Injured children by grenade in residential area. Non-assignment of responsibilities and compensation. Ineffective research

JUDGMENT

Vovk and Bogdanov v. Russia 11.02.2020 (no. 15613/10)

see here

SUMMARY

The case concerned the authorities’ alleged failure to conduct an effective investigation into the
explosion of a grenade in a residential area of Chita in April 2008 and their refusal to pay the victims
compensation.

The Court found that the investigating authorities had established that the grenade had at some
point been fired but had not exploded and that it had later been transported in a batch of sand to
the district where the applicants had found it and had then been injured when it had gone off.
Even though negligence by military personnel had been suspected, neither civilian nor military
investigators had looked into the possibility of the grenade becoming lost after a military exercise.
Nor had they investigated where it had been stored or who had been responsible for guarding it.

The applicants’ civil claim for compensation for non-pecuniary damage had been rejected as the
courts had relied unreservedly on the results of the investigation, stating that there was no evidence
the grenade had belonged to the State or that it had not been properly guarded.

PROVISION

Article 2

PRINCIPAL FACTS

The applicants, Sergey Vovk and Artem Bogdanov, are Russian nationals who were born in 1995 and
2000 respectively and live in Chita (Russia).

The applicants, thirteen and seven years old at the time, were seriously injured in a district of Chita
when a grenade fell on the ground and exploded while they were handling it. The first applicant
sustained leg injuries while the second was wounded, in particular, in the stomach and chest. The
police determined that the grenade, which the second applicant had found near some garages next
to a school, was a VOG-17 30-mm projectile from an AGS-17 heavy grenade launcher.

A criminal investigation into the explosion was initially opened under Article 222 § 1 of the Criminal
Code (illegal acquisition, transportation and storage of explosive devices). The acts of the
unidentified perpetrator were later reclassified as crimes against public safety and military service,
under Article 225 § 1 (improper guarding of explosive devices) and Article 348 (loss of military
property) of the Code. It was found that an unidentified person at an unidentified place had failed
properly to carry out his or her duties of guarding firearms, ammunition and explosive devices.
That had resulted in the grenade, which had previously been fired through a grenade launcher but
had not exploded, being transported in a load of sand to the district where the children had found it.

A construction company dispatcher had earlier told investigators that sand had been picked up from
a building site which was in a military district.

The civilian investigating authority, the Chernovskiy district police of Chita, forwarded the case to the
military investigating authorities. Following a pre-investigation inquiry which lasted nine days from
being assigned the case, the Chita garrison military investigation division transferred it back to the
Chernovskiy police, finding no involvement of military personnel in the grenade’s loss.

The criminal investigation was suspended and resumed several times by the Chernovskiy district
police between November 2008 and June 2011 as no perpetrator had been identified. It was closed
definitively in December 2013 on the grounds that the prosecution of the offence under
investigation, on guarding firearms and explosives (Article 225 § 1 of the Criminal Code), had
become time-barred.

In 2009 the applicants’ mothers lost civil compensation claims against the Russian Federation
Ministry of Finance and Chita police in which they argued that the State had failed to ensure the
safety of the explosive device and had failed to identify and prosecute those responsible for it
coming into civilian hands. In its judgment the Tsentralniy District Court of Chita relied on the
decisions of the investigating authority in the criminal proceedings, noting that the perpetrator had
not been identified. The Zabaykalskiy Regional Court held on appeal that there was no evidence that
the grenade was State property or that it had not been properly stored.

THE DECISION OF THE COURT…

Article 2

The Court decided to examine the applicants’ complaints under Article 2 of the Convention on the
right to life, which requires the State not only to refrain from the “intentional” taking of life, but also
to take appropriate steps to safeguard the lives of those within its jurisdiction. It also includes the
positive procedural obligation to have in place an effective independent judicial system capable of
promptly establishing the facts, holding accountable those at fault and providing appropriate redress
to victims.

The Court observed that the investigation had established that the grenade had been lost by an
unidentified person entrusted with guarding firearms, ammunition and explosive devices and had
then been transported in a batch of sand to a building site in the residential area where it had been
found by children. It had then exploded because of careless handling by the applicants, injuring
them.

Given that such grenades could only lawfully be used by State security organisations the
investigation should have identified such organisations and their personnel and examined whether
they had followed the procedure when such equipment was lost or damaged.

The investigation had considered that negligence by military personnel was possible and so it should
have looked into whether the grenade, which had been fired through a grenade launcher but had
not exploded, had been abandoned after a military training exercise.

However, there were no indications as to what actions the garrison military investigation division
had taken and what the results of those had been in order for it to conclude that no military
personnel were involved. Nor were there any such indications in the civilian investigation decisions,
despite prosecutors insisting that investigative steps had to be taken to establish where the grenade
had been stored and who had been responsible for its loss.

Despite facts which pointed to possible negligence by military personnel, there was nothing in the
case file to indicate that investigators had made every reasonable effort, in accordance with their
procedural obligation under Article 2, to collect relevant evidence to clarify the nature of any liability
and to satisfy the authorities as to whether there were grounds for a criminal investigation.
Furthermore, investigators had failed to elucidate the extent of any negligence on the part of
military personnel in taking measures which were necessary to avert the risks inherent in a
dangerous activity, which might constitute exceptional circumstances which could trigger the
Convention obligation to carry out an effective criminal investigation in cases of the unintentional
infliction of death or of unintentionally putting lives at risk.

The Court also doubted that the remedies suggested by the Government – a court appeal against
investigators’ decisions to suspend the investigation or a claim about the length of the proceeidngs
under the Compensation Act – were effective, rejecting their objections on those grounds.
Furthermore, the applicants’ civil claim had been unsuccessful, with the courts relying without
reservation on the results of the investigation and stating that there was no evidence the grenade
had belonged to the State or that it had not been properly guarded.

The Court thus found that the criminal and civil remedies had not constituted an effective judicial
response. They had not promptly established the facts, held those at fault accountable and provided
proper redress to the applicants, which was essential for maintaining public confidence and ensuring
adherence to the rule of law, and for preventing any appearance of tolerance of or collusion in
unlawful acts.

The Court concluded that there had been a violation of Article 2.
Just satisfaction (Article 41)

The Court held that Russia was to pay each applicant 40,000 euros (EUR) in respect of non-pecuniary
damage and EUR 1,400 in respect of costs and expenses.

Separate opinions

Judges Pinto de Albuquerque and Elósegui each expressed a concurring opinion. The opinions are
annexed to the judgment.

 

 


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