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BUDAYEVA AND OTHERS v. RUSSIA - 15339/02 [2008] ECHR 216 (20 March 2008)
URL: http://www.bailii.org/eu/cases/ECHR/2008/216.html
Cite as:
[2008] ECHR 216,
(2014) 59 EHRR 2,
59 EHRR 2
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FIRST
SECTION
CASE OF
BUDAYEVA AND OTHERS v. RUSSIA
(Applications
nos. 15339/02, 21166/02, 20058/02, 11673/02 and 15343/02)
JUDGMENT
STRASBOURG
20
March 2008
This judgment will
become final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision.
In the case of Budayeva and Others v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos
Rozakis,
President,
Nina
Vajić,
Anatoly
Kovler,
Elisabeth
Steiner,
Khanlar
Hajiyev,
Giorgio
Malinverni,
George
Nicolaou,
judges,
and Søren Nielsen, Section
Registrar,
Having
deliberated in private on 28 February 2008,
Delivers
the following judgment, which was adopted on the last mentioned
date:
PROCEDURE
The
case originated in five applications (nos. 15339/02, 21166/02,
20058/02, 11673/02 and 15343/02) against the Russian Federation
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by six Russian nationals, Ms Khalimat Khuseyevna
Budayeva and Ms Fatima Khuseynovna Atmurzayeva on 15 March 2002, by
Ms Raya Meliyevna Shogenova on 10 April 2002, by Ms Nina Nikolayevna
Khakhlova on 18 February 2002 and by Mr Andrey Aleksandrovich
Shishkin and Ms Irina Ilyinichna Shishkina on 9 March 2002 (“the
applicants”).
The applicants, who had been granted legal aid, were
represented by Mr Dzagashtov, a lawyer practising in Nalchik, Mr
Manov, a lawyer practising in Moscow and Mr Serdyukov, a lawyer
practising in Pyatigorsk. The
Russian Government (“the Government”) were initially
represented by Mr P. Laptev, the former Representative of the Russian
Federation at the European Court of Human Rights, and subsequently by
their Representative, Mrs V. Milinchuk.
Relying
on Articles 2, 8 and 13 of the Convention and on Article 1 of
Protocol No. 1 to the Convention, the applicants alleged that the
national authorities were responsible for the death of Mr Budayev,
for putting their lives at risk and for the destruction of their
property, as a result of the authorities' failure to mitigate the
consequences of a mudslide which occurred in Tyrnauz on 18-25 July
2000, and that no effective domestic remedy was provided to them in
this respect.
The
Chamber decided to join the proceedings in the applications (Rule 42
§ 1).
By
a decision of 5 April 2007 the Court declared the applications
admissible.
The
applicants and the Government each filed further written observations
(Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant in the first application (no. 15339/02), Ms Khalimat
Khuseyevna Budayeva, was born in 1961 and lives in Tyrnauz, in the
Elbrus District of the Republic of Kabardino-Balkariya (KBR), Russia
(the first applicant).
The
applicant in the second application (no. 21166/02), Mrs Fatima
Khuseynovna Atmurzayeva, was born in 1963 and lives in Tyrnauz (the
second applicant).
The
applicant in the third application (no. 20058/02), Ms Raya Meliyevna
Shogenova, was born in 1953 and lives in Nalchik in the KBR (the
third applicant).
The
applicant in the fourth application (no. 11673/02), Ms Nina
Nikolayevna Khakhlova, was born in 1955 and lives in Tyranuz (the
fourth applicant).
The
applicants in the fifth application (no. 15343/02), Mr Andrey
Aleksandrovich Shishkin and Mrs Irina Ilyinichna Shishkina, were born
in 1958 and 1955 respectively and live in Tyrnauz (the fifth and the
sixth applicants).
The
facts of the case are partially in dispute between the parties. Their
submissions on the circumstances in which a mudslide swept through
the town of Tyrnauz in 2000 are set out in Section A below. The
manner in which these events affected the individual applicants is
set out in Section B. A description of the materials submitted to the
Court by the applicants is given in Section C.
A. The circumstances concerning the mudslide
1. Background facts
The
town of Tyrnauz is situated in the mountain district adjacent to
Mount Elbrus, in the central Caucasus. Its population is about
25,000 inhabitants. The general urban plan of the town was
developed in the 1950s as part of a large-scale industrial
construction project. Two tributaries of the Baksan River passing
through Tyrnauz, the Gerhozhansu and the Kamyksu, are known to be
prone to causing mudslides.
The
first documentary evidence of a mudslide in the Gerhozhansu River
dates back to 1937. Subsequently mudslides were registered almost
every year; occasionally they hit the town, causing damage. The
heaviest mudslides registered prior to 2000 occurred on 1 August
1960, on 11 August 1977 and on 20 August 1999. According to the
Government, the series of mudslides of 18-25 July 2000 were the
strongest and most destructive of all.
The
inhabitants and authorities of Tyrnauz are generally aware of the
hazard, and are accustomed to the mudslides which usually occur in
the summer and early autumn.
The
first technical research into a scheme to protect Tyrnauz from the
mudslides was carried out in the 1950s, and by 1959 a number of
proposals had been made. The scheme chosen by the authorities
following a comparative feasibility study provided for the
construction of a feed-through mud retention collector. Construction
work began, but in 1960 this was disrupted by an exceptionally strong
mudslide, and the project had to be corrected and extended
accordingly. The construction of the collector was finished in 1965
and operated successfully for 35 years, apparently providing
sufficient defence against the mudslides. In 1977 a technical review
was carried out following a particularly strong mudslide which
seriously damaged some sections of the collector, and it was
considered necessary to carry out repair work. The collector was
fully repaired by 1982.
In
addition, in early 1999 the local authorities put into operation a
mud retention dam in the river gorge of Gerhozhan, upstream from the
mud retention collector. The dam was intended to enhance the
protection of Tyrnauz from mud and debris flows. It measured 160 m x
38 m x 40 m and was built with 6,000 cubic metres of reinforced
concrete and 2,000 tons of metal structures.
2. The condition of the dam in the summer of 2000
On
20 August 1999 a mud and debris flow hit the dam, seriously damaging
it.
On
30 August 1999 the director of the Mountain Institute, a state agency
whose mandate included monitoring weather hazards in high-altitude
areas, called for an independent survey of the damage caused to the
dam by the mudslide. He made recommendations to the Minister
responsible for Disaster Relief of the KBR concerning the composition
of a State Commission for the survey.
On
the same day he also sent a letter to the President of the KBR,
calling for emergency clean-up and restoration work to the dam and
for an early warning system to be set up to raise the alarm in the
event of a mudslide (see the full text in Section C “Documents
submitted by the applicants”).
On
17 January 2000 the acting director of the Mountain Institute sent a
letter to the Prime Minister of the KBR, warning about the increased
risk of mudslides in the coming season. He stated that the dam was
seriously damaged, that its reconstruction appeared unfeasible at
that stage and that, consequently, the only way to avoid casualties
and mitigate the damage was to establish observation posts to warn
civilians in the event of a mudslide, for which he requested a
mandate and financial support (see the full text in Section C below).
On
7 March 2000 the Head of the Elbrus District Administration sent a
letter to the Prime Minister of the KBR in which he referred to the
imminent large-scale mudslide and requested financial aid to carry
out certain emergency work on the dam. In his request he invoked
possible “record losses” and casualties (see the full
text in Section C below).
On
7 July 2000 the assistant director and the head of research of the
Mountain Institute attended a session at the Ministry for Disaster
Relief of the KBR. At the meeting they reiterated the warning about
the risk of mudslides in that period and requested that observation
points be set up in the upper sections of the Gerhozhansu River, in
order to monitor the river at all times and to issue an emergency
warning in the event of a mudslide.
On
10 July 2000 the assistant director of the Mountain Institute
reported to the agency director that he had warned the Ministry for
Disaster Relief of the KBR of the forthcoming mudslide and requested
the setting up of twenty-four hour observation posts.
It
would appear that none of the above measures were ever implemented.
3. The mudslide of 18-25 July 2000
At
about 11 p.m. on 18 July 2000 a flow of mud and debris hit the town
of Tyrnauz and flooded some of the residential quarters.
According
to the Government, this first wave caused no casualties. However, the
applicants alleged that at least one person was killed. In
particular, the second applicant claimed to have witnessed the death
of her neighbour Ms B, born in 1934, who was trapped in the debris
and drowned in the mud before anybody could help her. She also
alleged that she had witnessed a Zhiguli vehicle with four men in it
being carried away by the mudslide.
According
to the Government, following the mudslide of 18 July 2000 the
authorities ordered the emergency evacuation of the residents of
Tyrnauz. The police and local officials went round people's homes to
notify them of the mudslide and to help evacuate the elderly and
disabled. In addition, police vehicles equipped with loudspeakers
drove round the town, calling on residents to evacuate because of the
mud hazard.
The
Government did not specify when exactly these measures were taken.
The applicants agreed that the alarm was indeed raised through
loudspeakers once the mudslide had struck, but no advance warning was
given. They claimed that they had been unaware of the order to
evacuate and doubted that any had been issued. They also alleged that
there had been no rescue forces or other organised on-the-spot
assistance at the scene of the disaster, which became a cauldron of
chaos and mass panic.
In
the morning of 19 July 2000 the mud level lowered and the residents
returned to their homes. The Government alleged that they did so in
breach of the evacuation order, while the applicants claimed that
they were not aware that the mudslide alert was still active,
pointing out that there were no barriers or warnings to prevent
people from returning to their homes. They did not spot any police or
emergency officers near their homes, but could see that their
neighbours were all at home and children were playing outside. Water,
gas and electricity supplies had been reconnected after being cut off
during the night.
At
1 p.m. on the same day a second, more powerful, mudslide hit the dam
and destroyed it. Mud and debris instantly descended on the town,
sweeping the wreckage of the dam before them. At 17 Otarova Street
the mudslide destroyed part of a nine-storey block of flats, with
four officially reported casualties. Several other buildings were
damaged. It also caused the river to overflow, flooding the
residential quarters on the right bank.
The
town was hit by a succession of mudslides until 25 July 2000.
Eight
people were officially reported dead. According to the applicants, a
further 19 persons allegedly went missing.
According
to the Government, on 3 August 2000 the Prosecutor's Office of the
Elbrus District decided not to launch a criminal investigation into
the accident. The applicants claimed that they were unaware of this.
No copy of this decision was made available to the Court.
On
12 August 2000 the Government of the KBR adopted a directive on the
payment of compensation for loss of housing to the victims of the
mudslide. It established the general principles for the provision of
new accommodation and the guidelines for calculating compensation for
those who wished to settle outside Tyrnauz. The loss of a 1-room flat
gave rise to payment of up to 15,000 roubles (RUB), of a 2-room flat
– to up to RUB 20,000 and of a 3 room flat – to
up to RUB 45,000. Alternately, victims could opt for housing vouchers
that would entitle families of more than one person to free housing
of at least 18 sq. m per family member, and single-person families –
to 33 sq. m.
On
20 December 2000 the Department of Disaster Relief of the Elbrus
District issued a written statement, apparently in connection with
individual lawsuits, that it had received no advance warning
concerning the Tyrnauz mudslide in 2000, either from the Ministry for
Disaster Relief of the KBR or from any other authority.
On
the same day the Elbrus District Administration also issued a written
statement that it had received no warning of a mudslide at any time
during the past two years.
On
14 February 2001, apparently following an enquiry from the district
administration, the Finance Department of the Elbrus District
reported that no funds had been allocated in the district budget for
the restoration work required after the 1999 mudslide.
B. The circumstances of the individual applicants
1. The first applicant
Before
the events of July 2000 the first applicant, her husband and their
two sons, born in 1987 and 1997, lived at 17 Otarova Street, Tyrnauz,
in a 72 sq. m flat they owned on the seventh floor.
On
18 July 2000 she and her family were asleep when the mudslide began.
The first applicant claimed that no emergency warning was given, and
the mudslide came as a total shock. They had a narrow escape and
spent the night in the mountains.
At
about noon on the following day (19 July 2000) they returned to their
flat. According to the first applicant, the mudslide appeared to have
ended, and since there had been no warning or barriers to stop them,
they thought that it must be safe to return home. Exhausted from the
events of the previous night, they went straight to bed. However,
shortly afterwards the first applicant was woken up by Ms K, a friend
of her sister's (see Ms K's testimonies in Section C below), and
within minutes they felt the walls shake and heard a loud rumble,
glass shattering, cries and people running.
The
first applicant and her older son only just managed to escape.
The
younger son was carried out by Ms K and rescued from the wreckage,
but he sustained serious injuries, including cerebral and spinal
contusion, erosion of the cornea, multiple avulsed wounds, abrasions
and bruises.
The
first applicant's husband, Mr Vladimir Khalimovich Budayev, aged 47,
stayed behind to help her parents flee but was killed when the
building collapsed after being hit by the mudslide. The first
applicant's parents were rescued.
The
first applicant's flat and all her possessions were flooded and
destroyed by the mudslide.
On
3 August 2000 the Prosecutor's Office of the Elbrus District decided
not to launch a criminal investigation into the death of the first
applicant's husband. Having found that he died as a result of the
collapse of the building, it established that the death was
accidental and not attributable to any criminal act.
Following
a decision by the Government of the KBR on 12 August 2000, the
applicant was issued with a housing voucher on 4 June 2001 entitling
her to 54 sq. m of free accommodation to compensate for the loss of
her flat. It would appear that the size of the accommodation was
reduced pro rata her deceased husband's share, but, after numerous
complaints, she was eventually provided with another 40 sq. m flat in
Nalchik. She received a grant from the emergency fund of RUB 13,200
to compensate for the loss of her possessions, plus an additional
allowance of RUB 2,337.
On
an unspecified date the first applicant brought an action in damages
against the Government of the KBR, the Ministry for Disaster Relief
of the KBR and the Elbrus District Administration. She claimed
RUB 259,200 for the loss of movable and immovable property, and
RUB 5,000,000 for non-pecuniary damage on account of the death
of her husband and the mental and physical suffering she and her
children had been caused by the disaster. She claimed that the
authorities had persuaded the local population that there was no risk
of a mudslide. She also alleged that the authorities had been
negligent as they had failed to take measures to mitigate the damage,
in particular by establishing an early warning system and clearing
the deposits left in the dam and river channel since the 1999
mudslide. In support of her claims she provided the documents set out
in Part 2 of Section C (“Official letters and documents issued
before the 2000 mudslide”) and other evidence.
On
9 October 2001 the Baksan District Court of the KBR examined the case
and found that the authorities had taken all reasonable measures to
mitigate the risk of a mudslide. Noting that the retention capacity
of the dam was calculated for a flow of 500 cu. m per second, when
the actual flow rate was 2,000 cu. m per second, it concluded that a
mudslide of such exceptional force could be neither predicted nor
stopped. The court also found that the media had informed civilians
of the risk of possible mudslides and it took into account the fact
that, following the mudslide, the authorities had carried out
infrastructure work, such as repairs to a water pipeline, and had
offered the applicant social aid in the form of accommodation and
financial compensation.
The
court concluded that no fault attached to the authorities for the
damage sustained by the applicant and found her claim for pecuniary
and non-pecuniary damage unsubstantiated.
On
20 November 2001 the Supreme Court of the KBR upheld the judgment of
9 October 2001.
According
to the first applicant, her living conditions have been extremely
difficult since the disaster. She claimed that both her own and her
children's health has deteriorated substantially as a result of the
injuries, stress and devastation caused. Her younger son has
developed serious chronic post-traumatic conditions, such as enuresis
and the progressive deterioration of his eyesight. Both her sons
require regular neurological treatment as a result of their injuries
and shock. The flat she bought with the housing voucher had to be
sold immediately to cover living expenses and pay for medical
treatment. The flat in Nalchik was in an appalling state (it had not
been renovated since its construction in 1952) and she had no means
of restoring it sufficiently to make it habitable.
2. The second applicant
Before
the events of July 2000 the second applicant, her husband and their
daughter lived at 42 Otarova Street in a 44.6 sq. m flat (no. 33)
which they owned. She owned another flat (no. 1) in the same block
under a social tenancy agreement.
In
1999 a mudslide caused damage to the second applicant's property and
she lost some of her livestock. She said that she requested the local
authorities to carry out emergency maintenance to the dam and clear
away the wreckage. However, despite numerous requests by the
residents, nothing was done.
On
18 July 2000 the second applicant and her family were at home when
the mudslide began at about 11 p.m. She claimed that no emergency
warning was given, and they had to flee their home in their pyjamas.
As they attempted to escape, the applicant and her daughter were
caught in the flow of mud and debris, which dragged them for some
distance before passers-by came to their rescue. Both were injured
and suffering from severe shock, in particular the second applicant's
daughter, who suffered severe friction burns caused by the debris.
On
the following day, 19 July 2000, the second applicant's
brother-in-law (the first applicant's husband Vladimir Budayev) died
while helping the first and second applicants' parents to flee when a
new mudslide hit the town.
Both
of the second applicant's flats and all of her possessions were
destroyed by the mudslide.
Following
the decision of the Government of the KBR of 12 August 2000, the
second applicant received a housing voucher on 29 August 2001 to
compensate for the loss of flat no. 1. It entitled her to 33 sq. m of
free accommodation. She also received a grant from the emergency fund
of RUB 13,200 to compensate for the loss of her possessions,
plus an additional allowance of RUB 1,168. She has not received any
compensation in respect of flat no. 33.
The
second applicant brought an action in damages against the Government
of the KBR, the Ministry for Disaster Relief of the KBR and the
Elbrus District Administration. She claimed RUB 360,000 for the loss
of movable and immovable property, and RUB 1,000,000 for
non-pecuniary damage for the mental and physical suffering she and
her daughter had been caused by the disaster. Her allegations,
arguments and other submissions were essentially the same as those of
the first applicant.
On
9 October 2001 the Baksan District Court of the KBR examined her
claim together with that of the first applicant and rejected it on
the same grounds.
On
20 November 2001 the Supreme Court of the KBR upheld the judgment of
9 October 2001.
According
to the second applicant, her living conditions after the disaster
were, and remain, very poor. Both her own and her daughter's health
deteriorated substantially as a result of the injuries, stress and
devastation caused and they had to receive neurological treatment for
their injuries and shock.
3. The third applicant
Before
the events of July 2000 the third applicant lived at 17 Otarova
Street, Tyrnauz, in a 54.2 sq. m flat which she owned.
On
18-24 July 2000 her flat was flooded and destroyed by the mudslide,
together with her possessions. The third applicant claimed that no
emergency warning was given and that she only just managed to escape
the mudslide.
Following
the decision of the Government of the KBR of 12 August 2000 the third
applicant received a subsidy of RUB 30,000 for the loss of her flat
and a grant from the emergency fund of RUB 13,200 to compensate for
the loss of her possessions, plus an additional allowance of RUB 584.
She
brought an action in damages against the Government of the KBR, the
Ministry for Disaster Relief of the KBR and the Elbrus District
Administration. She claimed RUB 730,662 for the loss of movable and
immovable property, as well as RUB 250,000 for non-pecuniary damage
for the mental and physical suffering she was caused by the disaster.
Her allegations, arguments and other submissions were essentially the
same as those of the first and the second applicants.
On
27 August 2001 the Nalchik Town Court of the KBR examined the case
and rejected her claims. Its judgment was based on essentially the
same reasons as the subsequent judgment of the Baksan District Court
of the KBR, dated 9 October 2001, in the case brought by the
first and second applicants. In its judgment, the court referred to
certain media records of 1999-2000 which had been submitted by the
Ministry for Disaster Relief of the KBR. On the basis of these
records, taken together with the weather reports for the relevant
period, it concluded that the local population had been adequately
forewarned about the possible mudslides. The court took into account
the fact that, following the mudslide, the authorities had offered
the applicant welfare aid, namely the subsidy for a flat and the
monetary compensation. It also noted, inter alia, that the
third applicant was entitled to exchange the RUB 30,000 subsidy for
33 sq. m of social housing.
On
25 September 2001 the Supreme Court of the KBR upheld the judgment of
27 August 2001. This decision was served on the third applicant on 25
October 2001.
On
5 June 2004 the third applicant exchanged her housing subsidy for a
housing voucher which entitled her to 33 sq. m of free accommodation.
She used this voucher to purchase a flat in the Moscow Region, which
she resold shortly afterwards.
According
to the third applicant, her health and living conditions deteriorated
as a result of the above events and she was not adequately
compensated for the losses sustained in the accident.
4. The fourth applicant
Before
the events of July 2000 the fourth applicant lived at 46 Elbrusskiy
Prospekt, Tyrnauz, in a 33 sq. m flat which she owned.
On
18-24 July 2000 her flat and possessions were flooded and destroyed
by the mudslide. She claimed that no emergency warning had been given
prior to the mudslide, but she managed to make her way to safety.
The
fourth applicant brought an action in damages against the Government
of the KBR, the Ministry for Disaster Relief of the KBR and the
Elbrus District Administration. She claimed RUB 248,942 in
compensation for the loss of movable and immovable property and
RUB 1,266 for medical treatment; she also claimed RUB 100,000
for non-pecuniary damage for mental and physical suffering. Her
allegations, arguments and other submissions were essentially the
same as those of the other applicants referred to above.
On
25 April 2001 the Elbrus District Court of the KBR examined the
fourth applicant's claim and rejected it.
On
22 May 2001 the Supreme Court of the KBR reversed the judgment of 25
April 2001 on the grounds that one of the parties had not attended
the trial. The case was remitted for re-examination by a
first-instance court.
On
9 October 2001 the Baksan District Court of the KBR examined her
claim and rejected it on the same grounds as those of the other
applicants referred to above. It noted, inter alia, that the
fourth applicant was still entitled to apply for compensation of RUB
30,000 from an emergency fund or, alternatively, for 33 sq. m of free
housing, but held that any further claims were unsubstantiated.
On
20 November 2001 the Supreme Court of the KBR upheld the judgment of
9 October 2001.
On
7 December 2001 the fourth applicant was issued a housing voucher
entitling her to 33 sq. m of free accommodation to compensate for the
loss of her flat and received a grant of RUB 13,200 from the
emergency fund to compensate for the loss of her possessions, plus an
additional allowance of RUB 584.
According
to the fourth applicant, her living conditions after the above events
were extremely difficult and her health deteriorated substantially as
a result of the stress and devastation they had caused. Following the
disaster she suffered from psychological disorientation and
depression, for which she had to undergo psychiatric treatment.
According to her medical records her condition has been further
aggravated by the litigation over the compensation.
5. The fifth and sixth applicants
Before
the events of July 2000 the applicants and their two daughters lived
in a 72 sq. m flat, which they owned.
On
18-24 July 2000 their flat and possessions were flooded and destroyed
by the mudslide. They claimed that no emergency warning was given and
that they and their family had only just managed to escape the
mudslide.
The
fifth and sixth applicants brought an action in damages against the
Government of the KBR, the Ministry for Disaster Relief of the KBR
and the Elbrus District Administration. They claimed RUB 498,368 for
the loss of their movable and immovable property as well as RUB
200,000 for non-pecuniary damage for mental and physical suffering.
Their allegations, arguments and other submissions were essentially
the same as those of the other applicants referred to above.
On
25 April 2001 the Elbrus District Court of the KBR examined the fifth
and sixth applicants' claim and rejected it.
On
22 May 2001 the Supreme Court of the KBR reversed the judgment of 25
April 2001 on the grounds that one of the parties had not attended
the trial. The case was remitted for re-examination by a
first-instance court.
On
9 October 2001 the Baksan District Court of the KBR examined their
claim and rejected it on the same grounds as those of the other
applicants referred to above. It noted, inter alia, that the
fifth and sixth applicants were still entitled to apply for
compensation from an emergency fund in the sum of RUB 13,200 for the
loss of movable property and RUB 45,000 for the loss of the flat
or, alternatively, for 33 sq. m of free housing per person, but held
that further any claims were unsubstantiated.
On
20 November 2001 the Supreme Court of the KBR upheld the judgment of
9 October 2001.
On
8 December 2001 the fifth and sixth applicants were issued with a
housing voucher entitling them to 72 sq. m of free accommodation to
compensate for the loss of the flat and received a grant from the
emergency fund of RUB 13,200 to compensate for the loss of their
possessions, plus an additional allowance of RUB 2,337.
According
to the fifth and sixth applicants, their health deteriorated
substantially as a result of the stress and devastation. In
particular, the sixth applicant had to receive extensive psychiatric
and neurological treatment following a nervous breakdown caused by
living through the disaster and its consequences.
C. Documents submitted by the applicants
In
support of their allegations the applicants submitted numerous
newspaper articles, official letters, documents and witness
statements to the Court. In so far as relevant, these documents read
as follows.
1. Official letters and documents issued before the
2000 mudslide
Official
letter of 30 August 1999 from the director of the Mountain Institute,
Mr M. Zalikhanov, to the President of the KBR:
“As you know, earlier this year, on 20 August, a
heavy mudslide with a volume of some 1 million cu. m was recorded in
the valley of the Gerhozhansu River. The aerial visual survey made
from a helicopter found that fluid material had formed in the upper
stream of one of the mud-bearing deposits of Kaya-Arty-Su. At the
same time, another mud-bearing deposit has formed in the Gerhozhan
basin, in the Sakashili-Su River, and the mud reserves may soon
become active.
Given that the feed-through mud retention collector at
the estuary of the mudslide basin has been destroyed by previous
mudslides, and the river channel has filled up with mud deposits, the
disaster may recur on a larger scale.
We therefore request financial support to set up for the
period of September radio-communication posts in the upper section of
the river to warn civilians and the [emergency] services of the
mud-hazard and to conduct engineering surveys to restore the
mud-protection structure, which is now in a critical state of
disrepair.”
Official
letter of 17 January 2000 from the acting director of the Mountain
Institute, Mr Kh. Kalov, to the Prime Minister of the KBR:
“As you are well aware, the area around Tyrnauz is
one of the areas most at risk of a mudslide in the Russian
Federation. The mudslide retention dam erected here, which is 160 m
long, 38 m high and 40 m broad ... was destroyed on 20 August last
year. The devastating 1 million cu. m mudslide caused the collapse of
the dam, with a 60 m fracture line. Damage was caused to Tyrnauz...
In view of the high risk of mudslides in the coming year
and given that the reconstruction of the dam does not appear
financially or technically feasible, observation points must be set
up in the upper section of the Gerhozhansu River to avoid casualties
and mitigate the damage... with the task of monitoring the river and
giving an emergency warning to civilians in the event of a mudslide
... Twenty-four-hour monitoring will be carried out in the period
from 15 June to 15 September to provide a mudslide forecast and to
inform the [Ministry for Disaster Relief of the KBR]...
The Mountain Institute has a wealth of experience of
such work in the Tyrnauz area, and will provide members of the
expedition with salary, gear and equipment. We request financial aid
of 100,000 roubles to cover field supplies and transport.”
Official letter of 7 March 2000 from the Head of the
Elbrus District Administration to the Prime Minister of the KBR:
“In August 1999 the mudslide from the Sakashili-Su
tract blocked the bed of the Baksan River and directed the main water
stream outside the retaining wall on the left side of the riverbed.
As a result, the foundation soil and spandrels of the retaining wall
have eroded and continue to erode. At the moment a 500 m section of
the bypass road has been put completely out of service.
The state of the foundation of the retaining wall is
near critical. When the thaw floods begin in spring it may lead to
the collapse of sections of the retaining wall of the defence system
above the hollowed out soil. Their reconstruction will be very
costly.
The mudslide has also filled up the mud conveying
channel to up to 25-30% of capacity; if another mudslide occurs, the
mud conveying channel may overflow and flood the residential
neighbourhoods of Tyrnauz. This could lead to an emergency on a scale
that is impossible to predict, with record financial losses and,
probably, casualties.
Taking the above into account, the Elbrus District
Administration requests financial aid to perform the above work.”
2. Newspaper publications
Interview
with Mr M. Zalikhanov, published in the national newspaper
Rossiyskaya Gazeta on 26 July 2000.
“ ... M. Zalikhanov, member of the Russian
Academy of Sciences, leading expert in the studies of natural
disasters, ... member of the Parliamentary Commission of the State
Duma of the Russian Federation on sustainable development...
MZ: It is not only nature that must take the blame for
the tragedy [of 18-25 July 2000, but also] blatant irresponsibility
on the part of officials and their reluctance to follow the
recommendations of specialists. ...
RG: ... could this disaster have been foreseen? And why
did the mud protection dam on the Gerhozhansu River fail?
MZ: ... Tyrnayz is a mining centre of the [KBR] ... and
because of its geographical position it is under permanent threat
from mudslides. The most disastrous were the mudslides of 1964 and
especially of 1977. [The latter] destroyed over thirty houses in the
town centre, and casualties were avoided solely because the
specialists of the [Mountain Institute] gave a timely warning to the
town authorities about the impending disaster. Later it was decided
... to erect a mud-protection system. I was ordered to develop
specifications for the construction ... one of such mud retention
dams ... [it] was launched last year.
RG: Is it true that you then refused to sign the
commission acceptance report for the mud-protection system?
MZ: Yes. Why? Because the first construction stage of
the complex had been sitting unfinished for over four years. There
remained a great risk that the first mudslide to arrive, even if
relatively feeble, would break the complex because its top section
was not firmly anchored to solid rock. The funding for the completion
of the construction had been allocated, but as to where the funds had
disappeared (between Nalchik and Tyrnauz), nobody could give me a
clear answer. Stressing the importance of this issue and the need to
complete the construction, I made numerous appeals to the [KBR
President], V. Kokov, and to the Minister for Disaster Relief of the
Russian Federation, S. Shoigu. Finally more funds were allocated and
the construction was ostensibly brought to completion. ... I refused
to take part in the [inaugural ceremony] because of concern for my
expert and academic reputation. My assistant specialists, in
particular my deputy for the construction [Mr R.] and the geologist
[Ms N.S.] drew up a report; here are some extracts from it: '... a
failure to submit [project documentation] makes it impossible to
assess the project's compliance [with the specifications]... Given
the novelty of the [design] ... the high levels of seismic activity
in the area, the high fail-safety requirements for the dam structure,
any deformation of which may increase the impact of a mudslide on the
town of Tyrnauz and thus significantly aggravate the mud hazard, and
also taking into account the inordinate time taken to complete the
construction work, with intervals as long as four years, it is
necessary to subject the facility to a special architectural survey.
[A number of serious technical deviations] give grounds for
suspecting a degree of tension within the construction, even without
mud or seismic impact. All of this considerably reduces the project
capacity of the dam. The visual survey of the dam construction showed
signs of wear and tear of sections of it even without mud...'
RG: So even though Zelikhanov, a Member of the Academy,
did not sign the report, the facility was nevertheless put into
service?
MZ: Yes. And within two months [it] had been destroyed
by a mudslide of far from catastrophic intensity. I wrote to the KBR
Minister for Disaster Relief, A. Turkinov ... and in August last year
advised the KBR President, V. Kokov ... that the mud reserves might
become active in the near future ... and that the disaster could be
repeated on a much larger scale ... and requested assistance in
finding resources for setting up surveillance posts ... and carrying
out an engineering study to restore the construction, which was in a
critical state...
I believe that it is of the utmost importance to set up
[without delay] a competent commission comprising prominent experts
to establish the true causes of the tragedy. ... Another commission
is also needed ... to develop a complex programme for the protection
of the KBR community from environmental hazards...”
Interview
with Mr O. Baydayev, the first Deputy Head of the Elbrus District
Administration, published in the local newspaper Gazeta Yuga
on 3 August 2000:
“... 1.2 million roubles were allocated from the
district budget to clear the mud conveying channel. We sent this
money for clearing the [mud conveying] channel. Otherwise the outcome
could have been even more disastrous. However, a mudslide of such
force could not have been stopped even by a perfectly clear channel.
About the warning. The very first impact [of the
mudslide] tore down the electric wires and telephone cables. We were
running around the town with two loudspeakers. It is possible we did
not reach every single house or flat but the information was conveyed
to every district of the town. On the very first night the town was
divided into five sectors, temporary heads of administrations were
appointed, and they received all the information. Understandably,
people wanted to know how the mudslide would evolve, but even the
scientists did not know that...”
Research
note by Ms I. Seinova, holder of a research degree in geography,
dated 26 August 1999. The text below is based on the text published
in one of the KBR local newspapers after the mudslide of 2000 (the
exact publication reference is not available):
“The [1999] disaster at the Gerhozhansu mudslide
retention dam has vividly demonstrated the danger posed by an
unstable mudslide protection device situated above the town. ... The
international practice of mudslide defence includes many examples of
the collapse of a dam leading to a tenfold increase in the
destructive force [of a mudslide] compared with the naturally
occurring level...
The mudslides on Gerhozhansu are among the most
disastrous in the Central Caucasus. The volume of the 1977 mudslide
was 3 million cu. m of mud and debris, discharging at 500 cu. m per
second...
In the current environmental and social situation the
most reasonable solution would be to reject the idea of constructing
a mud-retention dam. The top priority should be to dismantle the
unstable blocks.
Following the mudslide of 20 August [1999] the mud
conveying channel retained a considerable amount of mud and debris
deposit, but for the most part it settled in the flood-plain of the
Baksan River. It is necessary to clear the mud conveying channel
because its carrying capacity has reduced significantly...”
Interview
with Mr V. Bolov, Director of the Centre for Disaster Monitoring and
Forecasting of the Ministry of Disaster Relief, published on 28 July
2001 in the newspaper Gazeta Yuga following the Centre's field
investigation into the 2000 mudslide:
“V.B.: ... the expedition concluded ... that last
year's mudslides in Tyrnauz were absolutely unique ... nowadays the
profile of the mud phenomena in this basin has drastically changed
for the worse.
However, according to preliminary estimates, the
extraordinary volume of [active] mud from last year is unlikely to be
repeated this year, although the chances of several mudslides of
variable intensity remain.
G.Y.: So all of this may happen as unexpectedly as on 18
June 2000?
V.B.: Here we can be certain that the situation has
radically improved. The present position is that even before the
beginning of the period when the mud is active, surveillance posts
have been set up in the immediate vicinity of the glacier as well as
[further down] where the mudslide gains force and becomes dangerous
for the town.
The [surveillance] posts are functioning and are
provided with reliable communication facilities. That is to say, in
so far as prevention is concerned, measures have been taken ... The
second important problem is ... to close the twist in the mud
conveying channel with a more secure wall. Work has been under way
for some time. ...
To sum up ... the mud activity in this gorge has
increased because of last year's mudslide. At the same time the
preventive measures that have already been taken inspire optimism. In
any event, even if powerful mudslides develop, people's lives will
undoubtedly be saved.
G.Y.: Are there any effective methods of influencing the
mud activity, for example by blowing up part of a slope or draining a
glacier lake, so that the risk of a mudslide is reduced?
V.B.: Yes, there are. ... but [their application]
involves very complex and thorough calculations ... This question is
currently being examined ... then it will be for the specialists and
the authorities to decide whether to use this technology in the
Gerhozhansu...
... At the same time in a number of mud-affected areas
it is necessary to solve the question of [resettling the residents]
outside the zone of mud activity in order to ensure [their] safety.
This would be much cheaper and quicker. Engineering schemes involve
tremendous expenditure, and given that funds are always lacking, are
unlikely to offer a solution. Therefore, introducing restrictions in
the mud-affected zones and regulating [building] within them,
especially of a residential nature, is worth considering.”
3. Witness statements
Statement by Ms K, a friend of the first applicant:
“On 19 July 2000 I, [K], born in 1970, decided on
my way to work to call at my best friend Fatima's [the second
applicant's] home. On the previous night I arrived in town late and
went straight to bed ... unaware of what was happening in the town.
At 7.30 a.m. on the morning of 19 July, I went out and saw
people gathered on the mountain ... and found out that a mudslide had
hit Fatima's house... The bridge had been destroyed and I could not
cross to the other side where her house was. I decided to enquire
after Fatima and went to the home of her sister Khalimat [the first
applicant], who lives on this side. I saw the police nearby and asked
them if I could go to this house [pointing at the first applicant's
house] and they confirmed that I could, adding that the electricity
had been switched back on two hours previously, and people were
allowed back in their flats. I headed there with no apprehension,
went up to the sixth floor ... walked in and found them asleep. I
woke up Khalimat and she told me that on the previous night Fatima
had crossed to the other side of the river. We had been talking for
about 15 minutes when we heard a loud rumble. I rushed out to the
balcony and saw people running. Khalimat also rushed to wake up her
husband and children. I grabbed their youngest son, three-year-old
Inar, and ran downstairs. On my way out I saw Khalimat's husband
[Vladimir] looking for his trousers and Khalimat herself following me
with her eldest son Magomed. Between the third and fourth floors I
felt the stairs pitching and realised that the house was collapsing.
We fell and I found myself locked with the child under a [concrete
sheet] with dust, blood and debris around me. I pushed Inar up
between the sheets so that he could get out. A man saw him and pulled
him out but I stayed under the sheet. I could feel my legs but could
not see them ... they were buried under a concrete sheet... I later
saw three dead bodies underneath the same sheet (a woman and two
children of about three to five years of age). I tried to pull my
legs out but felt an awful pain in the pelvis... Eventually I was
helped out by the emergency services and taken to hospital... For two
months I was immobilised and continued to receive treatment for a
further nine months...
I did not sue... Every time I applied [to the
authorities for medical or welfare benefits] I was asked why I had
gone there in the first place, to which I could only answer that
nobody had stopped me or warned me that it was dangerous; on the
contrary, they had told me that I could go in... I am a reasonable
person and would never have headed towards the danger if only I had
been warned...”
Statement by Ms T.K. who lived at 17 Otarova Street,
Tyrnauz:
“... On the night of 18 July 2000 I, my husband
and our grandson were woken up by a terrible rattling noise. We
realised at once that it was a mudslide. We rushed out dressed in
whatever we were wearing. It was raining heavily, people were running
in fear and panic in all directions. The rest of the night we spent
up in the mountains, trembling with cold and fear. In the morning, we
saw the awful spectacle of the town partly covered in mud and rocks
with some areas, especially Otarova Street, destroyed by the mud, and
the centre flooded with water from the Baksan River.
By about 11 a.m. [on 19 July] it seemed to everybody
that the flow of mud had begun to settle and we approached our house.
Nobody stopped us, there were no barriers. All the residents of our
apartment block and of the two neighbouring nine-storey apartment
blocks returned to their flats. We ate and went to sleep. I woke up
because the house was shaking and I heard the noise and people
screaming. I opened the door and saw that the right side of our house
was missing and the staircase had collapsed. I grabbed my grandson
and ran out to the balcony where the fire exit was. We could only
make it to the fourth floor where the fire staircase ended; there
were about 30 of us gathered there, while people from the lower
floors were jumping out of their windows and balconies, which I could
see. My neighbours, the men, found some ropes and began taking us
down, the children first and then the women. It took me a while to
come to my senses after the descent. My neighbour, [the first
applicant], was crying and asking about her husband and child. But
nobody knew what had become of them and the rest of us were also
looking for our relatives. After these events we were in a state of
shock for a long time, but no one paid any attention to us. The
authorities still do not admit that they were not actually in control
of the situation and that nothing had been done to save us from the
disaster. They had taken no measures before the mudslide, or while it
continued from 18 to 25 July, basically leaving us to our
own devices. In our apartment block alone four people were killed and
many were injured and remained disabled for life; it is a pity,
especially about the children. Nobody knows how many people in fact
died, in particular on the night of 18 July, as these facts have been
vigorously concealed. We did not bring proceedings with a view to
punishing those who were really responsible for everything we had had
to endure, because we were sure that the court would never give a
just ruling as these people occupy very high posts.”
Statement
by Mr B, father of the first and the second applicants:
“... Almost every year a mudslide descends through
the bed of the Gerhozhansu River. Back in the 1970s there existed a
special organisation to monitor the river estuary, and an alarm
outside the factory would be activated when the [lookouts] warned the
duty officer of danger. In the 1980s all that was [abandoned]. ... On
the night of 18 to 19 July [2000] my wife and I were at home. We went
to bed at about 10 p.m., but I was soon woken up by my wife's
cries. I went out to the balcony but could not see anything because
the electricity pylons had been taken down by the flow of mud. I lit
a torch and saw the mud running through the entrance to our apartment
block... I saw a passenger car being carried along by the wave of
mud... The staircase had collapsed and the house was falling apart.
... we did not know what to do. I picked up the phone. It was still
working, so I dialled the police and reported what was happening to
us, and they told us to “wait, help will come”.
We sat there until 3 a.m., until my son-in-law Vladimir
Budayev, his friends and our neighbours came [to help] us...
Just before the mudslide [of July 2000] we sent a
collective petition to the Head of the Elbrus District
Administration, Mr B.Sh. Chechenov, asking for the waterway to be
cleared. Having received no reply to our petition, we went to meet
him for public consultations. At our meeting he said that he had no
money to clear the waterway, as no funds had been allocated, so there
was nothing he could do for us. We suggested writing a letter to the
government requesting the funds, but he began shouting at us that the
government had enough work to deal with without us. We then demanded
that a commission be set up to find out whether it was true that no
money had been allocated for clearing the mud conveying channel,
after which B.Sh. Chechenov called the police and they escorted us –
respectable people, men with grey hair – out of his office...
Then the mudslide occurred, and if only timely measures
had been taken many victims could have been spared and there would
not have been destruction on such a scale. Many of the casualties
could have been avoided. Could they not have told people just an hour
before the mudslide what they had known for 11 days before the
tragedy? ...
...I lost my flat; my children were left without their
flats, property, and most importantly my son-in-law was killed, my
grandson remained between life and death for a long time, my
granddaughter Indira and my grandsons Inar and Magomet Budayev are
still receiving medical treatment ...”
Statement
by Ms Zh. who lived at 42 Otarova Street, Tyrnauz:
“... The mudslide of 2000 was terrible. It took
away my home, all my possessions...
On the night it occurred I was at home at 42 Otariva
Street, already asleep. I woke up because of the rattling noise. I
tried to get out of the flat but could not. I was crying out for help
... but nobody could hear me because of the horrible noise of the
mudslide. ...
... This night was the most harrowing of my life ...
because of the stress I lost my eyesight and cannot see anything now.
For this I blame the mudslide and our authorities who did not prepare
people psychologically for the possibility of a natural disaster and
found themselves unable to provide relief to the victims...”
II. RELEVANT DOMESTIC LAW
A. Responsibility of the State in the area of emergency
relief
Section
6 of the Federal Law of 21 December 1994 No. 68-FZ “On
Protection of Civilians and Terrains from Emergencies of Natural and
Industrial Origin” imposes an obligation on the federal,
regional and local authorities to promptly and accurately inform
civilians through the mass media and other channels of information
about any emergency situations and the safety measures taken to
protect the population and about any forecasted disasters and means
of protection against them. The same Section provides for the
liability of State officials in the event of their failure to make
this information public.
Section
7 of the same Law provides that prevention of emergencies and
mitigation, to the maximum extent possible, of damage and losses
constitutes one of fundamental principles of emergency relief and
requires that all preventive measures be carried out in sufficient
time in advance.
B. Tort liability of the State
Article 1064 § 1 of the Civil Code of the
Russian Federation provides that the damage caused to the person or
property of a citizen must be compensated in full by the person who
caused the damage. Pursuant to Article 1069, a State agency or a
State official is liable to a citizen for damage caused by their
unlawful actions or failure to act. Such damage is to be compensated
at the expense of the federal or regional treasury.
Articles
151 and 1099-1101 of the Civil Code provide for compensation for
non-pecuniary damage. Article 1099 states, in particular, that
non-pecuniary damage shall be compensated irrespective of any award
for pecuniary damage.
THE LAW
I. THE GOVERNMENT'S PRELIMINARY OBJECTION
A. The parties' submissions
The Government contended that the complaint
concerning the alleged violation of the right to life guaranteed by
Article 2 should be declared inadmissible for non-exhaustion of
domestic remedies. They considered that the applicants should have
challenged the respective decisions to dispense with a criminal
investigation into the catastrophe. In the first applicant's case,
this was the decision taken by the Prosecutor's Office of the Elbrus
District of 3 August 2000, which specifically concerned her husband's
death and stated that it did not call for a criminal investigation.
As regards the other applicants, the Government referred to the
general ruling of the same Prosecutor's Office, allegedly taken on
the same date, that no criminal investigation into the natural
disaster of
8-25 July 2000 was needed. Moreover, the
applicants did not rely on the violation of the right to life in the
civil proceedings for damages.
The
applicants contested the Government's objection. They pointed out
that the events at issue were of such a scale that it was incumbent
on the authorities to conduct an investigation without waiting for
the victims or their next of kin to ask the authorities to take
action. They further argued that the manner in which the decisions
dispensing with criminal proceedings were taken and served had made
it impracticable for the victims to challenge them.
The
first applicant argued, in particular, that the decision was served
on her sister while she herself was watching over her son, who was in
intensive care, and that she herself had been in a desperate
condition. She maintained that the decision did not state how it
could be challenged, and that in the circumstances of the loss of her
husband and the devastation of her home she was not in a position to
seek and pay for legal advice. She added that it was clear that the
prosecutor's office was determined not to give the matter any further
consideration and that attempts to challenge it would be futile. She
therefore decided that the best way of obtaining redress would be
through civil proceedings.
As
for the decision refusing to launch criminal proceedings into the
catastrophe in general, all the applicants, including the first
applicant, denied any knowledge of its existence and said that they
had therefore been unable to challenge it before the competent
authorities.
B. The Court's assessment
1. As regards the first applicant
The
Government claimed that the first applicant had not lodged a
complaint under the Code of Criminal Procedure against the
prosecutor's decision to dispense with criminal proceedings into the
circumstances of her husband's death. While it is clear that the
State was under an obligation to take the initiative and investigate
the death, the Government argued that the applicant did not challenge
the authorities' failure to do so, although this remedy, if
successful, would have provided all the advantages of a criminal
investigation to ascertain the circumstances. However, the applicant
preferred another avenue and brought a civil action in damages.
The
Court firstly notes that where the applicant has a choice of remedies
and their comparative effectiveness is not obvious the Court tends to
interpret the requirement of exhaustion of domestic remedies in the
applicant's favour (see, among numerous examples, Khashiyev and
Akayeva v. Russia, nos. 57942/00 and 57945/00, §§ 115-25
and 156-66, 24 February 2005; Manoussakis and Others v.
Greece, judgment of 26 September 1996, Reports of
Judgments and Decisions 1996-IV, pp. 1359-60, § 33; and
Aquilina v. Malta [GC], § 39, ECHR 1999-III).
Moreover,
in the specific context of establishing State liability for the
damage caused by a natural disaster, it has previously found that
successful administrative proceedings were sufficient to deprive the
applicant of his victim status (see Murillo Saldias and Others v.
Spain (dec.), no. 76973/01, 28 November 2006).
The
Court further notes that the events complained of in the present case
were of such a vast scale that bringing the matter to the attention
of the authorities did not depend on the applicant's diligence.
Moreover, the advantage to be gained by the applicant in instituting
criminal proceedings was not obvious, given that the civil court had
competence to engage the responsibility of a particular State
authority, and such institutional liability could have provided a
basis for reparation to the victims. This consideration is essential
given that disasters of this kind are more likely to result from a
combined failure of a number of officials, whose individual liability
does not necessarily attain the gravity required for a criminal
conviction. For this reason and also due to lower standards of proof
in civil proceedings, the Court does not find it unreasonable on the
part of the first applicant to choose a civil action as means of
seeking redress.
The
Court therefore considers that for the purpose of exhausting domestic
remedies in the present case it was sufficient for the first
applicant to bring civil proceedings, as she did.
2. As regards other applicants
The
Government considered that the applicants failed to exhaust domestic
remedies as regards their Article 2 complaints because they neither
challenged the decision dispensing with a criminal investigation into
the natural disaster, nor invoked their right to life in their civil
claims for damages. Concerning the decision dispensing with criminal
proceedings, the applicants deny any knowledge that such decision has
been adopted. Indeed, they were not involved in any such proceedings
and it is unclear in what capacity under domestic law they would have
been able to challenge the decision referred to by the Government.
Unlike the first applicant, they had to prove their victim status
before they could commence criminal proceedings. As to the alleged
failure to invoke their right to life in the civil proceedings, the
Court observes that their statement of claim was formulated in terms
that embraced the substance of this guarantee. It therefore considers
this part of the Government's preliminary objection also unfounded.
The
Court accordingly rejects the Government's preliminary objection that
the applicants failed to exhaust domestic remedies.
II. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
The
applicants complained that the authorities had failed to comply with
their positive obligations to take appropriate measures to mitigate
the risks to their lives against the natural hazards. The first
applicant complained that the domestic authorities were responsible
for the death of her husband in the mudslide of July 2000. She and
the other applicants also complained that the domestic authorities
were responsible for putting their lives at risk, as they had failed
to discharge the State's positive obligations and had been negligent
in the maintenance of the dam, in monitoring the hazardous area and
in providing an emergency warning or taking other reasonable measures
to mitigate the risk and the effects of the natural disaster. They
also complained that they had had no redress, in particular they had
not received adequate compensation in respect of their pecuniary and
non-pecuniary damage. They relied on Article 2 of the Convention
which, in so far as relevant, provides:
“1. Everyone's right to life shall be
protected by law. No one shall be deprived of his life intentionally
save in the execution of a sentence of a court following his
conviction of a crime for which this penalty is provided by law.
...”
A. The parties' submissions
1. The Government
The
Government denied any responsibility for the loss of life and other
adverse consequences of the 2000 mudslide. They submitted that
although the hazards of the area were well known both to the
authorities and the civilian population, the mudslide of 18-25 July
2000 had been unpredictable owing to its exceptional force. It was an
act of God, the time and the extent of which could neither be
foreseen nor influenced. Even if the mudslide had been forecast, no
effective technical measures could have prevented a catastrophe on
that scale at such short notice. They submitted that after the 2000
disaster the construction of a new engineering defence structure had
begun, and that this new project with increased mud retention
capacity was due for completion in 2006. No up-to-date information on
the new construction was made available to the Court.
The
Government contended that on 5 January 2001 funds were allocated for
the reconstruction of the defence infrastructure damaged by the
mudslide of 2000.
Concerning
the arrangements in place for warning the local population, the
Government submitted that there was an operational system of general
weather monitoring in the area. In particular, during the period of
mud activity every year the Mountain Institute engaged in a special
surveillance mission staffed by its research fellows. In the event of
a mud hazard the evacuation of the civilian population would be
ordered. In 2000 the visual monitoring of the mud slippage was
performed by the KBR division of the integrated national system of
disaster prevention and relief.
The
Government considered that on the night of 18-19 July 2000 the
civilian population had received due warning of the mudslide. They
submitted that after the first wave of the mudslide, the Elbrus
police, the fire brigade and staff from the municipal community
services had called at peoples' homes to inform them of the mudslide
and had helped evacuate elderly residents who were unable to leave
unaided. They also stated that police vehicles equipped with
loudspeakers had driven round residential quarters calling on
residents to evacuate because of the mud hazard. The Government
claimed that all necessary measures had been taken to rescue the
victims, to resettle the residents of affected apartment blocks and
to bring in emergency supplies. 620 members of the rescue services,
106 units of technical facilities, 9 floating facilities and 3
helicopters had been engaged on the site of the disaster.
The
Government further submitted that the local population could have
listened to the weather forecasts broadcast by the media and that
public servants from various State institutions were trained to
respond to emergencies. They finally submitted that since 1994 a
central warning system had been functioning in the KBR.
In
so far as the applicants claimed that they had not had an effective
remedy in respect of the alleged violations, the Government contended
that they had, in fact, availed themselves of such a remedy, namely,
the civil action in damages against the State, even though they were
ultimately unsuccessful.
The
Government also referred, as in their preliminary objection above, to
a remedy which the applicants had allegedly failed to use, namely an
application for review of the decisions dispensing with the inquest
into the deaths and with the criminal investigation into the
circumstances of the disaster.
2. The applicants
The
applicants contested the Government's submissions pointing out the
absence of any specific information about the preventive measures
allegedly implemented to mitigate the risks posed by the regular
mudslides. They maintained that the authorities had found themselves
in a position where they were simply incapable of providing an
adequate response to the disaster or of giving an early warning
because they had failed to ensure the functioning of the safety
infrastructure. In particular, they had failed to organise
surveillance of the mud slippage in the summer period and had
neglected the maintenance of the mud defence structure. They referred
to the official letters referred to above in the Facts Section (Part
C-2 “Official letters and documents issued before the 2000
mudslide”) and claimed that the authorities could not deny
knowledge of the imminent threat to lives and property, or their
failure to take even the most basic steps to mitigate the risk. In
addition, they referred to the petition whereby the civilian
population had called upon the local authorities to clear the mud
conveying channel in readiness for the forthcoming season.
The
applicants further claimed that they had not received warning of the
mudslide before it started on 18 July 2000. They did not accept that
the warning transmitted through the loudspeakers after the mudslide
had already hit the town could count as such a warning, because it
was given too late. They also denied knowledge of the existence of a
central warning system referred to by the Government and suggested
that even if such a system was indeed functioning in the KBR it
obviously did not cover their area and was not used for informing the
public.
The
applicants also contested the Government's allegation that their
return home on 19 July 2000 was in breach of an order to evacuate.
They maintained that no ban or warning had been communicated to them.
In particular, there had been no sign or barrier, or other indication
of any ongoing mud alert.
The
applicants considered that through these omissions the authorities
had failed to comply with their positive obligations to take
reasonable and appropriate measures to protect people and property
from the hazards to which the area was subject.
B. The Court's assessment
1. General principles applicable in the present case
(a) Applicability of Article 2 of the
Convention and general principles relating to the substantive aspect
of that Article
The
Court reiterates that Article 2 does not solely concern deaths
resulting from the use of force by agents of the State but also, in
the first sentence of its first paragraph, lays down a positive
obligation on States to take appropriate steps to safeguard the lives
of those within their jurisdiction (see, for example, L.C.B. v.
the United Kingdom, cited above, p. 1403, § 36, and Paul
and Audrey Edwards v. the United Kingdom, no. 46477/99, §
54, ECHR 2002-II).
This
positive obligation entails above all a primary duty on the State to
put in place a legislative and administrative framework designed to
provide effective deterrence against threats to the right to life
(see, for example, mutatis mutandis, Osman v. the United
Kingdom, judgment of 28 October 1998, Reports 1998 VIII,
p. 3159, § 115; Paul and Audrey Edwards, cited
above, § 54; İlhan v. Turkey [GC], no. 22277/93,
§ 91, ECHR 2000-VII; Kılıç v. Turkey,
no. 22492/93, § 62, ECHR 2000-III; and Mahmut Kaya v.
Turkey, no. 22535/93, § 85, ECHR 2000-III).
This
obligation must be construed as applying in the context of any
activity, whether public or not, in which the right to life may be at
stake (see Öneryıldız v. Turkey [GC],
no. 48939/99, § 71, ECHR 2004 XII). In
particular, it applies to the sphere of industrial risks, or
“dangerous activities”, such as the operation of waste
collection sites in the case of Öneryıldız
(ibid. §§ 71 and 90).
The
obligation on the part of the State to safeguard the lives of those
within its jurisdiction has been interpreted so as to include both
substantive and procedural aspects, notably a positive obligation to
take regulatory measures and to adequately inform the public about
any life-threatening emergency, and to ensure that any occasion of
the deaths caused thereby would be followed by a judicial enquiry
(Öneryıldız, cited above, §§ 89-118).
As
regards the substantive aspect, in the particular context of
dangerous activities the Court has found that special emphasis must
be placed on regulations geared to the special features of the
activity in question, particularly with regard to the level of the
potential risk to human lives. They must govern the licensing,
setting up, operation, security and supervision of the activity and
must make it compulsory for all those concerned to take practical
measures to ensure the effective protection of citizens whose lives
might be endangered by the inherent risks. Among these preventive
measures, particular emphasis should be placed on the public's right
to information, as established in the case-law of the Convention
institutions. The relevant regulations must also provide for
appropriate procedures, taking into account the technical aspects of
the activity in question, for identifying shortcomings in the
processes concerned and any errors committed by those responsible at
different levels (see Öneryıldız, cited above,
§§ 89-90).
It
has been recognised that in the context of dangerous activities the
scope of the positive obligations under Article 2 of the Convention
largely overlap with those under Article 8 (see Öneryıldız,
cited above, §§ 90 and 160). Consequently, the
principles developed in the Court's case-law relating to planning and
environmental matters affecting private life and home may also be
relied on for the protection of the right to life.
As
to the choice of particular practical measures, the Court has
consistently held that where the State is required to take positive
measures, the choice of means is in principle a matter that falls
within the Contracting State's margin of appreciation. There are
different avenues to ensure Convention rights, and even if the State
has failed to apply one particular measure provided by domestic law,
it may still fulfil its positive duty by other means (see, among
other cases, Fadeyeva v. Russia, no. 55723/00, § 96,
ECHR 2005 IV).
In
this respect an impossible or disproportionate burden must not be
imposed on the authorities without consideration being given, in
particular, to the operational choices which they must make in terms
of priorities and resources (see Osman, cited above, pp.
3159-60, § 116); this results from the wide margin of
appreciation States enjoy, as the Court has previously held, in
difficult social and technical spheres (see Hatton and Others v.
the United Kingdom [GC], no. 36022/97, §§ 100-01,
ECHR 2003-VIII, and Öneryıldız, cited above,
§ 107). This consideration must be afforded even greater
weight in the sphere of emergency relief in relation to a
meteorological event, which is as such beyond human control, than in
the sphere of dangerous activities of a man-made nature.
In assessing whether the respondent State had
complied with the positive obligation, the Court must consider the
particular circumstances of the case, regard being had, among other
elements, to the domestic legality of the authorities' acts or
omissions (see López Ostra v. Spain, judgment of 9
December 1994, Series A no. 303 C, pp. 46-47, §§
16-22, and Guerra and Others v. Italy, judgment of 19 February
1998, Reports 1998 I, p. 219, §§ 25-27),
the domestic decision-making process, including the appropriate
investigations and studies, and the complexity of the issue,
especially where conflicting Convention interests are involved (see
Hatton and others, cited above, § 128, and Fadeyeva,
cited above, §§ 96-98).
In
the sphere of emergency relief, where the State is directly involved
in the protection of human lives through the mitigation of natural
hazards, these considerations should apply in so far as the
circumstances of a particular case point to the imminence of a
natural hazard that had been clearly identifiable, and especially
where it concerned a recurring calamity affecting a distinct area
developed for human habitation or use (see, mutatis mutandis,
Murillo Saldias and others, cited above). The scope of the
positive obligations imputable to the State in the particular
circumstances would depend on the origin of the threat and the extent
to which one or the other risk is susceptible to mitigation.
(b) Principles relating to the judicial
response required in the event of alleged infringements of the right
to life: the procedural aspect of Article 2 of the Convention
The
obligations deriving from Article 2 do not end there. Where lives
have been lost in circumstances potentially engaging the
responsibility of the State, that provision entails a duty for the
State to ensure, by all means at its disposal, an adequate response –
judicial or otherwise – so that the legislative and
administrative framework set up to protect the right to life is
properly implemented and any breaches of that right are repressed and
punished (see, mutatis mutandis, Osman, cited above, p.
3159, § 115, and Paul and Audrey Edwards, cited
above, § 54).
In
this connection, the Court has held that if the infringement of the
right to life or to physical integrity is not caused intentionally,
the positive obligation to set up an “effective judicial
system” does not necessarily require criminal proceedings to be
brought in every case and may be satisfied if civil, administrative
or even disciplinary remedies were available to the victims (see, for
example, Vo v. France [GC], no. 53924/00, § 90, ECHR
2004-VIII; Calvelli and Ciglio v. Italy [GC],
no. 32967/96, § 51, ECHR 2002 I; and Mastromatteo
v. Italy [GC], no. 37703/97, §§ 90 and 94-95,
ECHR 2002 VIII).
However,
in the particular context of dangerous activities, the Court
considered that an official criminal investigation is indispensible
given that public authorities are often the only entities to have
sufficient relevant knowledge to identify and establish the complex
phenomena that might have caused an incident. It held that where the
authorities in question, fully realising the likely consequences and
disregarding the powers vested in them, failed to take measures that
were necessary and sufficient to avert the risks inherent in a
dangerous activity, the fact that those responsible for endangering
life have not been charged with a criminal offence or prosecuted may
amount to a violation of Article 2, irrespective of any other types
of remedy which individuals may exercise on their own initiative (see
Öneryıldız, cited above, § 93).
The
approach taken by the Court in a case brought by victims of a natural
disaster, namely campers caught in a flood at an official camping
site, was consistent with that in the area of dangerous activities.
The Court found that successful proceedings for damages before an
administrative tribunal, preceded by comprehensive criminal
proceedings, were an effective remedy for the purposes of Article 35
§ 1 of the Convention (see Murillo Saldias and others,
cited above).
Accordingly,
the principles developed in relation to judicial response following
incidents resulting from dangerous activities lend themselves to
application also in the area of disaster relief. Where lives are lost
as a result of events engaging the State's responsibility for
positive preventive action, the judicial system required by Article 2
must make provision for an independent and impartial official
investigation procedure that satisfies certain minimum standards as
to effectiveness and is capable of ensuring that criminal penalties
are applied to the extent that this is justified by the findings of
the investigation (see, mutatis mutandis, Hugh Jordan v.
the United Kingdom, no. 24746/94, §§ 105-09, 4 May
2001, and Paul and Audrey Edwards, cited above, §§
69-73). In such cases, the competent authorities must act with
exemplary diligence and promptness and must of their own motion
initiate investigations capable of, firstly, ascertaining the
circumstances in which the incident took place and any shortcomings
in the operation of the regulatory system and, secondly, identifying
the State officials or authorities involved in whatever capacity in
the chain of events in issue (see Öneryıldız,
cited above, § 94).
Moreover,
the requirements of Article 2 go beyond the stage of the official
investigation, where this has led to the institution of proceedings
in the national courts: the proceedings as a whole, including the
trial stage, must satisfy the requirements of the positive obligation
to protect lives through the law (see Öneryıldız,
cited above, § 95).
It
should in no way be inferred from the foregoing that Article 2 may
entail the right for an applicant to have third parties prosecuted or
sentenced for a criminal offence (see, mutatis mutandis, Perez
v. France [GC], no. 47287/99, § 70, ECHR 2004-I) or an
absolute obligation for all prosecutions to result in conviction, or
indeed in a particular sentence (see, mutatis mutandis, Tanlı
v. Turkey, no. 26129/95, § 111, ECHR 2001-III). In the
particular context of disaster relief the Court found that the
adequacy of the domestic judicial response was not undermined by the
fact that no official was found criminally liable (see Murillo
Saldias and others, cited above).
The
Court's task therefore consists in reviewing whether and to what
extent the courts, in reaching their conclusion, may be deemed to
have submitted the case to the careful scrutiny required by Article 2
of the Convention, so that 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 are not undermined
(see Öneryıldız, cited above, § 93).
2. Application of the general principles in the present
case
The
Court will begin by noting that although only one of the present
applications, brought by Ms Budayeva, concerns the death of a family
member, the circumstances of the case in respect of the other
applicants leave no doubt as to the existence of a threat to their
physical integrity (see, mutatis mutandis, Makaratzis v.
Greece [GC], no. 50385/99, §§ 52-55, ECHR
2004 XI). This brings their complaints within the ambit of
Article 2 of the Convention. Moreover, the applicability of Article 2
has not been contested by the Government. Turning to the applicants'
specific complaints, the Court observes that they accused the
authorities of having allowed three major shortcomings in the
functioning of the system for protection against natural hazards in
Tyrnauz, which led to casualties and losses in July 2000. Firstly,
they alleged a negligent failure to maintain mud-protection
engineering facilities, notably to restore the mud-retention dam
damaged in 1999 and to clear the mud-retention collector blocked by
the leftover debris. Secondly, they complained about the lack of a
public warning about the approaching disaster that would help to
avoid casualties, injuries and mass panic. Finally, they complained
that these events, despite their scale and devastating consequences,
did not give rise to an enquiry that would assess the effectiveness
of the authorities' conduct before and during the mudslide, in
particular whether everything possible had been done to mitigate the
damage. The Court will consider each of these aspects in the light of
the general principles set out above.
(a) Alleged failure to maintain defence
and warning infrastructure: substantive aspect of Article 2
The
Court, first, observes that the town of Tyrnauz is situated in an
area prone to mudslides. The regular occurrence of this calamity in
the summer season and the prior existence of defence schemes designed
to protect the area indicate that the authorities and the population
reasonably assumed that a mudslide was likely in the summer of 2000.
This is in fact not in dispute between the parties. What they
disagree on is the authorities' prior knowledge that the mudslide in
2000 was likely to cause devastation on a larger scale than usual.
The
Court notes that in the year immediately preceding the mudslide of
August 2000 the authorities of the KBR received a number of warnings
that should have made them aware of the increasing risks. The first
warning, issued in 30 August 1999 by the competent surveillance
agency, the Mountain Institute, informed the Minister for Disaster
Relief of the KBR about the need to repair the mud-protection dam,
damaged by a strong mudslide, and calling for the setting-up of an
early warning system that would allow the timely evacuation of
civilians in the event of a mudslide. The second warning from the
same agency was sent on 17 January 2000 to the Prime Minister of
the KBR. It stated that even if restoration of the dam was not
feasible, it was indispensible to set up observation posts to ensure
the functioning of the warning system in the summer of 2000. The next
warning was sent by the Head of the Elbrus District Administration to
the Prime Minister of the KBR on 7 March 2000. This warning restated
the previous ones and, moreover, referred to possible record losses
and casualties in the event of a failure to take the indicated
measures. Finally, on 7 July 2000 the Mountain Institute sent another
warning to the Minister for Disaster Relief of the KBR calling for
urgent installation of the observation posts.
It
follows that the authorities of the KBR at various levels were aware
that any mudslide, regardless of its scale, was capable of causing
devastating consequences in Tyrnauz because of the state of disrepair
in which the defence infrastructure had been left after the previous
mudslide. It is also clear that there was no ambiguity about the
scope or the timing of the work that needed to be performed. However,
the Government gave no reasons why no such steps were taken. On the
basis of the documents submitted by the applicant, it appears that
after the 1999 mudslide there was no allocation of funds for these
purposes (see paragraph 38 above). It follows from the Government's
observations that such funds were only made available after the 2000
disaster. In the absence of any explanation on the part of the
Government the Court cannot but conclude that the demands for the
restoration of the defence infrastructure after the 1999 mudslide
were not given proper consideration by the decision-making and
budgetary bodies prior to the hazardous season of 2000.
Moreover,
it does not appear that at the material time the authorities were
implementing any alternative land-planning policies in the area that
would dispense with the concept of the mud-defence facilities or
suspend their maintenance.
Consequently,
the Court sees no justification for the authorities' failure to
prepare the defence infrastructure for the forthcoming hazardous
season in 2000.
In
such circumstances the authorities could reasonably be expected to
acknowledge the increased risk of accidents in the event of a
mudslide that year and to show all possible diligence in informing
the civilians and making advance arrangements for the emergency
evacuation. In any event, informing the public about inherent risks
was one of the essential practical measures needed to ensure
effective protection of the citizens concerned.
The
applicants consistently maintained that they had not received any
warning until the mudslide actually arrived in the town. It also
follows from the Government's submissions that the alarm was raised
during the first wave of the mudslide on 18 July 2000, but not
before. According to the Government, the evacuation order continued
on the following day, 19 July 2000, when the most severe
destruction occurred. This is contested by the applicants, who
claimed that there had been no sign of any evacuation order when they
were returning to their flats. They submitted witness statements
confirming that people who returned to their homes on 19 July 2000
saw no warning against doing so. Given that the Government did not
specify how the order, if it was issued, was publicised or otherwise
enforced, the Court may only assume that the population was not made
sufficiently aware of it, as the applicants allege.
The
Court further notes that, in order to be able to inform the
neighbourhood of the mudslide hazard, the authorities would need to
set up temporary observation posts in the mountains. However, the
persistent requests of the specialised surveillance agency indicating
that such posts were indispensible for ensuring the residents' safety
were simply ignored. By the beginning of the mudslide season the
authorities thus found themselves short of means to estimate the
time, force or probable duration of the mudslide. Accordingly, they
were unable to give advance warning to the residents or to
efficiently implement the evacuation order.
Since
the Government have not put forward any explanation for the failure
to set up temporary observation posts, the Court concludes that the
authorities' omission in ensuring the functioning of the early
warning system was not justified in the circumstances.
Finally,
having regard to the authorities' wide margin of appreciation in
matters where the State is required to take positive action, the
Court must look beyond the measures specifically referred to by the
applicants and consider whether the Government envisaged other
solutions to ensure the safety of the local population. On order to
do so the Court has requested the Government to provide information
on the regulatory framework, land-planning policies and specific
safety measures implemented at the material time in Tyrnauz for
deterring natural hazards. The information submitted in response
related exclusively to the creation of the mud-retention dam and the
mud-retention collector, facilities that, as the Court has
established above, were not adequately maintained. Accordingly, in
exercising their discretion as to the choice of measures required to
comply with their positive obligations, the authorities ended up by
taking no measures at all up to the day of the disaster.
It
is noteworthy that, as the Government pointed out in their
observations, in 2001 budgetary allocations were made for the
reconstruction of the defence infrastructure. This yields further
support to the applicants' argument that implementing safety measures
could have, and should have, taken place earlier, but only the
catastrophic consequences of the 2000 mudslide put pressure on the
authorities to do so.
In
the light of the above findings the Court concludes that there was no
justification for the authorities' omissions in implementation of the
land-planning and emergency relief policies in the hazardous area of
Tyrnauz regarding the foreseeable exposure of residents, including
all applicants, to mortal risk. Moreover, it finds that there was a
causal link between the serious administrative flaws that impeded
their implementation and the death of Vladimir Budayev and the
injuries sustained by the first and the second applicants and the
members of their family.
The
authorities have thus failed to discharge the positive obligation to
establish a legislative and administrative framework designed to
provide effective deterrence against threats to the right to life as
required by Article 2 of the Convention.
Accordingly,
there has been a violation of Article 2 of the Convention in its
substantive aspect.
(b) Judicial response required in the
event of alleged infringements of right to life: procedural aspect of
Article 2
The
mudslide of 19-25 July 2000 killed eight people, including the first
applicant's husband, Vladimir Budayev, and threatened the lives of an
uncertain number of other residents of Tyrnauz.
Within
a week of the incident the prosecutor's office decided to dispense
with a criminal investigation into the circumstances of Vladimir
Budayev's death. However, in conducting the inquest the prosecutor's
office confined itself to establishing the immediate cause of his
death, which was found to be the collapse of the building, and did
not enter into the questions of safety compliance or the possible
engagement of the authorities' responsibility. Moreover, it does not
appear that those questions were the subject of any enquiry, whether
criminal, administrative or technical. In particular, no action has
been taken to verify the numerous allegations made in the media and
in the victims' complaints concerning the inadequate maintenance of
the mud-defence infrastructure or the authorities' failure to set up
the warning system.
In
so far as the question of State liability has been raised in certain
individual civil actions, the Court notes that in order to be
successful in these proceedings the plaintiffs would have to
demonstrate to what extent the damage attributable to the State's
alleged negligence exceeded what was inevitable in the circumstances
of a natural disaster. Indeed, the applicants' claims for damages
were dismissed precisely for the failure to do so (see paragraphs
49-50, 60, 67, 76 and 85 above). However, this question could only be
answered, if at all, by a complex expert investigation involving the
assessment of technical and administrative aspects, as well as by
obtaining factual information available to the authorities alone. The
claimants were thus required to discharge a burden of proof in
respect of facts that were beyond the reach of private individuals.
Accordingly, without the benefit of an independent criminal enquiry
or expert assessment the victims would inevitably fall short of means
to establish civil liability on the part of the State.
Moreover,
the domestic courts deciding on the applicants' claims did not make
full use of the powers they possessed in order to establish the
circumstances of the accident. In particular, they dispensed with
calling any witnesses, whether officials or ordinary citizens, or
seeking an expert opinion which would have enabled them to establish
or to disprove the authorities' responsibility, despite the
plaintiffs' requests. The courts' reluctance to exercise their powers
to establish the facts does not appear justified in view of the
evidence already produced by the applicants, including the official
reports suggesting that their concerns were also shared by certain
officials. Accordingly, these proceedings were not capable of
providing the judicial response required by the deaths caused by the
mudslide in Tyrnauz.
Having
found that the question of State responsibility for the accident in
Tyrnauz has never as such been investigated or examined by any
judicial or administrative authority, the Court concludes that there
has also been a violation of Article 2 of the Convention in its
procedural aspect.
III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO
THE CONVENTION
The
applicants complained that the authorities' failure to maintain the
mud-defence infrastructure, to monitor the hazardous area, to provide
an emergency warning or to take other reasonable measures to mitigate
the risk and the effects of the natural disaster also constituted a
violation of their right to protection of property. They complained,
in particular, that they had not received adequate compensation in
respect of their losses. They relied on Article 1 of Protocol No. 1
to the Convention, which provides:
“Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest or to secure the payment of taxes or other
contributions or penalties.”
A. The parties' submissions
1. The Government
On
the question of compliance with the State's positive obligations
under Article 1 of Protocol No. 1 to the Convention, the Government
made no submissions other than those submitted under Article 2 of the
Convention.
As
regards compensation, they claimed that all the applicants had
benefitted from disaster-relief benefits in the form of replacement
accommodation and lump-sum compensations. They considered these
benefits sufficient to cover the damage sustained by the applicants.
2. The applicants
Referring
to the omissions in ensuring the functioning of the mud-defence and
warning infrastructures, the applicants submitted that the
authorities' failure to take even the most basic steps to mitigate
the risks and effects of the mudslide also led to the destruction of
their flats and possessions.
They
contested the Government's argument as to the adequacy of the
compensation granted to them. In particular, they pointed out that
the above benefits were offered to them as victims of natural
disaster on humanitarian grounds, irrespective of the property they
had lost. Compensation of the full amount of damage was refused by
the domestic courts, since they concluded that the responsibility for
the damage was not attributable to the authorities.
B. The Court's assessment
The
Court notes, first, that the applicants were the lawful owners and
occupants of the flats destroyed by the mudslide, and of all of the
destroyed belongings comprising their households. In fact, the
existence of “possessions” within the meaning of Article
1 of Protocol No. 1 to the Convention, or the list of objects that
have been destroyed, are not in dispute between the parties. The
Court will therefore proceed to examine to what extent the
authorities were under an obligation to take measures for the
protection of these possessions and whether this obligation has been
complied with in the present case.
The
Court reiterates that allegations of a failure on the part of the
State to take positive action in order to protect private property
should be examined in the light of the general rule in the first
sentence of the first paragraph of Article 1 of Protocol No. 1 to the
Convention, which lays down the right to the peaceful enjoyment of
possessions (see Beyeler v. Italy [GC], no. 33202/96, §
98, ECHR 2000-I, and Öneryıldız, cited above,
§ 133). It also reiterates that genuine, effective exercise
of the right protected by Article 1 of Protocol No. 1 to the
Convention does not depend merely on the State's duty not to
interfere, but may require positive measures of protection,
particularly where there is a direct link between the measures an
applicant may legitimately expect from the authorities and his
effective enjoyment of his possessions (see Bielectric S.r.l. v.
Italy (dec.), no. 36811/97, 4 May 2000, and Öneryıldız,
cited above, § 134).
In
the context of the State's positive obligation in the sphere of
dangerous activities, the Court has found that the causal link
established between the gross negligence attributable to the State
and the loss of human lives also applied to the engulfment of the
applicant's house (see Öneryıldız, cited above,
§ 135). It considered that in a situation where lives and
property were lost as a result of events occurring under the
responsibility of the public authorities, the scope of measures
required for the protection of dwellings was indistinguishable from
the scope of those to be taken in order to protect the lives of the
residents. Treatment of waste, a matter relating to industrial
development and urban planning, is regulated and controlled by the
State, which brings accidents in this sphere within its
responsibility. Accordingly, the Court concluded that the authorities
were required to do everything within their power to protect private
proprietary interests (ibid.).
In
the present case, however, the Court considers that natural
disasters, which are as such beyond human control, do not call for
the same extent of State involvement. Accordingly, its positive
obligations as regards the protection of property from weather
hazards do not necessarily extend as far as in the sphere of
dangerous activities of a man-made nature.
For
this reason the Court considers that for the purposes of the present
case a distinction must be drawn between the positive obligations
under Article 2 of the Convention and those under Article 1 of
Protocol No. 1 to the Convention. While the fundamental
importance of the right to life requires that the scope of the
positive obligations under Article 2 includes a duty to do
everything within the authorities' power in the sphere of disaster
relief for the protection of that right, the obligation to protect
the right to the peaceful enjoyment of possessions, which is not
absolute, cannot extend further than what is reasonable in the
circumstances. Accordingly, the authorities enjoy a wider margin of
appreciation in deciding what measures to take in order to protect
individuals' possessions from weather hazards than in deciding on the
measures needed to protect lives.
In
the present case the Court found that the measures invoked by the
applicants, that is, the maintenance of the mud-defence
infrastructure and the setting up of the early warning system, were
vital for the protection of the lives and well-being of the
civilians. However, it cannot be said that the causal link between
the State's failure to take these measures and the extent of the
material damage is similarly well-established.
The
Court notes, and it is not in dispute between the parties, that the
mudslide of 2000 was exceptionally strong, and the extent to which
the proper maintenance of the defence infrastructure could have
mitigated its destructive effects remains unclear. There is also no
evidence that a functioning warning system could have prevented
damage to the apartment blocks or the applicants' other possessions.
As
regards the alleged lack of an independent enquiry and judicial
response, the Court considers that this procedural duty does not have
the same significance with regard to destroyed property as in the
event of loss of life. Moreover, the extent of the material damage
attributable to State negligence might not be susceptible to accurate
evaluation in circumstances of outstanding complexity, as in the
present case. In fact, providing redress by means of tort action may
not always be the most appropriate response to a large-scale
calamity. Considerations of urgency and efficiency may lead the
authorities to give priority to other general and individual
measures, such as providing emergency assistance and allotting
benefits to all victims irrespective of the actual losses.
In
the present case, the domestic courts found that the applicants were
all granted free substitute housing and a lump-sum emergency
allowance and that the authorities carried out emergency repairs of
public facilities to restore the living conditions in residential
quarters.
In
so far as the applicants argued that these benefits did not fully
cover their pecuniary losses, the Court observes that the terms of
compensation have previously been found an essential element in cases
concerning the taking of property under the second sentence of the
first paragraph of Article 1 of Protocol No. 1. The Court found that
while the absence of compensation would usually be incompatible with
this provision, it does not guarantee a right to full compensation in
all circumstances, since legitimate objectives of “public
interest” may call for less than reimbursement of the full
market value (see Papachelas v. Greece [GC], no. 31423/96,
§ 48, ECHR 1999-II).
Moreover, payment of full compensation cannot be
regarded as a prerequisite for compliance with the first rule set out
in the first sentence of the first paragraph. In order to be
compatible with the general rule an interference with the right to
the peaceful enjoyment of possessions must strike a “fair
balance” between the demands of the general interest of the
community and the requirements of the protection of the individual's
fundamental rights (see Beyeler, cited above, § 107).
Compensation terms under the relevant legislation are material to the
assessment of whether the contested measure respects the requisite
fair balance, and notably, whether it does not impose a
disproportionate burden on the applicant (see Former King of
Greece and Others v. Greece, [GC], no. 25701/94, § 89,
ECHR 2000-XII).
The
Court considers that the positive obligation on the State to protect
private property from natural disasters cannot be construed as
binding the State to compensate the full market value of destroyed
property. In the present case, the damage in its entirety could not
be unequivocally attributed to State negligence, and the alleged
negligence was no more than an aggravating factor contributing to the
damage caused by natural forces. In such circumstances the terms of
compensation must be assessed in the light of all the other measures
implemented by the authorities, account being taken of the complexity
of the situation, the number of affected owners, and the economic,
social and humanitarian issues inherent in the provision of disaster
relief.
The
Court observes that the disaster relief payable to the mudslide
victims under the directive of 12 August 2000 entitled the applicants
to free housing and an allowance of RUB 13,200 (then an
equivalent of about 530 euros). The victims had equal, direct
and automatic access to these benefits, which did not involve a
contentious procedure or a need to prove the actual losses. As
regards the first, the fourth, the fifth and the sixth applicants,
the size of the free housing they received was equivalent to their
perished flats. As regards the second applicant, she opted to receive
free housing vouchers issued on the basis of the number of family
members. She applied as a single-person family and received a voucher
for 33 sq. m, as opposed to the 54 sq. m that she could have received
had she applied as a family of three. She did not elaborate on the
reasons for doing so. As regards the third applicant, she initially
received monetary compensation that took account of the size of the
perished flats. However, she later exchanged this for a housing
voucher, with which she bought housing in the Moscow region which she
resold shortly afterwards. Since she did not disclose the details of
this transaction, the Court cannot assess her resulting losses or
benefits.
On
the basis of the foregoing, the Court concludes that the housing
compensation provided to the applicants was not manifestly out of
proportion to their lost accommodation. Given the importance of this
asset, the large number of affected persons and the scale of
emergency relief to be handled by the authorities in such
circumstances, the cap of RUB 13,200 on compensation for household
belongings appears justified. In sum, the Court considers that the
conditions under which victims were granted compensation for
possessions lost in the mudslide did not impose a disproportionate
burden on the applicants.
It
follows that there has been no violation of Article 1 of Protocol No.
1 to the Convention.
IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
The
applicants complained that they had no effective remedy in respect of
their above complaints, as required by Article 13 of the Convention,
which provides:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
A. The parties' submissions
The
Government considered that the applicants have been provided adequate
domestic redress through the system of disaster relief. Each
applicant has thus benefitted from free substitute housing and a
lump-sum allowance. Moreover, the applicants had availed themselves
of civil proceedings in which they claimed damages against the State.
The
applicants contested the Government's submissions arguing that there
had been no means of establishing the State's responsibility for the
deaths and other adverse consequences of the mudslide. Moreover,
without the benefit of an official investigation into these events
their civil claims were devoid of any chances of success, and
therefore they were unable to obtain adequate compensation in respect
of the pecuniary and non-pecuniary damage sustained by them.
B. The Court's assessment
1. Principles applicable in the instant case
The
Court reiterates that Article 13 of the Convention requires domestic
legal systems to make available an effective remedy empowering the
competent national authority to address the substance of an
“arguable” complaint under the Convention (see Z and
Others v. the United Kingdom [GC], no. 29392/95, § 108,
ECHR 2001-V). Its object is to provide a means whereby individuals
can obtain appropriate relief at national level for violations of
their Convention rights before having to set in motion the
international machinery of complaint before the Court (see Kudła
v. Poland [GC], no. 31210/96, § 152, ECHR 2000-XI).
However,
the protection afforded by Article 13 does not go so far as to
require any particular form of remedy, Contracting States being
afforded a margin of discretion in conforming to their obligations
under this provision (see, for example, Kaya v. Turkey,
judgment of 19 February 1998, Reports 1998-I, pp. 329-30, §
106).
The
nature of the right at stake has implications for the type of remedy
the State is required to provide under Article 13. Where violations
of the rights enshrined in Article 2 are alleged, compensation for
pecuniary and non-pecuniary damage should in principle be possible as
part of the range of redress available (see Paul and Audrey
Edwards, cited above, § 97; Z and Others v. the United
Kingdom, cited above, § 109; and T.P. and K.M. v. the
United Kingdom [GC], no. 28945/95, § 107, ECHR 2001-V). On
the other hand, neither Article 13 nor any other provision of the
Convention guarantees an applicant a right to secure the prosecution
and conviction of a third party or a right to “private revenge”
(see Perez, cited above, § 70). What is important is the
impact the State's failure to comply with its procedural obligation
under Article 2 had on the deceased's family's access to other
available and effective remedies for establishing liability on the
part of State officials or bodies for acts or omissions entailing the
breach of their rights under Article 2 and, as appropriate, obtaining
compensation (see Öneryıldız, cited above, §
148).
In
relation to fatal accidents arising out of dangerous activities which
fall within the responsibility of the State, Article 2 requires the
authorities to carry out of their own motion an investigation,
satisfying certain minimum conditions, into the cause of the loss of
life. Without such an investigation, the individual concerned may not
be in a position to use any remedy available to him for obtaining
relief, given that the knowledge necessary to elucidate facts such as
those in issue in the instant case is often in the sole hands of
State officials or authorities. Accordingly, the Court's task under
Article 13 is to determine whether the applicant's exercise of an
effective remedy was frustrated on account of the manner in which the
authorities discharged their procedural obligation under Article 2
(see Öneryıldız, cited above, §§ 90,
93-94 and 149).
These
principles must equally apply in the context of the State's alleged
failure to exercise their responsibilities in the area of disaster
relief.
2. Application of these principles in the instant case
(a) As regards the complaint under Article
2 of the Convention
The
Court refers to its finding above that the circumstances in which
lives were lost in the mudslide of 2000, or the question of the
authorities' responsibility, have not been a subject of any enquiry,
whether criminal, administrative or technical (see paragraph 163
above). It has also been established that the failure to conduct such
an enquiry undermined the applicants' prospects of success in the
civil proceedings (see paragraphs 164-65 above).
The
Court observes that the above failures gave rise to a violation of
Article 2, given the lack of an adequate judicial response as
required in the event of alleged infringements of the right to life.
Making its assessment in the context of the procedural aspect of the
right to life, the Court has addressed not only the absence of a
criminal investigation following accidental deaths, but also the lack
of further means available to the applicants by which they could
secure redress for the authorities' alleged failure to discharge
their positive obligations. Accordingly, the Court considers that it
is not necessary to examine this complaint also under Article 13
of the Convention as regards the complaint under Article 2.
(b) As regards the complaint under Article
1 of Protocol No. 1 to the Convention
The
Court refers to its finding above that there has been no violation of
Article 1 of Protocol No. 1 to the Convention. It considers, however,
that the applicants' claim for compensation was nonetheless
“arguable” for the purposes of Article 13 (see Boyle
and Rice v. the United Kingdom, judgment of 27 April 1988,
Series A no. 131, § 52). Accordingly, they should have
had effective and practical remedies in order to have their claims
decided and, if appropriate, to obtain redress for their losses.
The
Court notes that the applicants were able to lodge a claim for
damages and have it examined by competent courts. The reason why no
award was made in these proceedings was that the applicants had
already received free substitute housing and monetary allowance, and
no grounds were found to establish tort liability of the State in
respect of the difference between that compensation and the actual
losses. Moreover, the Court has held above that it would not be
appropriate to impose an absolute obligation on the State to evaluate
material damage and to assume tort liability in the circumstances
where it implemented measures through the general scheme of emergency
relief (see paragraph 179 above). In view of these factors taken into
account by the domestic courts, their refusal to award the applicants
damages in the part not covered by the disaster victims' benefits
they received cannot be considered unreasonable or arbitrary. The
Court sees no other grounds to conclude that the civil proceedings
did not constitute an effective remedy for the applicants' complaints
in respect of Article 1 of Protocol No. 1 to the Convention.
It
follows that there has been no violation of Article 13 as regards
Article 1 of Protocol No. 1 to the Convention.
IV. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION AND
OF ARTICLE 13 OF THE CONVENTION IN CONJUNCTION WITH ARTICLE 8 OF THE
CONVENTION
The
applicants lastly complained that the circumstances of the case had
also infringed their right to respect for private and family life and
their home as enshrined in Article 8 of the Convention, as well as
their right to effective remedy in respect of this complaint. Article
8 provides:
“1. Everyone has the right to respect
for his private and family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
The
parties' submissions under this head were essentially the same as
those submitted under Articles 2 and 13 of the Convention.
The
Court notes that the complaint under Article 8 of the Convention
concerns the same facts as those examined under Article 2, Article 1
of Protocol No. 1 and of Article 13 in conjunction with these
Articles. Having regard to its findings under those provisions, the
Court considers that it is unnecessary to examine those complaints
separately.
VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
The
applicants submitted the following claims as regards pecuniary and
non-pecuniary damage:
(a) the
first applicant claimed 262,000 euros (EUR) in respect of pecuniary
and non-pecuniary damage, which, according to her, comprised
8,000,000 roubles (RUB) on account of moral harm and RUB 1,200,000 on
account of material losses;
(b) the
second applicant claimed EUR 137,000 in respect of pecuniary and
non-pecuniary damage, which, according to her, comprised
RUB 3,000,000 on account of moral harm and RUB 1,800,000 on
account of material losses;
(c) the
third applicant claimed EUR 1,099,861 in respect of pecuniary and
non-pecuniary damage, which, according to her, comprised RUB 730,662
in pecuniary damage and RUB 38,495,140 in non-pecuniary damage;
(d) the
fourth applicant claimed 100,000 United States dollars (USD) in
respect of pecuniary and non-pecuniary damage;
(e) the
fifth and the sixth applicants claimed together USD 20,000 and
RUB 500,000 in respect of pecuniary and non-pecuniary damage.
The
Government contested these claims as excessive and unsubstantiated.
The
Court observes that it has found violations of the substantive and
procedural limbs of Article 2 of the Convention. The Court accepts
that the applicants have suffered non pecuniary damage and
awards them the following amounts:
(a) EUR
30,000 to the first applicant;
(b) EUR
15,000 to the second applicant;
(c) EUR
10,000 to each of the third, fourth, fifth and sixth applicants,
plus
any tax that may be chargeable on these amounts.
B. Costs and expenses
The
applicants did not make any claims as regards the costs and expenses,
accordingly no award is made under this head.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Dismisses the Government's preliminary
objection;
Holds that there has been a violation of Article
2 of the Convention in its substantive aspect on account of the
State's failure to discharge its positive obligation to protect the
right to life;
Holds that there has been a violation of Article
2 of the Convention in its procedural aspect, on account of the lack
of an adequate judicial response as required in the event of alleged
infringements of the right to life;
Holds that there has been no violation of
Article 1 of Protocol No. 1 to the Convention;
Holds that no separate issue arises under
Article 13 of the Convention in conjunction with Article 2 of the
Convention;
Holds that there has been no violation of
Article 13 of the Convention in conjunction with Article 1 of
Protocol No. 1 to the Convention;
Holds that no separate issue arises under
Article 8 of the Convention and under Article 13 of the
Convention in conjunction with Article 8 of the Convention;
Holds
(a) that
the respondent State is to pay the applicants, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following amounts, to be
converted into Russian roubles at the rate applicable at the date of
settlement, in respect of non-pecuniary damage, plus any tax that may
be chargeable on these amounts:
(i) EUR
30,000 (thirty thousand euros) to the first applicant;
(ii) EUR
15,000 (fifteen thousand euros) to the second applicant;
(iii) EUR
10,000 (ten thousand euros) to each of the third, the fourth, the
fifth and the sixth applicants;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses the remainder of the applicants'
claims for just satisfaction.
Done in English, and notified in writing on 20 March 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
