Communicated on 1 September 2014

FOURTH SECTION

Application no. 43881/10 Lali VARDOSANIDZE against Georgia lodged on 26 June 2010

STATEMENT OF FACTS

The applicant, Ms Lali Vardosanidze, is a Georgian national, who was born in 1961 and lives in Kutaisi.

A. The circumstances of the case

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

According to the official version of the events, on 1 June 2007, the technicians of the LLC “Kaztransgaz”, which is the only company licenced to distribute natural gas in Tbilisi, discovered that the gas-operated water heater was improperly installed in the apartment that the applicant ’ s son, G.K., and mother were renting. Namely, it was prohibited to install such a heater in the given building since the latter lacked the necessary ventilation system. Upon the discovery of the irregularity, the water heater was disconnected from the natural gas supply tube, although it was neither sealed, nor removed from the apartment. In the respective protocol, which was signed by the applicant ’ s mother present in the apartment at the time, the technicians briefly noted that the water heater had been disconnected from the gas supply tube, without indicating the reason for such a measure. The apartment continued to be supplied with natural gas.

On 30 April 2008 G.K., aged twenty-one, was found dead in his rented apartment in Tbilisi. In their later testimonies to the police, the two of G.K ’ s friends who discovered his body stated that there was an intense smell of gas in the apartment and that the water heater was on when they entered the place. Criminal investigation was immediately opened regarding the death of the applicant ’ s son under the charges of incitement to commit suicide. On the same day the water heater was removed from the apartment for the expertise.

According to the autopsy report of 19 May 2008, the applicant ’ s son died of asphyxia caused by the accumulation of a lethal dose of carbon monoxide (CO – a toxic odourless gas) in his body. The expert report of 27 June 2008 concerning the water heater reads that since it was not removed from the apartment by the expert, it was impossible to assess whether or not it had been properly installed there in the first place; although the water heater was fully functional when tested, had it been improperly installed, incomplete burning of the natural gas in the water heater would have occurred; this would have resulted in creation of carbon monoxide, excessive accumulation of which in turn could have caused the death of G.K., especially in the absence of necessary ventilation.

On 5 September 2008 the criminal investigation was re-qualified under the charges of violation of the rules of utilization of gas equipment resulting in human death and shortly after the applicant was given the victim status in the case. In course of the investigation, several witnesses were examined, including the aforementioned technicians of the gas distribution company, who stated that, in line with the respective regulations, they had no competence to seal the household gas equipment, even when it was installed in violation of safety rules. The applicant ’ s mother testified that, while she signed the aforementioned protocol being unaware of its content, the technicians never disconnected the water heater from the gas tube and they never brought to her attention its defective installation.

On 16 October 2009 the prosecutor of the Vake-Saburtalo District of Tbilisi discontinued the criminal investigation. Assuming that G.K. himself had negligently re-connected and used the water heater and noting that in the residential buildings the inhabitants are responsible to ensure the safety of household gas equipment, in her resolution the prosecutor concluded that the death of the applicant ’ s son was an accident, involving no person ’ s criminal liability.

On 24 November 2009 the Tbilisi City Court rejected the applicant ’ s complaint against the discontinuation of the criminal investigation, which decision was upheld, at final instance, by the Tbilisi Court of Appeal on 28 December 2009.

The applicant contests the official version of the events. Claiming that the technicians never alerted either her son or mother about the defective installation of the water heater, she also denies the fact that the water heater was ever disconnected from the natural gas supply tube. In any event, the applicant argues, had the technicians in fact discovered the defective installation of the water heather, under the applicable regulations, they should have cut off the entire apartment, not just the water heater, from the gas supply, which the technicians negligently omitted to do.

B. Relevant domestic law

There were two main bylaws regulating, inter alia , the safe usage of gas equipment at the material time: the Rules on Safety in Gas Consumption adopted by Order No. 8 of the Head of the National Inspection of Technical Supervision on 28 March 2002 (the Order No. 8) and the Rules on Consumption of Natural Gas adopted by Resolution No. 10 of the National Energy Regulatory Commission on 30 September 2004 (the Resolution No. 10). As they stood at the material time, these two documents set somewhat varying rules on ensuring the safety of the household gas equipment.

According to the Order No. 8, the responsibility for the safe usage of household gas equipment in a residential building lies with its inhabitants; the natural gas provider shall supervise the safety of the gas pipes and equipment inside such buildings (Article 31 §§ 3-4). The tools and equipment that leak gas, have insufficient safety features or ventilation systems as well as those connected to the natural gas supply without authorization shall be disconnected from the natural gas supply by locking the faucet and compiling a respective protocol (Article 32 § 3).

On the other hand, under the Resolution No. 10, the natural gas distributor shall observe the established safety norms related to the natural gas consumption (Article 2 § 2 (c)). At the same time, if, inter alia , the usage of a given gas equipment poses a risk to life, health or property of an individual the natural gas supply [to the household] shall be immediately cut off; the same rule applies, if it is detected that the applicable safety rules are being violated and/or the usage of a given gas equipment may cause damage (Article 2 § 3 (d) and (e)).

In addition, while it is required of the gas company ’ s staff members to compile a respective protocol upon the discovery of a violation of the safety rules by a customer, the Resolution No. 10 enumerates the type of information each protocol should contain. Description of the violation and explanations given by the customer in question are, inter alia , the required fields that shall be filled in in the protocol (Article 11 §§ 1 and 2).

COMPLAINT

The applicant complains in substance, under Article 2 of the Convention, about the State ’ s failure to adopt adequate measures to prevent and then to effectively investigate her son ’ s death, claiming that the negligence on the part of the gas distribution company ’ s staff caused the death of her son.

QUESTIONS TO THE PARTIES

1. Has the applicant ’ s son ’ s right to life, ensured by Article 2 of the Convention, been violated in the present case? In particular, has the State fulfilled its positive obligation to adopt all necessary measures to prevent the loss of life of the applicant ’ s son?

The Government are invited to submit information about the applicable legislative framework concerning the safe usage of household gas equipment in force at the material time. In particular, the Government are invited to answer the following additional questions:

- Did the gas distribution company have the obligation to conduct regular safety checks of gas equipment in residential buildings, and if yes, at what intervals? Has the gas distribution company fulfilled this obligation vis-à-vis the gas equipment in the applicant ’ s son ’ s rented apartment?

- What were the measures the gas distribution company was obliged to take upon the discovery of the defective installation of the water heater in the apartment in question?

2. Having regard to the procedural protection of the right to life, was the investigation of the circumstances of the applicant ’ s son ’ s death in breach of Article 2 of the Convention?