JOINT CONCURRING OPINION OF JUDGES PINTO DE ALBUQUERQUE AND ELÓSEGUI

We agree with the finding of a violation of Article 2 of the European Convention on Human Rights (the “Convention”) but would like to clarify the meaning of our vote.

The applicants raised a complaint under the substantive limb of Article 2 and the parties discussed the issue in their observations. In particular, they emphasised the existence of a “special regime” for the storage and circulation of military weapons and ammunition as well as the exclusive military ownership of the relevant grenade, thereby demonstrating the responsibility of the State. In this context, the applicants adamantly affirmed that “it [could] be safely assumed that the shots for the VOG-17 grenade launcher belonged to the Russian Federation, which should be responsible for improper storage of ammunition” [1] . They further added that “the shots for the VOG-17 grenade launcher, which was developed in the early 1970s and adopted by the Soviet Army, ha[d] been completely withdrawn from civil circulation and [were] only to be stored in warehouses of military units and units of the Ministry of Defense of the Russian Federation, the Ministry of Internal Affairs of the Russian Federation and other military formations, which [were] organs of the military organization of the state”. Finally, they insisted that [2] :

“ the findings of experts are established and are not disputed by the authorities that the shot from the VOG-17 grenade launcher is a modern ammunition. In this case, the position of the authorities that the state is in no way involved in the explosion of grenades in peacetime in the residential sector, does not stand up to any criticism.”

The Government reacted to these allegations, by stating that “the present case [did] not contain evidence and co-existence of sufficiently strong, clear and concordant inferences or unrebutted presumptions which would allow the European Court of Human Rights ( ‘ the Court ’ ) to charge the Government with infliction of bodily harm ...” [3] . They added, “[t] hus , the case file does not provide sufficient evidential basis to enable the Court to find ‘ beyond reasonable doubt ’ that the Russian authorities were responsible for infliction of bodily harm to the ... children” [4] .

The applicants ’ complaints regarding the responsibility of the State for the injuries sustained by them, as children, as well as the Government ’ s denial of any such responsibility, called for an inquiry into the State ’ s substantive obligations under Article 2.

Although the Court questioned the parties on this issue, it did not address this matter specifically in the judgment. In fact, the Court specifically asked the parties whether “the State ’ s liability as an owner of dangerous goods and/or employer of persons [was] at fault”, especially in relation to the “exclusion of arms and ammunition from civil circulation, special rules for their storage, use and disposal” [5] . It is true that the Court mentioned the general principles governing the substantive positive obligation under Article 2 [6] , but it refrained from applying those principles to the case at hand. The omission of the Court is even more puzzling in view of the version of the facts and the classification of the crime that the Court considered as established by the domestic criminal investigation [7] , which pointed to “possible negligence on the part of military personnel” [8] .

Consequently, we find that, in addition to the procedural obligations, the Court should have examined the State ’ s obligations under the substantive limb of Article 2. That is exactly what we propose to do in this opinion, after a brief mention of the procedural limb of Article 2.

In general, we agree with the assessment of the shortcomings of both the criminal and civil proceedings at the domestic level. In addition to the criticisms in the judgment, we would add that the investigating authority did not question the military personnel immediately after the incident involving the young victims, concentrating instead on the criminal liability of these victims. This line of investigation focusing on the criminal liability of the victims themselves was clearly wrong. The correct line of investigation focusing on crimes against public safety and military service under Article 225 § 1 (negligence on the part of personnel entrusted with guarding firearms, ammunition and explosives) and Article 348 (loss of military property) of the Criminal Code was belated, since it took five months after the incident for the acts of an unidentified perpetrator to be reclassified under these provisions. In our view, this is the main shortcoming of the internal criminal investigation, since it made it impossible to gather the relevant witness testimony and real evidence . This erroneous initial approach was compounded by the fact that the material from the pre-investigation inquiries and the criminal proceedings, as well as the material from the civil proceedings, was destroyed upon expiry of the time-limit for their storage.

Furthermore, we agree with the logical assumption of the Court in the following passage [9] :

“Since ammunition such as VOG-17 grenades 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 verified whether the procedure provided for by the legislation for cases of the loss or damage of ammunition ... had been carried out by them.”

On the basis of this assumption, the Court found that [10] :

“In sum, there is nothing in the case file to indicate that, having established facts which pointed to possible negligence on the part of military personnel, the investigating authorities made all reasonable efforts in accordance with their procedural obligation under Article 2 of the Convention to collect relevant evidence which would enable clarification of the nature of any liability to satisfy the authorities that there were no grounds to continue a criminal investigation ...”

We do not understand why the Court timidly limited its findings of a violation to “their procedural obligation under Article 2 of the Convention”.

The same logical assumption that sustained the finding of a procedural violation of Article 2 (“VOG-17 grenades could only be lawfully used by State-authorised organisations operating, inter alia , in the spheres of defence and internal affairs”) could and should have led the Court to a finding on the substantive limb of this Article as well. The evidence in the file consistently supported that conclusion. For unexplained reasons, the Court stayed half way in its analysis.

In the present judgment, the Court reiterates existing case-law that does not necessitate criminal law remedies when death or life-threatening injury is inflicted unintentionally. This problematic approach was crystallised in a recent judgment of the Grand Chamber, Nicolae Virgiliu Tănase v. Romania . In that case it held that civil remedies would suffice when “death or a life-threatening injury has not been inflicted intentionally”, either by the State or by a private person [11] . The Grand Chamber has added another alarming aspect to this loose approach by extending it to State agents, whereas previously it was confined to private parties [12] . Although, in the current case, the Court acknowledges that life-endangering offences should not go unpunished, it still adheres to Nicolae Virgiliu Tănase and holds that criminal investigations would be necessary only under “exceptional circumstances” [13] . The Court ’ s approach must be challenged as it is both incompatible with international law and contrary to Council of Europe member State practice.

The United Nations Human Rights Committee ’ s (“the Human Rights Committee”) recent General Comment No. 36 on Article 6 (right to life) of the International Covenant on Civil and Political Rights serves as a guide to understanding the international law trend in remedying unintentional threats to the right to life. The Human Rights Committee has held that per the duty to protect the right to life by law, States are obligated to investigate and prosecute potential cases of unlawful deprivation of life, to provide full reparation, and notably, mete out punishment [14] . Accordingly, States are under an obligation to adopt a “protective legal framework” that must include criminal sanctions against threats to life. Notably, acts that are likely to result in deprivation of life, such as negligent homicide, must be sanctioned by criminal law [15] . In this context, the Human Rights Committee has held that States must refrain from opting merely for administrative or disciplinary measures if there is enough evidence for criminal prosecution [16] . The Human Rights Committee has also held that States must take preventive measures against repetition of right to life violations [17] , which indicates the significance of criminal investigations in order to discover the truth and establish responsibility [18] .

The domestic law of Council of Europe member States is evidence of a European consensus in favour of providing criminal-law remedies for unintentional deaths or life-threatening injuries. For instance, at least 31 member States provide criminal-law remedies for death or injuries due to medical negligence [19] . Accordingly, the Court cannot fall back on the States ’ margin of appreciation in this regard.

Against this backdrop, the Court ’ s persistent leniency towards unintentional infringement of the right to life, especially in its forms of error of judgment and carelessness, which can cause dramatic losses in terms of human life, is confusing, to say the least. In spite of remaining linguistically attached to the statement of principle in Calvelli and Ciglio v. Italy [20] , according to which the Convention did not necessarily require the provision of a criminal-law remedy when the right to life had been infringed unintentionally, the Court has on several occasions made it clear that criminal remedies would be necessary, such as when human-caused harm resulted from operation of waste-collection sites and military activities [21] . As a matter of fact, it seems that the exception has become the rule, since the Court has found more often than not that the lack of criminal remedies constituted a violation of Article 2.

Although the legal and administrative framework with respect to battlefield ammunition is present in Russia [22] , it must be questioned whether it functioned to effectively protect and deter the applicants from harm. Furthermore, considering the exclusive military use of the grenades, it must be examined whether the State had taken the necessary operative measures to protect the applicants ’ right to life.

The substantive obligations of the respondent State must be examined with regard to the specific conditions of the incident.

First, it is crucial to keep in mind that grenades are lethal weapons, strictly for military use. Grenades and grenade launchers are classified as “light weapons” by the Organisation for Security and Co-operation in Europe (OSCE), namely weapons that are intended for use by a group of armed or security forces [23] . The OSCE Document on Small Arms and Light Weapons lays down detailed guidelines for documenting and stockpiling of light weapons, including training of personnel, thereby demonstrating the comprehensive care needed to store them. Furthermore, under the Protocol on Incendiary Weapons (Protocol III) to the United Nations Convention on Certain Conventional Weapons, to which Russia has been a party since 1982, grenades and grenade launchers are considered “incendiary weapons” [24] . Several limitations to the use of incendiary weapons are stipulated in Article 2 of Protocol III. In particular, subparagraph 3 of the Article provides that Parties may not use incendiary weapons in an area with a concentration of civilians. Although the Protocol is applicable to the use of incendiary weapons for a military attack, the extensive safeguards for civilians demonstrate the danger posed by grenades and the necessary degree of care.

Second, it is highly significant to point out that the applicants were children at the time of the event. Children are a vulnerable group which benefits from heightened protection under the Convention and human rights law in general. The Human Rights Committee has noted that States are obligated to take “special measures of protection” towards children, as they are considered “individuals in [a] situation of vulnerability” [25] . Similarly, the Court has established that children, especially young ones, are more vulnerable than adults and need particular protection by the authorities [26] . In particular, authorities should bear in mind that children are likely to play with ammunition, believing it to be harmless [27] . UNICEF has found that children constitute approximately 20 to 30 per cent of casualties caused by explosive weapons [28] . Children left with disabilities are also severely hindered from enjoying their rights and are more likely to be exploited [29] .

Finally, States have an obligation to “afford general protection to society” when the right to life is at stake due to the dangerous nature of the relevant activity, especially military activities [30] . Therefore, the present application must be examined against the backdrop of risks posed by grenades, the State ownership thereof, and the vulnerability of children; and thus against the State ’ s substantive obligation to effectively protect the right to life.

The primary substantive obligation of the State under Article 2 is the duty to adopt a legislative and administrative framework that should provide effective protection from threats to the right to life [31] . Accordingly, the mere existence of a framework is not sufficient; it must also be implemented in order to provide adequate protection. The Court has interpreted the duty to set up a necessary framework “so as to make its safeguards practical and effective” [32] . In another case, since the applicant was not claiming that the respondent State sought to deliberately harm the individuals, it had to be determined whether the State had taken all the necessary measures to prevent the injuries suffered by them [33] .

First, if the State organises or authorises an activity that is inherently dangerous, such as the use of explosive devices, it “must ensure through a system of rules and through sufficient control that the risk is reduced to a reasonable minimum” [34] . It must be noted that the Court first developed this standard in relation to army personnel participating in military training [35] . The Court then applied the standard to cases where individuals were harmed while doing their job [36] . Accordingly, since the applicants were not in any way associated with the army, nor were they harmed while performing their job, it is clear that the State must be subject to a much higher standard than merely reducing the risks to a reasonable minimum. Therefore, it must be questioned whether the regulatory framework is “ geared to the special features of the activity in question, with particular regard to the level of the potential risk to human lives involved” [37] . The Government decree of 1997 prima facie provides for an extensive and detailed reporting mechanism against possible losses of weapons and ammunition. That being said, if obtaining sand or similar material from military areas for construction purposes is common practice, the law should particularly account for additional control as it puts civilians at risk of contact with dangerous weapons.

In addition to adopting an effective regulatory framework, States must also ensure compliance with the law. In the present judgment, the Court refers to comprehensive case-law in this regard [38] . Yet the Court is reluctant to examine the relevant obligations: despite the applicants ’ demands that the responsibility of the State be established, the Court only tiptoes around “possible negligence”, and contradicts itself by acknowledging “established facts” that point to the State ’ s negligence [39] .

The Court ’ s reluctance to examine substantive obligations of the State is puzzling given its extensive reference to Oruk v. Turkey regarding the obligation to take appropriate measures to protect lives [40] . In fact, it is all the more puzzling given that the Court has persistently examined substantive obligations of the State in negligence cases, especially when children are harmed in relation to military activities, e.g. Paşa and Erkan Erol v. Turkey (lack of security measures around land mined by the army and used by villagers) [41] . Even in cases where the Court did not find a violation of Article 2, it has considered the substantive limb, e.g. Sarıhan v. Turkey (obligations of the State to prevent the applicant from entering a landmine zone) [42] . Similarly, the Court extensively questioned whether the State ’ s substantive obligations had been fulfilled in Iliya Petrov v. Bulgaria (effectiveness of law to prevent injury after accidental electrocution in an unsecured electrical substation) [43] and İlbeyi Kemaloğlu and Meriye Kemaloğlu v. Turkey (failure to prevent a seven-year-old boy from freezing to death on his way home from school in a blizzard) [44] .

As to the applicable standard, it must initially be noted that the Court employs a diverging causality test to establish substantive obligations, including determining responsibility when Article 2 has been infringed as a result of an omission of the State [45] . The Court ’ s approach is highly fact and context-dependent, and can hardly be deemed consistent. It has varied from finding State responsibility due to “failure to take reasonably available measures which could have had a real prospect of altering the outcome or mitigating the harm” [46] , to a test as ambiguous as “display[ ing ] due diligence in protecting the right to life” [47] , or to one as stringent as a “causal link established between the gross negligence attributable to the State and the loss of human lives” [48] .

In the present judgment, the Court (only theoretically) offers the consideration “whether ... the grenade could have been abandoned after military training activities” [49] , which is a rather high threshold that demands a direct causal link between the State ’ s action and the applicants ’ injuries. In contrast, previous case-law has established that harm may be attributed to the State ’ s inaction and namely to a failure to monitor compliance with the law. For instance, in Iliya Petrov v. Bulgaria , the Court found that the lack of a system for monitoring the proper application of safety rules in the operation of high-voltage electrical installations was the determining factor in the occurrence of the accident [50] . Significantly, in Cevrioğlu v. Turkey , although the proper implementation of the relevant inspection mechanism might not have absolutely prevented the death of the applicant ’ s son, the Court found it sufficient that it would have “increased the possibility of identifying and remedying the failings” of the system [51] . It is also significant that where the State is engaged in a dangerous activity, it is under an obligation to govern the “operation, security and supervision of the activity and must make it compulsory for all those concerned to take practical measures to ensure the effective protection of citizens whose lives might be endangered by the inherent risks” [52] .

As pointed out by the Court in the present judgment, “at an unidentified place an unidentified person responsible for guarding the firearms, ammunition and the explosive devices, had failed to carry out his duties properly” [53] and this person responsible for guarding this particular ammunition (a 30-mm VOG-17 grenade from an AGS-17 heavy grenade launcher which had been launched [54] ) could only have been a member of the military personnel. It also follows from the sequence of events that the supervision of the military personnel involved was insufficient as well, since there is no indication that the conduct of the personnel was subject to control. For instance, there is no indication of an inventory being taken after activities involving the use of grenades, or of a periodic inventory for that matter. Nor is there any indication that the designated supervisory authority, the Main Information Centre or regional organ of the Ministry of the Interior, played any role in supervising the recording of lost weapons and ammunition. Accordingly, it should be concluded that the State authorities have failed in their obligation to monitor compliance with the law.

The Court awarded each applicant EUR 40,000 in respect of non ‑ pecuniary damage. This amount would obviously be excessive in the case of a mere procedural violation of Article 2, according to the case-law of the Court. The truth is that the Court decided this “[ i ]n view of the seriousness of the violation concerning the procedural obligation of the State in a situation involving an interference with the right to life of the applicants, who sustained serious injuries demanding complex treatment at the age of thirteen and seven” [55] . In other words, the Court went well beyond the reasonable amount for a procedural violation of Article 2, in view of the gravity of the consequences that this incident has had for the applicants. By so doing, the Court is ultimately imputing these injuries to the negligence of the Russian State.

In any event, since we believe that there has also been a substantive violation of Article 2 of the Convention in the present case, we had no qualms about voting for this amount of compensation.

[1] Paragraph 29 of the applicants’ observations.

[2] Paragraph 30 of the applicants’ observations.

[3] Paragraph 38 of the Government’s observations.

[4] Paragraph 39 of the Government’s observations.

[5] See the q uestions put to the parties in the present case.

[6] Paragraphs 60 and 61 of the judgment.

[7] P aragraphs 71 and 72 of the judgment.

[8] The expression is repeated twice in paragraphs 73 and 74 of the judgment.

[9] Paragraph 73 of the judgment.

[10] Paragraph 74 of the judgment.

[11] Nicolae Virgiliu Tănase v. Romania [GC], no. 41720/13, § 163, 25 June 2019. For earlier case-law see, among others, Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 51, ECHR 2002-I, and Vo v. France [GC], no. 53924/00, § 94, ECHR 2004 ‑ VIII.

[12] See, among other authorities, Sinim v. Turkey , no. 9441/10, § 62, 6 June 2017.

[13] Paragraphs 66 and 74 of the judgment.

[14] United Nations Human Rights Committee (UNHRC), General Comment No. 36, 30 October 2018, para. 19.

[15] UNHRC, General Comment No. 36, para. 20.

[16] UNHRC, General Comment No. 36, para. 27.

[17] UNHRC, General Comment No. 36, para. 28.

[18] See, e.g., Khashiyev and Akayeva v. Russia (nos. 57942/00 and 57945/00, § 121, 24 February 2005), where the Court held that “a civil action is incapable, without the benefit of the conclusions of a criminal investigation, of making any meaningful findings as to the perpetrators of fatal assaults, and still less to establish their responsibility”. Besides the existence of criminal law remedies, the effectiveness of criminal investigations may be essential for the functioning of other remedies. See Banel v. Lithuania (no. 14326/11, § 71, 18 June 2013), where the Court pointed out that the “applicant would have faced serious difficulties in her attempts to have her civil claim for compensation granted” due to the ineffectiveness of the criminal proceedings.

[19] Lopes de Sousa Fernandes v. Portugal [GC], no. 56080/13, § 123, 19 December 2017.

[20] Calvelli and Ciglio , cited above , § 51.

[21] See some examples in Sinim , cited above , § 62.

[22] Paragraphs 43 to 48 of the judgment.

[23] OSCE Document on Small Arms and Light Weapons, 24 November 2000, https://www.osce.org/fsc/20783?download=true at 1.

[24] Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons (Protocol III) to the 1980 Convention on Certain Conventional Weapons, Geneva, 10 October 1980. Entry into force: 2 December 1983.

[25] UNHRC, General Comment No. 36, para. 23.

[26] Ilbeyi Kemaloğlu and Meriye Kemaloğlu v. Turkey , no. 19986/06, § 35, 10 April 2012 .

[27] Oruk v. Turkey , no. 33647/04, § 64, 4 February 2014.

[28] UNICEF, Focus: Explosive remnants of war (2013), https://www.unicef.org/sowc2013/focus_war_remnants.html.

[29] UNICEF, Devastating Impact: Explosive weapons and children, https://www.unicef.org/protection/Devastating_Impact_low_res.pdf at 5.

[30] Ercan Bozkurt v. Turkey , no. 20620/10, § 54, 23 June 2015, and Oruk , cited above, § 44.

[31] Öneryıldız v. Turkey [GC], no. 48939/99, § 89, ECHR 2004 ‑ XII.

[32] Öneryıldız , cited above, § 69. With regard to protection of safety in public places see Ciechońska v. Poland , no. 19776/04, § 69, 14 June 2011.

[33] Oruk , cited above, § 57.

[34] Stoyanovi v. Bulgaria , no. 42980/04, § 61, 9 November 2010.

[35] Stoyanovi , cited above, § 61.

[36] Binişan v. Romania , no. 39438/05, §§ 6-9, 20 May 2014, and Mučibabić v. Serbia , no. 34661/07, § 12, 12 July 2016.

[37] Cevrioğlu v. Turkey , no. 69546/12, § 51, 4 October 2016.

[38] Paragraph 60 of the judgment.

[39] Paragraph 74 of the judgment.

[40] Paragraph 69 of the judgment.

[41] Paşa and Erkan Erol v. Turkey , no. 51358/99, §§ 32-38, 12 December 2006.

[42] Sarıhan v. Turkey , no. 55907/08, §§ 54-57, 6 December 2016.

[43] Iliya Petrov v. Bulgaria , no. 19202/03, §§ 58-65, 24 April 2012.

[44] İlbeyi Kemaloğlu and Meriye Kemaloğlu , cited above , §§ 40-41.

[45] For a comprehensive academic analysis see Laurens Lavrysen , Human Rights In A Positive State: Rethinking the Relationship between Positive and Negative Obligations under the European Convention on Human Rights , Intersentia , 2016, p. 131 et seq.

[46] E. and Others v. the United Kingdom , no. 33218/96, § 99, 26 November 2002. This is an Article 3 (ill-treatment) case and the relevant standard should a fortiori apply to the right to life.

[47] İlbeyi Kemaloğlu and Meriye Kemaloğlu , cited above, § 47.

[48] Öneryıldız v. Turkey [GC], cited above , § 135.

[49] Paragraph 73 of the judgment.

[50] Iliya Petrov , cited above, § 63.

[51] Cevrioğlu , cited above , § 69.

[52] Öneryıldız v. Turkey [GC], cited above , § 90.

[53] Paragraph 71 of the judgment.

[54] Paragraph 21 of the judgment.

[55] Paragraph 81 of the judgment.