Special legal obligation of the authorities for the protection of minors as a vulnerable group. Drowning of a minor in a camp and ineffective search. Violation of the procedural part of the right to life
JUDGMENT
Veronica Ciobanu v. Democracy of Moldova 04.02.2021 (app. no. 69829/11)
SUMMARY
Protection of minors. Drowning of a minor living in a state camp. Ineffective research. Procedural and substantive part of the right to life.
The applicant’s minor son drowned while on holiday at a public children’s camp in Romania. The Moldovan domestic authorities considered that an adequate investigation had been carried out and that the death of the child was due to his recklessness, as he had not complied with the campers’ rules for swimming, although he had been trained and informed about them. The applicant has brought an action for breach of her son’s right to life, both in the substantive and in the proceedings.
The Court pointed out that the criminal proceedings conducted in Moldova were capable of meeting the procedural obligation of Article 2.Nevertheless, it found that, although the investigation was conducted promptly with several eyewitness accounts, it did not adequately investigate the circumstances of the accident and did not identify those responsible for supervising the minors while they were swimming.
The ECtHR pointed out that minors belong to a particularly vulnerable group and the state has a special legal obligation to take care of their protection. As the domestic authorities did not investigate the responsibility of the camp operators, it considered that there had been a breach of the procedural part of Article 2 of the ECHR. As to the substance of the matter, it considered that it had no jurisdiction to decide as the action was not directed against Romania, in the territory of which the accident took place.
PROVISION
Article 2
PRINCIPAL FACTS
The applicant, Veronica Ciobanu, is a Moldovan national who was born in 1974 and lives in Strășeni
(the Republic of Moldova).
The case concerned the drowning of the applicant’s son while he had been staying at a holiday camp.
Relying in particular on Article 2 (right to life) of the European Convention on Human Rights, the
applicant alleged a violation of her son’s right to life on account of his drowning while staying at the
holiday camp in Sulina (Romania) and of the ineffective investigation into his death.
THE DECISION OF THE COURT…
The Court considered whether the procedural obligation under Article 2 of the Convention was complied with in the present case by the Moldovan authorities. With regard to the criminal proceedings in the present case, the Court reiterated that, so far as it could be considered effective, such a procedure alone is capable of fulfilling the procedural obligation under Article 2 which requires the State to establish an effective judicial system.
It noted that the Moldovan investigating authority had launched an investigation fairly quickly and that several witnesses had testified, including eyewitnesses. In particular, the investigation established the circumstances shortly before the death of the applicant’s son, that is, when the group of young people decided to swim in an unauthorized place and the tragic event. The Court also noted the finding of the prosecutor in charge of the case that the organization of the stay in the youth camp was carried out in strict compliance with applicable law. However, investigations did not shed much light on whether there was adequate supervision of children on the beach when the tragedy occurred by the group leaders.
It also recalled the obligation of the state, through the school authorities, to take responsibility for the children assigned to it, as well as the essential role of the school authorities in protecting the health and well-being of children, taking into account the vulnerability, especially due to their age.
In the light of its case-law, the ECtHR considered that one of the key points in the present case was whether the children, including the applicant’s son, were properly supervised while bathing in order to reduce the minimum risk of drowning. However, an investigation by the Moldovan authorities did not reveal who was in charge of supervising the children on the day of the tragedy or whether the government officials in charge of the camp were present at the beach at that time. The need to designate those responsible for supervising children in particular was also emphasized by the Romanian Public Prosecutor’s Office. The Moldovan prosecutor also failed to clarify the possibility that the applicant’s son may have breached a direct order from officials allegedly supervising him.
In the light of the foregoing, the Court held that the criminal investigation carried out by the Moldovan authorities was not thorough and therefore did not fulfill the procedural obligation of Article 2 of the Convention (right to life).
The Court therefore found that the Moldovan legal system, as applied in the present case, did not allow the defendant State to comply with its procedural obligation under the right to protection of life (Article 2 of the ECHR).
As regards the substantive aspect of the right to life, the Court noted that the application was not directed against the State (Romania) in whose territory the applicant’s son drowned. Therefore, it will not comment on whether the beach was equipped with the required safety standards or on the possible responsibility of the Romanian lifeguard. On the other hand, as regards the responsibility of the Moldovan authorities, the Court was not in a position to prove whether they knew, or should have known, at the time, that the life of the applicant’s son had been threatened in a real and immediate manner. and that they had not taken, within their powers, the measures which, from a reasonable point of view, would undoubtedly have mitigated or even prevented the danger. However, it emphasized that this weakness was largely due to the lack of a thorough and effective investigation by the Moldovan authorities into the circumstances surrounding the death of the applicant’s son.
In the light of the above, the Court concluded that there had been a procedural violation of Article 2 of the Convention.
Just satisfaction: 12,000 euro (EUR) for non-pecuniary damage and EUR 2,000 for costs and expenses.
