Bouwvakker tijdens sloopwerkzaamheden gedood door omvallende muur - Mensenrechtenhof veroordeelt Luxemburg voor gebrekkig onderzoek naar het incident (en)

Press release issued by the Registrar

CHAMBER JUDGMENT - PEREIRA HENRIQUES v. LUXEMBOURG

The European Court of Human Rights has today notified in writing its Chamber judgment [1] in the case of Pereira Henriques v. Luxembourg (application no. 60255/00).

The Court held,

• • 

  unanimously, that there had been a violation of Article 2 (right to life) of the European Convention on Human Rights, owing to the failure to conduct an effective investigation into the circumstances surrounding the death of the applicant’s relative;

• • 

  unanimously, that there had been a violation of Article 13 (right to an effective remedy) of the Convention;

• • 

  by six votes to one, that there had been no violation of Article 6 § 1 (right to a fair hearing).

Under Article 41 (just satisfaction), the Court awarded the applicants 60,000 euros (EUR) for non-pecuniary damage and EUR 12,000 for costs and expenses. (The judgment is available only in French.)

• 1. 

  Principal facts

The applicants, Maria Cecilia Pereira Henriques and her children Christina Maria and Joao Manuel Pereira Henriques, are Portuguese nationals who were born in 1948, 1968 and 1972, respectively, and live in Luxembourg and Tondela (Portugal). They are the widow and children of Lio Coimbra Henriques, a labourer who was killed in an accident at work that occurred in February 1995.

Mr Coimbra Henriques was an employee of company G., which with company M. was carrying out demolition work on a building situated at 30 Boulevard Royal in Luxembourg. The building had been partially demolished so that the adjacent building could be stabilised.

On 2 February 1995, while Mr Coimbra Henriques and another labourer were carrying out the stabilisation work at first-floor level, the wall of the building at no. 30 collapsed on top of them from the third floor and knocked them down to the ground floor. Mr Coimbra Henriques was killed in the accident and the other labourer was seriously injured.

On the same day an inspector from the ITM (labour and mine inspectorate), police officers, an investigating judge and an official from the prosecutor's office visited the site. After taking numerous statements, the police authorities drew up reports to be filed in proceedings initiated against the contractor on charges of manslaughter and offences under health and safety legislation.

In addition, the day after the accident, the ITM ordered the stoppage of work on the site. In April 1995 the ITM submitted a report to the prosecutor’s office on the circumstances of the accident. It stated in particular that, according to certain witnesses, the collapsed wall had been visually inspected and kicked, to check its stability, and that the prosecutor's office had refused to accept the ITM inspector’s proposal to obtain an expert’s report.

The investigating authorities could not reach a unanimous conclusion as to the reasons why the wall collapsed. On 17 May 1996 the prosecutor’s office decided to discontinue the proceedings.

In a direct summons to appear before the Luxembourg criminal court, the applicants sought the conviction of the relevant managers of companies G. and M. for having involuntarily caused the death of Mr Coimbra Henriques by failing to adhere to the minimum health and safety standards that were enforceable on building sites. They also sought compensation for the pecuniary and non-pecuniary damage that they had sustained.

The criminal court declared their direct summons inadmissible on the ground that, under Article 115 of the Social Insurance Code, victims or their successors were not entitled to bring judicial proceedings for damages against an employer, except in the case of accidents at work caused intentionally. The judgment was upheld on appeal and an appeal by the applicants on points of law was dismissed by the Court of Cassation on 10 February 2000.

• 2. 

  Procedure and composition of the Court

The application was lodged with the European Court of Human Rights on 3 August 2000 and declared partly admissible on 26 August 2003.

Judgment was given by a Chamber of seven judges, composed as follows:

Nicolas Bratza (British), President,

Matti Pellonpää (Finnish),

Marc Fischbach (Luxemburger),

Josep Casadevall (Andorran),

Stanislav Pavlovschi (Moldovan),

Javier Borrego Borrego (Spanish),

Elisabet Fura-Sandström (Swedish), judges,

and also Michael O’Boyle, Section Registrar.

• 3. 

  Summary of the judgment [2]

Complaints

The applicants complained that there had been no effective investigation into the circumstances of the death of their husband and father. They also argued that they had been denied access to a court by the application of Article 115 of the Social Insurance Code and had not had an effective remedy by which to have the circumstances of the death established. They relied on Article 2 (right to life), Article 6 § 1 (right to a fair hearing) and Article 13 (right to an effective remedy) of the Convention.

Decision of the Court

Article 2

The Court considered that, by deciding not to accept the proposal of the ITM inspector to obtain an expert’s report, the prosecutor’s office had prevented the clarification of certain grey areas in the case that had remained following the preliminary investigation. The prosecution could not therefore be regarded as having ensured that the cause of death was established and that those responsible were held to account. In the Court’s view, it had been particularly important for the prosecutor’s office to conduct a thorough investigation, since it must have known that the deceased’s family would be unable, under Article 115 of the Social Insurance Code, to seek explanations from the contractors as to their actions and omissions.

Accordingly, the Court concluded that the investigation had not been “effective” in the case and therefore held that there had been a violation of Article 2.

Article 6 § 1

Noting that, under the applicable Luxembourg law at the time of the accident, the applicants had not been recognised as having a civil right for the purposes of a complaint under Article 6 § 1 of the Convention, the Court found that this provision was not applicable and had therefore not been breached.

Article 13

Since the Luxembourg Government had failed to show that the applicants had had an effective remedy by which to seek compensation following the ineffective investigation, the Court held that there had been a violation of Article 13.

Judge Casadevall expressed a partially dissenting opinion, which is annexed to the judgment.

***

The Court’s judgments are accessible on its Internet site (http://www.echr.coe.int).

Press contacts

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Beverley Jacobs (telephone : 00 33 (0)3 90 21 54 21)

The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.

[1] Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer.

[2] This summary by the Registry does not bind the Court.