JOINT CONCURRING OPINION OF JUDGES LEMMENS, SERGHIDES AND PINTO DE ALBUQUERQUE

1. We fully subscribe to the finding that there has been a violation of Article 2 of the Convention.

Unlike the majority, however, we believe that this finding should not be limited to the State ’ s procedural obligation under Article 2, but should extend to its substantive obligation as well.

2. We note that the applicant complained both of the failure by the Tolyatti mayor ’ s office to impose the necessary safety measures (substantive obligation) and of the authorities ’ failure to institute criminal proceedings and to award him adequate redress (procedural obligation) (see paragraph 21 of the judgment).

The majority reiterate at length the principles relating to the State ’ s substantive obligation in cases such as the present one, involving a life ‑ endangering accident on premises that pose risks to human life due to their inherently hazardous nature (see paragraphs 25-28, in particular paragraph 27). These principles are mentioned in the context of examination of the admissibility of the complaint. We believe that it would have been more logical to set out the said principles in the context of examination of the merits of the complaint. We further note, as far as general principles are concerned, that in the part on the merits the majority refer only to principles relating to the procedural obligation (see paragraphs 32-37).

3. Be that as it may, when it comes to the application of these principles to the facts of the present case, the majority consider that, since the domestic courts acknowledged the State authorities ’ failure to fulfil their substantive obligation, they will focus on examining whether the State fulfilled its procedural obligation (see paragraph 38).

It is on this point that, respectfully, we disagree.

The effect of the majority ’ s statement is that they leave open the question whether there has been a violation of the substantive limb of Article 2. Indeed, they neither confirm nor contradict the findings of the domestic courts in this respect. We believe that the Court should have examined the merits of the relevant complaint.

4. We see no justification for leaving open the question of the substantive violation.

In particular, it could not be argued that the applicant had lost his victim status in the light of the domestic courts ’ findings that the mayor ’ s office had been negligent and thus that the State had failed to fulfil its substantive obligation. It is true that a decision or measure favourable to the applicant can deprive him of his status as a “victim” for the purposes of Article 34 of the Convention, but this is only the case where the national authorities have, first, acknowledged, either expressly or in substance, the breach of the Convention, and secondly, afforded redress for that breach (see, among many other authorities, Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 179-80, ECHR 2006 ‑ V; Gäfgen v. Germany [GC], no. 22978/05, § 115, ECHR 2010; and Murray v. the Netherlands [GC], no. 10511/10, § 83, 26 April 2016). Only where both these conditions have been satisfied does the subsidiary nature of the protective mechanism of the Convention preclude examination of the application (see Rooman v. Belgium [GC], no. 18052/11, § 129, 31 January 2019).

In the present case, the majority themselves recognise that the amount of compensation awarded to the applicant in the civil proceedings “is insufficient to constitute appropriate redress” (see paragraph 45 of the judgment). The second condition is therefore not fulfilled, and the applicant can still claim to be the victim of a substantive violation of Article 2.

5. On the merits, we are of the opinion that there is no reason to disagree with the findings of the domestic courts with respect to the responsibility of the mayor ’ s office, which is an organ of the State.

6. We conclude, accordingly, that there has also been a violation of Article 2 in its substantive limb.