CASE OF ZINATULLIN v. RUSSIACONCURRING OPINION OF JUDGE DEDOV
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Document date: January 28, 2020
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CONCURRING OPINION OF JUDGE DEDOV
The present case provides a good opportunity to reflect on the development of cases relating to an “effective judicial system”. This concept needs some clarification, if this development is not to be considered contradictory. For this purpose, I would like to compare the three cases of Kotelnikov v. Russia (no. 45104/05, 12 July 2016, Nicolae Virgiliu Tănase v. Romania ([GC], no. 41720/13, 25 June 2019) and the present ( Zinatullin ) case. The circumstances of each case were different, which creates a certain difficulty in identifying and applying general principles. In two cases ( Tănase and Zinatullin ) the criminal proceedings were discontinued on the grounds that not all the elements of an offence had been established, but the Court assessed those circumstances differently.
In the Kotelnikov case the criminal investigation successfully ended with court proceedings at two instances within a three-year period and the applicant, as a victim, seized the opportunity to bring a civil case; however, the Court has found that the system was not effective. The Kotelnikov judgment was designed to express one principal idea: the system cannot be effective, in that the limitation period takes effect even if the criminal case has been completed and the criminal charge has been brought to court for trial.
In the Tănase case the investigation did not achieve any tangible results after eight years, but the Court found no violation of Article 2 of the Convention, and added that the applicant could bring a civil case against identified persons (although without the opportunity to establish the degree of guilt of others who participated in the accident). In the present case the Court has found that the criminal-law remedy was not effective, in that it did not identify the persons responsible for the crime.
The Tănase judgment was adopted by the Grand Chamber and we must follow the approach taken in that judgment. Although it may seem that the issue of the effectiveness of the judicial system was limited to that of an effective investigation in Tănase , the Grand Chamber implicitly confirmed that the analysis should be broader and include several different criteria: the State ’ s positive obligations to establish safety rules (traffic regulations, for example); an effective investigation and trial in order to identify those responsible for the life-threatening injuries and to examine the issues of causal link and negligence; and the availability of civil action, preferably within the criminal proceedings.
The present case can be differentiated from the Tănase case with regard to the causal link and negligence issues. In the Tănase case the investigators concluded that the applicant ’ s car was moving at high speed and that the injuries were caused mainly by the applicant himself. In other words, the applicant created the substantive risk. In the present case the owner of the building did not comply with safety rules and left the construction site freely accessible, creating the substantive risk of potential injuries. The fall was caused by the partial destruction of the unfinished building and the absence of barriers therein to prevent the fall. Thus, the behaviour of the child and his mother (they allegedly did not take care to avoid an accident) was not a decisive (sufficient) element for establishing a causal link and not a convincing reason for the national courts to discontinue criminal proceedings.