Incorrect installation of gas water heater by a resident and his death. Non-infringement of the right to life

JUDGMENT

Vardosanidze v. Georgia 07.05.2020 (no. 43881/10)

see here

SUMMARY

Death due to poisoning after incorrect installation of gas water heater. Right to life. Essential and procedural part. Positive obligations of the state to protect the right to life.

The applicant’s son died of carbon monoxide poisoning after reconnecting an incorrectly installed water heater to the gas supply, despite the gas company’s emergency warning. A criminal investigation has been launched.

The ECtHR found that although the safety rules did not appear to be in place and there were shortcomings in the periodicity of security checks by the authorities, the water heater had been inadvertently reconnected by the applicant’s deceased son, resulting in the fatal accident. Therefore, the specifics of the case could not lead to a breach of state obligations under the substantive part of the right to life (Article 2). Also, the main conclusion of the domestic criminal investigation was not arbitrary and therefore no violation of the procedural part of Article 2 of the ECHR was found.

PROVISIONS

Article 2

Article 38

PRINCIPAL FACTS

The applicant, Lali Vardosanidze, is a Georgian national who was born in 1961 and lives in Kutaisi
(Georgia).

The case concerned the death of the applicant’s son from carbon monoxide poisoning, which she
alleged had been the result of the failure to adequately regulate and supervise the use of gasoperated household devices in Georgia.
The applicant’s son was found dead on 30 April 2008 in the apartment he rented with his
grandmother in Tbilisi. The autopsy concluded that the cause of death was asphyxiation from carbon
monoxide poisoning.

Approximately ten months earlier, gas inspectors from Kaztransgaz-Tbilisi, the only company
licensed to distribute natural gas in Tbilisi, had carried out a safety check at the applicant’s son’s flat
and discovered that a gas-operated water heater had been incorrectly installed. According to the
inspection record, they had therefore “disconnected the water heater, sealed the gas meter in
cellophane and provided the resident … with instructions”.

As part of the subsequent criminal investigation into the death, the inspectors stated that they had
warned the applicant’s family about the risks associated with using such a water heater and that it
should not be re-connected. They also later specified that there was a ban on installing gas-operated
water heaters in buildings with five or more floors, such as the building where the applicant’s son
was renting, as they lacked chimney systems and could not be adequately ventilated.

The investigation was closed in October 2009, concluding on accidental death. It found that the
applicant’s son had been responsible for the accident because he must have re-connected the water
heater, in breach of safety standards and despite the warning from the gas company.

That finding was upheld by the domestic courts, in a final decision handed down in December 2009.
Relying on Article 2 (right to life), the applicant complained that the Georgian Government had been
aware that there had been a widespread problem of poisoning from carbon monoxide and should
have taken measures to protect her son’s life, and that the investigation into his death had not been
effective.

THE DECISION OF THE COURT…

Article 2

(a) substential aspect : The Court observes that the core of the applicants complaint before it concerns the alleged inadequacy of the regulatory framework with respect to the safe use of gas-operated household devices, in the context of the respondent Governments positive obligations regarding dangerous activities – such as the installation of improvised gas connections in closed living spaces without ventilation – carrying an inherent risk to life. The applicant argued that such deficiencies were closely linked with her sons death, and the domestic authorities failed to comply with the procedural obligations under Article 2 of the Convention.

In that context, it is undisputed between the parties that the applicants son died as a result of poisoning by carbon monoxide (an asphyxiating gas) emitted from an incorrectly installed gas-operated water heater. By contrast, the parties disagree as to whether the domestic legislation contained adequate guarantees to safeguard G.K.s life, what particular regulations were in place to prevent accidents related to the use of gas-operated household devices, and whose responsibility it was to ensure compliance with such regulations. 

In this regard, the Court reiterates that the mere fact that the regulatory framework may be deficient in some respect is not sufficient in itself to raise an issue under Article 2 of the Convention. It must be shown to have operated to the relevant individuals detriment. Therefore, while the Court takes note of the statistical information regarding the high number of incidents relating to carbon monoxide poisoning in the city of Tbilisi between 2007 and 2015, and the related content of the Presidential Decree of 2002 (see paragraph 34 above), the Courts task is not to make an abstract assessment of the regulatory framework applicable in the present case but to determine whether the manner in which they were applied to, or affected, the applicants son gave rise to a violation of the Convention.

Against this background, the Court notes that various regulations existed at the material time which prohibited the installation of the type of the water heater at the core of the present case in spaces which were not equipped with adequate ventilation systems.  Such safety rules were aimed at avoiding the accumulation of exhaust fumes inside dwelling spaces to safeguard life and health of the population, and appear reasonable. By contrast, as concerns the supervision of compliance with those rules, the legislation in force at the material time did not specify how frequently the gas company was to perform safety checks and it was only subsequently, in 2009, that the relevant amendments were introduced to address the matter. Furthermore, the domestic legislation does not appear to have required, at least at the material time, that a written warning be given to a resident of an apartment when a violation of a safety rule was foundNevertheless, these deficiencies are not sufficient to hold the respondent Government accountable for failing to avert the death of the applicants son.

In particular, while the safety regulations noted in the preceding paragraph do not appear to have been respected in the present case, and the above-noted deficiencies existed in respect of the regularity of safety check-ups and the manner in which a violation of the safety rules was to be communicated to the individuals concerned, the Court draws particular attention to the undisputed fact that the violation of the relevant safety rules was in fact discovered by the gas company before the death of the applicants son, and the water heater was disconnected and nevertheless reconnected by the applicants family. The applicant does not deny this fact but asserts that the gas company should have followed up on their first visit. In this context, as the Court has already noted above, the positive obligation under Article 2 cannot impose an excessive burden on the authorities, bearing in mind, in particular, the unpredictability of human conduct. The applicants family having been warned, even if verbally, against using the water heater, their subsequent decision to take the fatal risk by reconnecting the device to the gas supply does not appear reasonableespecially in the face of the widespread knowledge relating to the attendant risks, and cannot, in the particular circumstances of the case, give rise to a violation of the States obligations under Article 2 of the Convention.

Furthermore, and considering the above findings, the Court notes that the principal conclusion of the domestic criminal investigation into the death of the applicants son that his death had been a fatal accident after he had reconnected the water heater against the warning of the gas company upheld by the domestic courts (see paragraphs 2930 above) does not appear arbitrary and, in the circumstances of the present case, does not raise an issue under the procedural limb of Article 2 of the Convention.

In the light of the foregoing, the Court considers that there has been no violation of Article 2 of the Convention.

(b) Procedural aspect: The main conclusion of the domestic criminal investigation into the death of the applicant’s son – that his death was the result of an accident after reconnecting the water heater as opposed to the gas company’s warning – and confirmed by domestic courts, did not appear arbitrary and under the circumstances of the case, there was no question under the procedural part of Article 2.

Conclusion  : no violation of Article 2

The court also found that there was no violation of Article 38 of the ECHR, as the government did no provide the documents requested by the applicant.

 


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