THIRD SECTION

DECISION

Application no. 48806/10 Grigoriy Levonovich ATAYANTS against Russia

The European Court of Human Rights (Third Section), sitting on 18 May 2021 as a Committee composed of:

Darian Pavli, President, Dmitry Dedov , Peeter Roosma, judges, and Olga Chernishova, Deputy Section Registrar ,

Having regard to the above application lodged on 7 August 2010,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Grigoriy Levonovich Atayants , is a Russian national, who was born in 1963 and lives in Rostov-on-Don. He was represented before the Court by Mr A.V. Kiryanov , a lawyer practising in Taganrog.

The Government were represented by Mr M. Galperin, the Representative of the Russian Federation to the European Court of Human Rights.

The facts of the case, as submitted by the parties, may be summarised as follows.

The circumstances of the case

T he applicant is the brother of Mr B., who died as a result of the events described below. Mr B., born in 1958, lived in the town of Novorossiysk in a rented flat. He worked as an editor in chief of a newspaper.

In the morning of 17 February 2000 Mr B. ’ s driver Mr Z. came to Mr B. ’ s flat, but nobody opened the door. Mr Z. found it strange, as the light in the flat was turned on. Mr Z. asked for help from the Mr B. ’ s colleagues. They broke the door to Mr B. ’ s flat and found his dead body in the hallway. They also found dead bodies of Mr U. and two other persons, Ms M. and Ms K. There was acrid smell in the flat. They called the police and emergency services. On the same day a dead body of a woman with similar symptoms was found in the flat on the floor above.

(a) Criminal investigation

(i) First round of investigation

On the same day criminal proceedings under Article 143 § 2 of the Criminal Code (breach of labour safety rules that resulted in death due to negligence) with regard to the incident were instituted by the Prosecutor ’ s Office of the Central District of Novorossiysk. At once Mr B. ’ s flat was examined by the police that arrived at the scene of the incident.

According to forensic report no. 157 of 17 February 2000 Mr B. died as a result of poisoning with carbon monoxide. According to four other reports made by the expert on 17 and 18 February 2000, the cause of death of the other four persons was the same.

No witnesses were identified among the residents of the building where the flat was situated.

Unidentified substance was found in the ventilation pipe.

On 17 April 2000 the investigator discontinued the criminal proceedings, having found no elements of a crime in the incident. In his report the investigator stated that the cause of the accident was a violation of the rules of use of the gas boiler.

(ii) Subsequent rounds of criminal investigation

Between May 2000 and April 2006 the authorities on numerous occasions instituted and discontinued criminal investigation in respect of the events of 17 February 2000. Among various versions of the events examined in the above decisions, the investigation discussed possible negligent behaviour of Mr V., the owner of the flat, and/or the technicians responsible for the maintenance of the gas boiler.

The respective decisions ordering to resume the investigation were taken on 29 May, 21 November 2000, 17 August 2001, 23 January, 11 March, 29 October 2003, 13 January, 2 June, 20 December 2004, 16 February and 7 April 2006.

The respective decisions discontinuing the proceedings for the lack of elements of a crime were taken on 29 June, 24 December 2000, 17 September 2001, 10 February, 11 April, 29 November 2003, 23 January, 2 July 2004, 20 January, 23 June 2005 and 16 March 2006.

On 20 April 2006, after twelve rounds of proceedings, the investigator issued a decision, in which he determined that Mr V., as the owner of the flat, was likely responsible for accidental manslaughter under Article 109 (3) of the Criminal Code.

On 27 April 2006 the criminal proceedings against Mr V. were discontinued on account of his death on 23 December 2005.

(iii) Decision of 2 October 2006

On 28 August 2006 the above decision was quashed by a prosecutor, who required the investigator to conduct an additional check of some of the circumstances of the case.

On 2 October 2006 the investigator again discontinued the criminal proceedings with reference to Mr V. ’ s death. He stated that the death of Mr B. and four other individuals had been a result of criminal negligence of the owner of the flat, who had known about the malfunction of the gas boiler and had had to repair it, but had failed to do so.

(b) Proceedings before the Prosecutor ’ s office

On 19 August and 30 September 2008 the applicant sent requests to the prosecutor ’ s office asking for permission to study the materials of the case. The requests were granted in October 2008.

On 2 December 2008 the applicant lodged a complaint before the Prosecutor ’ s Office of the Krasnodar Region. He argued that the investigation conducted had been ineffective, asked to quash the decision of 2 October 2006 and to conduct a proper investigation of the incident.

On 9 March 2009 the applicant complained to the Prosecutor General, who forwarded the complaint to the Prosecutor ’ s Office of the Krasnodar Region.

On 15 May 2009 the Prosecutor ’ s Office of the Krasnodar Region replied to the applicant that his complaint of 2 December 2008 had been forwarded by mistake to the Prosecutor ’ s Office of Novorossiysk.

In the course of the following years the applicant lodged complaints to prosecutors of different levels, including the Prosecutor General, asking to conduct an adequate investigation.

(c) Judicial proceedings

(i) Proceedings under Article 125 of the CCP

On 9 January 2010 the applicant lodged a complaint under Article 125 of the Code of Criminal Procedure before the Oktyabrskiy District Court of Novorossiysk concerning the investigator ’ s decision of 2 October 2006.

On 19 January 2010 the Oktyabrskiy District Court of Novorossiysk dismissed the complaint, having found the investigator ’ s decision lawful and well-founded.

On 3 March 2010 the Krasnodarskiy Regional Court upheld the decision on appeal. It held that the first-instance court had rightly endorsed the investigator ’ s findings and that the decision to discontinue the criminal proceedings had been lawful.

(ii) Proceedings in connection with alleged failure to examine the complaint of 2 December 2008

On 9 January 2010 the applicant complained to the Oktyabrskiy District Court of Krasnodar about the prosecuting authorities ’ alleged failure to properly deal with his complaint of 2 December 2008.

On 27 January 2010 the Oktyabrskiy District Court of Krasnodar dismissed the complaint. It found that the prosecutor ’ s office had acted lawfully and had informed the applicant about its decisions of 23 April and 18 May 2009, whereby the complaint had been dismissed, in due time and in accordance with the procedure established by law.

On 17 March 2010 the Krasnodarskiy Regional Court upheld the decision on appeal.

The applicant ’ s request for supervisory review was dismissed.

COMPLAINTS

Relying on Articles 6 and 13 of the Convention, the applicant complained that the investigation into his brother ’ s death had been ineffective.

THE LAW

The applicant complained that the investigation into the events surrounding her brother ’ s death had not been effective and lasted too long.

The Court will examine these grievances under Articles 2 and 13 of the Convention, which read, in so far as relevant, as follows:

Article 2

“1. Everyone ’ s right to life shall be protected by law.”

Article 13

“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.”

The Government disagreed with the applicant. In their view, the Russian authorities had taken all the necessary measures to establish the circumstances of Mr B. ’ s death. They also maintained that the latest relevant decision in the proceedings had been taken in 2006, whereas the applicant lodged his case before this Court in August 2010. In the absence of any explanation for the delay, the case should be rejected as having been brought out of time.

The applicant maintained his complaints, describing the investigation as protracted and of overall poor quality. In response to the Government ’ s argument about the case having been brought out of time, the applicant simply stated that the final decision in his case was taken by the Krasnodar Regional Court on 3 March 2010.

At the outset the Court recalls that in cases concerning the obligation to investigate under Article 2 of the Convention, the Court has held that, where a death has occurred, relatives who are applicants are expected to take steps to keep track of an investigation ’ s progress, or lack thereof, and to lodge their applications with due expedition once they are, or should have become, aware of the lack of any appropriate redress, including effective criminal investigation (see Varnava and Others v. Turkey [GC], nos. 16064/90 and 8 others, § 158, ECHR 2009, with further reference therein).

At the same time, the Court has refrained from indicating a specific period for establishing when an ongoing investigation has become ineffective for the purposes of the six-month period. The determination of such a period by the Court depends on the circumstances of each case and other factors such as the diligence and interest displayed by the applicants as well as the adequacy of the investigation in question (see Elsanova v. Russia ( dec. ) no. 57952/00, 15 November 2005, and Narin v. Turkey , no. 18907/02, §§ 43 and 50, 15 December 2009).

The Court observes that on 17 February 2000 the applicant ’ s brother Mr B., along with three other individuals, was found dead in a flat. In the subsequent proceedings the investigative authorities determined that all four died of carbon monoxide poisoning resulting from a malfunctioning gas boiler. After multiple rounds of investigation, by the decision of 2 October 2006 the investigation determined that the owner of the flat Mr V. was likely responsible for accidental manslaughter, as he had failed to maintain the boiler in good working order. Since the owner of the flat Mr V. had died a few months earlier, the proceedings were terminated.

The Court notes that the decision of 2 October 2006 was not appealed against by the applicant until January 2010, i.e. three years and three months later, when the domestic courts at two instances examined and rejected his complaints as unfounded. In line with the above-cited case-law, such a long delay is in itself bound to raise questions of compliance with the six-month time-limit. The Court will, therefore, need to examine whether, in view of the circumstances of the case, the applicant may have had reasonable faith in the effectiveness of the proceedings he pursued during this time, which could explain the delay in the submission of his complaints.

The Court would note first that by contrast to cases where allegedly poor quality of investigation makes it difficult for applicants to determine the moment when the investigation ceases to be effective (see, among numerous examples, Sultygov and Others v. Russia , nos. 42575/07 and 11 others, § 375, 9 October 2014, and Doshuyeva and Yusupov v. Russia ( dec. ), no. 58055/10, § 42, 31 May 2016), the investigation in the present case had a clear termination point: the decision of 2 October 2006 contained firm conclusions about the circumstances of the case and pointed at the person who was likely responsible for the tragic death of the applicant ’ s brother. The decision has remained in force since the date of its adoption and it must have been reasonably clear to the applicant that in order to contest the outcome of the investigation in accordance with the Court ’ s well ‑ established case-law he had to appeal that decision in court (see Trubnikov v. Russia ( dec. ), no. 49790/99, 14 October 2003).

Having regard to the time-line of the proceedings and the case-file materials, the Court finds that between October 2006 and January 2010 the applicant either remained completely inactive or attempted to revive the investigation by making appeals before the prosecution authorities. In this latter respect, the Court recalls that according to its long-standing practice, appeals to the prosecutor are not considered as an effective remedy for the purposes of Article 35 § 1 of the Convention (see Trubnikov , cited above).

Against this background, the Court also notes that the applicant ’ s complaints are essentially directed at the alleged defects in the proceedings prior to the adoption of the decision of 2 October 2006 and considers that the alleged shortcomings must have been apparent to the applicant in the present case long before he applied to the domestic courts and this Court (see, for example, Filippova and Others v. Russia ( dec. ), no. 16233/08, § 31, 14 November 2017). It concludes, accordingly, that the applicant failed to act with due expedition and rejects the case as having been lodged out of time.

In view of the above, it follows that the Government ’ s objection regarding the expiry of the six-month time-limit should be upheld and the application should be declared inadmissible.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 17 June 2021 .

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Olga Chernishova Darian Pavli Deputy Registrar President