THIRD SECTION

DECISION

Application no . 73025/13 Yelena Sergeyevna BOTYANOVSKAYA against Russia

The European Court of Human Rights (Third Section), sitting on 2 6 September 2017 as a Committee composed of:

Helen Keller, President, Pere Pastor Vilanova , Alena Poláčková , judges, and Fatoş Aracı , Deputy Section Registrar ,

Having regard to the above application lodged on 18 November 2013,

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, Ms Yelena Sergeyevna Botyanovskaya , is a Russian national, who was born in 1978 and lives in the settlement of Vasyurinskaya , Krasnodar Region. She was represented before the Court by Mr V. Gaydash , a lawyer practising in Krasnodar.

The Russian Government (“the Government”) were represented initially by Mr G. Matyushkin , the Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin .

A. The circumstances of the case

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

On 31 December 2011 approximately at 2:20 a.m. the applicant ’ s husband B. died after having been hit by a lorry driven by M.

Within the framework of the ensuing inquiry, investigator K. questioned the applicant and M. According to M., he was driving on the motorway, when he saw B. standing on the emergency stopping lane. Then B. suddenly started crossing the road in front of his lorry. M. slowed down and turned the steering wheel to the right. When B. reached the centre of the lane in which M. ’ s lorry was moving, he abruptly turned and ran back towards the emergency stopping lane. At that moment the lorry hit B. When M. got out of the lorry to help B., it was already too late. B. was dead.

On 30 January 2012 investigator K. refused to open a criminal investigation into the road accident for lack of corpus delicti in M. ’ s actions. The investigator based his findings on the statements made by M. and the applicant. On an unspecified date the investigator ’ s decision was quashed and the matter was remitted for further inquiry.

On 1 February 2012 forensic expert E. prepared an autopsy report, according to which B. ’ s death had resulted from the road traffic accident. The expert also established that at the time of death B. ’ s blood alcohol content had been at 1.9 per mille which he considered to be a medium degree of alcoholic intoxication.

Subsequently, the investigator issued eight decisions refusing to open criminal investigation into the accident of 31 December 2011. Each time his decision was quashed by a superior officer or a supervising prosecutor who considered the conducted inquiry incomplete and ordered the investigator to take further action.

On 7 June 2013 investigator K. again refused to open criminal investigation into the accident of 31 December 2011. According to his findings, M. could not prevent the collision of his lorry with the deceased. The investigator refused to take into account the report on the reconstruction of the accident prepared by the forensic expert retained by the applicant considering the expert ’ s findings to be inconclusive. The investigator relied in his findings on the statements made by M., another driver B. who followed M. ’ s lorry on the day of the accident, the applicant, her relatives and friends who were present at the scene of the accident together with the applicant summoned by the police, police officers But. and S., who inspected the scene of the accident, and B. ’ s autopsy report.

On 21 June 2013 the Dinskiy District Court of the Krasnodar Region dismissed the applicant ’ s complaint against the investigator ’ s decision of 7 June 2013. On 7 August 2013 the Krasnodar Regional Court upheld the decision of 21 June 2013 on appeal.

B. Relevant domestic law and practice

1. Criminal law

Causing death by negligence is a criminal offence in the Russian Federation. The sanctions in respect of the said offence include: (1) up to two years ’ unpaid work; (2) up to two years limitation of liberty, (3) up to two years ’ community service; or (4) up to two years ’ imprisonment (Article 109 of the Russian Criminal Code).

2. Civil law

Russian civil law (Articles 1079 and 1083 of the Russian Civil Code) provides for strict liability of a driver who caused a road traffic accident resulting in an injury or death. No proof of fault is required. In the event of gross negligence on the part of the victim and absence of fault on the part of the driver the amount of compensation imposed on the latter will be reduced. Complete refusal of compensation is not allowed. The driver may be released from liability only if he or she proves that the accident was caused by an act of providence or the intentional conduct of the victim.

COMPLAINTS

The applicant complained under Articles 2 and 13 of the Convention that the Russian authorities had not complied with their positive obligation to protect her husband ’ s life .

THE LAW

The applicant complained that the investigation into the road traffic accident resulting in her husband ’ s death had not been effective. She relied on 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 contested that argument. In their view, the Russian authorities had taken all the measures to establish the circumstances of B. ’ s death and, accordingly, had complied with their positive obligation set out in Article 2 of the Convention. They considered that, in any event, the applicant ’ s complaint should be dismissed for her failure to exhaust effective domestic remedies in respect of her grievances. It had been open to her to lodge a civil claim for damages against driver M. Within the framework of the civil proceedings, she (1) could have applied for a comprehensive forensic examination of the circumstances of the road traffic accident and (2) could have recovered damages resulting from her husband ’ s death. Under Russian law, death resulting from the collision with a motor vehicle gave rise to strict liability of the driver of the vehicle.

The applicant maintained her complaint. She considered that the inquiry conducted by the authorities had not been thorough. Without instituting a fully-fledged criminal investigation, the investigator had been unable to establish the circumstances of the road traffic accident resulting in her husband ’ s death. Lastly, she submitted that a civil action for damages would have no prospect of success in a civil court if the driver ’ s fault had not been proven in the course of the criminal proceedings.

Admissibility

As to the Government ’ s objection, the Court reiterates that it is a matter of its well-established case-law that the positive obligation imposed on the Contracting States by Article 2 of the Convention to set up an effective judicial system which could determine the cause of death and bring those responsible to account does not necessarily require the provision of a criminal-law remedy in every case. If there has been no intentional taking of life, an award of damages through civil or administrative proceedings may offer an appropriate redress. In such a case there would be no need to institute criminal proceedings (see Vo v. France [GC], no. 53924/00, § 94, ECHR 2004 ‑ VIII).

While its case-law does not exclude the provision of a criminal-law remedy in the context of road traffic accidents (compare, Anna Todorova v. Bulgaria , no. 23302/03, §§ 74-83, 24 May 2011), the Court considers that, in the Russian system, as argued by the Government, the appropriate remedy to be used by the applicants in respect of their grievances in the context of an unintentional loss of life resulting from a road traffic accident is a civil action. It can lead both to the establishment of the driver ’ s liability and to the payment of damages. The applicant ’ s allegations that such an action has no reasonable prospects of success and is bound to fail in the absence of a fully-fledged criminal investigation are not supported by any evidence.

Turning to the circumstances of the present case, the Court observes that the applicant has not made use of the possibility of bringing a civil action against driver M. who had unintentionally caused her husband ’ s death. In this connection, the Court notes that, contrary to the applicants ’ allegations, there is nothing in the case file to allow it to conclude that an action for damages would have no reasonable prospects of success and was bound to fail (compare, (see Karakoca v. Turkey ( dec. ), no. 46156/11, 21 May 2013). It follows that the application must be rejected under Article 35 §§ 1 and 4 of the Convention on the grounds of a failure to exhaust domestic remedies.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 19 October 2017 .

FatoÅŸ Aracı Helen Keller              Deputy Registrar President