Serious injury of minor on a construction site. A thorough judicial investigation is required

JUDGMENT

Zinatullin v. Russia 28.01.2020 (no. 10551/10)

see here  

SUMMARY

Right to life and judicial protection. Insufficient criminal investigation and inadequate compensation.

The applicant, only 14 years old, was seriously injured when he fell through a gap on the floor of an unfinished building near his school. The building belonged to the municipality of his residence, and although construction had been suspended for some time, the building remained unattended. The criminal investigation was filed by a public prosecutor and the civil court awarded the applicant an insufficient amount of EUR 600.

The Court recalls that in cases involving serious injuries or even death, the authorities should make every reasonable effort to secure the evidence and eliminate or minimize any risk of omissions that may later undermine the possibilities of liability and recognition.

The ECtHR in the present case found that the prosecuting authority conducting the investigation did not pay due diligence and did not prosecute without sufficient justification. As to the civil remedies, although it acknowledged the responsibility of the service responsible, it did not provide the applicant with adequate redress as he was awarded an extremely small amount.

The Court therefore held that the existing judicial system did not provide the applicant with legal protection against his fundamental right to life. It unanimously ruled in violation of Article 2 of the Convention.

 PROVISION

Article 2

PRINCIPAL FACTS

The applicant, Ramazan Zinatullin, is a Russian national who was born in 1993 and lives in Tolyatti
(Samara region, Russia).

The case concerned an accident on a construction site near the applicant’s school which had left him
disabled at the age of 14.

Mr Zinatullin was seriously injured in 2008 when he fell through a hole in the floor of an unfinished
building near his school. The building, owned by the Tolyatti mayor’s office, was freely accessible
from the school. Construction work on it had been on hold for years for lack of funding.
Criminal proceedings against officials from the mayor’s office were never instituted as the
investigating authorities found the accident had happened because of the applicant’s own lack of
care.

In civil proceedings brought by the applicant the courts established that the mayor’s office, as owner
of the unfinished building, had primary responsibility for the accident for failing to close off the
unfinished building and awarded the applicant 600 euros (EUR) in compensation.

Relying in particular on Article 2 (right to life), Mr Zinatullin complained about the authorities’
refusal to institute criminal proceedings against the officials from the mayor’s office who had been
responsible for taking safety measures at the construction site. He also complained that the
compensation awarded to him in the civil proceedings had been inadequate.

THE DECISION OF THE COURT…

The Court reiterates further that in cases “involving life-threatening injuries, as in the event of death”, as soon as the authorities become aware of the incident, they “must make all reasonable efforts given the practical realities of investigation work, including by having in place the necessary resources,” to ensure that on-site and other relevant evidence is collected promptly and with sufficient thoroughness so as to secure the evidence and to eliminate or minimise any risk of omissions that may later undermine the possibilities of establishing liability and of holding the person(s) responsible accountable. That responsibility lies with the authorities and cannot be left to the initiative of the victim or his or her next-of-kin.

  1. The application of the general principles in the instant case

The Court observes that the applicant, aged fourteen at the time, sustained a serious craniocerebral injury leading to a disability as a result of falling through a hole from the third to the second floor of an unfinished building onto a heap of broken bricks.

The investigating authority carried out a pre-investigation inquiry into the accident and found that (i) the unfinished building in which the accident had taken place had been commissioned by the Tolyatti mayor’s office, (ii) its construction had been suspended and (iii) it had not been entirely closed off and had been freely accessible from the side of the local school. On 20 October 2008 the investigating authority decided not to institute criminal proceedings, stating that no crime had been committed by any officials from the mayor’s office and other organisations, and that the accident had happened because of the applicant’s own negligence. On appeal by the applicant’s mother, supported by the prosecutor, that decision was quashed by the Avtozavodskoy District Court of Tolyatti for the investigating authority’s failure to establish which organisation and officials had been responsible for the safety of the unfinished building and to explain why it had found that no crime had been committed by them. However, on 6 July 2009 the investigating authority issued a similar refusal to institute criminal proceedings without rectifying the defects contained in its previous refusal (as established by the District Court). It stated – without providing any further explanations – that there was no cause‑and-effect connection (which was an obligatory element of the crime of official negligence punishable under Article 293 of the Criminal Code) between (i) the actions or failure to act on the part of unspecified officials from the mayor’s office and other organisations and (ii) damage to the applicant’s health arising from his own negligence and imprudence.

It follows that the investigating authority made no attempt to establish identities of officials from the mayor’s office and their responsibilities in relation to the safety of the unfinished building and to give reasons for its refusal to instigate criminal proceedings.

The Court observes further that the applicant availed himself of the civil-law remedy. It was established in the civil proceedings (and not disputed between the parties) that the Tolyatti mayor’s office, as owner of the unfinished building, had been responsible under the domestic law – for as long as the construction work had been on hold – for taking measures aimed at protecting people’s life and health, in particular by closing off the unfinished building; it was also established that there had been a cause‑and‑effect connection between its failure to do so and the applicant’s sustaining grave bodily harm and disability. The civil courts found that the mayor’s office had disregarded its duty for a long period of time – since the transfer to it in 1997 of the unfinished building – until the applicant’s accident in 2008, despite the particular danger it had created for children, given its close proximity to the local school. The unfinished building (the state of completion of which at the time of its transfer to the municipal property in 1997 had been assessed at 54%) (i) had had no windows or doors, (ii) had presented such dangers as a heap of bricks and a hole between floors (iii) had not been guarded (iv) and had been readily accessible from the side of the school. Accordingly, the Tolyatti mayor’s office was held accountable for its failure to take safety measures, which had resulted in 2008 in applicant’s grave injury and disability. Invest‑Proyekt was held accountable in so far as it had failed to obtain construction permits. However, the domestic courts acknowledged the failure of the mayor’s office to exercise control over Invest‑Proyekt, and emphasised the primary responsibility of the mayor’s office for the applicant’s accident.

Having established the facts, as shown above, the domestic civil courts ordered the Tolyatti mayor’s office to pay the applicant compensation in the amount of about 600 euros (EUR) in respect of non-pecuniary damage.

While noting that the domestic courts took into account the applicant’s and his mother’s negligence, the Court considers, in the circumstances of the case, that the amount of compensation is insufficient to constitute appropriate redress.

.  In sum, after establishing the immediate circumstances of the accident and, in particular, the link between the unfinished building and the Tolyatti mayor’s office, the criminal-law remedy failed, in disregard of the position of the domestic court and the prosecutor’s office (see paragraph 11 above), to give any reasons for its conclusion that there were no elements of the crime of official negligence in the actions of officials from the mayor’s office. Those officials had never been identified and evidence concerning their responsibilities in relation to the safety of the unfinished building had not been collected. As a result, the refusal to conduct a criminal investigation had remained unreasoned, contrary to the task of the establishment of relevant facts and holding accountable those at fault. As regards the civil‑law remedy, while it enabled the authority at fault to be held accountable, it fell short of providing the applicant with appropriate redress.

In view of the foregoing the Court finds that the criminal and civil remedies in the applicant’s case, taken together, did not constitute an effective judicial response, consonant with the deterrent effect of the judicial system in place and the significance of the role it is required to play in preventing violations of the right to life, as required by Article 2 of the Convention. There has therefore been a violation of that provision of the Convention.


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