation, during which the applicant could have raised her
most serious objections regarding the decisions taken. In this connection, it
is to be noted that the applicant expressly emphasised the need for a quick
decision on exhumation in order to dispel her doubts, which she could not
effectively request from the investigator in the absence of any information
concerning the case. No explanation for this delay was given, except for the
above-mentioned absence of a legal obligation to inform. The Court also
considers that the authorities had an obligation to keep the applicant
informed of the course of the investigation independently of whether she
had expressly requested to obtain such information.
34. The Court observes that some of the investigative measures which
appear crucial in the present case (the autopsy and the report concerning the
samples taken from the scene) were carried out in December 2001, half a
year after the applicant's son's body had been discovered (see paragraph 13
above). Again, no explanation for this delay was given.
35. It is also to be noted that the applicant was absent from what was
apparently the first and only hearing held by the Buiucani District Court
when examining her challenge to the decision of 30 June 2004 (see
paragraph 15 above). Even assuming that the applicant received the
summons in due time, despite her unchallenged statement to the contrary,
the Court considers that the seriousness of the complaints made required the
IORGA v. MOLDOVA JUDGMENT 9
court to at least verify whether the applicant had in fact lost interest in the
case or waived her right to be heard. In this connection, the Court notes that
the summons mentioned that the parties' presence was mandatory, which is
hard to reconcile with the lack of any form of verification of the reason for
one party's absence. The applicant's presence was even more important in
view of the fact that whatever the decision of the Buiucani District Court, it
was final and not subject to any form of appeal. Hence, the applicant had
not had an opportunity to submit to the court her position regarding the
investigation of her son's death.
36. The Court considers that the failure to inform the applicant of her
procedural rights and of the course of the investigation, the failure to ensure
her enjoyment of those rights (see paragraphs 11 and 32 above); the
unexplained shortcomings and delays in carrying out some of the important
investigative measures (see paragraphs 14 and 34 above); and the final
decision discontinuing the investigation, taken in the applicant's absence
(see paragraph 35 above), are inconsistent with the respondent State's
procedural obligations under Article 2 of the Convention (see, for instance,
Oğur, cited above, § 92; Salgın v. Turkey, no. 46748/99, § 87, 20 February
2007; and Hasan Çalışkan and Others v. Turkey, no. 13094/02, § 51,
27 May 2008).
Therefore, the Government's objection as to the manifestly ill-founded
character of the application is to be rejected.
37. There has, accordingly, been a violation of the procedural
obligations under Article 2 of the Convention in the present case.
2. Holds that there has been a violation of Article 2 of the Convention in its
procedural aspect;
3. Holds
(a) that the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 12,000 (twelve thousand euros)
in respect of non-pecuniary damage, to be converted into the national
currency of the respondent State at the rate applicable at the date of
settlement, plus any tax that may be chargeable;
(b) that from the expiry of the above-mentioned three months until
settlement simple interest shall be payable on the above amount at a rate
equal to the marginal lending rate of the European Central Bank during
the default period plus three percentage points.