State investigations and human rights damages
The judgments discussed are helpful in the analysis of the scope of the investigative duty under Articles 2 and 3
This year, both the domestic courts and the ECTHR have provided informative judgments on the complex issue of investigative obligations under Article 2 and Article 3 of the Convention and the related issue of damages. In this update we briefly consider the key cases.
Buturuga v Romania  ECHR
This was a case involving inadequate steps to investigate reports of serious domestic violence (DV). The criminal investigation was flawed, specifically in its failure to adequately identify the individual responsible for the injuries. Furthermore, given that cyber-bullying and cyber privacy breaches were a recognised aspect of domestic violence, there was a failure to properly consider the merits of the complaint about the husband’s intrusion into the wife’s private social media accounts. The applicant was awarded €10,000 for non-pecuniary damage for the violations of her Article 3 and Article 8 rights.
Jablonska v Poland  ECHR
This case centred on the death of an individual in the course of an arrest involving physical restraint by a number of officers. The failure of the subsequent investigation to provide adequate information about (or analysis of) the use of force, the origin of the deceased’s injuries and any causal link between the force used and the death, amounted to a breach of the procedural obligation under Article 2. The deceased’s mother was awarded €26,000 for non-pecuniary damage (having claimed €100,000).
Y v Bulgaria  ECHR
The court held that the police were in breach of Article 3 for failing to adequately pursue an identified line of enquiry in a rape case, namely DNA evidence linking a potential perpetrator to the crime. Whilst the court confirmed that simple errors or isolated omissions would not amount to a breach of Article 3, “a failure to pursue an obvious line of inquiry can decisively undermine the effectiveness of an investigation” (paragraph 82(e)). The applicant was awarded €7,000 for non-pecuniary damage (having claimed €50,000).
Goodenough v Chief Constable of Thames Valley  QBD
A general de-brief between officers following the death of a man in police custody and before they had provided their individual accounts created “a risk of innocent contamination” of evidence such that the investigation was procedurally inadequate and in breach of Article 2 (even having regard to the standards of the time 17 years ago when the incident took place). The mother and sister of the deceased were awarded £5,000 each by way of damages.
These judgments are helpful in their analysis of the scope of the investigative duty under Articles 2 and 3. It is important to note, both generally and in terms of the damages awarded, that in each of these cases, the court was concerned with investigative failings in relation to a past event, as opposed to breach of an investigative duty that might arguably have prevented further or future harm.