First death at the border case has been referred to the ECtHR

Failure to investigate into the death of a person contributes to impunity and systematic violation of the most fundamental value, the right to life.  An application before the European Court of Human Rights is brought on behalf of a client whose husband has lost his life at the border after being apprehended in Vilnius and pushed into Belarus at night. It requests the Court to consider whether the pretrial investigation into the death was prompt, accurate and thorough enough to match the criteria of effectiveness imposed by the Convention.

Article 2 of the European Convention on Human Rights obliges governments to take all necessary measures to investigate threats to human life and to take all measures to prevent such threats. Articles 2 and 3 of the ECHR impose obligations on each state to (1) prevent violations of the relevant human rights, (2) identify the perpetrators of violations if they have failed to prevent them, (3) punish the perpetrators, and (4) subject the perpetrators of violations to punishments that are compatible with the dignity of the human person.

The application to the Court is based on the claim that the forensic examination has been undertaken only months from the date of death. The pretrial investigation has been closed twice without establishing time, place and cause of death. No evidence indicated by the applicant has been collected. No effort to contact Belarus officials was attempted. The conclusion of the pretrial investigation is contradictory from the factual and scientific view.  No investigation into the actions of the officials ordering and executing the pushback was undertaken. It is also claimed that pretrial investigation failed to investigate into the actions of the officials regarding asserted violence while detaining the victim, legality of the pushback, failure to assess his health conditions before the pushback and the risk to life on the other side of the border in particular forcing the victim to the forest at night and disregarding his cry for help.

The European Court of Human Rights has repeatedly stated that investigations into serious allegations of misconduct must be prompt and thorough. This means that the authorities must always make significant efforts to clarify the circumstances of the incident and should not rely on hasty or unjustified conclusions when closing investigations or taking decisions. They must take all reasonable steps to ensure that evidence relating to the incident is gathered, including, inter alia, witness statements and forensic evidence (see Mocanu and Others v. Romania 10865/09, 45886/07, 32431/08, §§ 316–326, Gedrimas v. Lithuania, 21048/12, §79). Chains of events provoked by a negligent act and leading to the loss of life may also be examined under Article 2 (see Dodov v. Bulgaria, 59548/00, § 70, Howais v. Hungary 59435/17, § 112).

The application also refers to the limitation on reimbursement of lawyer’s fees and expenses in criminal proceedings. In the absence of the possibility of reimbursement of necessary and reasonable lawyer’s fees and expenses, the person concerned is prevented from being able to defend his or her infringed rights in a realistic and effective manner through the assistance of a lawyer. It is claimed that the existing regulation and court practice denies the person’s right to legal aid at the pre-trial stage and thus limits his or her rights to seek the reopening of a pre-trial investigation after it has been unjustifiably terminated.




Konstitucijos pr. 7, Vilnius LT-09308