THIRD SECTION

DECISION

Application no. 42063/08 Tamara Nikolayevna KOSTINA against Russia

The European Court of Human Rights (Third Section), sitting on 16 March 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 31 July 2008,

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

1 . The applicant, Ms Tamara Nikolayevna Kostina, is a Russian national who was born in 1962 and lives in Novosibirsk. She was represented before the Court by Mr V.V. Poruchayev, a lawyer practising in Novosibirsk.

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

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

4 . T he applicant is the mother of Mr P.G., who died as a result of the events described below.

5 . On 11 August 2002, at about 4 p.m., a group of young people drove in a minivan through a sewage field located in the countryside outside Novosibirsk. The group included Mr P.G., aged sixteen at the time, and his friends, Mr A.Sh. and Mr V.M., aged eighteen and twenty respectively, and four others. All of them were suffering from varying degrees of alcohol intoxication.

6 . The sewage field measured over 100 hectares and belonged to the Gorvodokanal Water Treatment Facilities municipal enterprise (“the servicing company”), which ran Novosibirsk ’ s sewage system. At the entrance gates to the field, and also scattered across the site, there were warning signs that access to the sewage field was reserved for personnel of the servicing company, and that it was dangerous owing to the emission of toxic gases. The outside perimeter of the site was not fenced.

7 . The sewage system comprised a network of underground drains connected to the surface by manholes, each around three and a half metres deep with a cover and equipped with ladders. The manholes at times accumulated poisonous gases (such as methane or carbon dioxide) and could be dangerous.

8 . When the minivan reached Sector 28 in the middle of the field, the car stopped and the group left the car. At some point Mr P.G. left his companions. Mr V.M. noticed that Mr P.G. was missing, started looking for him and later discovered Mr P.G. inside a manhole located around 3 metres behind the car. Mr P.G. was lying unconscious on the floor of the manhole and did not respond. In order to help Mr P.G., Mr V.M. climbed down to the bottom of the manhole using a metal ladder fixed to its inner wall. However, after a few minutes at the bottom Mr V.M. suffocated and lost consciousness. Mr A.Sh. then climbed down into the manhole to try to help, but he soon suffocated as well. The fourth friend, who had stayed at the surface, realised that the manhole was dangerous and returned to the dirt road, where he stopped the servicing company ’ s truck. The driver Mr V.Dl. had a mobile phone and at 4.23 p.m. he called the rescue service.

9 . The rescue team arrived shortly afterwards, but the three young men who had been stuck at the bottom of the manhole were already dead. Rescue workers had to hold their breath while working in the manhole and tried to minimise the time spent at the bottom. Three bodies were extracted from the manhole with ropes and transported to the morgue.

10 . At about 5 p.m. the local police were informed about the incident and a group of investigators arrived and examined the location. Following their visit they drew up a report describing the scene and submitted it to the head of the police department.

11 . The next day the police examined the incident location again. As a result of their visual examination the police discovered the following objects in the manhole: an enamel cup; two bottlenecks from plastic bottles with caps, one of which contained a sachet of cannabis; a shoe; a rubber overshoe; sachets of cannabis; and a strap hanging from the metal ladder. According to the police report, there was a warning sign on the gates on the main road: “Sanitary zone; no entry to vehicles”. A similar warning sign was discovered on the road in the south-eastern part of the field.

12 . On an unspecified date the investigator of the prosecutor ’ s office of the Novosibirsk District instituted a pre-investigation inquiry into the death of three people. The inquiry examined whether the servicing company employees responsible for safety, namely Mr A.Bl. and Mr A.Schm., had displayed criminal negligence in the performance of their duties.

13 . On 22 August 2002, as a result of the pre-investigation inquiry, the investigator decided not to open a criminal investigation into the actions of Mr A.Bl. and Mr A.Schm., having concluded that the relevant safety and security requirements had been observed. The investigator also noted that the exact cause of death of the three young men had not yet been established, as the medical examination was still pending.

14 . On an unspecified date the applicant lodged a complaint under Article 125 of the Code of Criminal Procedure, asking the court to quash the decision of the investigator not to proceed with the case and not to open a criminal investigation.

15 . On 29 December 2003, upon an appeal by the applicant, and following two rounds of court proceedings, the Novosibirskiy District Court found that the inquiry had been incomplete and had failed to address certain important questions. In particular, the inquiry had failed to establish the exact cause of death of the applicant ’ s son; to determine whether the manhole had been visible from the road; and to check the extent to which the manhole had been concealed by grass and whether it had a cover on. The inquiry was also said to have failed to determine whether the accumulation of the gas had even been possible in an open manhole. The court ordered a fresh examination of the case.

16 . Following a new pre-investigation inquiry, the case was closed again. The applicant did not submit a copy of that decision.

17 . On 13 July 2004 the local prosecutor ’ s office initiated a criminal investigation into the events. The case was assigned case no. 86194 and the applicant was given the status of a victim in those proceedings.

18 . On 13 October 2004, after collecting and examining the evidence, the investigator closed the case, having found no indication of criminal negligence in the behaviour of A.Bl. and A.Schm. The decision relied mainly on the following pieces of evidence:

19 . (a) post-mortem examination of the bodies of the three young men, concluding that all three had died as a result of asphyxia (likely due to carbon dioxide intoxication in the manhole); they had no physical injuries; and they had traces of alcohol intoxication, the applicant ’ s son P.G. specifically having been found to be “heavily intoxicated”;

20 . (b) oral evidence given by the friends of the deceased young men who had been in the minivan with them, who essentially confirmed the events as described in Section A above;

21 . (c) oral evidence given by a rescue worker who described the rescue operation of 11 August 2002; among other things, he submitted that the reddish colour of the skin of the deceased young men during the rescue operation suggested that they had been suffocated by carbon dioxide; and

22 . (d) oral evidence of various servicing company employees, including workers and their superiors, who described in detail their routine maintenance and supervision of the sewers and the manholes in the period preceding the events in question.

23 . With reference to the evidence that had been collected, the investigator established that the applicant ’ s son had climbed down into the manhole while suffering from heavy alcohol intoxication, where he had died as a result of carbon dioxide intoxication. The decision established that the entrance to the manhole had been visible from the road and had not been concealed by grass, and that the hole had a cover which was found lying a few metres away from it. The investigator specifically examined the question whether the applicant ’ s son had fallen into the manhole or had climbed down into it, and rejected the former scenario. He noted that there were no injuries on P.G. ’ s body to support the hypothesis of a fall, and found that the cover had apparently been on the manhole and that P.G. had removed it. In respect of the latter point, the investigator referred to the explanations given by servicing company employees that toxic gases accumulated only in covered manholes, and that once the cover was removed the gases would dissipate in a relatively short period of time.

24 . The decision then outlined the applicable legal provisions which required warning signs around the perimeter of the field and regular maintenance and inspection of the manholes, and noted that those requirements had been complied with. The investigator found that in accordance with the 1989 Rules on regular maintenance of sanitary installations, inspections of the sewage field had to be conducted every six months. According to the service company ’ s maintenance book, Mr A.Pl. and Mr V.Nekr. had duly inspected Sector 28 on 10 April 2002.

25 . Overall, the investigator concluded that the actions of Mr A. Bl. and Mr A.Schm. – the employees in charge of the facility – did not disclose any evidence of criminal negligence within the meaning of the relevant provisions of the Criminal Code of Russia.

26 . During the subsequent proceedings the applicant tried to contest the above-mentioned conclusions on the ground that the investigator had erred in the interpretation and application of the domestic law, in particular as regards the exact content of the relevant safety and security regulations. The applicant contended that Mr P.G. ’ s death could have been avoided had the facility been fenced and the manhole covers locked. Those arguments were eventually unsuccessful.

27 . On 14 February 2005 the Novosibirskiy District Court dismissed the applicant ’ s complaint against the decision of 13 October 2004. The court noted, in particular, that the applicant ’ s reference to a more stringent set of rules for urban sanitary installations was inapplicable in the present case, since the field in question was located in the countryside outside the perimeter of Novosibirsk. The court also found that in accordance with the 1989 Rules on regular maintenance of sanitary installations, an inspection of the manholes had to be conducted twice a year, and that in the present case the inspection had been properly carried out and that therefore the servicing company employees had not been negligent.

28 . On 11 April 2005 the Novosibirsk Regional Court upheld the decision of the District Court. On 26 August 2005 the Presidium of the Novosibirsk Regional Court quashed the lower courts ’ decisions and remitted the case to the District Court for fresh examination.

29 . During the fresh round of proceedings, the District Court delivered a judgment on 30 March 2006 which was quashed on appeal by the Novosibirsk Regional Court on 15 May 2006. The Regional Court ordered a fresh examination of the applicant ’ s complaint.

30 . In the meantime, the prosecutor ’ s office of the Novosibirsk Region ordered the criminal investigation to be reopened . The case was closed again on 16 February 2007, with essentially the same conclusions as the ones made in the decision of 13 October 2004. Having summarised the evidence in the case file, the investigator concluded on the basis of that evidence that the actions of the servicing company employees – Mr A.Bl. and Mr A.Shm. – did not disclose any appearance of a crime.

31 . On 23 April 2007 the supervising prosecutor ordered the case to be reopened again. Following a new investigation, the case was closed on 26 July 2007. The investigator ’ s report was again essentially similar to the previous two decisions dated 13 October 2004 and 16 February 2007. The investigator concluded, as previously, that the actions of the servicing company employees – Mr A.Bl. and Mr A.Shm. – did not disclose any appearance of a crime.

32 . The applicant challenged the decision of 26 July 2007 in court.

33 . On 11 September 2009 the Novosibirskiy District Court refused to order the reopening of the case. The District Court noted that the investigator had questioned several servicing company employees, including Mr A.Bl and Mr A.Schm., and workers of other organisations potentially affected by the events. The court repeated the findings of the expert examinations and stressed that none of the three young men had had injuries which might have been caused by their falling into the manhole. The court concluded that the servicing company employees had observed the applicable rules; that the grass had been cut twice a year; and that even if the sewage field site was fenced, that would not stop trespassers and would not prevent them from opening the covers and getting inside the manholes. The deceased young men could not have been ignorant of the fact that they were on the sewage field site; nevertheless, they had entered the site unlawfully, and had carelessly climbed down into the manhole. In such circumstances their death did not result from any criminally negligent behaviour by the servicing company employees.

34 . On 11 November 2009 the Novosibirsk Regional Court confirmed the District Court ’ s judgment on appeal.

35 . It does not appear that the applicant brought any civil proceedings in negligence against the servicing company in connection with the above ‑ mentioned events.

COMPLAINTS

36 . The applicant complained under Article 2 of the Convention that the death of her son had resulted from the careless actions of those responsible for the sewage field and that the ensuing investigation had not been effective. She also relied on Article 13 of the Convention in respect of the allegedly ineffective investigation into the accident of 11 August 2002.

THE LAW

37 . The applicant complained that her son had died as a result of the negligent behaviour of the servicing company employees and that the subsequent criminal investigation had reached erroneous conclusions regarding the circumstances of the case and the responsibility of those involved in it.

38 . She relied on Articles 2 and 13 of the Convention, which, in so far as relevant, provide 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.”

39 . The Government argued that the applicant had lodged the application outside the six-month time-limit and that it had also been open to her to bring civil proceedings in tort against the servicing company. They disagreed with the applicant on the merits and referred to the outcome of the domestic investigation into the events. They maintained that the domestic investigation had been complete and of overall good quality and that it had established the exact course of the events on the day in question. They further argued that the applicant ’ s son had been a victim of his own negligent behaviour, as the sewage field site was not only located a very long way from the city limits and from any residential areas, but had also been clearly marked as being off limits to the general public, and as being hazardous. The Government also contended that in addition the danger had been quite apparent given that there had been a strong and distinct odour around the area. They pointed to the conclusions of the domestic investigation, which had unequivocally established that the applicant ’ s son, along with his companions, had not only willingly entered the prohibited area, but furthermore had opened the manhole cover and climbed down into the manhole. In the Government ’ s view, there had been adequate rules and regulations in place to deal with any safety risks, and the tragic death in question had been due to the applicant ’ s son ’ s own reckless behaviour. Overall, they argued that there had been no violation of either the procedural or the substantive aspect of Article 2 of the Convention.

40 . The applicant disagreed with the outcome of the proceedings in the case and blamed the servicing company for the death of her son. She argued, in particular, that the domestic investigation had reached erroneous conclusions in that her son might have fallen into the manhole, and that under domestic law the whole area s hould have been fenced and the manhole covers should also have been locked.

41 . In response to the Government ’ s plea of inadmissibility, the Court notes that the applicant clearly complied with the six-month rule, as the latest court decision in her case was taken by the Novosibirsk Regional Court on 11 November 2009, and the application was lodged with the Court on 31 July 2008. That argument should therefore be rejected.

42 . The Court will now examine the substance of the applicant ’ s complaints.

43 . The Court reiterates that the first sentence of Article 2 § 1 of the Convention enjoins the State not only to refrain from the intentional and unlawful taking of life, but also involves a duty to take reasonable measures to ensure the safety of individuals within its jurisdiction as necessary (see Nicolae Virgiliu Tănase v. Romania [GC], no. 41720/13, §§ 134-135, 25 June 2019 and the cases cited therein). These positive obligations entail above all a primary duty on the State to put in place a legislative and administrative framework designed to provide effective deterrence against any threats to the right to life .

44 . In the event of serious injury or death, the duty under Article 2 of the Convention also requires an effective independent judicial system to be set up so as to secure legal means capable of establishing the facts, holding accountable those at fault and providing appropriate redress to the victim. Although this obligation may require the provision of a criminal law remedy in certain special circumstances (see Nicolae Virgiliu Tănase , cited above, §§ 158-159), the Court stresses that neither Article 2 of the Convention 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”. The Court reiterates in that connection that where death results from negligence, for instance, the obligation under Article 2 of the Convention may be satisfied if the legal system affords victims a remedy in the civil courts, either alone or in conjunction with a remedy in the criminal courts (see Nicolae Virgiliu Tănase , cited above, § 169).

(a) Alleged failure to carry out an effective investigation into Mr P.G. ’ s death

45 . Turning to the circumstances of the present case, the Court notes that, in view of the material before it, there is nothing to indicate that the death of the applicant ’ s son was caused intentionally. It further observes that the authorities of their own motion initiated a pre-investigation inquiry and a criminal investigation into Mr P.G. ’ s death and that the applicant did not have recourse to any civil remedies in this connection. The Court finds that in such circumstances an effective criminal investigation was in principle appropriate to satisfy the requirements of Article 2 of the Convention. The Court will therefore confine itself to examining whether the criminal investigation satisfied the criteria of effectiveness required by Article 2 of the Convention.

46 . The Court observes that the domestic investigation was carried out by the local prosecutor ’ s office and the proceedings resulted in the decision of 26 July 2007 not to initiate criminal proceedings against the servicing company employees. The decision relied on various items of evidence obtained from the scene of the incident, from interviews with various witnesses and from a number of forensic examinations. On the basis of that evidence, it was decided that Mr P.G. ’ s death had taken place after he and his friends, while intoxicated and acting in breach of security rules and warning signs, had entered the sewage field site, and Mr P.G. had opened the manhole cover and climbed down into the manhole, quickly losing consciousness and suffocating to death.

47 . It is clear that the investigation was reasonably prompt, as the relevant investigative actions took place at once after the events, which enabled the authorities to secure the relevant pieces of evidence and to identify the key witnesses, and was concluded with a decision which reached specific conclusions concerning the factual circumstances of the incident in question. It is true that the authorities were initially reluctant to open a criminal investigation into the events, instead acting within the framework of a pre ‑ investigation inquiry. The Court notes, however, that a criminal investigation was eventually opened and that the delay did not appear to have any adverse effect on the effectiveness of the investigation itself. It remains to be examined whether the investigation conducted was effective in its ability to ascertain the circumstances in which the incident took place and to identify the person or persons who may have been responsible for the death of the applicant ’ s son.

48 . The Court notes in this connection that the authorities were successful in securing all of the available evidence and thoroughly examining it. In particular, they examined the scene of the incident, carried out detailed forensic examinations of the corpses and identified and repeatedly questioned those who were involved and present during the events of 11 August 2002. Having considered the parties ’ submissions and the material in the case file, the Court finds that the conclusions reached by the authorities were generally consistent with the evidence collected by them in the above-mentioned investigation (see, for a similar approach, Shchebetov v. Russia , no. 21731/02, §§ 56-57, 10 April 2012 ).

49 . The Court also does not lose sight of the fact that the applicant appealed on multiple occasions to the courts against the outcome of the investigation, and that the courts, in adversarial proceedings, confirmed the validity of the conclusions of the investigation. Regard being had to the above considerations, the Court finds that the domestic investigation conducted by the authorities into the death of Mr P.G. on 11 August 2002 was in compliance with the requirements of the procedural aspect of Article 2 of the Convention.

(b) Alleged breach of Mr P.G. ’ s right to life

50 . The Court will now turn to the applicant ’ s allegation that the respondent Government did not do enough to prevent her son ’ s death.

51 . The Court firstly notes that it is not in dispute between the parties that there existed legally binding safety regulations in respect of access to the sewage field in question. In line with those requirements, the site was located well away from any residential areas and was equipped with special warning signs. In addition, the manholes themselves and their covers were regularly checked and employees of the servicing company were present on site. The responsibility of the servicing company was confirmed by the domestic courts, which eventually, in 2009, established that the employees of the company had been in full compliance with those rules.

52 . The applicant essentially insists that those rules were insufficient. While being fully aware of the tragic character of the present case, the Court would reiterate that Article 2 of the Convention cannot be interpreted as guaranteeing to every individual an absolute level of security in any activity in which the right to life may be at stake (see Bone v. France (dec.), no. 69869/01, 1 March 2005; Molie v. Romania (dec.), no. 13754/02, § 44, 1 September 2009; Koseva v. Bulgaria (dec.), no. 6414/02, 22 June 2010; and Gökdemir v. Turkey (dec.), no. 66309/09, § 17, 19 May 2015). Bearing in mind, among other things, the unpredictability of human conduct, the scope of the State ’ s positive obligation under that provision must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities (see Koseva , cited above), especially in cases where individuals are acting recklessly (see Bone , cited above).

53 . Having regard to the conclusions of the domestic investigation, the Court finds that Mr P.G. ’ s tragic death resulted essentially from his own failure to act with a minimum level of caution (compare Iliya Petrov v. Bulgaria , no. 19202/03, § 63, 24 April 2012; Koseva , cited above; and Bone , cited above) and that the State authorities could not be held responsible for his death.

54 . Having regard to the foregoing, the Court considers that the applicant ’ s complaints must be rejected as manifestly ill ‑ founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 8 April 2021 .

Olga Chernishova Darian Pavli Deputy Registrar President