Information Note on the Court’s case-law 237

February 2020

Vovk and Bogdanov v. Russia - 15613/10

Judgment 11.2.2020 [Section III]

Article 2

Positive obligations

Article 2-1

Effective investigation

Failure to investigate explosion of grenade in a residential area causing severe injuries: violation

Facts – In April 2008 a grenade was found by children on a building site in a residential area. The grenade exploded as a result of careless handling by the applicants (at the time aged thirteen and seven), causing grievous harm to their health.

A criminal investigation into the explosion was initiated. It was found that: (i) the grenade had been brought to the building site in a sand delivery; it was a VOG-17 grenade, which had been lost unexploded after having been fired through the bore of a grenade launcher; (ii) this entailed that, at an unidentified place, an unidentified person entrusted with guarding fir earms, ammunition and explosive devices, had failed to carry out his duties properly.

The investigation was suspended many times for failure to identify a person to be charged and eventually discontinued as time-barred.

Law – Article 2 ( procedural limb ): For the following reasons, the Court reached the conclusion that the criminal and civil remedies in the applicants’ case, taken together, did not constitute an effective judicial response promptly establishing the facts, holding accountable those at fault and providing appropriate redress to the victims, essential for maintaining public confidence and ensuring adherence to the rule of law and for preventing any appearance of tolerance of or collusion in unlawful acts.

(a) Criminal proceedings – The Court found no indication that the investigating authorities had made all reasonable efforts to collect relevant evidence that would have enabled clarification of the nature of any liability to satisfy the authorities that there were no grounds to c ontinue a criminal investigation.  They had further failed to elucidate the extent of any negligence on the part of military personnel in taking “measures that were necessary and sufficient to avert the risks inherent in a dangerous activity”, which might constitute exceptional circumstances where an effective criminal investigation is necessary to satisfy the procedural obligation imposed by Article 2.

Indeed, the above version of the facts, as well as the classification of the crime as criminal negligence on the part of personnel entrusted with guarding battlefield arms and ammunition, remained unchanged until the end of the investigation. If the investigation considered – as it thus did – that there had been possible negligence on the part of military per sonnel in ensuring that ammunition had not been lost, then it had to establish, for example, whether the fired but unexploded VOG-17 grenade could have been abandoned after military training activities.

In particular, since ammunition such as VOG-17 grenad es could only be lawfully used by State-authorised organisations operating, inter alia , in the spheres of defence and internal affairs – the investigation should have identified such State organisations and their officials or service personnel, and verifie d whether the procedure provided for by the legislation for cases of the loss or damage of ammunition had been carried out by them.

However, there is no indication in the case file as to what actions had been carried out and what the results of those acti ons had been in order to conclude that the involvement of military personnel in the loss of the grenade had not been established. Nor even is there any indication as to what investigative actions, if any, had been carried out in order to establish the plac e where the grenade in question had been stored and the person responsible for its loss.

As to the alleged failure to exhaust domestic remedies, the Court could not but dismiss the Government’s objection, given that: (i) a court appeal against one or more decisions to suspend the investigation could only have had the same effect as the multipl e requests by the prosecutor’s office which were regularly followed by the annulment of such suspensions; (ii) challenging the acts or omissions of the investigating authorities before a court was out of reach without access to the case file or proper info rmation on the progress of the investigation

(b) Civil proceedings – While the applicants then sought compensation on the ground that the State had to assume responsibility for its failure to ensure that the unexploded grenade was not lost and – had it i ndeed been lost – to identify and prosecute those at fault, the effectiveness of this remedy had been jeopardised by the civil courts’ choosing to rely unreservedly on the results of the investigation, stating that there was no evidence that the grenade ha d belonged to the State or that it had not been properly guarded.

Conclusion : violation (unanimously).

Article 41: EUR 40,000 to each applicant in respect of non-pecuniary damage.

(See also Nicolae Virgiliu Tănase v. Romania [GC], 41720/13, 25 June 2019, Information Note 230 )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

Click here for the Case-Law Information Notes